The Personal Injury Lawyers set another precedent

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On 14 November 2012, His Honour Justice Lyons, handed down his decision in the Supreme Court at Brisbane in the matter of Brown v Marine Contracting Pty Ltd and Ors [2012] QSC 228. 

The case involved an application by Mr Brown under s.31 of the Limitations of Actions Act 1974for leave to bring his claim for a head injury sustained in the course of his work, outside the 3 year limitation period.

Mr Brown had suffered ongoing difficulties with his memory, concentration and balance since the work accident in September 2004, and after seeking medical advice as to the cause of his problems was found to have a pituitary tumour.

Mr Brown underwent surgery in 2006 to have the tumour removed, however,he continued to suffer with these cognitive problems post surgery.

Further Brain scans revealed due to Work Injury

Upon further enquiry with medical specialists, and after undergoing further scans of his brain, Mr Brown was informed that his ongoing problems were most likely due to his head injury at work and not the pituitary tumour or its surgical removal.

However, this advice was not definitive in that, Mr Brown was told that further neuropsychological review would be required for a more definitive diagnosis to be made.

Mr Brown brought his claim for personal injury within the 12 month period following such advice, however outside the 3 year limitation period.

At the commencement of his claim, Mr Brown was sent for review by Neurosurgeon, Dr Scott Campbell, who provided his definitive opinion that the head injury Mr Brown suffered in his work accident in 2004 was the most likely cause of Mr Brown’s ongoing cognitive deficits and not the pituitary tumour or its removal.

The Court ordered his personal injury claim be extended

The Court ordered that Mr Brown’s limitation date for bringing his personal injury claim be extended to a period 12 months from the date of the more definitive opinion of Dr Scott Campbell, thereby validating his claim.

The Court considered that Mr Brown really did not have sufficiently definitive evidence that his ongoing cognitive problems were due to the head injury at work, making it reasonable for him to bring his personal injury claim, until he had received the expert opinion of Dr Campbell to this effect.

The Personal Injury Lawyers were therefore successful in extending Mr Brown’s limitation period and restoring his right to make a claim for the head injury he had sustained in his work in 2004.

Upon succeeding on his Application, Mr Brown sought recovery of the legal costs he had incurred in bringing the Application.

The Personal Injury Lawyers saw a loophole

Workcover Queensland (the insurer for Mr Brown’s former employer who was a Respondent in the Application), raised strong argument that Mr Brown was not entitled to any costs of the Application due to workers’ compensation legislation which relieves an employer in Queensland from having to pay such costs (the Workers’ Compensation & Rehabilitation Act 2003 & associated Regulations).

The Personal Injury Lawyers saw a loophole in the legislation raised by Workcover Queensland.

The Personal Injury Lawyers, on Mr Brown’s behalf, argued that, upon a proper interpretation of the legislation, the exclusionary provisions of that Act did not actually apply to Mr Brown’s case.

Judge Ordered that Workcover Queensland pay Mr Brown’s cost

His Honour Justice Lyons agreed with this submission. In his decision handed down on 14 November 2012, his Honour agreed that the Application by Mr Brown was not one to which the legislation applied and he ordered that Workcover Queensland pay Mr Brown’s costs of the Application.

His Honour Justice Lyon’s Decision is set out at Brown v Marine Contracting Pty Ltd & Ors [2012] QSC 345.

The Order that Workcover Queensland meet the costs of Mr Brown’s Application is ground breaking in Queensland. No such order has previously been made in any Application such as that brought by Mr Brown in Queensland since the introduction of the Workers’ Compensation & Rehabilitation Act 2003 and its associated Regulations in 2003It is A FIRST in Queensland personal injury law.

Paving the way for future Plaintiffs to have entitlements to costs

This decision has paved the way for future Plaintiffs to have entitlements to costs for interlocutory Applications in master/servant personal injury claims in Queensland.

This case has already been used by other Plaintiffs to achieve an extension of their limitation period and to obtain recovery of their costs of bringing such an Application.

In a recent District Court case determined on 19 November 2012, a Plaintiff sought an extension of time to bring his claim for injuries he sustained as a consequence of a blast he was exposed to during his work.

Following the blast, the Plaintiff experienced a period where he suffered from a ringing in his ears (Tinnitus) but this resolved within a short period.

Outside his 3 year limitation date for bringing his personal injury claim

A number of years later, outside his 3 year limitation date for bringing his personal injury claim, the Plaintiff began to experience severe Tinnitus, to the point where he could not work and he became suicidal.

The Plaintiff was told by doctors that the Tinnitus could be from a neuroma, or possibly the blast he was exposed to years before.

After undergoing testing, no evidence of neuroma was found and so doctors advised the Plaintiff that the Tinnitus he was experiencing was from the blast years previously.

The Plaintiff had made a personal injury claim within the period 12 months of being told of this by his doctors.

Good reason to extend his limitation date for bringing his personal injury claim

The District Court held that the Plaintiff had a good reason to extend his limitation date for bringing his personal injury claim outside the 3 year period.

It extended the limitation period of the Plaintiff to 12 months from the date he received the medical opinion of his doctors following testing.

In making its determination, the Court relied on the decision of Brown above.

The Plaintiff was also awarded costs of the Application on the basis of the decision of his Honour Justice Peter Myers in Brown, that such applications are not excluded from an award of costs by the cost restrictive provisions of the Workers’ Compensation & Rehabilitation Act 2003 and its associated Regulations as referred to above.

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