DON’T MISS THE COMMON LAW LIMITATION DATE IF YOU HAVE A WORKERS’ COMPENSATION CLAIM?

The consequences of missing a Common Law limitation date in your Workers’ Compensation Claim was addressed in the judgment of his Honour O’Neal DCJ in Kent v Mullally [No 2] [2016]  WADC  37.

In this matter Mr Kent was employed as a scaffolder by Thiess PTY Ltd at Alcoa Australia Limited’s Pinjarra Refinery.  Whilst on site working under hazardous conditions, Kent sustained a serious head injury and an injury to his left shoulder.

Kent subsequently consulted with the Defendants’ (who are Compensation Specialists) to seek Workers’ Compensation from his employers insurer.

Kent’s claim was initially correctly lodged and he began to receive weekly income payments. The Defendants’ however omitted to advise Kent that he could commence proceedings against Alcoa, (the owners of the site) which had to be instituted before the expiry of 3 years from the date of his injuries.

By the time Kent became aware that he could sue Alcoa, his claim had become statute barred pursuant to the provisions of the Limitation Act 2005 (WA) i.e. 3 years had elapsed since he sustained the injuries and he could no longer sue Alcoa.

It was clear from the evidence that Kent was never advised of the existence or effect of the three year limitation period due to the Defendants failure to inform him thereof. In the subsequent proceedings against the Defendants Kent alleged that they had breached their duty to exercise reasonable care, skill and diligence in not advising him which was a breach both in negligence and in contract. Kent subsequently commenced proceedings against the Defendants for his loss of opportunity to bring a common law claim against Alcoa, his Honour concluding that the Defendants had in fact breached their duty towards Kent and ordered them to pay his damages.

At A&E Legal, we are specialists in Personal Injury Compensation claims arising from an injury at work.  If you intend to, or have made a Personal Injury Compensation Claim with your employer, its Insurer or WorkCover (WA) and require expert guidance to ensure that you receive the maximum compensation due to you, please contact us for a no obligation free consultation in order for us to assess your claim and advise you accordingly.

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