A worker who lodged a bullying claim more than 3 years after the limitation period has been granted an extension of time to have her case heard.
The worker claimed that during her employment at Holyoake Industries Pty Ltd between 1998 and 2008, she was subjected to repeated acts of sexual harassment, verbal abuse, bullying, racism and physical intimidation. She allegedly made repeated complaints to her employer which it failed to adequately respond to.
This treatment resulted in her developing a severe psychiatric injury and becoming incapacitated for work. She is still unable to work to this day.
Around 2012, the worker conferred with a barrister about making a possible common law claim against the employer, but decided not to go ahead after she was told she would have to pay up to $70,000 in legal fees.
The worker then lodged a serious injury application with WorkSafe Victoria in 2017, suing the employer for common law damages. The 6-year limitation period to claim had now expired and the employer pleaded a limitations defence.
Earlier this year, the worker’s general practitioner provided a medical report stating that the worker didn’t have the ability to understand any legal advice, or the psychological capacity to give appropriate instructions. He stated in his opinion the worker had suffered this incapacity for the past 5 to 6 years.
The worker’s daughter was then appointed as her litigation guardian. She then applied for an extension of time in the Victorian County Court.
In the hearing, Judge Andrea Tsalamandris said she was “satisfied that [the worker] did not understand the common law process and did not appreciate the limitations advice given to her by reason of her impairment”.
However, the employer submitted that the 9-year delay from the claimed injury date could prejudice its ability to defend the claim, as some witnesses could not be located and others might not be able to recall what happened.
Judge Tsalamandris accepted this argument, but felt that there was sufficient evidence for a fair trial.
“Whilst I accept the absence of these witnesses must prejudice, to some degree, the defendant’s ability to defend this claim, I am not satisfied that any such prejudice cannot, at least in part, be overcome by the contemporaneous documents [the employer] holds for the period in which [the worker] complained to [the employer] about her treatment by co-workers,” she said.
“Having considered such evidence in its entirety, whilst accepting that there is both presumptive and actual prejudice suffered by [the employer] in this matter, there are several critical witnesses and numerous contemporaneous documents available which enable [the employer] to defend this matter.
“I do not consider any prejudice to be so significant that a fair trial is not possible.
“I am satisfied that this disability is a very significant contributing factor in [the worker’s] decision not to pursue her common law claim within time.
“I am also mindful that, if an extension of time is not granted, [the worker] will have no further entitlement to claim damages for the injury she claims to have suffered as a result of [the employer’s] negligence, during the course of her employment.
“Having considered all of the relevant factors, I have concluded that it is just and reasonable for [the worker] to be granted an extension of time in this case.”