OLDFIELD V MARIO VERROCCHI & EAST YARRA FRIENDLY SOCIETY PTY LTD t/a CHEMIST WAREHOUSE  QSC 84
The applicant sought an extension of time in which to take action against her former employer, Chemist Warehouse. She alleged that she developed Adjustment Disorder with Anxiety as a result of bullying and harassment whilst in their employ.
In support of her application, the applicant submitted a report by a psychiatrist, Dr Relan. She submitted that she was unaware of the true nature of her condition upon receiving the report of Dr Relan.
In October of 2012, Chemist Warehouse moved the applicant from a warehouse in Geebung to another on Banyo. It was her treatment by staff there that the applicant contends was the cause of her injuries. The applicant had existing anxiety issues associated with the loss of her father, and illness of her mother.
In April 2013, she presented to her GP complaining of the bullying. Her GP gave her a referral to a psychologist. The applicant complained of the bullying to her area manager, and to the respondent’s human resources department. The applicant told her GP she had been humiliated and belittled by her manager, and gave the example of being addressed as ‘Forest Gump’.
In May 2013, the Applicant consulted Trilby Misso for advice on pursuing a claim for damages. She received a letter of advice containing a confirmation that “[You] do not want us to take action on your behalf at this stage”. The letter further advised the limitations periods in which the applicant needed to bring a WorkCover claim. On 5 June 2013, the Applicant completed a WorkCover claim in relation to the psychological injury suffered as a result of bullying.
A change of personnel at the Applicant’s workplace resulted in an improvement in the applicant’s workplace experience, and she gave positive reports to her GP and psychologist by 29 October, who reported a ‘significant improvement in mood’.
On 29 November, the Applicant consulted Trilby Misso again, and they indicated they would not act on a no-win no-fee basis on that occasion, but that that should not be taken as an opinion on her prospects of success. By affidavit, she indicated that she understood her claim would likely consume ‘tens of thousands of dollars’ and that she did not have that financial means. Further, as Trilby Misso were experienced injury lawyers, that if they did not consider it worth pursuing, it was not worthwhile her pursuing it further.
In September 2014 the applicant attended a training course to use a forklift. During the course she felt that the trainer was ‘putting her down’, and it ‘completely broke her’. As a consequence she made an attempt on her own life on 7 September 2014 using a stockpile of Serepax tablets. She recovered.
On 11 February 2015 the applicant attended her GP and told him that returning to work was difficult. She subsequently saw another psychologist, and reduced her work hours to 20 hours per week. In January 2016 she sought advice from Schultz Toomey O’Brien because she believed her problems were unresolved. They sought a Permanent Impairment Assessment from WorkCover. Consequently she was examined by Dr Relan.
Dr Relan’s opinion was that the applicant suffered from Adjustment Disorder with Anxiety due to the bullying she suffered at Chemist Warehouse in June 2013 in respect of which she lodged her initial WorkCover claim. Furthermore, he considered that the Applicant suffers ongoing Generalised Anxiety and Anxious Avoidant Personality Disorder and that she suffered chronic residual symptoms.
Was there a material fact which was not within the applicant’s knowledge until after the beginning of the year last preceding the expiration of the limitation period?
Was that material fact decisive in the Applicant’s decision not to pursue a claim against the respondent?
Is there evidence which establishes a right of action?
Should the court exercise its discretion to extend the limitation period?
FINDINGS AND CONCLUSION
The relevant date is 12 May 2015. If the applicant could show that on that date (at the earliest) she was not aware of the nature and extent of the psychological harm she suffered in June 2013.
The applicant submitted that the material fact of which she was not aware was the substance of Dr Relan’s report diagnosing her with Adjustment Disorder and Anxiety. Dr Relan’s report suggested a degree of permanency in the Applicant’s condition, and that must be regarded as a material fact regarding the nature and extent of the harm she suffered.
To be a ‘decisive fact’ the fact must be one which would give a reasonable person to regard that there would be a reasonable prospect of success if they decided to take action such as to justify taking the action, and that they ought to do so in their own interest.
The Applicant submitted that in late 2013 she experiences a marked improvement in her psychological wellbeing, and that this had a bearing on deciding not to pursue an action against the respondents. This was three years prior to Dr Relan’s report identifying the bullying as a key factor in the deterioration of her health from 2013-2016. However, Dr Relan’s report identified her chronic conditions as ‘mild’ and ‘underlying’ rather than stemming from her June 2013 injuries. Furthermore, she had taken the step of getting legal advice on two occasions prior to the limitation period running-out. That alone was sufficient to reject the application.
Furthermore, the Applicant had not taken all the steps reasonably necessary to ascertain whether she would suffer any ongoing or chronic impairment when she consulted her GP and psychologist in 2013. Had she inquired of the psychologist, the diagnosis of Adjustment Disorder.
Injuries, physical and mental, can often have long-term impacts on a person’s health and general wellbeing. It is important to seek medical advice early on in order to both establish a treatment plan, and also to ensure that any potential claims will be made properly and in a timely manner.
 Limitation of Actions Act 1974 (Qld) s30(1)(b).