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Published: 20 June 2018
Author: Kellie Knowles
Plaintiffs are sometimes unaware of the time limits to bring personal injury claims and find out all too late. Their claims are statute barred unless they can convince a court it is just and reasonable to grant them an extension of time to bring their claim.
In Victoria, the general limitation period to bring a personal injury claim is either:
For persons under a disability or minors the time limit from the date of discoverability of a cause of action is 6 years. These time limits are set out in the Limitation of Actions Act 1958 (the Act).
If you are injured at work, the time limit is six years. The six-year time limit also applies to transport accidents.
Discovering there are time limits to bring personal injury claims can come as a horrible shock. Just ask my new client Fred* who came to see me recently. He was injured at work a while ago and thought he might have a claim but did nothing about it. A friend at the pub finally convinced him he needed to see a lawyer.
Fred is badly injured, it is more than likely his injuries will satisfy the threshold test to sue for damages, and he had a good claim in negligence against his employer. In short, Fred has a great case. However, Fred was injured in 2006 and is six years out of time to bring a claim and unfortunately, he had no awareness that there were time limits.
Time limits on bringing claims are imposed for good reason. As the High Court has noted, a key reason is that delay can impair the quality of justice. The defendant’s position is another important consideration.
In Victoria, a court has a discretion to allow a plaintiff to bring a claim out of time if it is just and reasonable to do so, in all the circumstances of the case. The Act requires a court to specifically consider the following matters when deciding whether to grant an extension of time:
The plaintiff carries the onus of establishing it is just and reasonable to grant an extension of time to bring a claim.
There is reason to think a court may allow Fred to bring a claim out of time but, of course, there is no guarantee. Fred thought he might have a claim but did nothing about it. The best thing Fred can do now is act promptly on his claim. Understandably, Fred is worried and regrets not seeing a lawyer when he was first injured. He was young and had a family to support, so he just got on with life as best he could with a bad injury.
If you believe you might have a personal injury claim, don’t delay seeing a lawyer because the limitation periods are taken seriously by the courts, and for good reason.
*The name of the above mentioned client has been changed.
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