Published: 20 June 2018
Author: Kellie Knowles
`Injured parties need to know about critical time limits for personal injury claims
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:
- 3 years from when the plaintiff discovers they have a cause of action; or
- 12 years from the date of the act or omission alleged to have resulted in the death or personal injury with which the action is concerned; whichever comes first.
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:
- (a) the length of and reasons for the delay on the part of the plaintiff;
- (b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
- (c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
- (d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
- (e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
- (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
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.