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Can I still make a personal injury claim if a time period has expired?

A range of time limits apply to the making of personal injury claims. To begin with, most personal injury claims are subject to pre-court procedures which are aimed at resolving claims by negotiation before commencement of court proceedings is necessary. In the case of motor vehicle and public liability claims, these pre-court procedures generally have to be commenced by notification within the earlier of:

  • 1 month from the date you consult a lawyer (motor vehicle accident claims) or you instruct a lawyer to act for you (public liability claims); or 
  • 9 months from the date the injury was sustained.

These periods can be extended as long as there is a “reasonable excuse for delay”. While these time limits should never be taken for granted, the requirements of so-called “reasonable excuse” are not particularly harsh. For example, simply being unaware of these time limits can be a reasonable excuse, and taking time to wait and see if your injury will recover can also be a reasonable excuse. What is “reasonable” in any given circumstance has to be assessed on a case-by-case basis. 

Work injury claims also involve pre-court procedures but these are not subject to the time limits mentioned above. The general 3-year limitation period on common law claims applies to these claims.

This 3 year period applies to most claims for personal Injury in Queensland, be they motor vehicle injuries, workplace injuries, or public liability injuries. It expires 3 years from the date an injury was suffered. We call it a limitation period.

The limitation period is a “hard” time limit. It cannot be extended simply with a reasonable excuse. Importantly, unlike the pre-court time periods referred to above, the fact that someone is not aware of the 3-year limitation period is not a basis for extending it. 

Taken by itself, this can produce unjust outcomes, especially where the claimant has no means of knowing the information required to make a claim. 

There is a classic case concerning building defects that illustrates this. In Pirelli General Cable Works Limited v Oscar Faber & Partners, a 1983 English case, it was held that a firm of engineers that had negligently designed a chimney was not liable to their clients who were not aware of the cracks that existed in the foundations and who only discovered the damage after the limitation period had expired. It was decided that the limitation period commenced when the damage occurred at the time of construction, and had expired even though the clients had no way of knowing about the damage.

Such is the state of the law without special provisions being made for the later discovery of new information.

Fortunately, in the case of Queensland personal injury claims, such special provisions exist. The Limitation of Actions Act 1974 provides that where a “material fact of a decisive character” is not within the means of an injured person’s knowledge until after the commencement of the 12 month period before the expiry of the 3-year limitation period, the claimant can still commence proceedings as long as they do so within 12 months after the date that fact ought to have been discovered.

So basically, where the limitation period has expired but the injured person has only just discovered something about their claim that they didn’t know before and could not have known about, they may be able to obtain an extension of time.

As indicated above, this discovery cannot just be about any fact, but a “material fact of a decisive character”.  “Material” means relevant to the ability to make a claim, such as the fact that there is an injury, or something about the way the injury happened, or the effects of an injury. In addition, the fact must be “decisive”. This means that the discovery of a fact would lead one to decide that there is a worthwhile claim for injury compensation. So by way of a very basic example, let’s say you have been injured at work and before the limitation period expires you are aware of 3 things the employer did or failed to do that caused your injury. If you then discover a 4th thing, that 4th thing may well be a material fact, but it is not decisive. Merely discovering that 4th thing, after the expiry of the limitation period will not permit an extension.

Similarly, where you are already aware prior to the expiry of the limitation period that you have a significant injury, the mere worsening of the injury after the expiry of the limitation period will not permit an extension of time.

But ultimately it is a matter of looking at each individual case. It is possible, for example, that someone who despite an injury manages to maintain employment may not have reason to think they have a viable claim if they are not suffering any loss of wages. But if the worsening of that injury after the expiry of the limitation period puts them out of that employment, there could be an opening for an extension of time in that instance.

There is one further consideration about the extension of the limitation period. This is called prejudice. An injured person who satisfies the “material fact of a decisive character” requirement still faces the hurdle of establishing that the defendant, or negligent party, is not unduly prejudiced by the lapse of time that has occurred. The defendant is able to point to the loss of documents, the death of witnesses, and generally the inability to be in a position to defend itself because too much time has passed for a fair trial to occur. Again, this is an issue to be assessed on a case-by-case basis.

So, pathways can exist for the extension of all of the time periods applicable to personal injury claims. You should never assume there is no claim just because a time limit has expired. It is a matter of seeking advice from an expert Personal Injury Lawyer about your particular situation.

Of course, prevention is better than cure, so it is always advisable to act in a timely way to investigate your rights to potential personal injury compensation as soon as possible after an injury has occurred.

John Vandeleur from vbr Lawyers
John Vandeleur
Director

Author

John has practised in the area of compensation law for over 25 years. He has extensive experience across all types of claims, and represents clients throughout Queensland, interstate, and overseas.

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