With a few exceptions, all claims for personal injury compensation are subject to time limits, meaning that unless a claim is commenced within a certain timeframe, the entitlement to compensation will cease. There are essentially two reasons for such time limits:
- They permit as far as possible a timely investigation of the facts and circumstances leading to the injury, and ultimately a fair trial of the issues if the matter ever proceeds to court; and
- Because the vast majority of personal injury compensation claims are met by insurance, they assist insurers to make financial provision for their ongoing claim exposure.
Most time limits are subject to exceptions and can be extended in certain circumstances.
The first and most essential time limit is to be aware of is the overall three (3) year period of limitation that applies to claims for common law damages, or court based claims. This period can be extended where it can be shown that the injured person has only recently discovered something that they did not know before about the nature and extent of their injuries. A classic example of this is where someone receives an injury that it is at first apparently of no significance. The three (3) year period expires and only then does the injured person discover that an underlying injury process has developed to the point that they are suffering significant loss, such as being unable to work. In that case the injured person can apply to the court for an order extending the limitation period.
Extensions of the three year time limit are not granted lightly. The fact that an injured person was not aware of the time limit is not a basis for extension. Furthermore, if for example the injured person is merely claiming that the symptoms of an injury became worse after the 3 years expired, as opposed to the appearance of entirely new symptoms, it will be difficult for that person to succeed in obtaining an extension of time.
This ability to extend the three (3) year limitation period is in itself subject to a further requirement that the defendant not be unduly prejudiced by the extension of time. So even where it can be shown that there is a basis for extension by way of discovery of new circumstances, the court can still deny the extension if the defendant can demonstrate that far too much time has passed for it to be able to properly investigate the facts and for there to be a fair trial of the issues.
Underneath that overall three (3) year limitation period, a number of other time periods apply depending on the type of claim that is brought. Generally speaking, all claims for injury are not commenced in court in the first instance but are subject to so-called “pre-court” procedures. In the case of claims for CTP Motor Vehicle Accident compensation and compensation for injuries such as slips and falls, similar requirements apply for the notification of pre-court proceedings, including that the notification must be given within the earlier of:
- Nine (9) months from the date the injury is suffered; or
- One (1) month from the date a solicitor is: (a) in the case of a motor vehicle accident, consulted; or (b) in the case of a slip and fall and other general type of injury claims, retained to act on behalf of the injured person.
A notification can be given outside of these time frames as long as there is a “reasonable excuse for delay”. Satisfying this requirement is generally not as difficult as obtaining an extension of the three (3) year common law limitation period, so for example the fact that the claimant was unaware of the time frames can form a basis for a reasonable excuse for delay. But that is not to suggest that these time frames should be taken lightly. It is always advisable for an injured person to act promptly in pursuing an entitlement to compensation, especially if they are already outside these “pre-court” time limits.
Work related injuries are also subject to pre-court processes but, unlike motor vehicle and slip and fall claims, these only need be notified within the common law three (3) year limitation period.
There are two significant exceptions to the application of time limits to personal injury compensation injury claims:
- Dust diseases – conditions caused by exposure to toxic dust, such as asbestos related disease and silica related disease, are not subject to any time limits for common law damages. These were removed to reflect the very specific nature of these conditions where significant symptoms might only appear many years after an exposure has occurred; and
- Institutional/sexual abuse claims – for similar reasons time limits have been removed for these claims, which often concern incidents occurring many years previously, although at least in Queensland there is still an ability for an institution to argue that they have been prejudiced by the passage of time.
This is nothing more than a general overview of time limits that apply to personal injury claims. The main thing to bear in mind is that if you have been injured you should act promptly to secure your rights by seeking legal advice as soon as possible. Even if you believe that a time limit has expired it is still worth seeking legal advice about what can be done, as an ability to extend the time may still be available.
This blog was written by John Vandeleur, Director
Phone: 07 3379 2513 or Toll Free 1800 316 716