As with most things in this life, there are limits on how long you can take to decide that you should sue someone for injuring you. Traditionally you had to sue (ie file a claim in a Court) within three years of the date you were injured.
Although most people, even some lawyers, don’t know it, on 6 December 2002 the law in NSW changed. As part of the now famous “tort law reform”, the Limitation Act 1969, which governs the time within which you must sue, was changed dramatically. As one judge recently put it, this is a whole new system.
Unlike the old way of determining when you have run out of time to sue, the new way does not depend upon a strict counting of three years from the date of the act or omission that resulted in your injury. Instead, you now need to establish the “date of discoverability” of three separate things:
1. The Fact that the Injury or Death has Occurred
This seems fairly simple where you have had a car accident or fell down a flight of stairs at the shopping centre, but there are cases where you don’t know you have been injured until a long time after the incident that gives rise to your injury. The asbestos cases are a good example of such a situation, where people didn’t know that they had inhaled asbestos or that the asbestos fibres had grown into lung tumours for many years.
Under the old system, to get an extension of time past the three year limitation period, you had to convince a court of various things, one of which was that you did not know that you had been injured. The new system seems to have simply reworded the old version.
2. The Fact that the Injury or Death was Caused by the Fault of the Defendant
Again, sometimes this is a fairly simple thing to determine, such as in the case of a rear-end car accident where you have the registration no. of the car that hit you. The provision can be, however, far more complex than it first appears. It involves two quite different concepts, ‘causation’ and ‘fault’, which are legal terms. There are situations where you may not realise that your injury was caused by the fault of a particular person without obtaining legal advice on the matter. Similarly, you may not know or understand the chain of events that ultimately led to your injury, so could not conclude that the injury was caused by any particular person’s act or omission.
Then there are the cases where an injured person did not in fact know that their injury was caused by a particular person, but ought to have known. This can occur when someone should have taken some steps to find out the circumstances of their injury or when they should have sought legal advice but hadn’t yet decided to do so. The problem with these sorts of situations is that under the new law the NSW Courts will decide when the injured person should have known that his or her injury was caused by the Defendant and will “start the clock” so to speak from that date.
3. The Fact that the Injury was Sufficiently Serious to Justify Suing
There has been one case argued in the NSW District Court on this point. The Judge determined the date on which the injured person ought to have concluded that the injury was sufficiently serious to justify suing by referring to her medical treatment records. Despite the fact that her doctors were telling her that she would get better, the Judge decided that after a particular point, she should have realised that her symptoms were not improving and so decided that was the date on which she should have realised that her injury was sufficiently serious to justify suing. The date the Judge chose was in fact nearly two years prior to the date on which she actually decided to see a lawyer about her injury.
The Judge’s decision shows that you should follow all reasonable and proper medical advice and have any necessary treatment but even if you do so you may not be able to rely on doctors telling you that you will get better – there is a point at which an injured person should come to realise that they are not getting better and seek legal advice.
Major Differences between the New and Old Systems
Under the old system, where a Defendant could show prejudice if the injured person was allowed to sue ‘out of time’, then the Court would not give the injured person extra time to sue. Known as the ‘prejudice’ concept, this has typically been the deciding factor in many applications to extend time.
Under the new system, it is possible that prejudice is not relevant to the ‘date of discoverability’. This could make an enormous difference to people who want to sue more than three years after they were injured. To date no case has been run in the courts that is covered by the new legislation but which would have been rejected because of prejudice if the old law applied. Whether or not prejudice is relevant is therefore an uncertain issue at this time.
(b) So How do you Know When you have to Sue?
Obviously the best thing to do when you have been injured and suspect someone else may be at fault is to consult a solicitor as soon as possible. It is never too early, but sometimes it is too late. Your solicitor will need to go through the circumstances of your injury and its consequences carefully before being able to advise you about when your ‘date of discoverability’ is likely to be. You will then have three years from that date in which to sue the person responsible for your injuries.
(c) What if you haven’t sued within 3 years of the Date of Discoverability?
Once the ‘date of discoverability’ is determined (either by agreement between the parties or by a finding of a Judge) then you must commence proceedings within three years. If you do not, there is no capacity to ask the courts for an extension of time. This is very different to the old law.
The new law on the limitation period for personal injury matters in NSW is very different from the old law. It relies on a totally new concept of ‘date of discoverability’ and once that date is reached, there is a strict three year time limit within which to commence proceedings. These changes make it even more important that injured people consult a lawyer as soon as they realise that they might have a claim.
By Katherine Oldfield