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Limitation Periods: How They Might Affect Your Case

Limitation Periods: How They Might Affect Your Case

A key principle of law is that justice, where possible, should be swiftly administered.

Justice delayed means that key elements of a case such as evidence and the recollections of the parties involved may not exist or may be unreliable by the time legal action is commenced.

This is the reasoning behind limitation periods on legal action, which most commonly apply to contracts and also torts such as negligence which results in personal injury, property damage and economic loss.

Limitation periods are time limits which mean that if a person does not commence legal action within the specified period, which begins from the date the ‘cause of action’ arose or was ‘discoverable’, then they are barred from doing so thereafter. Obviously missing a time limit to bring legal proceedings means a person with a valid claim may be left to bear the expenses related to their injury on their own.

Limitation periods vary between states and territories of Australia. One of the reasons it’s always wise to seek expert legal representation when you decide on pursuing legal action is because lawyers have the expertise and experience to be aware of relevant time limits on legal action, as well as whether you have any grounds to have the period extended.

What are some common limitation periods in personal injury?

Our specialty at BPC Lawyers is compensation for personal injury so we’ll concentrate on relevant time limits for that area of the law.

In NSW, if you had a claim for compensation because of an injury caused by the negligence of another party, you previously had three years to begin legal proceedings from the date of the injury.

Changes to the Limitation Act 1969 (NSW) (‘the Act’) made in 2002 mean that the person making the claim must first establish the date of ‘discoverability’, rather than when the injury happened, and then must commence legal proceedings within three years of this date.

Discoverability refers to situations where a person suffers an injury, but it may not become apparent until a later time. In these circumstances, the date of discoverability commences when a reasonable person would have become aware they had suffered injury causally related to a negligent act or omission. To make a claim, the party considered at fault for the injury must be clearly identified. The injury must also be sufficiently serious to justify a claim.

Discoverability is not difficult, obviously, when someone trips on a loose tile and breaks their leg falling over in a shopping centre, resulting in a potential public liability compensation claim. But in cases of medical negligence, for example, the discoverability of the injury can sometimes take several years.

For this reason, the legislation in NSW provides a ‘long-stop limitation period of up to 12 years in certain circumstances. Sections 62A and 62B of the Act set out the circumstances in which the limitation period can be extended by the court, taking into account:

  • the length of and reasons for the delay;
  • Whether the delay has caused prejudice to the defendant because evidence that would have been available during the original limitation period is no longer available;
  • the nature and extent of the plaintiff’s injury or loss;
  • any conduct of the defendant that induced the plaintiff to delay bringing the action;
  • the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;
  • the time when the cause of action was discoverable by the plaintiff.

It should be noted that personal injury claims in motor vehicle accidents under the Compulsory Third Party (‘CTP’) scheme were halved to three months from the date of the accident by the Motor Accident Injuries Act 2017, and 28 days after the accident to be eligible for compensation for income loss.

Worker’s compensation claims should be made within six months of the injury occurring, though you can make these claims up to three years after the injury occurs with ‘reasonable cause’.

Different time limits apply if you are making these claims as the relative of someone killed in a motor vehicle or workplace accident.

Special time limit provisions also exist concerning minors injured by close relatives and to claimants affected by a disability. Therefore, you should consult with our Personal Injury Lawyers at BPC Lawyers for expert advice if either of these circumstances applies to your case.

Why time limits are important

While courts have the discretion to extend statutory time periods in which a personal injury claim can be made, extension applications will only be successful if the court finds it would be ‘just and reasonable to grant an extension of time.

Additionally, it’s difficult for non-lawyers to stay on top of the differences in time limits depending on the type of claim – the time limits for workers’ compensation and motor vehicle accident claims are much shorter than public liability or medical negligence claims, for instance.

In any event, it’s important to consult accredited personal injury specialists at BPC Lawyers as soon as possible after you realise you have been injured in an accident so that you can obtain tailored advice and timely evidence can be collected to support your claim for it to be filed well within the relevant time limit.

Once you miss a time limit, it can be very difficult or impossible to bring legal proceedings for compensation, even where the accident was caused by the negligence of another party. Don’t be left out-of-pocket and with a reduced quality of life because you missed a compensation time limit.