When making a claim for personal injury, there are strict time frames that govern whether you can or cannot make a claim.
However, it is important to also be aware of the legislative provision that enables an injured person to extend the limitation period in certain circumstances.
This article outlines what those circumstances are, and how the Court has applied the law in particular situations.
THE NORMAL COURSE OF EVENTS
Different legislation will apply depending on the circumstances of the injury – that is, if the personal injury occurred at work, in a public place (such as a shopping centre), or as a result of a motor vehicle accident.
There are a number of provisions in each piece of legislation that govern the time frame for bringing a claim. It is important to review the relevant Act closely to ensure compliance with its requirements.
General Personal Injury Timeframes
As a general rule (but for motor vehicle claims involving the Nominal Defendant) an injured person must commence a claim for personal injury within three years from the date of the injury.
In personal injury motor vehicle claims involving the Nominal Defendant notice must be given within 9 months of the accident.
If a claim is not commenced within these time frames, the claim may be statute barred and the injured person may not be entitled to compensation or damages for their injury.
WHAT IF THE CLAIM IS OUT OF TIME?
If the ordinary limitation period described above has expired, an injured person must make an application to the court under Section 31 of the Limitations of Actions Act (Qld) 1974 (‘the Act’) to extend the limitation period. In order to extend the limitation period, the Court must be satisfied that there was a material fact of a decisive character that was not within the injured person’s knowledge until after the limitation period expired. There must also be sufficient evidence to establish that the injured person has a viable claim and that the defendant will not be unreasonably prejudiced by the delay.
WHAT IS A “MATERIAL FACT OF A DECISIVE CHARACTER”?
According to the Act, a material fact includes the fact of the occurrence of negligence, trespass, nuisance or breach of duty. The relevant material fact will be of a decisive character if, but only if, a reasonable person, knowing those facts and having taken appropriate advise on those facts, would regard them as showing:
- That an action would have a reasonable prospect of success, resulting in an award of damages sufficient to justify bringing the action; and
- That the person whose means of knowledge is in question ought to, in their own interests and taking their circumstances into account, bring an action on the right of action.
The Act makes it clear that a material fact will not be considered in the injured person’s means of knowledge at a particular time if they did not know the fact at that particular time, and had taken all reasonable steps to find out.
HOW HAS THE COURT APPLIED THIS PROVISION?
The application of these provisions to the facts of any particular case can vary and is at the Court’s discretion. It has been noted that, normally, the discretion to extend the limitation period will be exercised in favour of the injured person (‘the applicant’) unless there is a relevant prejudice to the respondent.
The case law has helpfully clarified the requirements for succeeding in an application to extend the time period. The applicant bears the onus of showing:
- That a material fact;
- Of a decisive character;
- Was not within his or her means of knowledge until a date no more than 12 months prior to the date to which the extension is granted;
- There is evidence to establish a right of action; and
- That no prejudice, in the relevant sense, would be occasioned to the respondent that would justify disallowing the application.
There is no hard and fast rule on when a Court will or will not grant an application to extend the limitation period. Some examples of when the Court has chosen to extend the time period that can be extracted from the case law are:
- The provision of a medical report that provided evidence that the incident caused a permanent whole person impairment, which made the applicant more susceptible to a lower back injury in the future and rendered it inadvisable for the applicant to engage in occupations requiring heavy lifting or bending.
- Knowledge, after the critical date, that the applicant had a worthwhile liability case, and an injury that was both ongoing and sufficiently serious that it would permanently interfere with his employment. The critical enquiry in that case was when material facts that have the necessary quality of decisiveness are within the means of knowledge of the applicant.
- The inability to work in the applicant’s previous employment, some years after the initial injury, that resulted in the applicant taking a new (and lower paying) job, was of a decisive character and was not in the applicant means of knowledge until he obtained further expert opinion.
Conversely, there have also been incidences where the Court has refused to extend the time period:
- The applicant in a potential medical negligence case was found to have been aware of physical and functional issues in relation to her leg since she was at least 18. None of the facts, considered separately or together, were material facts of a decisive nature not within her means of knowledge prior to the critical date. There was also a significant prejudice against all of the respondents and a significant chance that they would be unable to fairly defend themselves, given the relevant events took place over 40 years ago.
- The application was rejected in circumstances where the applicant failed to take all reasonable steps to find out the nature and extent of his injury.
- The applicant gave no good explanation as to why she failed to take appropriate steps to ascertain the true cause of her symptoms within time. On her own account, the severity of the symptoms would and should have caused a reasonable person to embark on such an enquiry at some earlier point in time.
WHAT DOES IT MEAN FOR YOU?
Section 31 of the Act cannot be relied upon to provide a way to bypass the legislation’s strict limitation periods in every case. If you are an injured person considering commencing a claim for personal injury, you should speak with a solicitor about your claim as soon as possible.
If you have any questions regarding this article, we recommend you contact Emily or Pat and the Personal Injuries Team on (07) 4637 6300 at Toowoomba or send a direct enquiry via our online direct enquiry form.
 Ballingall v WorkCover Queensland & Ors  QSC 133
 Ferrier v WorkCover Queensland  QSC 11,  –  citing Dick v University of Queensland (2002) 2 Qd R 476
 Ferrier v WorkCover Queensland  QSC 11
 Ballingall v WorkCover Queensland & Ors  QSC 133
 Burgess v Sanbray Pty Ltd  QDC 132 (24 May 2017)
 Lang v McArthur  QSC 119
 Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd  QDC 143