We’re often asked this question by people who are concerned there may be a cut-off period when wanting to lodge a personal injury claim for negligence.
Thankfully, the answer is yes, but only in some circumstances. The following will detail the related Australian Acts and exceptions to the rules.
What are the laws?
In all claims for negligence under the Motor Accidents Insurance Act 1994 and the Personal Injuries Proceedings Act 2002, a person will have three (3) years from the date the cause of action, incident arose to commence Court proceedings (Section 11 of the Limitations of Actions Act 1974).
Under the Workers Compensation and Rehabilitation Act 2003, a person will have three (3) years to commence a Court Proceeding from the date the cause of action, incident arose or to have obtained compliance of their Notice of Claim for Damages (section 302).
In cases that involve children, the child will have until three years following becoming an adult (ie, up to the age of 21 years).
What are the exceptions to the rule?
There are exceptions to the above that will enable a person to commence proceedings outside of three (3) years since the cause of action arose (section 31 of the Limitations of Actions Act 1974).
This exception will only arise if the following pre-requisites can be proven to a Court:
- There is a material fact of a decisive character relating to the right of action which was not within the means of knowledge of the Applicant until after the expiration of the limitation date.
- There is evidence of a prima facie (sufficient to establish a fact or raise a presumption unless disproved or rebutted) right of action in respect of each of the Respondent’s aside from a defence founded on the expiration of the limitation period;
- There can be a fair trial, even if the other conditions are satisfied. Such that the Court should exercise its discretion to grant the extension notwithstanding that the respondent’s may suffer prejudice in defending the action.
There are cases whereby a Court will exercise the discretion to allow a party an extension of their limitation period. Each case turns on its own facts. Factors such as the nature and extent of the injury and the fact of the occurrence of negligence or breach of duty on which the action is founded may or may not amount to a material fact of a decisive character.
The Court will assess the evidence, the timing of such evidence coming into the Applicant’s possession and the period of time since the accident (amongst other critical factors).