In Queensland the various Acts that govern the rights of individuals to sue for damages for personal injuries suffered in motor vehicle accidents, work related incidents or public liability incidents provide that if a claim is not lodged pursuant to the relevant Legislation within three (3) years of the date of injury, that claim is barred.
The time limit for bringing an action is not restricted to personal injury actions and there are also time limits on claims for breach of Contract – six (6) years; recovery of land – twelve (12) years; an action in respect of Trust property – six (6) years; claims for further and better support from an estate – nine (9) months.
Section 31 of the Limitations of Actions Act 1974 (Qld) provides that an extension of the limitation period can be granted by a Court.
In order to obtain an extension, an Applicant must show that a material fact of a decisive character was not within their means of knowledge until a date no more than twelve (12) months prior to the date to which the extension is granted.
The Applicant must show that they have a right of action and that no prejudice has been suffered by the other party through their delay. In practical terms, in personal injury claims the material fact is normally knowledge that a person obtains subsequent to the 3 year limitation period as to the nature and extent of the injury originally suffered.
By way of example; a person may suffer a fractured ankle, undergo medical treatment involving the plastering of the ankle, non weight bearing for a period and then return to work with some stiffness of the ankle. Five (5) years later they may find that arthritic changes have occurred in the ankle, the pain suffered on walking affects the person’s gait which in turn may have consequences with respect to low back pain and their ability to carry out their employment that they have engaged in for a number of years.
On referral from their General Practitioner to an Orthopaedic Specialist they become aware of the fact that the arthritic changes have occurred, they may require further surgery, possibly a fusion of the ankle and there will be consequences with respect to their ability to work. At this stage the individual has concerns for their future.
The question always arises as to whether the injured person has taken reasonable steps to ascertain the seriousness of the injury.
The answer to this question depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights.
It is difficult to say that a person who finds himself able to get on with life, and returns to employment without significant pain or disability merely because he fails to ask for opinions from his doctor about the prospect of future disability or effect upon his working capacity. (Healy v Femdale Pty Ltd).
The Law encourages individuals who have been injured, received appropriate treatment, undergone rehabilitation and who are able to get on with their lives not to seek legal redress in every circumstance. The Courts, in dealing with applications to extend the limitation period, acknowledge that parties who have acted reasonably should not be prejudiced as a result of changed circumstances that were not reasonably contemplated in the three (3) years subsequent to being injured.
If require advice with respect to any claim that is out of time because of the expiration of the three (3) year limitation period, please feel free to speak with one of our Solicitors at Macrossan & Amiet for advice.
