Can you still make a claim?

Nov 17, 2023 | Publication

Many claims have limitation periods. A limitation period is a set time frame within which an aggrieved person must commence proceedings in a Court. These limitation periods generally commence from the date of the injury and/or incident. Some claims however, such as childhood sexual assault claims, do not have limitation periods. This extends to children who have suffered severe physical assault. 

The four main reasons for the institution of limitation periods are: ‘relevant evidence is likely to be lost with the passage of time; it is oppressive to a defendant to allow an action not be brought long after the circumstances which give rise to it have passed; defendants, including public institutions, should be able to utilise their resources on the basis that claims can no longer be made against them; and, there is a public interest in disputes being settled as quickly as possible’ (Brisbane South Regional Health Authority v Taylor HCA 25)

Generally speaking, personal injury claims have a limitation period of 3 years. That is, the injured person has three years from the date of injury to file a Statement of Claim with a Court for common law damages.

If you have suffered an injury however and the limitation period has passed, you may still be able to proceed with your claim by seeking an order pursuant to the Limitation Act 1969 to extend the time within which to commence proceedings. You, as the applicant, bear the onus of satisfying the Court that it is just and reasonable to grant an extension. 

The Court may consider whether such an extension would cause the defendant actual and significant prejudice, that is, when a defendant may be unable to fairly defend themselves. If the Court finds this, it will not grant an extension of time, however it is good to note that fair is not defined as ‘perfect or ideal’ (Commonwealth v Smith NSWCA 168).

The recent case of Winston v Commonwealth of Australia NSWSC 62 is a good example of this. Mr Winston was asleep on the HMAS Melbourne when it collided with another ship on 3 June 1969. Many of its crew were either killed or injured as a result. On 29 October 2019, Mr Winston filed a Statement of Claim (commenced proceedings) against the Commonwealth in relation to significant injuries resulting from the collision. Such injuries included PTSD, major depression and alcohol abuse. Clearly, the three-year limitation period had been exhausted and the Commonwealth sought that Mr Winston’s claim be barred pursuant to s14(1)(b) of the Limitation Act 1969.

The Court held however that it was both just and reasonable to order that the limitation period be extended up to and including the date upon which the Mr Winston filed the Statement of Claim.

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