The Limitation of Actions Act 1974 (Qld) specifies that an action for personal injury cannot be brought after 3 years from the date on which the cause of action arose. This generally means 3 years from the date the injury occurred.
There are a number of mandatory steps an injured person must take before the expiry of the 3 year limitation date. Once the 3 years have passed, an injured person is “statute barred” from making a claim.
However, there are some exceptions that apply to this rule.
How can the 3 year time limit be extended?
Section 31 of the Limitation of Actions Act 1974 (Qld) grants the Court the power to extend the limitation period in certain circumstances. This involves making an application to the Court and paying the appropriate filing fee.
To allow this extension, the Court must be satisfied that a very important “material fact of a decisive nature” was not known by the applicant until a year before the limitation period or afterwards, AND there is enough evidence to establish a cause of action.
Some examples of a “material fact” are:
- the fact that the other party’s negligence caused personal injury; or
- the nature or extent of the personal injury caused by the negligence.
Just because an injured person did not realise they could bring an action is NOT a material fact. In a recent case of Ballingall v WorkCover Queensland & Ors the Court allowed a mine worker an extension of time after he injured his back when thrown around in a driftrunner, whilst driving underground. The extension was granted because the Court was satisfied that even though the injured worker had received medical treatment, he only knew his back injury was ongoing and sufficiently serious to permanently interfere with his employment after the 3 year time limitation had passed, AND he had a cause of action in negligence due to the employer’s driftrunner having limited suspension, worn seats and the mine roads being in “terrible condition”.
In most cases, the court will grant an extension where it was not possible for the injured party to know that the negligent act resulted in harm and the extension will not cause prejudice to the other party. If granted, the Court can only order an extension of 1 year from the date the applicant obtained knowledge of the “material fact”.
Are there other circumstances where the time limit can be extended?
If the injured person is a child, an action to recover damages in respect of the injury can only be brought by that person when they reach the age of 18 years. The 3 year time limitation will then expire once they turn 21 years of age.
Some types of injuries are also considered differently by the law, such as dust related conditions caused by exposure to coal dust, asbestos or silica. Different criteria applies to these types of claims, particularly if the injury has occurred over a period of time.
It is therefore vital that an injured party seeks legal advice without delay to ensure important time limitations are not missed. If you delay, you could lose your rights completely.