In Queensland, most plaintiffs have 3 years from the date of an accident to file a common law claim. Failing that, a plaintiff can only continue their claim if they file for an extension of the limitation period pursuant to s31(2) of the Limitation of Actions Act 1974. In order to be successful, a reasonable explanation for the delay must be given to the court in support of an extension of the limitation period.
An applicant may be given leave by the court under s43 of the Personal Injuries Proceeding Act 2003 (Qld) to start proceedings despite non compliance with the pre-court procedures of filing their claim as per Part 1 Chapter 2 of the Act. However, they must show that there is an urgent need to start the proceeding.
A person's circumstances when they are injured in an accident can be unique and critical in determining whether a delay is reasonable. It is extremely important that someone who has been injured in an accident seek advice from an Accredited Specialist in Personal Injury to be informed of their rights, especially if there are concerns that the claim might be approaching or passed the limitation period.
On 6 June 2006 the applicant slipped and fell off a ladder while inspecting a shipping container at Fisherman Island. He suffered significant damage to the ACL anterior fibers in his right knee.
The limitation period for his accident was 6 June 2009.
The applicant was covered by WorkCover benefits on until January 2007 and then he moved to the United Kingdom where he continued to work and live until April 2012. The applicant continued to suffer from pain and sought treatment in the United Kingdom for his right knee. Upon his return to Australia, he underwent surgery for his knee and was later advised that his knee might actually never recover from the accident.
The applicant served Part 1 of his claim to the defendant on 26 November 2013 along with an initial letter explaining the delay, as well as correspondence that followed afterwards.
The respondent argued against the applicant that the limitation period had expired and the applicant had no reasonable excuse for the delay.
In trial, the applicant argued that he thought he would fully recover and it was not until much later that he was advised this may not be the case:
“It was at this point that for the first time I realised there was nothing more the medical profession could do for my knee, that my knee was never going to fully resolve. It was also the first time that I had received specialist advice that my condition was permanent. Prior to that I held the belief that my knee may one day fully recover. I appreciated for the first time that my injury would have a substantive and long term effect on my employment which would be serious enough to justify the expense and risk of litigation.”
The court allowed the applicant to continue with his claim and accepted his explanation regarding his right knee injury.
In the circumstances, the court found an adequate basis to infer feasibility for the applicant's claim. The claim was also considered urgent because the applicant would only have 4 months from the judgement to the expiry of the extension period in order to continue his claim. His explanation for the delay was also considered reasonable in the circumstances.
A victim of an accident may have their rights adversely affected if they do not adhere to the strict timelines imposed by the courts to file a claim for their injury.
It is important that someone injured in an accident seek the advice of a Specialist in Personal Injury as soon as possible in order to be informed of their rights and ensure that the proper legal action is taken.
Feher v Commonwealth of Australia  QDC 145 1, 29.