Section 5 (1AA) of the Limitations of Actions Act 1958 (VIC) (the Act) clearly states that “actions for damages in respect of personal injuries must not be brought after the expiration of 3 years from the date on which the cause of action occurred”.
From this, it seems reasonable to conclude it’s too late for someone to commence proceedings 3+ years after the injury occurred. The reality is not what you might think.
The Limitations of Actions Act 1958 (VIC) contains “exemptions” to the 3-year limit to bring proceedings following a personal injury. This is because the connection between the event and injuries may not be established for many years, or it is unknown to the injured party. For the purposes of this article, we will examine the Court’s “discretionary power” to grant an extension of the limitations period under s 24A of the Act.
Why would the court grant an extension?
The Court looks at several factors to determine whether an extension is appropriate. The recent Victorian Country Court of Felmingham v Silvandale Transport Pty Ltd and Anor is a perfect example of the factors the court considers.
Background
In 2006, Mr Kevin Felmingham was tasked to pick up items by his employer; Silvandale.
When he went to complete his task, an employee at the premises accidentally struck him with a forklift, causing him to suffer an injury to the left side of his body.
Post-incident, Mr Felmingham went to see his GP, who advised that he undergo conservative treatments (physiotherapy, massages, and medication). Despite the treatments, Mr Felminghan suffered from headaches years after the injury, however, he was under the impression that they were unrelated to the injury and would eventually subside. It was not until 2019 when he consulted a different medical practitioner that he became aware these headaches were all connected to his injury in 2006.
Exemption
Under s 23A of the Limitations of Actions Act 1958 (Vic) there is an exemption to the 3-year limit on the basis that an extension is “just and reasonable”.
Just and Reasonable?
This essentially means that the Court found that Mr Fleminghan had reasonable grounds to have such a delay in bringing proceedings based on the following:
- He did not know his legal rights regarding the incident in 2006 and it was only in 2019 after consulting another medical practitioner that he became fully aware of his injuries.
- Once he became aware of his injuries, Mr Fleminghan took the steps to promptly issue proceedings.
- Silvandale (the defendant) had not suffered any prejudice. This means that the delay did not weaken the defendant’s case or cause them to be negatively impacted. Despite the incident occurring 16 years ago, there was enough evidence by way of documents regarding the incident and witnesses to provide evidence about the incident.
What does this mean for me?
It depends on whether you are the defendant or the plaintiff.
If you are the injured party, know that you it’s not too late to pursue your claim if you can prove you have “just and reasonable” grounds for the delay.
If you’re an occupier of the premises or an employer, you need to be mindful of any incidents that occur on your premises or in relation to your employees. This is because an action can be brought against you even if the limitation period lapses. It is good practice for you to save all records, document the incident, and obtain statements even if you consider the nature of the incident to be minor.
To find out more about whether an individual can make a claim against your corporation after 3+ years, contact Risksmart today.
Claims Executive