Extension of Limitation Periods for Claims

You may have heard (or read from our previous article Personal Injury Claim Time Limits) that the law imposes a strict time limit of three years within which your personal injury claim must be commenced in court.

This is governed by the Limitation of Actions Act 1974 (Qld) (“the Act”). The exception to this, is if the injured person is a minor. In this event, the limitation date automatically extends to expire on their 21^st birthday.

After this time frame expires, it may be difficult or impossible for you to bring a claim for your injuries regardless of the merit or quantum of your case.

Under certain circumstances however, you may apply to the court to have a limitation period extended under Section 31 of the Act.

Under what circumstances will the court grant an extension of a limitation period?

Upon application for an extension of the limitation period, the court may grant the extension if it appears to the court:-

• that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
• that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.

What exactly does this mean? The court must be satisfied that there is a very important “material fact” unknown to the applicant (the injured person) until a year before the expiry of the limitation period, or afterwards. Further, there must be sufficient evidence to establish a cause of action.

If the above can be established, the court may order an extension of one year from the date the applicant had knowledge of the material fact.

Material facts

A material fact may be, for example, learning the identity of the defendant or the nature of the extent of the injury caused. Upon learning that fact or facts, a reasonable person having taken the appropriate advice on those facts, would regard those facts as showing:-

• that an action would have a reasonable prospect of success and result in an award of damages sufficient to justify the bringing of an action; and
• that the applicant should – in their own interests and taking their own circumstances into account – bring an action on the right of action.

These critical principles were recently discussed by Justice Crow in Wilson v Mackay Hospital and Health Service [2021] QSC 178. Justice Crow ordered that the period of limitation within which to commence an action for damages for personal injuries suffered by the applicant (arising from an incident that occurred in 1999 when the applicant was three) be extended up to and including, 25 June 2021 on the basis that the applicant had met the requirements of the Act.  You can read a copy of the decision here: https://archive.sclqld.org.au/qjudgment/2021/QSC21-178.pdf

If you would like advice in relation to your limitation period or in relation to an accident, please don't hesitate to contact our office.