Question: Are there time limits surrounding public liability claims?
If injured on public or private property, there may be a claim available to you against the owner or the occupier of those premises. In order to be successful, it would be necessary to establish, ultimately to the satisfaction of the court, that the injury sustained arose as a result of the negligence of the owner or occupier in that they had breached their duty of care to you. It would also have to be proven that the breach of duty of care caused or materially contributed to the injury sustained.
Generally speaking, there is three years from the date of the accident or injury suffered to commence legal court proceedings in such a claim.
However, determining the three-year limitation period can sometimes be more complicated than what would otherwise appear to be the case. The law provides that the three-year limitation period commences to run from the time that the cause of action first accrues to the injured person.
This raises the question of when the cause of action first accrued. It has been decided that this occurs when the reasonable person in the position of the injured person, becomes aware that they have suffered an injury brought about by the negligence of another. It would also be necessary for the injured person to be able to identify the person at fault and that the injury was of sufficient severity to enable a claim to be brought.
It is a relatively simple matter to be able to determine when the cause of action first accrued in the case of a slip or fall. However, difficulties arise when dealing with injuries which are latent in nature (take many years to present). This can be the case in a medical negligence claim when the negligence of the treating healthcare professional may not be known for many years.
The relevant legislation provides for a “long-stop limitation period” of up to 12 years in some cases. The limitation period can be extended by the court on the application of the injured person who would need to establish, to the courts satisfaction:
- The length of the delay and the reasons for same
- whether the defendant has suffered any prejudice by reason of the delay. For example, if the defendant is able to establish that their ability to defend the proceedings has been prejudiced by the delay, then this will be taken into account by the court when determining whether an extension of time is granted. Prejudice may take the form of, for example, the loss of evidence that otherwise would have been available had the proceedings been brought during the original limitations period.
- The nature and extent of the injury sustained by the plaintiff
- a consideration of any conduct on the part of the defendant which may have been responsible in some way for the delay
- what, if anything, the plaintiff may have undertaken so far as the seeking of appropriate legal and/or medical advice
Given the imposition of strict time limits in the prosecution of all public liability claims, you should not delay in seeking the expert legal advice and representation Brydens Lawyers can provide. Do not delay. Contact Brydens Lawyers today on 1800 848 848 or @brydens.com.au for a free, no-obligation assessment of your claim.
At Brydens Lawyers -#WEDO public liability claims.