Did you know that strict deadlines apply to personal injury claims?
These can vary from case to case; from one year, to three years or to six years. This is often referred to as a “limitations date”.
Personal injury lawyers are aware of the importance of always taking action before the expiration of limitations date. However, there are often situations that arise where clients seek legal advice and instructions are taken after the expiry of a limitations date.
In these circumstances, lawyers must consider making an application to the Court to allow an extension of time; thereby permitting the client to bring a claim outside of the limitations date.
Case study: Griffiths v Nillumbik Shire Council
The Supreme Court of Victoria Court of Appeal recently considered an application to extend a limitations date in the matter of Griffiths v Nillumbik Shire Council  VSCA 212.
Mr Griffiths was employed by Nillumbik Shire Council from 1991 to 2003. During his employment, Mr Griffiths sustained injuries to his left shoulder and both knees. In 2002, he lodged a WorkCover claim for his injuries and until 2003 continued to work with the Council in alternate duties before he was made redundant.
In 2008, Mr Griffiths sought legal advice about his work-related injuries. His lawyers provided him with information about his possible entitlement to compensation via WorkCover statutory benefits (basic entitlements) and a common law claim (further compensation awarded where an employer was negligent).
In making a common law claim for negligence Mr Griffiths was advised that the expiration of the relevant limitations date was approaching on 26 May 2008, being six years from the date of his injuries. Mr Griffiths’ lawyers further advised that he would have difficulties in succeeding with a common law claim for damages and action was not recommended. The lawyers recommended he obtain a second opinion if he wished to proceed with the common law compensation claim.
Mr Griffiths did not pursue a common law claim at that time.
In October 2012, the WorkCover Insurer terminated Mr Griffiths’ entitlement to his “medical and like” statutory benefits.
During 2012 to 2016, Mr Griffiths attended conciliation conferences with the Insurer regarding his ongoing WorkCover entitlements. During this time, Mr Griffiths continued to have treatment for his work-related injuries.
In December 2016, sought a second legal opinion. In 2020, Mr Griffiths new lawyers issued court proceedings in relation to a common law claim.
In its Defence, Nillumbik Shire Council alleged that the time for Mr Griffiths to commence a common law claim had expired and, as such, his claim was “statute barred”.
Mr Griffiths applied for an extension of time to commence the proceedings. Mr Griffith’s explanation as to why he failed to commence proceedings earlier than 2020 was because his injuries were not stable. The application for an extension of time was heard by the County Court of Victoria at first instance and the decision, that he was not entitled to an extension of time, was appealed by Mr Griffiths.
At paragraph 73 of the judgement, the Court of Appeal commented that:
“…a key part of the analysis is directed to the applicant’s knowledge of two matters: the existence of a cause of action against a potential tortfeasor and the existence of a limitation period which may defeat that claim…”
The Court ultimately decided that as at 2008, before the expiration of the limitations date, Mr Griffiths possessed the requisite knowledge of both the existence of a cause of action against Nillumbik Shire Council and the existence of a limitation period. As such, the Court decided that Mr Griffiths made a fully informed decision to not pursue a common law claim before the expiration of the limitations date. Accordingly, the appeal was not allowed.
Reminder for practitioners
This case serves as a useful reminder to both individuals considering a claim and for practitioners providing limitations advice.
If an individual is considering a claim and has received legal advice in relation to limitation dates but takes no action, the earlier advice they received will be relevant in determining if they should receive an extension of time.
For legal practitioners, inquiring about prior legal advice is important when a client approaches you for initial advice “out of time.” Additionally, advice about limitation dates should always be put in writing as the advice given may become relevant, and may become evidence, in an application for an extension of time.