TGB personal injury lawyer and partner Mal Byrne explains why it is crucial to know your compensation claim limitation date, and that relying on a extensions of time is not a good plan.

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There is a three year limitation date on personal injury claims in South Australia.  The limitation date is effectively the expiry date of a plaintiff’s claim. If a claim has not been finalised, Court proceedings have to be filed before three years elapses from the date of injury to protect the claim from expiry. The date from which the three years commences is the date of the injury, being the date of the accident or trauma.

In medical negligence claims, the date of injury can be less precise, particularly if the negligence concerns the course of a doctor or hospitals conduct rather than a single incident.  However, the Limitations of Actions Act grants the Court discretion to give plaintiffs an extension of time in which to bring and file their claim if it is brought outside the three year limitation period.  The relevant section of the Limitation of Actions Act is Section 48(3) but this section only empowers the Court to extend the limitation period where it is satisfied:

(i) That facts material to the plaintiff’s case were not ascertained by him or her until some point of time occurring within 12 months before the expiration of the period of limitation or occurring after the expiration of that period and if the action was instituted within 12 months after the ascertainment of those facts by the plaintiff;

OR

(ii) That the plaintiff’s failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct in any other relevant circumstances.

AND

… that in all the circumstances of the case it is just to grant the extension of time.

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In relation to sub section 3(i), sub sections 3(a) says that a fact is not to be regarded as material to the plaintiff’s case for the purposes of sub section 3(bi) unless:

(a) It forms an essential element of the plaintiff’s cause of action; or

(b) It would have made a significant difference on an assessment of the plaintiff’s loss.

The recent South Australian Supreme Court Full Court decision of Ireland and Wightman [2014] SASCFC 52 handed down on 28 May 2014 shows that the Court will apply the Section 3(a) test strictly.

The Case:

The claim was a motor vehicle accident claim.  However, the accident occurred on 13 February 2005 and court proceedings were not commenced until 5 August 2011.  

The grounds for the extension of time were that the plaintiff had consulted a psychologist who had provided a report on 1 April 2011 stating that the plaintiff was suffering from an adjustment disorder with anxiety and that the report was the relevant material fact. The action was commenced in the local Magistrates Court and the Magistrate had granted an extension of time.  The defendant appealed the Magistrate’s decision to grant the extension of time to a single Judge of the Supreme Court. The appeal was dismissed so the plaintiff then appealed to the Full Court of the Supreme Court of South Australia.  The plaintiff’s reasons for not taking action earlier were that the defendant had connections with well-known bikies and the plaintiff feared a reprisal.  The Magistrate did not find that this was the case.  However, he thought that the plaintiff probably believed that it was the case.  

When the plaintiff was advised by a lawyer that the Motor Accident Commission would pay any damages associated with the claim and not the defendant himself, he became less fearful of reprisal and proceeded.

The plaintiff’s instructions were that he suffered shoulder and wrist injuries in the accident in addition to experiencing uncontrolled mood manifested by outbursts of anger as well as nightmares.  However, the plaintiff was unable to produce any evidence at trial linking the shoulder and wrist pain with the collision.  The psychologist said that the plaintiff was suffering from an adjustment disorder with anxiety.  However, he then went on to say that the symptoms of such disorder such as nightmares, fear of dying in a car and hyper vigilance while driving had ended.  The only residual symptoms were feelings of anger on the road when encountering dangerous driving or when pressure was applied at work.  The plaintiff had not sought any treatment for these symptoms prior to seeing the psychologist.

The psychologist said that the treatment administered to the plaintiff was effective and that he did not require any further psychological treatment.  In fact, given the psychologist conclusions that the plaintiff’s psychiatric illness had stabilised and that he did not require further treatment, the defendants had argued before the Magistrate that the mental harm diagnosed in the report would not have major significance on an assessment of the plaintiff’s loss.

The Magistrate held that the mental harm did have the potential to have a significant impact upon the claim.  On that basis, he found that this finding was in and of itself a material fact justifying the extension of time.

The Supreme Court single court Judge agreed with the Magistrate.  He held that while the plaintiff had not suffered any past economic loss of any significance to this date, the adjustment disorder did have the potential to impact on the plaintiff’s future earning capacity and that it was likely that he would require further treatment.  As such, the plaintiff was likely to receive an award for pain and suffering higher than for his physical injuries which had cleared up.

The appeal

In determining the appeal, the full Court discussed Section 48(3a)(b) and said that the primary consideration was the meaning of the word “major”.  The Court said that the meaning of “major” should be assessed by reference to the Macquarie dictionary and that it meant “very important or significant”.  Hence, a new material fact must be very important in the assessment of loss.  Examples given by the court included substantial reduction of the plaintiff’s capacity to work, or that the plaintiff would need substantially more medical care than previously expected or a significant loss of expectation of life.  The section requires a comparison of the assessment that the plaintiff’s loss prior to the discovery of the new fact compared with after the discovery of the new fact.

There must be a major ie very important difference between the two assessments.  The Court held that it did not require a precise mathematical or numerical exercise of calculating assessments before and after the discovery of the material fact.  However, if the available evidence is sufficient to enable that mathematical exercise to be completed, then it can sometimes be helpful.

Given that the adjustment disorder had not caused the plaintiff to take time off work and the plaintiff did not require any future treatment, the Court held that the Magistrate and Judge fell into error in concluding that the report had a major effect on the assessment of the plaintiff’s loss.  The Court disagreed that it was likely that the plaintiff would suffer reduction in his earning capacity and will require future treatment as this was directly contrary to the evidence of the psychologist.

The impact of this decision

The decision is a cautionary note for plaintiffs and lawyers on Section 48.  This is particularly so for plaintiffs with smaller claims whose injuries have stabilised.  Information in any medical report must be new and it must have a very important impact on the assessment of the plaintiff’s damage.  It cannot be old news.  It cannot be reinforcing what we already know.  It has to be new and very important.

The real lesson for plaintiffs is not to let your claim run out of time.  Indeed, if you think you have a claim for personal injury arising out of any incident or medical negligence, you should consult a lawyer immediately.  Leaving things is not just a bad idea because you run the risk of your claim running out of time if you leave it for longer than three years.  Claims are a bit like cake.  They go stale if left in a cupboard for too long.

It is important to investigate claims and prosecute claims while the evidence and people’s memories are fresh.  Physical evidence such as records can disappear or be destroyed.  Witnesses can move away and not be locatable.  Get in while the going is good because the going gets harder as time passes.

For a free initial interview about your claim, contact your nearest TGB location.