What is the time limit for making an accident claim?
- February 18, 0017
- Adelaide Injury Lawyer
- No comments
All too often, accident compensation lawyers see a client several years after their accident. The other day, I saw someone injured because of an accident. She was unaware of the time limits an injured person as to make a claim. By this, I mean, issuing proceedings seeking compensation out of a court. I was asked, “How long can it be after an accident that I can make a claim?” In her case, she was still within time.
So, what are these time limits? Each State or Territory in Australia, has its own provisions, so no one answer suits all. My advice to her, related to South Australian law. My advice specifically related to compensation claims for negligence, or in the industry, called common law claims. There is in addition, specific time limits to notify an insurer or other relevant party of a claim, in case of motor vehicle accident injuries or workplace injuries.
In general terms, an adult has three years after the accident in which to commence legal proceedings. Persons under legal disability, for example children have the period extended. In the case of child, in general, legal proceedings must be commenced before their 21st birthday. There are however special requirements for Notice of Intended Action to be given, even though the time to issue legal proceedings has not expired.
Over the years, I have spoken to many clients who have described reasons for not taking legal action within the relevant time. These reasons have included:
- being focused on their recovery, so that time has simply, passed by;
- not being aware of the time limit; or
- a belief that they would get better, hence not seeking legal advice.
Unfortunately, none of these reasons today, would in themselves, suffice in South Australia, for an extension of time in which to take legal action.
WILL THE COURT GRANT AN EXTENSION OF TIME?
The Courts have a power to extend the period, but several specific requirements need to be first satisfied. The first requirement is that facts material to the plaintiff’s case were not ascertained and that the action was instituted within 12 months after the plaintiff ascertained those facts. Another alternative requirement is that the plaintiff’s failure to institute the action within the period, 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 such failure to institute the action was reasonable in view of those representations or conduct. The final requirement is that the Court believes, that in all circumstances of the case, it is just to grant the extension of time.
WHAT IS REQUIRED FOR AN EXTENSION OF TIME?
It is not every fact, that is a material fact. To be a material fact, it either forms an essential element of the plaintiff’s cause of action (liability) or has a major significance on an assessment of the plaintiff’s loss (quantum).
In deciding whether it is, in all the circumstances of the case, just to grant an extension of time, the Court considers the period of extension sought and whether the passage of time has prejudiced a fair trial; the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; the nature and extent of the plaintiff’s loss in the conduct of the parties generally; and any other relevant factor.
It is therefore of critical importance for people to understand that time limits exist, as missing a time limit, whilst not fatal, has the effect of making the claim more complicated than what may otherwise be the case. The fact that the time limit has either expired, or a person thinks the time has expired should not discourage you from seeking legal advice, as in many cases, time limit can be extended or compensation can still be negotiated.
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