Personal Injury and Compensation
October 26, 2020

Don’t miss your chance to receive compensation due to limitation restrictions

There are limitations in place when wanting to return a wrong coloured handbag so too are there limitations on how long you can take to decide to sue someone for causing you injury. Traditionally, you had 3 years to file a claim in Court after the date you were injured. Since 2002, the law in NSW changed. Awareness of the change is essential and Greenleaf Legal prides itself on being on top of the changes to assist our clients. The changes generally concern any alleged act of negligence which took place on or after 6 December 2002. The limitation is now 3 years from the date the cause of action is discoverable, not from the date of injury.

So, how do you determine the “date of discoverability”?

A claim is discoverable on the first date you know or ought to know the following 3 points:

1. The fact that the injury or death has occurred
2. The fact that the injury or death was caused by the fault of someone
3. The fact that the injury is serious

Let’s look at these points in more detail:

It may seem Simple to determine the date the injury or death occurred and in some cases such as a car accident or a slip and fall at a shopping centre, it is, but there are cases where you don’t know you have been injured until a long time has passed. For example, you have undergone surgery to your ovaries and during the surgery the Doctor damaged your fallopian tubes and uterus, however you were unaware of the damage until you were trying to fall pregnant some years later and could not do so naturally.

It may seem Simple to determine who caused the injury and confirm they are at fault, for example, where a pedestrian crossing the road at a zebra crossing gets hit by a car and the driver’s details as well as their CTP insurance details are known. However, there are situations where you may not know who is at fault without the assistance of a solicitor. Understanding the chain of events and the legal consequences of “causation” and fault are very important.

It may seem Simple to assess whether an injury is serious enough to bring a claim when the injury is quadriplegia or amputation, however, what about when your doctor advises you that recovery will be 6 months at the most and the pain continues and gets worse requiring surgery years later?

Once the date of discoverability is determined by the person, by agreement or by the findings of a Judge, then the proceeding should commence within 3 years from the date of such discoverability. If the proceeding fails to commence within this time, then you may lose the capacity to make an application before a Court for an extension.

On the other hand, there is a ‘long-stop’ limitation period of 12 years which will apply if it is earlier than the 3 year period after the discoverable date. The long-stop limitation period starts on the date of the injury or accident.

In order to avoid the risk of missing out on compensation, you must seek expert advice.

If you have sustained a personal injury, we advise you to contact us immediately to file proper applications within the prescribed time limits. You may also contact the head of our personal injury team and accredited specialist in personal injury, Christine Beshay, to assist you in the proceedings. We have offices in the Hills, Parramatta and Sydney CBD, and are also happy to do a home visit.

If you have questions about other legal matters, such as Superannuation and TPD claims as well as wills and estates, please don’t hesitate to get in contact with our superannuation and probate lawyers too.

The Author

Amanda Elias