The law sets time limits on bringing a personal injury claim for damages, but it is possible to seek an extension of time from the Court. Although limitations periods on issuing a claim are strict under the legislation, the Court has an overriding discretion in personal injuries cases to grant an extension of time when it is just and reasonable to do so.
Adviceline Injury Lawyers are currently assisting a client who was the victim of sexual abuse as a young boy. The limitation period in which he should have lodged a claim has expired. So, before he can make a damages claim he must first seek an extension of time from the Court. This can be done either at a preliminary hearing or during the running of his damages claim.
It is usually preferable to know early on whether the Plaintiff is able to get an extension of time, in which case the application for an extension can be made as a preliminary step. If the Plaintiff cannot get an extension then the whole case is over. The limitations issue is usually only heard as a preliminary point if there is only a small amount of evidence to be called in order for the Court to decide if it is just and reasonable to extend time. For example in a medical negligence case where an injured person wants to sue out of time, the Court usually only hears from that person on why they are bringing the claim late. It may also hear briefly from the doctor as to whether medical records have been destroyed, as that would be strong evidence of the unfairness of extending time. A case like this can be heard in a day or so. Then, if the Court grants the extension of time, the damages claim can proceed as normal, as if it was made in time.
However, for cases where there is a considerable amount of evidence to be called as to whether it is fair to extend time, and if much of that evidence overlaps with evidence to be called at a trial for damages, then the Court can decide the issue of time limitations as part of the main proceedings. This is what the Court did when it decided the cases of Peter Gunner and Lorna Cubuillo in the Northern Territory Stolen Generation cases against the Commonwealth. We acted for the Plaintiffs in those cases. Unfortunately, at the end of the 3 month trial the Court held it was too late to bring the damages claims and an extension of time was not granted.
In our current case for the victim of sexual abuse, mentioned above, the Court has agreed that the extension of time application should be heard at trial, as much of the evidence on the alleged abuse and its impact on the Plaintiff would be relevant to both the extension of time application and the damages claim. The Plaintiff, his family members and doctors would all be called for both hearings, thus it is better for all the evidence to be heard at the same time. Generally, victims of abuse would prefer this as it saves the anguish of having to give evidence twice. It is also more economical for all parties and the Courts to hear the evidence only once, rather than calling up to 10 witnesses to give the same evidence twice. We are obviously very hopeful our client will succeed in both his application for an extension of time and also his damages claim. Both are listed for hearing at the same time in April 2011.