Limitation periods in personal injury claims
02 Dec 2015
- Personal Injury
An interesting case was dealt with in the Magistrates Court last month when an insurance company endeavoured to strike out a claim we lodged on behalf of a client seeking damages for medical negligence.
The treatment occurred some years ago and the client came to us after the three year for personal injury had expired. Normally this would mean the client was ‘out of time’ to lodge a claim. However we saw the possibility of drafting a claim based on the implied warranties under the Trade Practices Act 1974 and the Fair Trading (Australian Consumer Law) Act 1992. The basis of the claim was that the provider had failed to provide services of an acceptable quality.
This would mean a six-year limitation period applies and so our client was still in time.
The insurance company sought to argue that the six-year limitation period did not apply because section 74(2a) of the Trade Practices Act and section 275 of the Australian Consumer Law imported the limitation period in the State or Territory where the event occurred. The insurance company, therefore, sought to strike out our client’s claim.
This is an interesting point which has never been litigated before and is not the subject of other judicial considerations. In the end, the learned Magistrate dismissed the application to strike out the claim and held that the point was sufficiently important to be fully litigated at the final hearing of the plaintiff’s claim. In many respects, the issue has been reserved for determination at a later time.
Our view is that the six-year limitation period is uniquely preserved for cases of this kind under the Australian Consumer Law and it is not limited in any way to the three year limitation periods under the ACT Limitation Act for personal injury claims.
It will be interesting to see whether this point is pursued in any subsequent cases.