It may not be too late for you to bring a compensation claim – Anderson v TAC [2016] VCC 895

extensions for accident injury claims

On 15 June 2016 Judge Dean granted an extension of time to a transport accident victim to seek compensation for his injuries.

Background

On 9 May 1989, the Plaintiff, Shane Anderson who was aged 16 at the time was struck by a motor vehicle whilst riding his bicycle across Station Street in Lalor.

After the collision he was driven to his home in Lalor by the occupants of the vehicle that had struck him. He was left in the front yard of his mother’s home. His mother promptly called the police and ambulance. As a result of the accident, the Plaintiff suffered injuries to his left ankle, left leg and left shoulder.

On 16 October 1991, the Plaintiff underwent a left ankle reconstruction, but continued to experience pain in his left ankle. On 1 September 2010, the Plaintiff underwent a further LARS ligament reconstruction.

In 2012 the Plaintiff engaged car accident lawyers and commenced the Court process of requesting a Serious Injury Certificate as well as an application for an extension of time.

What is the limitations period and how does it apply?

The law imposes strict time limits, known as limitation periods, within which personal injury claims must be commenced in Court.

The limitations period for transport accidents is six years. However, in the case of minors, the six year limitation period commences on their 18th birthday, unless they are of unsound mind.

The Plaintiff was 16 at the time of the accident, and accordingly the limitations period did not commence until his 18 th birthday, on 9 April 1991. Thus, the limitations period expired on 9 April 1997. As such, the application was brought 15 years after the expiration of that limitation period and 23 years after the transport accident occurred.

Under section 23A of the Limitation of Actions Act 1958 (‘the Act’) the Plaintiff can apply to the Court for an extension of time.

Pursuant to section 23A (3) of the Act the Court is required to have regard to the following factors:

  • The length of and reason for delay;
  • Whether there is a likely prejudice to the Defendant;
  • What steps the Defendants has taken to make available to the Plaintiff means of averting facts which may be relevant to the cause of action;
  • Duration of any disability of the Plaintiff;
  • The extent to which the Plaintiff acted promptly and reasonably once he knew that he may be able to seek compensation for his injuries; and
  • The steps taken by the Plaintiff to obtain medical, legal or other expert advice.

It should be noted, it is the Plaintiff that has the burden of establishing that it is just and reasonable to extend the limitations period.

The Decision

The Judge noted that the application being brought 15 years after the expiration of the limitation period is a significant factor, but he also highlighted that the Plaintiff had no clear knowledge of his legal rights until 2012.

He dismissed the Defendant’s argument being that the Plaintiff was “careless” with respect to his legal rights.

The Judge noted that the Plaintiff left school at the age of 14. The Plaintiff was an uneducated and unskilled man. The Judge also accepted that at the time the Plaintiff was abusing alcohol and drugs. Further, he noted mental health issues.

As such, he accepted that the Plaintiff had no knowledge of his legal rights until 2012. The Judge did not accept that there was prejudice against the Defendant. The driver of the vehicle that struck the Plaintiff and his passenger are available to give evidence. Also, the factual issues appear ‘straightforward’.

The Plaintiff provided the TAC with clinical notes and a report from his GP as well as numerous income tax returns and assessments for the years 1990 to 2009.

The TAC did not inform the Plaintiff of his legal rights, nor did they investigate the accident circumstances until 2015. In approximately 1995 the Plaintiff called the TAC and asked about a claim for compensation. Following that telephone call he believed he could not make a common law claim.

Ultimately, taking into account all factors and circumstances of the case the Judge was satisfied that it is just and reasonable to extend the applicable limitation period.

What does this mean?

This case confirms our firm’s position; it is never too late to seek legal advice from a personal injury firm.

Even if the limitations period has passed, you may still be able to seek common law compensation.

If you have previously been told that ‘it’s too late’ it may be time to revisit your entitlement to compensation.