When you, or someone you love, suffer harm or loss because of the actions of someone else, it is natural that you may need some time to get over the shock of the event. If you are injured, you may need time to recover. If you are dismissed from your job, your priority may be to find work. If you suffer discrimination, you may not wish to give the matter immediate thought.

You may simply need time to regain your composure after you were let down by the person or thing you trusted, or you may hope that, with time, your circumstances will improve and the loss or damage you have suffered will fade away. It is, therefore, common that there is some delay between the event that caused your loss or harm, and you seeking to remedy that wrong.

However, it is important to be aware of the rules that can limit the time in which civil claims can be made against another party. These time limits or limitation periods differ, depending on the nature of the wrong committed against you.

In this Newsletter, we will discuss the importance of seeking early legal advice from your solicitor by highlighting some of the key limitation periods that affect the commencement of civil claims for personal injury and workplace claims in New South Wales.

It is important to note that this Newsletter is only a guide and your specific circumstances may result in different, and sometimes shorter, limitation periods. There may also be various exceptions to the limitation periods for your particular claim, depending on your particular circumstances. You should always seek advice even if the stated time period has elapsed.

You should also be aware that not all categories of personal injury and workplace claims are discussed in this Newsletter, including situations where multiple causes of action may exist under different laws but arising from the same set of facts.

Personal Injury

Personal Injury – Common Law

If you suffer an injury caused by the act or omission of another person or organisation, you may be eligible to make a claim for damages under common law. Examples of this may include where you are injured because a person has failed to make a public area safe, or where a person injured you in an assault.

If the act or omission that led to your injury occurs after 6 December 2002, civil proceedings must be commenced within 3 years from the date when the cause of action was discoverable.

A cause of action is discoverable by a person on the first date that the person knows, or ought to know, of each of the following facts:

  • that the injury has occurred;
  • that the injury was caused by the fault of the other person or organisation; and
  • that the injury was sufficiently serious to justify the bringing of an action.

However, there is a complete bar to proceedings 12 years from the time when the act or omission causing injury occurred, meaning that even if the cause of action is only discoverable after 12 years, no claim can be made.

Other exceptions to these limitation periods may apply, for example, where the injured person is a minor and does not have a capable parent or guardian, or where the injured person is incapacitated and is not a “protected person”.

It is important to note that certain types of personal injury claims are governed by specific legislation with specific limitation periods, like motor vehicle accidents and workplace injuries, which are discussed below. Others include Dust Diseases, Injuries from Aircraft, Child Abuse, Compensation to Relatives, Sporting Injuries, Victims Compensation and Product Liability. For example, there is no limitation period for child abuse claims, including child sexual abuse, whereas sporting injuries have a 12-month limitation period in which a claim must be commenced.

Motor Vehicle Accident Injury

As discussed in our previous Newsletter, the new Motor Accident Injuries Act 2017 commenced on 1 December 2017. The new Act introduces a statutory benefits scheme which provides an injured person compensation for lost wages and medical expenses for a period of up to:

  • 6 months if you were at fault; and
  • 5 years if someone else was at fault, depending on the nature of your injury.

There are a number of key limitation dates you should keep in mind if you have been injured in a motor vehicle accident.

28 Days: You must make a claim with a relevant Compulsory Third Party Insurer within 28 days from the date of the accident to ensure you receive compensation for lost wages from the date of the accident. If you make a claim after 28 days, you may still receive compensation for lost wages, but possibly only from the date the claim is made, not from the date of the accident.

3 Months: You must make a claim with a relevant Compulsory Third Party Insurer within 3 Months from the date of the accident. Failure to make a claim within this time may result in a loss of any statutory benefit entitlements, including payment of medical expenses.

2 Years: If you are eligible for statutory benefits beyond the initial 6-month period, those benefits may continue for up to 5 years. However, statutory benefits will not be paid after 2 years unless you have made a claim for common-law damages. A claim for common-law damages must normally be made within 3 years from the date of the accident.

NOTE: Injuries from motor vehicle accidents that occurred before 1 December 2017 are governed by different legislation and have different limitation periods.

Workplace Injury

If you are injured at work, you are required to notify your employer as soon as practicable after the injury occurs. A claim for compensation under the NSW workers compensation legislation must be made within 6 months from the date of the injury.

However, if you fail to make a claim within this 6 months period you may still be eligible to make a claim, depending on the severity of your injury and the reasons for the delay.

If you suffer a workplace injury because of the negligence or wrong of your employer, you may be eligible to make a Work Injuries Damages claim, which must be made within 3 years of the date of the injury and only after you have made certain other claims under the workers compensation legislation.

It is important to remember that particular workplace injuries, like injuries from dust diseases, have specific legislation with specific time limitations.

Workplace Law Claims

Unfair Dismissal

The Fair Work Act 2009 provides most employees protection against unfair dismissal. If you think that you may have been unfairly dismissed, you need to act fast. You may have only 21 days from the date your dismissal took effect to make a claim to the Fair Work Commission for relief from unfair dismissal. The Commission may allow a claim to be made after 21 days have elapsed, but only in exceptional circumstances.

 

General Protections

The 21-day time limit also applies to General Protections claims under the Fair Work Act 2009, but only in circumstances where the claim involves a person’s dismissal.

The General Protections provisions are designed to protect persons who have been dismissed, discriminated against, victimised, or have experienced other unfair treatment by prohibiting certain types of conduct in the workplace. General Protections are essentially designed to protect a variety of individual rights, including:

  • Workplace rights, like the right of an employee to make a complaint about an employer or to enforce their workplace entitlements;
  • Freedom of association, like an employee’s right to engage, or not engage, in union activity; and
  • Protection against workplace discrimination, whether it be discrimination on the basis of age, race, gender, disability, sexual orientation etc.

For example, it may a breach of the General Protections provisions to terminate a person’s employment because that person made a complaint about safety in the workplace, was temporarily absent from work due to illness or injury, because that person engaged in union activity, or for a reason that is in breach of any anti-discrimination legislation.

 

Underpayment

Where you have been underpaid by your employer, a claim must be commenced within 6 years of the date the payment was due. For example, if a Company has employed you for 10 years, and you discover that you have been underpaid from the date you were hired, you may only claim the underpayments for the 6 years immediately preceding your claim.

The 6-year limitation period also applies to other breaches of the Fair Work Act 2009, including general protections claims that do not involve dismissal and contraventions of workplace instruments like Modern Awards, Enterprise Agreements, and the National Employment Standards. A workplace instrument is a document that contains the terms and conditions of your employment, like leave entitlements and hours of work.

The examples in this Newsletter highlight the importance of seeking early advice from your solicitor. If you think you may have a claim or potential claim in relation to personal injury or workplace law, even if you are outside the limitation periods outlined in this Newsletter, contact James Blaxland at Ticli Blaxland Lawyers for advice.

This article is intended to be for information and educational purposes only and cannot be relied upon as legal advice. The information may not apply to your circumstances or to your particular situation. If you need specific advice or you have any questions, we welcome you to contact us directly.