A claimant has been granted leave to proceed with her personal injuries claim despite the usual 3 year limitation period applying to her claim having expired more than 3 years previously1.

How was that outcome possible?

Facts

The claimant was driving home from work on the Logan Motorway on 29 March 2005.

Her vehicle was travelling at the speed limit when an item or items fell from a truck or utility in front of her, striking her vehicle.

In attempting to deal with the situation, the claimant lost control and became involved in a collision, which she thought had not injured her in any serious way but which did cause a certain amount of property damage.

The vehicle from which the item(s) fell was not immediately identifiable. Police attended the accident and spoke with the claimant.

The claimant said an attending police officer gave her a business card on which was written the traffic incident number and that the officer told her that investigations would be carried out in an effort to identify the offending vehicle.

On the evening of the accident the claimant experienced uncomfortable symptoms and attended a hospital; investigations showed nothing serious was wrong. After a few days off work, she returned to her ordinary activities.

The claimant contacted police on two later occasions to follow up on their investigations and was told that nothing had happened and that she would be notified if anything of interest eventuated.

The claimant’s reason for following up the police was to obtain information for the purposes of a property damage insurance claim. She had no intention of pursuing a personal injuries claim. She had no knowledge of the possibility of a claim against the Nominal Defendant.

In fact, the police, within a day or so of the accident had identified the relevant vehicle and its driver. The claimant was not told of this.

Although the claimant returned to her ordinary activities, she suffered periodic symptoms for which she consulted chiropractors and/or physiotherapists for treatment. She took analgesics when required. Mostly, she learned to live with the pain and its limitations.

In August 2010, there was a spontaneous flare up of pain in the claimant’s neck, which led to x-rays being performed and the radiographer commenting that there was evidence to suggest a previous neck injury.

The x-rays confirmed that the claimant has sustained a significant trauma to her cervical spine. The claimant’s pain has been constant and more intense than before the August 2010 flare up.

Shortly after having the x-rays, the claimant made contact with solicitors, who conducted a search and discovered that the police had identified the relevant vehicle.

The claimant subsequently issued a Notice of Accident Claim form to the CTP insurer of that vehicle. Unsurprisingly, the claimant’s claim has not been met with co-operation from the CTP insurer.

The claimant brought an application before the District Court at Brisbane seeking an order extending the limitation period.

Law

The Limitation of Actions Act 1974 (Qld) (Act) contains the relevant legislative provisions.

Section 11 of the Act provided the insurer with an absolute defence to the claimant’s claim; that defence being the prohibition on legal proceedings being brought after the expiration of 3 years from the date the cause of action arose (i.e., not after 29 March 2008).

Section 31 of the Act provides an exception to the absolute defence; though the exception is conditional upon a court being satisfied that a material fact(s) of a decisive character relating to the right to bring an action was not within the means of knowledge of the applicant until after the expiration of the limitation period, and, there is evidence to establish a prima facie case in the applicant’s favour except for the limitations defence.

Section 30(a) of the Act lists examples of facts that could amount to being a material fact of a decisive character (however, the list is not definitive).

Section 30(b) of the Act requires a court to determine (when considering whether a particular fact is of a decisive character) whether a reasonable person, knowing of the particular fact(s) and after taking steps to obtain appropriate advice, would consider that they have reasonable prospects of successfully bringing a claim that would result in a sufficiently large enough award of damages to justify bringing the claim, and, knowing this, then a reasonable person would take steps to bring a claim.

Reasons for Decision

His Honour Judge Robin QC JDC heard the claimant’s application and found in her favour.

His Honour found nothing unreasonable in the way the claimant had managed her treatment over the years since the accident and that it was the August 2010 flare up which revealed a concerning level of painful and potentially disabling symptoms of a kind to make litigation appropriate when it would not have been before.

His Honour noted that the claimant consulted solicitors, with alacrity, after being informed by the radiographer’s comments and that the solicitors did what they could to get a claim underway.

In other words, His Honour found that the claimant’s discovery of the seriousness of her neck injury (after having her neck x-rayed) was a material fact of a decisive character.

His Honour found that the additional circumstance of identifying the relevant vehicle and its driver also qualified as a material fact of a decisive character.

He noted the claimant’s circumstances were such that it was not reasonable for her to be taking steps to discover that material fact until August 2010, when she discovered the implications of the condition of her neck injury.

Update

The relevant CTP insurer has filed an application in the Court of Appeal seeking leave to appeal this decision. The insurer’s application is in the interlocutory stages.

The insurer’s appeal documents contend, amongst other things, that His Honour erred by not finding that a reasonable person in the claimant’s circumstances would have made enquiries as to the cause, nature and severity of their neck complaints and legal rights within the usual limitation period.

Whether the decision stands remains to be seen; however, until such time that is known, it serves as a useful reminder that a personal injury claim does not automatically lapse at the expiration of the 3 year period and that any claim involving an extension of the usual limitation period must be assessed on the facts of that individual claim.

The decision of Norris v Daniels & Ors can be found here.