Published 10 May 2015
Practice Area: Medical Negligence Claim Lawyers
Limitation periods for personal injury actions vary from state to state but the purpose of this article will be to focus on Queensland tort legislation and the implications, some might say burdens, placed on the Plaintiff to fully investigate their potential claim in an expeditious fashion.
In Queensland, to commence proceedings, Plaintiffs must meet significant obligations in accordance with Personal Injuries Proceedings Act 2002 (PIPA). For adults, over the age of 18, to make a claim the Plaintiff must first, under section 9(a) of PIPA, prepare and serve an Initial Notice on any potential Defendant at the earliest of either nine months from the date of injury, or of symptoms first appearing, OR one month from instructing a solicitor. There is a long list of reasons why a potential Plaintiff may be incapable of complying with these strict limitations, like a lengthy recovery period or, the most common reason: there was no way of discovering an injury actually took place until, sometimes, years down the road. To handle these types of situations, PIPA does allow the Initial Notice to be given outside the specified period where the Plaintiff can provide “a reasonable excuse for the delay in delivery of the Initial Notice”.
In Queensland and under section 11 of the Limitation of Actions Act 1974, court proceedings must be commenced within three years commencing from the time the injury was first suffered, even if the Plaintiff is unaware an injury even occurred. However, an application can be made to the court for an extension of this strict time limitation which would allow the Plaintiff to lodge their proceedings within one year of discovering a material fact of decisive character. This onerous task requires the Plaintiff to explain to the court there is a material fact relating directly to the action was not known to the Plaintiff, despite taking all reasonable steps to ascertain the existence such materials facts, until after commencement of the last year preceding the expiration of limitation period. Not only must the Court be satisfied the Plaintiff didn’t know and couldn’t have known, but the Court is also concerned with whether or not Defendant will be prejudiced by allowing the action to continue.
Due to the time period limitations discussed above, it would appear the cards are stacked against Plaintiffs attempting to file a personal injury claim in medical negligence; that at every turn, the Courts and legislation are aimed to protect the Defendants and discourage, or outright deny, a Plaintiff’s right to assert their claim. However, with Gerard Malouf & Partners as your representation, these “hurdles” are repeatedly jumped over time and time again. Through investigations and preparation of a wide variety of evidentiary materials, Gerard Malouf & Partners have successfully preserved the rights of hundreds of Queensland clients who thought they were out of time. The seasoned and experienced professional at Gerard Malouf & Partners have effectively argued our client’s reasonable excuse for delay, sometimes even years after the date of injury, and thus preserved their right to make a claim for personal injury. Gerard Malouf & Partners understand the varying rules and procedures concerning limitation periods, regardless of which state we’re operating in, and can help you investigate all material facts to establish your claim for medical negligence.
For free advice and to discuss our No Win No Fee policies, please call one of our expert medical negligence professionals today on our free call number 1800 004 878.