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Running out of time?

Feature Articles

Cite as: (2007) 81(3) LIJ, p. 52

The concept of “date of discoverability” in personal injury cases remains largely untested, creating uncertainty for practitioners in determining when a limitations period begins.

By Andrea Tsalamandris

The concept of “date of discoverability” in personal injury cases remains largely untested, creating uncertainty for practitioners in determining when a limitations period begins.
By Andrea Tsalamandris

What is the current limitations law for personal injury cases in Victoria? Changes to the Limitation of Actions Act 1958 (Vic) in 2002 and 2003 have made a concise answer an impossible task.

The law prior to November 2002 was relatively straightforward. Plaintiffs had six years from the date a cause of action accrued in which to bring a personal injuries claim. A minor had six years from his or her 18th birthday. There was then a special class of cases created for plaintiffs who developed a late onset disease or disorder. They were given six years from the date of knowing that the injury arose from an act or omission of a defendant.

Tort reform

The perceived public liability insurance crisis that received much media attention in 2002 caused governments throughout Australia to look for ways to limit personal injuries claims. One of the first reforms introduced in Victoria was to reduce the limitations period to three years.[1] The amendment at this time was a simple change to ss5(1)(a) and 5(1A) of the Limitation of Actions Act so that from November 2002 the limitation period changed from six years to only three years.[2] Work injury and transport accident injuries were exempt, but otherwise this provision applied to all personal injury claims.

Not content that this was sufficient to limit the bringing of claims, the Victorian government introduced more radical changes to the limitations law in May 2003. These changes were based on recommendations made to all state and federal governments by a panel chaired by Ipp J in a report titled Review of the Law of Negligence (the Ipp Report).[3] The report recommended massive tort reform and an overhaul of the laws relating to personal injury claims. Like all other governments, the Victorian government adopted much of the Ipp Report’s recommendations into legislation.

Most of the reforms were directed at restricting the bringing of claims through amendments to the Wrongs Act 1958 (Vic).[4] However, at the same time amendments were also made to the Limitation of Actions Act.[5] The seeming intention was to further curtail the rights of injured people. But is this the effect?

Date of discoverability

The limitations period in personal injury claims now runs from the “date of discoverability”. This is an entirely new concept suggested by Ipp J in the Ipp Report and introduced into the Limitation of Actions Act.

The date of discoverability is defined in s27F(1) as occurring when the plaintiff knows or ought reasonably to have known all of the following facts:

  • the injury has occurred;
  • the injury was caused by the fault of the defendant; and
  • the injury was sufficiently serious to justify the bringing of a claim.

Ipp J preferred the limitation period to run from the date of discoverability rather than from when the cause of action accrued or when the damage occurred, as was previously the common way of calculating a limitation period. His Honour recommended that the limitation period run from when the plaintiff knew, or ought to have known, that the injury had occurred and was attributable to negligent conduct of the defendant. He considered that it was fair to provide the plaintiff with time to bring a claim in circumstances where it may take “many years for a Plaintiff to discover that his or her condition was caused by the negligence of another”.[6]

This generosity in relation to the accruing of the limitation period was the basis for the Ipp Report recommendation that the limitation period be reduced from six years to three years. [7]

Interestingly, in the flurry of legislation being passed by the Victorian government in May 2003, very brief reference was made in Hansard to this concept of the date of discoverability.[8] Therefore, as Parliament did not indicate what this term is intended to mean, guidance should be obtained directly from the Ipp Report.[9]

There has been very little activity in the courts in relation to what the date of discoverability means. I suspect this is mainly because until May 2006 all claims issued under the new three year limitation period would have been within time, based on the traditional way of calculating a limitation period (i.e. three years from the day of the cause of action). However, now that more than three years have passed since the reduced limitation period was introduced, plaintiffs will have an increased need to rely on a generous interpretation of s27F(1) of the Limitation of Actions Act.

Two cases have been decided in the County Court to date, both heard by Stott J. In Dark v CFA,[10] the plaintiff, a CFA volunteer, suffered a back injury while sandbagging in an emergency situation. He sought to commence proceedings against the CFA more than three years after the date on which he sustained his back injury. It was submitted to Stott J that the date of discoverability had not occurred until the plaintiff was advised by his solicitors that he was entitled to bring a claim based on negligence.

However, his Honour held that the requirement in s27F(1)(b) means merely knowledge “of a causal nexus between the injury and the act or omission of the Defendant”.[11] He expressly held that there was no additional requirement that the plaintiff know that the defendant’s act or omission was negligent or wrongful.

In Ilardi v Foster,[12] the plaintiff sought to join a defendant to her claim more than three years after an alleged negligent reporting of a mammogram. The plaintiff’s counsel submitted to the court that the date of discoverability had not occurred until a report was obtained by an expert medico-legal doctor expressly stating that the mammogram had been negligently reported on and that as a consequence the plaintiff had lost the opportunity of a better outcome in relation to her breast cancer.

Again, Stott J interpreted s27F(1)(b) to mean knowledge of a causal connection, not knowledge of negligence. He held that once the plaintiff was aware that there had been malignancy when the mammogram had first been taken, and that her prognosis would have been more favourable if diagnosed at that time, then that was sufficient knowledge of a causal nexus between injury and the omission of the defendant. Effectively, his Honour treated the term to mean the same as the wording in s5(1A) of the Limitation of Actions Act, which requires a plaintiff to know an injury arose from an act or omission.

There was no analysis by Stott J as to the difference between the wording in s5(1A) and s27F. Because in both Dark and Ilardi his Honour went on to grant an extension of time to the plaintiffs, neither plaintiff was prejudiced by his Honour’s narrow construction of s27F and no appeals were lodged.

There are two other aspects to s27F(1) that also require interpretation. The first is what is intended to be meant by “known or ought to have known”. The second is whether knowledge that the injury was “sufficiently serious to justify the bringing of the claim” is only met when a significant injury assessment is obtained.

It is simply a matter of time before such matters are referred to the Court of Appeal for consideration. It will have to consider whether s27F(1) is to be interpreted consistently with what was intended by Ipp J.

In the interim it is difficult to advise plaintiffs with any certainty as to when the limitation period commences and when the claim will be statute barred. What happens when a client is sent away from a solicitor on the basis that there is not considered to be any negligence? If the Ipp interpretation is followed, arguably the limitation period may not run until a different solicitor is able to obtain an opinion supporting an allegation based on fault. This makes it very uncertain for plaintiffs and defendants alike and may mean that the time for bringing a claim can be much longer than the previous six year period.

Time periods

Once the date for discoverability has occurred, an adult has three years in which to commence a claim for damages (s27D) and an infant with capable parents has six years: s27E(2)(a). If the plaintiff was injured by a parent or close associate, then the plaintiff effectively has until his or her 37th birthday in which to bring a claim for damages: s27I.

There is an overriding 12 year longstop period which runs from the date the cause of action first arose: s27D(1)(b). Therefore, if for whatever reason there has been no discovery of fault by the plaintiff, then 12 years after the negligent event it is too late to bring a claim. Only if an extension of time application could be brought would the plaintiff still be entitled to recover damages.

Extension of time

The new provisions in relation to the extension of time are remarkably similar to the old s23A. The new provisions are governed by s27K and the key question to be answered is whether it is “just and reasonable” that an extension of time be granted.

WorkCover and TAC

All of the above amendments to the limitations law do not apply to work injury claims or transport accidents: s27B(2). For such injuries a six year limitation period applies, which can be readily calculated based on the date of the injury: s5(1)(a).

High Court authority on Victorian limitations law

Ironically, the High Court decision of Stingel v Clark[13] in 2006 has come at least three years too late for injured people in Victoria. This decision opened up the application of s5(1A) in a way that had not been permitted by the Victorian Court of Appeal. The 5-2 decision has been hailed by some plaintiff lawyers as a landmark case. But given the amendments to the limitations law outlined above, it appears to me the case is of legal importance for historical or intellectual purposes only.

In Stingel v Clark, Ms Stingel sought to recover damages from former ATSIC chairman Geoff Clark for alleged rapes and sexual assaults committed against her in approximately 1971. The plaintiff alleged she had suffered post-traumatic stress disorder with delayed onset in 2000. During that year she also became aware of the connection between that psychiatric disorder and the rapes and assaults committed against her by the defendant. She then commenced a claim for damages in 2002. As a preliminary application, she sought a declaration from the County Court of Victoria that pursuant to s5(1A) of the Limitations of Actions Act she was within time for the bringing of such an application.

The case initially proceeded in the County Court of Victoria where it was held that s5(1A) did apply to Ms Stingel’s circumstances and therefore her claim was brought within time. That ruling was then appealed to the Victorian Court of Appeal. In a 3-2 decision, the Court of Appeal followed its previous decision in Mazzeo v Caleandro Guastalegname & Co,[14] holding that s5(1A) only applied to insidious diseases such as mesothelioma or lung cancer.

The matter was subsequently appealed to the High Court of Australia. The majority of the High Court (Gleeson CJ and Hayne, Callinan, Heydon and Crennan JJ, with Gummow and Kirby JJ dissenting) held that s5(1A) did apply to the plaintiff’s circumstances and therefore she was within time for the bringing of her claim. It also held there was no reason to limit the application of s5(1A) to insidious diseases. It considered the better view was that it should apply to personal injuries in general. It reasoned that as there was no express reference in s5(1A) to insidious disease, and given that Parliament had used general language in wording the sub-section, it should apply to all personal injuries.

As stated above, this case would have had major ramifications if not for the amendments to the Limitation of Actions Act in 2003. However, given that s5(1A) now only applies to dust disease and tobacco disease cases, the generous interpretation of the High Court was never needed for these types of cases to benefit from it.

Conclusion

For now we are left with uncertainty on limitations law until the Victorian Court of Appeal clearly determines what is meant by the concept of date of discoverability. Even then, it will often be difficult to readily identify when actual subjective knowledge arose or ought to have arisen.

The good old days of having precise limitations dates in a plaintiff solicitor’s statute-barred book have gone. The challenge for practitioners will be taking on all of these issues and the different limitation periods for the different types of personal injuries claims and making sense of it to ensure that claims are brought within time in the interests of both plaintiffs and defendants.


ANDREA TSALAMANDRIS is a partner at Holding Redlich and an accredited personal injuries law specialist. Her main areas of practice are industrial common law claims and medical negligence.


[1] Limitation of Actions (Amendment) Act 2002 (Vic), No 52/2002.

[2] Limitation of Actions (Amendment) Act 2002 (Vic), s3(3).

[3] Commonwealth of Australia, Review of the Law of Negligence Report, Canberra, 2002 (Ipp Report).

[4] Wrongs and Limitations of Actions (Insurance Reform) Act 2003 (Vic), No 60/2003; Wrongs and Other Acts (Law of Negligence) 2003 (Vic), No 102/2003.

[5] Wrongs and Limitations of Actions (Insurance Reform) Act 2003, Part 3.

[6] Ipp Report, note 3 above, at p91, para 6.24.

[7] Ipp Report, note 3 above, at p91, para 6.26.

[8] Premier Steve Bracks on 21 May 2003, Hansard, p1784.

[9] Such an approach is permitted by s35 of the Interpretation of Legislation Act 1984 (Vic).

[10] Unreported, 21 June 2005. The author was the solicitor for the plaintiff.

[11] This summary was given by his Honour in Ilardi v Forster [2006] VCC 793, para 16.

[12] [2006] VCC 793.

[13] [2006] HCA 37.

[14] (2000) 3 VR 172.

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