Last updated 7 December 2016
The Limitation of Actions Act 1974 (Qld) (Limitation Act) imposes strict time limits (limitation periods) within which actions must be commenced by court proceedings in Queensland. If legal proceedings are not commenced within these limits, they are deemed to be statute barred, which forms a complete defence to the claim. In very limited circumstances, a court has the discretion to allow an extension of time within which the proceedings can be commenced (ss 30–32 Limitation Act).
It is not necessary that the claim actually be heard in court within the prescribed time limits. The proceedings only need to be commenced. This means that the relevant legal documents initiating the claim must be filed in the court registry. Because of these time limits, it is essential that legal advice be obtained as soon as a person has suffered injury or property damage in circumstances that might support a claim.
It is important to be aware that in almost all types of injury claims, there are a number of pre-court steps that must be completed prior to filing proceedings in court (see Pre-court steps on this page).
The Limitation Act sets out the primary limitation periods:
- Claims for damages for personal injuries (including dependency claims) must be commenced within three years of the cause of action arising (s 11 Limitation Act).
- Claims for property damage must be commenced within six years of the cause of action arising (s 10 Limitation Act).
A cause of action (the right to sue) arises when all the elements that make up the legal wrong are in existence. In a negligence action, the limitation period will commence once the plaintiff has suffered some injury or property damage as a result of the defendant’s conduct. In most cases, it is obvious when injury or damage has been suffered, usually at the date of the accident, and so it is obvious when the limitation period starts.
Sometimes, it will not be obvious that a cause of action has arisen. For example, in one case medical practitioners wrongly specified a female patient’s blood group. This meant that medical precautions were not taken to prevent the development of antibodies in her blood that would be likely to cause complications during any future pregnancies. More than three years after the antibodies developed in her blood, the woman suffered through a difficult pregnancy and her child died 48 hours after birth. In an action against the doctors for negligence, it was argued that there was no liability as the limitation period had expired. The Supreme Court of Queensland held that the plaintiff did not suffer injury simply from the presence of the antibodies in her blood stream. Rather, her personal injury was caused during the subsequent pregnancy when she was obliged to undergo medical procedures resulting from her blood condition. Therefore, the cause of action accrued during her pregnancy, which was less than three years before the action was commenced (Wright v Borzi  Qd R 179).
Difficulties also arise when a person suffers an injury but is unaware of it until the limitation period has expired. For example, a worker may develop a progressive lung disease from occupational exposure to asbestos and may only become aware of it more than three years after the disease was contracted. The Limitation Act contains a number of provisions designed to modify the operation of the limitation periods in this type of situation and other deserving situations, such as when a plaintiff does not have knowledge (or reasonable means of knowledge) of some critical aspect of their case (referred to as a material fact of decisive character) until after the expiry of the limitation period. In these circumstances, the period can be extended by the court for a further year from when the plaintiff had knowledge (or reasonable means of knowledge) of that material fact (ss 30–32 Limitation Act). These provisions can only be relied on if a material fact relating to either the accident or damage suffered is beyond the claimant’s means of knowledge. They cannot be used to overcome a failure to obtain legal advice to understand the impact of a material fact or to follow up on legal advice (Re Sihvola  Qld R 458). If a plaintiff’s solicitor fails to commence proceedings within the prescribed time limits or fails to advise the plaintiff that there is a time period, then it is likely that the solicitor will have been negligent and can be sued for the loss (see the chapter on Accessing Legal Assistance and Resolving Disputes).
Limitation periods in respect of legal wrongs occurring whilst the victim was suffering from a mental disability run for three years from the date the disability ends or the victim dies, whichever happens first (s 29 Limitation Act). The disability is taken to have ended if the victim regains capacity sufficient to allow them to pursue the cause of action, even if only for a relatively short period before again losing capacity. Further, if the victim does not suffer from the mental disability immediately after the accident, for instance a victim who only began to suffer from a disabling post-traumatic stress disorder a number of months after an accident, the limitation period is still likely to run from the date of the accident.
When a person is sued for fraud or some other legal wrongdoing which has been concealed by the wrongdoer’s fraud, limitation periods run from when the fraud was discovered or might have been discovered by reasonable diligence (s 38 Limitation Act).
The Personal Injuries Proceedings Act 2002 (Qld) (PIP Act) and the Motor Accident Insurance Act 1994 (Qld) (MAI Act) set out the practical steps that need to be taken following personal injuries occurring other than during the course of work.
The PIP Act and the MAI Act require an injured person contemplating court action for their personal injuries to give a notice of claim to the person they think caused the injury and to follow prescribed steps (e.g. a compulsory conference) before starting an action in court. For non-work related injuries, there are important time limits that should be complied with when lodging the first formal notice of claim form. Whichever is the earlier of these time limits applies:
- within nine months from the date of injury (ss 9(3)(a) PIP Act, 37(2)(b)(i) MAI Act)
- one month after the injured person instructs a lawyer to act on that person’s behalf (s 9(3)(b) PIP Act) or one month after first consulting a lawyer about the possibility of making a claim (s 37(2)(b)(ii) MAI Act).
If an injured person fails to comply with these time limits, then they need to provide a reasonable excuse for the delay. It is possible for an action to be struck out if the excuse given is held not to be reasonable. In order to avoid this possibility, a notice of claim form should be delivered as soon as possible.
If the reasonable excuse for the delay is accepted, then the normal three-year limitation period applies.
The Workers’ Compensation Rehabilitation Act 2003 (Qld) (WCR Act) also prescribes steps that need to be taken prior to lodging court proceedings. These steps can be complex, so legal advice should be obtained from an accredited personal injuries specialist (see Personal Injury Claims after a Motor Vehicle Accident).
Other time limits
The time limits applicable for certain claims can vary depending on whether the law of the Commonwealth or a state other than Queensland applies to the cause of action. Many other rules within Queensland also impose further time limits within which particular legal proceedings must be commenced, claims notified or various steps in legal proceedings completed. The variance of time limits between jurisdictions and the existence of specific limits within Queensland is a good reason for those contemplating action to engage a solicitor who has specialist qualifications in personal injuries.