SBL successful in an application to extend the limitation period for an injured worker
In New South Wales, pursuant to the Limitation Act 1969 (NSW), an injured worker must bring common law proceedings within three years of the date of the incident. Proceedings can be filed after that date however the Plaintiff must firstly make an application to the Court to extend the limitation period and seek permission from the Court to file proceedings.
This was an issue recently for one of our coal mining clients. The matter is still being litigated so we will refrain from providing specific details of the case however we propose to use the case study to demonstrate the process involved.
The Plaintiff had not received any legal advice prior to speaking with our office. At the time of speaking with us, the three year time frame had passed and the Plaintiff was unaware of the limitation period.
We were instructed to file common law proceedings however we had to firstly file a Notice of Motion in the District Court of New South Wales to make an application to extend the limitation period. The Motion was supported by Affidavit evidence from both the Plaintiff and the Plaintiff’s solicitor, Gemma Bunner. Ms Bunner had to provide evidence that there were reasonable prospects of success in the matter if the matter were to proceed.
In this case, the Defendant did not oppose the Plaintiff’s application. This was largely due to the fact that the Defendant had been on notice of the incident and had accepted the Plaintiff’s claim for workers compensation over the years. The Defendant therefore could not argue that there would be any prejudice against them in circumstances whereby the claim proceeded.
Notwithstanding the Defendants consent, the decision to extend the period ultimately rests with the Judge and is a matter for the Court. The Motion was heard by a Judge of the District Court in Newcastle and leave was granted.
The Plaintiffs claim is now proceeding and has been moved to the Supreme Court of New South Wales. We are hopeful that we will achieve a great result for the Plaintiff in coming months.
Time limits apply to legal actions arising from a personal injury and it is important that you are aware of the limitation periods. If you require advice, please do not hesitate to contact our office to discuss your claim.