Can you still claim compensation if you miss a motor vehicle accident deadline?
The answer is it depends, but permission to start court proceedings late is not automatic. A recent NSW decision shows how missing a deadline can prevent a seriously injured child’s damages claim from being heard.
What is the time limit for motor accident court proceedings?
Under the Motor Accident Injuries Act 2017 (NSW), court proceedings for damages need to start within three years of the accident. While most claimants can have their damages claim dealt with by the Personal Injury Commission (the Commission), minors must have their damages assessed in the Court. This requires them to apply to the Commission for exemption on the basis of their minor age, and then once an exemption is granted, they must file their matter in Court.
In this case, the application for exemption from assessment was lodged after the deadline had already expired. It did not revive the expired period.
What happened in this NSW motor accident case?
In Nielsen-Royan v Ticulin [2026] NSWDC 349, a nine-year-old girl, Kaleiyah, was injured in a collision with a vehicle in South Kempsey on 14 March 2022.
She was flown to John Hunter Hospital and underwent surgery for a fractured jaw. Her injuries required plates and screws, and several teeth were removed. Physical and psychological injuries were alleged.
Her mother pursued a compensation claim on her behalf. The driver’s insurer had partially admitted liability, although it proposed reducing compensation by 20% for contributory negligence — an allegation that the child shared responsibility for the accident.
However, court proceedings were not started until 10 March 2026, almost a year after the applicable deadline. As the plaintiff was a minor at the time, the claim was brought by her tutor – her mother, Elleigh Royan. This was done without leave to commence proceedings out of time.
Lodging a claim with an insurer and starting court proceedings are different steps. An insurer’s admission of liability does not remove the need to protect the court deadline.
There are also earlier deadlines for other parts of a claim. Applications for statutory benefits, such as treatment expenses and weekly payments, generally need to be lodged within three months. Seek advice promptly rather than waiting until the three-year mark.
The Court Proceedings
Both parties had filed Notices of Motion to seek certain orders – the plaintiff to be granted leave to commence these proceedings out of time, and the defendant to have the proceedings dismissed as leave had not been obtained to commence the proceedings out of time. If the plaintiff was not granted leave, this would mean that Kaleiyah would lose the ability to obtain damages for her injuries.
For the Court to grant leave, the plaintiff needed to provide a “full and satisfactory explanation” for the delay. This requires a complete account of relevant events and an explanation showing why a reasonable person in the claimant’s circumstances would have experienced the same delay, from 14 May 2025 (the time limit for filing) to 10 March 2026 (the date the matter was actually filed).
In support of the application, the plaintiff relied upon an affidavit from her solicitor, Ms Cracknell of Law Partners, who had the day-to-day conduct of the matter from 20 December 2024. Ms Cracknell outlined the history of the claim, noting that the plaintiff’s mother had initially instructed Firths Compensation Lawyers in June 2022 before transferring the matter to Law Partners in July 2024. She gave evidence that Elleigh had been advised of the relevant limitation period in mid-2024 and that, before proceedings could be commenced, it was necessary to obtain the appointment of a legal representative through the Commission and then seek an exemption certificate.
Her affidavit detailed the steps taken by Law Partners to progress those applications and the repeated requests made to the plaintiff’s mother for a certified copy of the plaintiff’s birth certificate, which was first requested on 28 February 2025 but not provided until 2 October 2025. Ms Cracknell explained that the delay in obtaining the document prevented the Commission application from progressing, despite numerous follow-up communications. She further deposed that the birth certificate was only provided after Law Partners advised that it would be unable to continue acting unless the document was produced, following which an application for exemption was lodged on 4 November 2025, the exemption certificate was issued on 27 November 2025, and proceedings were ultimately commenced on 10 March 2026 after Counsel had been briefed and Elleigh’s instructions confirmed.
In her own affidavit, Elleigh outlined the history of the claim following the accident and the steps taken to pursue compensation on behalf of her daughter. She deposed to a number of circumstances which, she said, contributed to the delay in progressing the claim, including flooding in her local area, the pressures associated with being a sole parent and working full-time, difficulties locating her daughter’s birth certificate, and concerns about providing what she regarded as a sensitive personal document to solicitors. She stated that she did not appreciate the urgency of providing the birth certificate and maintained that, had she understood the importance of the limitation period and the role of the document in advancing the claim, she would have provided it sooner.
The Court considered those circumstances but found the explanation was incomplete (therefore, not a “full” explanation) and did not justify the delay (therefore, not satisfactory). It noted repeated requests for the certified birth certificate, advice about the deadline and unexplained gaps in Elleigh responding to the solicitors, and found that Elleigh did not appropriately explain why she did not respond to her solicitors within the stipulated deadline.
The Court refused permission to proceed late and dismissed the proceedings. It also ordered the plaintiff to pay the defendant’s costs of its dismissal application and the proceedings.
This was a decision about time limits, rather than a determination of the value of the child’s injuries.
Do children have to wait until 18 to claim?
No. A parent or another appropriate adult can act for a child. Do not assume a motor accident court deadline starts when the child turns 18. In this case, the three-year period applied despite the claimant being a child.
How can you protect your motor accident claim?
Recovery and caring responsibilities can make paperwork difficult. Tell your solicitor early if you cannot find documents, do not understand advice or need help responding. Ask which deadlines apply and what steps are needed to protect your claim.
If a deadline may have passed, seek advice immediately. A late claim may still be possible, depending on the circumstances.
At The Law Office of Conrad Curry, we assist people in Newcastle, the Central Coast and across NSW with motor vehicle accident claims. Contact our team for advice about your options and time limits.
DISCLAIMER
This article reflects the current law at the time of publication. Please note that cases may have been the subject to appeal or subsequent judicial consideration since the date of posting. The decisions referred to are summarised for general understanding only. It is intended for informational purposes only and does not constitute legal advice. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.