In the recent decision of Horne v JK Williams Contracting Pty Ltd, the NSW Court of Appeal found that the injured person knew of key facts more than three years before the claim was filed with the court. The claim was found to be out of time and was dismissed, even though the injured person had engaged solicitors to act before the time limit expired.
The Facts
The injured person, Anthony Horne, and his son were riding their bicycles in Western Sydney on 19 January 2017 at around 9.00 pm.
Mr Horne collided with a water-filled orange-coloured barricade next to the roadway. The barricade was part of ongoing construction works.
Mr Horne instructed solicitors on 31 January 2017.
On 24 February 2021, Mr Horne’s solicitors commenced proceedings in the NSW District Court against JK Williams Constructing Pty Ltd. It was alleged that the company was negligent in failing to ensure the area around the barricade was illuminated at night. It was also alleged there were no warning signs.
Mr Horne lost the case in the District Court on 29 April 2022 as the court found there was no breach of duty and so the Defendant was not liable.
Mr Horne appealed the decision, and the appeal was heard on 24 February 2023.
In addition to resisting the grounds of the appeal, the Defendant (now the Respondent) sought to uphold the judgment in the District Court based on their defence that the claim had been filed out of time (regardless of whether negligence was proven).
The Law
Time limits for personal injury common law claims in NSW are set out in the Limitation Act 1969.
An injured person with a negligence action has three (3) years to bring a claim, commencing from the date that the cause of action becomes “discoverable”. This applies to common law claims. Motor accidents and work injury claims, for example, have time limits set out in different legislation.
The cause of action becomes discoverable when the injured person knew (actual knowledge), or ought to know (constructive knowledge), of the fact that:
- injury has occurred;
- the injury was caused by the fault of the defendant;
- the injury was sufficiently serious to justify bringing an action.
The Appeal
During the District Court hearing, Mr Horne gave evidence that:
- he knew full well on the day of the accident that he had hit something.
- he took photographs of the scene and his helmet.
- he knew he had suffered an injury and sought medical treatment soon after the accident.
- he told his doctors he was going to bring a claim and the doctor noted in his records the circumstances of the accident sounded “like a liability claim”.
- he knew the accident happened because of insufficient lighting.
- he notified the defendant of the claim several days after the accident.
- before he consulted lawyers, he was already aware that the party responsible for the construction work was the defendant. He knew its corporate name.
- after consulting lawyers, he saw a specialist neurologist who noted that he had seen a solicitor and this was a third-party insurance claim.
- he was sufficiently familiar with the concept of commencing legal proceedings.
The Court of Appeal found that the injured person had the relevant knowledge of each of the facts set out in the Limitation Act, no later than mid-February 2017.
The Court referred to a previous decision where it was held: It is rare that facts will be known in any absolute sense: rather…the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purpose of legal proceedings.
This meant the claim should have been filed with the court before February 2020. Unfortunately, the solicitors who were engaged failed to do so until some 18 months later.
As is set out in the court’s decision: “Whatever the solicitors may have thought necessary by way of obtaining confirmation or evidence to support their client’s claim, none of this material contradicted the factual proposition that the injured party had known from the time of the accident who was responsible. It is the injured party’s knowledge, and not that of any agent or solicitor, which is the focus of the statutory test.”
On this basis, the court found that the case was filed out of time. Where the limitation period has expired, this acts as a complete defence to the proceedings. The case was therefore dismissed.
Time limits
The issue of “discoverability” will always turn on the facts in the particular case. Importantly, the date of discoverability of a cause of action by an injured person is not necessarily the date of the accident or the date of medical treatment.
As the court noted, it is not correct that the clock stops on the limitation period: “..whilst ever the matter is in the hands of solicitors, and whatever steps they may or may not be taking”. The only thing that stops time running is commencing proceedings with the court.
We recommend that if you have been injured, seek legal advice early and from an experienced and reputable lawyer. An experienced personal injury solicitor will be across the issue of discoverability and will have appropriate checks in place to protect time limits.
If you would like to review this case, the link is below:
https://www.caselaw.nsw.gov.au/decision/1872a3b5d39b91a5a8b61b63
