Under the Limitations Act in NSW, you must commence a personal injury claim within 3 years from the date on which the cause of action is discoverable. The cause of action will inevitably be the event which leads to the potential claim such as a accident or sustaining an injury.
In some circumstances the cause of action is discoverable when the injured person knew or ought to know the fact that the injury has occurred, or it was caused by the fault of the Defendant or it was sufficiently serious to justify commencing court proceedings.
A recent decision of the NSW Court of Appeal (Best -v- Rosimond) [May, 2020] demonstrates that it is important to obtain legal advice and to act within the 3 year period to avoid problems that can develop with an interpretation of the legislation if you commence proceedings outside the 3 year period. In that case the injured person was assaulted by his then close friend, but did not commence proceedings within the 3 year period and the court subsequently found that he was statute barred, which means that he was not able to pursue his claim and receive compensation for his injuries.
The court considered the issues of when certain events were discoverable and came to the view that the steps taken by the injured party were inadequate and that he should have acted earlier, if he wanted to pursue this claim.
This case is a very good example of the risk an injured person faces if they commence proceedings outside the 3 year period. In his case, he was only 7 ½ months outside the 3 year period, but that was sufficient for the court to find against him.
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