Negligence and injury

For many years there was a limitation period of six years for a person to issue court proceedings for damages for personal injuries. However, this time period has now been significantly altered by two Victorian Acts: the Limitation of Actions (Amendment) Act 2002 (‘LAA Act’) and the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (‘WLAAIR Act’).

Note that in the following text all references are to the Limitation of Actions Act 1958 (‘Limitations Act’).

The changes made by both amending Acts do not apply to work injuries or transport accident injuries. Also, the changes made by the WLAAIR Act do not apply to injuries as a result of a dust-related condition (as defined in the Administration and Probate Act 1958 (Vic)) or resulting from smoking (s 27B).

The changes made by both Acts apply to cases involving a claim for damages resulting from the death of a person (s 27B).

Under the LAA Act, the limitation period for injury claims is three years where the cause of action occurred after 4 November 2002. As indicated above, a six-year limitation period continues to apply to work injuries and transport accident injuries.

It is important to note that the changes made by the WLAAIR Act will apply to all cases (apart from the excepted cases referred to above) where the act or omission that resulted in death or personal injury occurred after 20 May 2003, and to all earlier cases if court proceedings have not been commenced before 1 October 2003. However, the WLAAIR Act does not extend any limitation period where the cause of action occurred before 21 May 2003 (s 27N).

The WLAAIR Act radically alters the law in relation to time limits. It introduces two new concepts: a ‘discoverable’ date and a ‘long stop limitation period’. A ‘discoverable’ date is the first day it is known or should have been known, that death or personal injury has occurred and that it was caused by the fault of the defendant and the injury was sufficiently serious to justify the bringing of an action (s 27F). A ‘long stop limitation period’ means the period of 12 years from the date of the act or omission causing death or personal injury (s 27A).

For adults the limitation period is three years from the discoverable date, or the long stop limitation period, whichever first occurs (s 27D).

For disabled persons and minors (i.e. persons under 18 years of age), the limitation period is six years from the date of discoverability, or the long stop limitation period, whichever first occurs (s 27E). 

Exceptions for minors

However, if the injured person is a minor at the date of the act or omission causing injury and the cause of action is against a parent or guardian or close associate of a parent or guardian of the victim, then the discoverable date is deemed to be the 25th birthday of the victim or the actual discoverable date, whichever is later. Also, the long stop limitation period in such cases is the period of 12 years from when the victim turns 25 years of age (s 271(2)).

The Limitations Act defines a close associate as someone whose relationship with the parent or guardian of the injured person is such that the victim or guardian might be influenced by the person not to bring an action on behalf of the victim or the victim might be unwilling to disclose to the person or guardian the act or omission resulting in the death or personal injury (s 271(1)).

Person under a legal incapacity

There are also special provisions for limitation periods for persons under a legal incapacity (s 27J). In such cases the running of a limitation period is suspended for the duration of the legal incapacity.

A person is under a legal incapacity while he or she is a minor (i.e. under 18 years of age), but not while in the custody of a ‘capable parent or guardian’. Alternatively, a person is under a legal incapacity if he or she is an ‘incapacitated’ person for a continuous period of at least 28 days, but not if the person is a represented person (i.e. where financial affairs are controlled by an administrator such as the State Trustees) and the guardian is authorised by law to bring actions in the person’s name.

A ‘capable parent or guardian’ is the person who is the parent or guardian of the minor and who is not under a legal incapacity.

An ‘incapacitated person’ is a person who is incapable of or substantially impeded in the management of their affairs in relation to the cause of action by reason of any disease or impairment of their physical or mental condition.

Personal injury resulting from child abuse

There is no limitation period for personal injury from child abuse (s 27O–27R). However, a court can dismiss or permanently stay such proceedings in cases where a fair trial is not possible (see s 27R).

Under the Children Legislation Amendment Act 2019 (Vic), the Supreme Court can set aside a previously settled cause of action (except Commonwealth Redress Scheme settlements) in death and personal injury actions resulting from child abuse if it is just and reasonable to do so.

Also, such a cause of action can now be issued again despite a previous such action being dismissed because of the expiry of a relevant limitation period (if the limitation period expired before 1 July 2015) (see pt 2 div 5 LAA Act)

Extensions of limitation periods

The Limitations Act allows people claiming to have a cause of action to apply to a court for leave to extend a limitation period to allow the issue of court proceedings. Similar provisions apply to such cases whether the cause of action arose before or after the commencement of the WLAAIR Act (see s 23A, pt IIA, div 3 respectively). Both provisions allow a court to extend such limitation periods if it decides it is ‘just and reasonable’ to do so. 

In considering such applications, the courts must take into account several factors (e.g. the length of and reasons for the plaintiff’s delay in taking action). The factors to be taken into account are very similar in both provisions. However, the WLAAIR Act adds further factors for a court to specifically take into account, such as whether the passage of time has prejudiced a fair trial of the claim.