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All.Insurance.Life / Accident & health

The general proposition set out in Limitation of Actions Act 1958 (Vic) is that an action for personal injury shall not be brought after three years from the date on which the cause of action is discoverable.  A six-year period applies if the accident is a workplace incident.  However, as all legal professionals and insurers know, in certain circumstances and provided that certain criteria are met, a court may allow an injured claimant an extension of time to proceed with a claim for damages.  The relevant limitation periods prescribed by this and other pieces of legislation provide defendants and insurers with some comfort regarding the timeframes and criteria, which a claimant must meet before being able to commence proceedings out of time.  

The recent County Court decision of his Honour Judge Fraatz in Felmingham v Silvandale Transport Pty Ltd and Anor has seen an injured worker being granted leave to bring an action 16 years and 7 months after the date of injury.  The decision shows the sometimes extraordinary amount of time that can elapse between the date of injury and when the proceedings are ultimately brought, and the attitudes being taken by Victorian courts should be considered before decision is made to bring an (often costly) application to strike out time-barred matters


The Plaintiff, Kevin Felmingham (Felmingham) commenced work as a truck driver with the First Defendant, Silvandale Transport Pty Ltd (Silvandale) in February 1997. On 10 August 2006 Felmingham was directed by Silvandale to pick up a load of wine from premises, which were occupied by Fearman Pty Ltd (Fearman). While completing the task, Felmingham was injured when the forklift being driven by an employee of Fearman struck him (the incident). Immediately after the impact, Felmingham recalls laying on the ground next to the forklift with part of the load across his right ankle. Following the incident, Felmingham attended his general practitioner. At the time he was suffering from stiffness with extensive bruising on his left side. He was experiencing headaches as a result of a bump on the head. No further medical investigations were arranged. Felmingham returned to work approximately four days after the incident but continued to experience pain and stiffness on the left side of his body.  

Felmingham’s symptoms fluctuated but between 2006 and mid-2019, he was able to continue working full time in an unrestricted manner and was treating his pain with Panadol, massages and physiotherapy and he assumed that he would eventually make a full recovery. Following a medical consultation in the middle of 2019, Felmingham’s ongoing problems were finally linked to the incident. Following this, Felmingham sought legal advice and subsequently commenced proceedings against Silvandale and Fearman seeking damages for personal injuries arising out of the incident 16 years earlier.  As Fearman were deregistered in 2021 its insurer, Insurance Australia Group Ltd (IAG), was substituted as the Second Defendant.

That the incident occurred was not in dispute. Felmingham sought leave under s 23A of the Limitations of Actions Act 1958 (Vic) to extend the time limitation to allow him to commence proceedings for the recovery of damages.  The application was opposed by IAG primarily on the basis of delay and the inadequate reasons explaining both the significant delay and when Felmingham first became aware of the link between his ongoing medical issues and the incident.

What the Act allows

Under s 23A of the Limitations of Actions Act 1958 (Vic), the Court is entitled to make an order extending the time to bring an action if it was determined that “it is just and reasonable to do so”.  In exercising its discretion, the Court is guided by the principles set out in s 23A(3)(a) - (f), which includes considering the reasons for the delay and what steps were taken during the intervening period by the claimant.

What the Court found

The Court accepted that Felmingham’s delay was because he was unaware of his legal rights in 2006 and because he only became aware in mid-2019 that the symptoms he was suffering were linked to the incident. Once Felmingham was made aware of these two issues, he acted promptly in obtaining legal advice. Therefore, the delay was adequately explained.

IAG submitted that it suffered a generalised prejudice as a consequence of the delay, particularly concerning its ability to investigate the incident.  The Court ruled that the general prejudice suffered by IAG was not significant enough to reject the application and prevent an extension of time.  In reaching its decision, the Court drew attention to the significant number of documents available to IAG setting out the circumstances of the incident.  Critical witnesses were also still available to give evidence.  Due to the availability of witnesses and the documents still in existence, his Honour held that there was no substantial prejudice established and there was sufficient material available to ensure a fair trial could be conducted.  Accordingly, Felmingham was granted an extension of time to proceed with his damages action 16 years and 7 months after the incident date.

What the decision shows

The key takeaway from this case is that it is dangerous to assume that an injured worker will be aware or take steps to become aware of their legal entitlements at the time of an incident and proceed with a strike out application based on that assumption.  While Felmingham’s circumstances were unusual, it shows that courts are willing to exercise discretionary powers to extend the time limit, even if considerable time has passed, provided that there is a reasonable explanation provided for the delay.

It should not be assumed that once the statutory time period has expired to commence an action, a claimant will be denied an extension of time, even if a significant period of time has elapsed.  While a limitation defence can (and should) still be pleaded to a claim that is brought out of time, further detailed inquiries should be made of a claimant regarding the reason for the delay before taking any steps to strike out the claim. It should also be borne in mind that courts will often accept general ignorance on the part of a claimant as an adequate explanation. 

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