The Limitation Act 2005 came into effect in Nov 2005.  Surprisingly, for non-lawyers anyway, there remains a fair amount of uncertainty as to such new scheme’s effect in several important respects, particularly:

  • in terms of the time for claims alleging medical negligence.  This uncertainty is not as to the overall time (which in most case is 3 years), but as to when time starts to run from…
  • in terms of in what circumstances an extension beyond such initial time limit will be granted.

A recent decision by Keen DCJ, Abreu v Peacock [2012] WADC 31sheds some light on the first of these.  

Section 55 of the Limitation Act 2005, which deals with when a claim (or ’cause of action’) arises, so that time starts to run for a claim, states:

55. Personal injury — general

(1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs —

(a) the person becomes aware that he or she has sustained a not insignificant personal injury;

(b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

In Abreu, Judge Keen confirmed that the key phrase, ‘a not insignificant personal injury‘ was not a high threshold and was something very different from ‘a significant injury.’  He therefore concluded that although the claimant in such case alleged, as quite often occurs, that initially he had not suspected his work injury was serious, nonetheless, section 55 was met very shortly after his accident and so his time for claim began to run.

It appears Judge Keen’s decision is the subject of appeal, so it will be interesting to see what the Court of Appeal make of the issue.