The Victorian County Court was recently asked to consider whether the limitation period should be extended in circumstances where the Plaintiff’s common law proceedings were commenced nearly twenty-one years after the cause of action arose and nearly fifteen years after the limitation period expired.

The Plaintiff claimed that the employer was negligent when it required the Plaintiff to transport aluminium windows to a construction site on 29 August 2000. The employer defended the claim on the basis the Plaintiff failed to bring the claim within the limitation period.

The Plaintiff submitted that he was unaware of the common law or limitation periods prior to seeking legal advice. In addition, the Plaintiff submitted that he suffers from a mental health disorder and substance abuse which had impacted his ability to pursue a claim. The Court did not accept the Plaintiff’s claim of disability.

The employer argued that due to the Plaintiff’s delay there was a lack of documentation and witnesses available, resulting in it being unable to fairly investigate and respond to the allegations made by the Plaintiff.

The Court refused the Plaintiff’s application to extend the period of limitation. It held the length of the delay was far too significant, noting the likely prejudice to the employer if the limitation period were extended and that the employer would be denied a fair trial. The Court found the employer would be at a disadvantage in considering the Plaintiff’s medical conditions and the casual connection to the incident as the employer was now in liquidation and would present inherent difficulties when it came to searching for documents or potential witnesses.

Our Comments

Parties to a potential action should not assume that once a limitation period has expired, a claimant will be granted an extension of time. The right to bring an action will be lost unless the circumstances are exceptional. As noted in the case of Griffiths v Nillumbik Shire Council, the statute of limitations ‘is not just some easily moveable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time period’. [1]

It is usual for the defendant to have to establish specific prejudice. In this instance the company was in winding up and the claim form merely noted the injury occurred when he slipped on wet concrete. There were no witnesses identified. It was concluded the only liability evidence likely available at trial will be the oral evidence of the plaintiff, and that was of itself sufficient specific prejudice.

[1] [2022] VSCA 212 [66].