Australia: Proving Prejudice In Limitation Actions

Last Updated: 14 September 2009
Article by Olivia Carmody and Richard Garnett

In Laws v Web Scaffolding Pty Limited [2009] ACTSC 65 & Web Scaffolding Pty Limited v Laws [2009] ACTSC 79, the ACT Supreme Court upheld the appeal of an employer against a former employee who was granted leave to extend the limitation period in an action for damages for personal injuries. The Court confirmed that a plaintiff must prove an absence of prejudice to the defendant for a time extension application to be successful.

Key points:

  • The plaintiff has the onus to explain why a limitation period has expired and to demonstrate that the defendant would not be prejudiced to any significant degree if a time extension is granted.
  • This case is good news for defendants and insurers; defendants are often unable to demonstrate any real prejudice other than the usual 'disadvantages' of having to meet a claim arising out of an accident which occurred many years before.


The plaintiff, Mr Laws, suffered an injury at work in January 2001. He lodged a claim with his employer's workers' compensation insurer in February 2001, which was accepted and some payments of workers' compensation benefits were made.

Four years later, in February 2005, the plaintiff consulted solicitors and correspondence was entered into between the solicitors and the workers' compensation insurer which suggested that proceedings for common law damages may be instituted on behalf of the plaintiff.

Proceedings were not in fact commenced until August 2007, six months after the expiry of the applicable limitation period.

Solicitors for the defendant, the plaintiff's employer, Web Scaffolding Pty Limited, immediately responded that the claim was statute barred and filed a defence raising the limitation issue in December 2007. However, no application for an extension of time in which to institute proceedings was made on behalf of the plaintiff until January 2009.

This application was heard in April 2009. The plaintiff's explanation for the delay was that he originally thought his injuries were minor, and he hoped he would make a full recovery. The reasons for the delay in commencing proceedings included the plaintiff hoping 'that the pain would go away over time' and delay in commencing proceedings by his solicitors.

Applicable legislation

Under the Limitation Act 1985 (ACT) (Limitation Act), Mr Laws had six years from the date of his accident to commence proceedings. After that time, it was necessary to seek an order from the Court extending the time within which proceedings could be commenced. (In 2001 the Limitation Act was amended and the limitation period reduced to three years for most causes of action.)

Section 36 of the Limitation Act gives a court a broad discretion to extend the limitation period if the court considers it is '... just and reasonable to do so ...'. There are a number of factors which the court is required to consider in exercising its discretion, including the length and reasons for the delay on the part of the plaintiff and the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant.

First Instance Decision

Master Harper accepted the plaintiff's explanation for the delay between the accident in 2001 and first instructing solicitors in 2005 as reasonable.

While he did not find the reasons for the delay in commencing proceedings 'particularly persuasive', and was somewhat critical of the plaintiff's solicitors, he was not satisfied that there was likely to be prejudice to any significant degree caused to the defendant (or the insurer) if the extension of time was granted – nor was he satisfied that the delay would result in the defendant losing its right to a fair trial.

On balance, the Master felt the interests of justice favoured the granting of the extension and he ordered that the period within which the proceedings be brought be extended to 1 August 2007 (being the date the action was commenced).

The defendant appealed.


Justice Buchanan referred to the High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 561 (followed in the ACT in Sessions v Phengsiaroun [2008] ACTSC 132) and noted that there was no 'presumptive right' to a plaintiff seeking an extension and that there was a clear and positive onus on the plaintiff to justify an extension of time rather than an onus on the defendant to defeat the application.

His Honour held that the Master had erred in failing to assess the application by reference to the onus which the plaintiff carried, and he also thought the wrong result had been reached on the evidence.

His Honour stated (as had the Master) that the explanation(s) for the delay in instituting proceedings offered by both the plaintiff and his solicitors were not particularly persuasive, and he noted the significant delay between the time in which the limitation issue was first raised in mid 2007 and the application for an extension of time being made in January 2009.

Apart from the issue of delay, his Honour said there was insufficient evidence before the Master to show that '... the defendant would not be prejudiced by the delay for which the plaintiff was responsible ...' – suggesting that the defendant may well be prejudiced in its ability to investigate the circumstances of the accident by seeking interviews with potential witnesses and the like.

His Honour emphasised that the obligation to show the absence of the likelihood of significant prejudice to the defendant lay with the plaintiff and he could see '... nothing in the materials before Master Harper to show this onus was discharged, or even seriously addressed ...'.

As a result, the appeal was upheld and Justice Buchanan ordered that the application for an extension of time be dismissed.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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