Occupier Liability: Strict Limitation Period Apply

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In relation to occupier liability personal injury claims the District Court at Southport, in the decision of Ghobrial v Assaf v Ors [1], recently gave judgment ordering that an injured plaintiff’s claim against the owner occupiers of a residential property be dismissed for failing to comply with strict court orders setting out conditions on a previous application to bring urgent proceedings, despite a grant of an extension of the ordinarily 3 year limitations period to make a claim for personal injuries in Queensland [2].

The plaintiff who sustained physical injuries as a result of a stabbing on his wife’s property in 2006 was not aware that he also suffered from a psychiatric illness as a result until February 2011.

Whilst his solicitors were successful in an application to Court in March 2012 to extend the limitation [3], a remedy available in limited circumstances, to February 2012, they ultimately failed to comply with a condition imposed by the Court at a prior application to bring urgent proceedings, namely, to properly issue the proceedings and to provide a complying Notice of Claim on the Defendant within one month of the order to extend the limitation.  As such it was held that the proceedings were improperly brought and now statute barred.

Implications of the decision

The decision analysed the operations of s43 and s59 of the Personal Injuries Proceedings Act (Qld) 2002 (“PIPA”) and confirms the practical implication that any s43 order must be complied with and proceedings are to be issued before any limitations period under the LAA expires.

In the present case, the solicitors had previously filed an application under s43 and granted leave to issue proceedings subject to:

  1. A application be made to determine of whether the usual 3 year limitations period would be extended on the basis of the injured plaintiff becoming aware of a material fact of decisive character, namely his recent psychiatric diagnosis.  That order was granted in March 2012.
  2. Complying with Chapter 2, Part 1 of PIPA by serving a Part 1 Notice of Claim on the Defendant within 1 month.  This condition was not complied with as service was not effected until 22 May 2012 (after the expiration of the extended limitations period) and therefore the solicitors were unable to further invoke the operation of s59 of PIPA.

It is important that practitioners draw up and file proceedings well before the expiration of the purported limitations period, regardless of the tentative nature of a pending application.  In this instance, it is best practice to prepare a Claim and Statement of Claim for filing immediately after the hearing of the s43 application.

Further, where the order is for the ‘serving’ of the Part 1 Notice of Claim as separate to ‘giving’ under PIPA, practitioners should exercise care to ensure personal service and consider engaging a process server, well before the expiration of any purported limitations period.

For more information regarding Occupier Liability Strict Limitation Period

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[1] [2014] QDC 141

[2] Limitation of Actions Act (Qld) 1974 (“LAA”)

[3] [2012] QDC 034