Unpacking the complexities of limitation periods in personal injury claims

Barrister Emma Bartley of Garfield Barwick Chambers says limitation periods in personal injury litigation are rarely straightforward, with courts increasingly focused on what plaintiffs knew, or ought to have known, about their injury and its cause.

Drawing on leading New South Wales decisions including Baker-Morrison v State of New South Wales, Coffey v Murrumbidgee Local Health District and Black v Hillier, Bartley examined how the Limitation Act shifted from a fixed time model to a discoverability framework centred on a plaintiff’s knowledge. She explained that courts assess when a plaintiff knew, or reasonably should have known, that an injury occurred, that it was caused by a defendant’s fault, and that it was serious enough to justify proceedings. In practice, she said, those questions are highly factual and often cannot be resolved until a plaintiff is cross-examined at final hearing.

Bartley also explored how the legislation addresses disability, minors and latent injury claims, emphasising the importance of detailed medical and psychiatric evidence in disputes about delay and incapacity. While the statutory scheme is technical, she described it as an attempt to balance flexibility and fairness for injured plaintiffs against the need for certainty and finality for defendants.

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