Adding causes of action after the expiry of the limitation period – a matter of discretion

24 October 2022

This case considered the court’s discretion to amend proceedings under the Motor Accident Insurance Act 1994 (QLD) to include claims brought outside of the relevant limitation periods.

In issue

  • Whether the plaintiff could add a claim for dependency to an existing claim for nervous shock after expiry of the limitation period.

The background

On 8 October 2016, the plaintiff’s de factor partner was struck by a motor vehicle as he was crossing a road, and he died the following day.

Pursuant to the requirements of the Motor Accident Insurance Act 1994 (MAIA), the plaintiff gave a notice of accident claim form to the CTP insurer on 6 September 2019 for psychiatric injury sustained as a result of the accident. The claim form was not given within the time specified by section 37(2)(b) of the MAIA, and just prior to expiry of the 3 year limitation period. Consent orders were made pursuant to section 57(2)(b) of the MAIA to commence proceedings under the Act within 60 days of the holding of a compulsory conference or exchange of mandatory final offers.

Following a pre-compulsory conference meeting with a barrister in early July 2020, the plaintiff’s solicitors served a notice of accident claim form (fatal injury) on 15 July 2020 in respect of a dependency claim. The explanation for the delay was essentially that the plaintiff’s lawyers had not considered a dependency claim prior to conferring with their counsel. The CTP insurer deemed the notice of claim to be non-compliant on the basis it was served well outside of the limitation period.

The plaintiff commenced proceedings in the District Court on 10 May 2021 in respect of her psychiatric injury.

On 17 September 2021, the plaintiff filed an application seeking various orders, including:

  1. A declaration that the consent order made on 24 September 2019 applied to her fatal injury claim and allowed her to commence a dependency claim in accordance with that order; or,
  2. In the alternative:
    (a) For leave to amend the order made on 24 September 2019 pursuant to Rule 376(4) of the Uniform Civil Procedure Rules 1999 (UCPR) or section 16 of the Civil Proceedings Act 2011 (CPA); or
    (b) For leave to amend the claim in the proceeding to include the dependency claim as a new cause of action on the basis that it arose out of the same facts, or substantially the same facts, as the claim for damages for personal injuries already made in the proceeding pursuant to Rule 376(4) of the UCPR or section 16 of the CPA.

The decision at trial

In dismissing the application, the primary judge found:

  1. The notice in respect of the dependency claim was not given within the limitation period required by section 57(1) of the MAIA, and therefore the court had no jurisdiction to make an order extending the period to commence proceedings under section 57 of the MAIA; and
  2. Rule 376(4) of the UCPR did not apply because Rule 376(1) was not satisfied as the relevant period of limitation for the dependency claim had elapsed on 8 October 2019, prior to the commencement of proceedings on 10 May 2021.

The CTP insurer’s costs of the Application were awarded against the solicitors for the plaintiff. The primary judge did not give any separate consideration to the application to amend the claim based on section 16 of the CPA.

The decision on appeal

The Court of Appeal found that the primary judge was correct in the interpretation of section 57(1)(2) of the MAIA and Rule 376(1) of the UCPR.

The Court of Appeal did, however, find that the interests of justice warranted an exercise of the discretion contained in section 16 of the CPA. In assessing whether it was in the interests of justice in this case, the Court of Appeal weighed a number of factors including: why the dependency claim was not brought within the limitation period; the admission of liability of the second defendant; and any prejudicial effect the decision would have upon each party. Any potential claim in negligence against the plaintiff’s solicitors was not considered to be a factor that should weigh against the plaintiff as she was blameless for the delay in bringing the dependency claim. The Court of Appeal noted the application of section 16 of the CPA deprives a defendant of the limitation defence and the CTP insurer was unable to point to any specific prejudice it would suffer in its defence of the dependency claim. The plaintiff was given leave to amend her statement of claim. The CTP insurer was ordered to pay the plaintiff’s costs of the initial District Court Application and of the Appeal.

Implications for you

The discretion contained in section 16 of the CPA is broad. Each case will depend on its own facts, but generally speaking, a defendant may have difficulty resisting an application under that provision in circumstances where the delay has not been caused by the plaintiff and a defendant is unable to point to any specific prejudice in defending the claim at trial.

Stimpson v O'Toole & Anor [2022] QCA 194

Joshua Van Coevorden

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