Bringing latent personal injury claims on behalf of minors in the ACT

Personal injury claims, particularly those arising from exposure to Asbestos, dust disease, and lead poisoning, are not always easily identifiable and health complications can take considerable time to manifest and evolve, specifically in minors.

Minors, under the age of five, are at a greater health risk, if exposed to a metal such as lead. Lead can be hazardous, especially if swallowed or breathed in, though is still a common feature in old ACT buildings. In an air-borne state, lead exposure can permanently lead to intellectual impairment or brain damage in young children who are still in the developmental stages of their life[1].

Injuries that occur in a public place, such as a school or community hall, may arise as a result of negligence of either a person or an entity responsible for the facility. If that is the case, and a breach of duty can be established, then a claim for damages can be brought in either the ACT Magistrates or ACT Supreme Court, depending on the severity of the injury sustained. The monetary threshold for litigating a claim in the ACT Magistrates Court is up to $250,000, anything over that threshold is litigated in the ACT Supreme Court.

The main piece of legislation that governs public liability and product liability claims in the ACT is the Civil Law (Wrongs) Act 2002 ACT (the Wrongs Act). Chapter 5 of the Wrongs Act specifically requires certain pre-court procedures for bringing personal injuries claims to be complied with, though some complications can arise if a potential claimant is exposed to a potentially harmful substance, though its consequences may take years to materialise. This can be especially the case for children, when bodies are still developing.

A claim for damages, arising from a personal injury, normally needs to be commenced within three years from the date of injury, in accordance with section 16B of the Limitation Act 1985 ACT (the Limitation Act). However, in the case of injured minors, special provisions apply pursuant to section 30A of the Limitation Act. Specifically, if the injury is, or includes, a disease or disorder, the relevant period for bringing a claim is six years after the day the minor’s (plaintiff’s) parent or guardian first knows that the child has suffered an injury, or that the injury is related to someone else’s act or omission. In any other case, it is six years after the day the accident giving rise to the injury occurred. The limitation period for which a claim is statute barred is three years after a minor reaches its majority, being 18 years of age. It is therefore important to be aware of the limitation period, as when it expires, the claim may become statute barred.

As discussed above, personal injury claims in minors arising from exposure to chemicals or other toxic or hazardous materials are not immediately ascertainable. However, that does not mean that precautionary steps cannot be taken early on by either a concerned parent or litigation guardian if their child has been exposed to a hazardous substance such as lead.

The preliminary steps to be taken are as follows:

  1. Notify the owner or occupier of the premises, as soon as possible, of the injury and complete a notification of injury form, if one is available.
  2. Complete an ACT Law Society Personal Injury Claim Notification Form, which can be found on the ACT Law Society website and provide it to the respondent or the respondent’s insurer, if known. For example, in case of a public school in the ACT, the respondent would be the Territory, thus the Form can be sent for the attention of the ACT Government Solicitor.
  3. Obtain details of any witnesses to an alleged injury and take photographs and records of the premises or place of injury.
  4. If you notice symptoms develop in your child, then seek immediate medical attention and keep records of all your medical appointments, as well as receipts for any treatment obtained and medication purchased, so that in due course reimbursement can be sought from the relevant insurer, once proceedings are commenced.

The taking of such steps, at the earliest occasion, can mean that should there be a need to carry through with a claim in later years, the necessary evidence for a claimant to succeed on his or her claim will not have been lost later with the passing of time.

If you have any questions in respect of this article, or require any legal assistance, please contact Bill McCarthy, Special Counsel, within the Litigation Team at BAL Lawyers.

[1] “Lead exposure and your health”, Betterhealth.vic.gov.au