What’s the worst thing that could happen when you bring a claim out of time, and without a lawyer? Well, Mr Khanna recently found out when he sued Woolworths over an injury in 2015.
Many people are unaware that there are time limits, restricting when a personal injury claim can be pursued. The general rule is that a personal injury claim must be pursued within three years of the “date of discoverability”, that is, when you knew, or ought to have known, that you had a potential claim.
Khanna v. Woolworths Group Limited  NSWCA 94
This question was recently considered by the NSW Court of Appeal in a case, with very interesting circumstances.
On 18 April 2015, the Plaintiff, Mr Khanna was injured as a Masters Home Improvement store, when he tried to stop his wife from falling. His wife had tripped on a stack of chairs. Mr Khanna tried to stop his wife from falling by grabbing her, but in the course of doing so, he injured his own right knee and lower back. The Plaintiff alleged that in addition to his physical injuries, he also suffered psychological injuries, including anxiety and mental distress.
The Plaintiff did not have any solicitors, and represented himself at Hearing. He commenced Court proceedings on 29 January 2019, over three years after the injury, and the Defendant, Woolworths (which owned Masters), argued that he was out of time. Interestingly, Woolworths also argued that the incident never happened at all, as it was not reported or captured on CCTV footage. While there was medical evidence of Mr Khanna’s injuries, references to the actual fall were very vague, and few and far between.
In his own evidence, the Plaintiff said that he knew, when he fell, that he was injured and that it was caused by Woolworths. As such, even though the date of discoverability is not necessarily the date of the injury, because Mr Khanna admitted that he knew Woolworths was at-fault at the time of the injury, 18 April 2015 was deemed by the Court as the correct date. Due to this, Court proceedings should have been commenced by 18 April 2018. Consequently, Mr Khanna was unsuccessful.
The Court still considered whether the Defendant was negligent. It found that the stack of chairs was clearly visible, so the Plaintiff’s wife was negligent herself for running into them. As such, Woolworths had not breached its duty of care to Mr Khanna, because his injury was, arguably, caused by his own wife’s negligence.
The Plaintiff appealed this decision, which was heard in the NSW Court of Appeal. He argued that the Court’s decision was simply wrong. This appeal was refused, on the basis that it was insufficient to merely show that the Court was arguably incorrect.
This decision highlights the importance of seeking legal advice as soon as you think that you might have a claim. This will mitigate the potential to bring a claim out of time, and also reduce the risks associated with Plaintiffs proceeding without legal representation and having to deal with complex legal principles on their own.
If you have a question regarding the above, please contact Joe Bonura or Tess Danjoux to discuss how Marsdens can assist you.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.