Time Limits

One of the many difficulties confronting claimants in health product liability cases is the time limits within which action can be brought. It is often a long time after treatment with a health product before the injured person is aware of the true nature of the injury, or that it was caused by the product in question, and that there may be a cause of action and remedy available. If action is not taken promptly, the claim might be statute barred and lost. Time limits on the right to bring an action are created by legislation and delay can affect the right to certain remedies such as injunctions.

The date the action first arose is often difficult to determine accurately, and can differ depending upon whether it is being taken:

  • in tort, such as personal injury;
  • for breach of contract; or
  • for breach of statutory duty.

With the Limitation Act 1974 (Tas), for personal injury, it is the date on which the action is discoverable that marks the start of the clock. This means that it is when the person was able to identify that there was a problem, and a potential action. For example, if a person became aware of fertility problems arising from a product only 10 years after using the product, when consulting a doctor, then it is from the date of that meeting that time begins to run. In contract, the cause of action arises when the term of the contract has been breached. The time limit can be extended in certain circumstances, for example, if fraud is involved (Limitation Act, s.32) or where the claimant is under a disability (Limitation Act, s.26). However, marking the date on which an action became discoverable can be difficult.

Other legislation has limitation periods applicable to actions brought under them. Whenever reference is made to any legislation in determining a claimant’s rights, care should be taken to search for a limitation section in that statute. An example is the three year limitation period under the Competition and Consumer Act for manufacturer's liability (s87F).

Getting Help

A person injured will need a solicitor, and it is wise to find one who is proficient in the area of product liability law. You can contact the Legal Aid Commission, the Law Society or a community legal centre for useful advice about suitable solicitors. Remember that taking this type of legal action may cost a great deal of money.

Alternatively, you may be able to take legal action against the company in another country such as the United States, whose contingency fee system allows for people with low incomes to initiate proceedings at no initial cost to themselves. However, initiating an action in another country also has its complications.

If deciding to sue overseas, it will probably be necessary to find a lawyer in that country with suitable expertise or familiarity with this product to act on the person’s behalf. An Australian solicitor may be retained as an agent of the overseas lawyer. If litigation has already been commenced in another country, there will probably be considerable information worth obtaining through lawyers or other sources. It may also be the case that there are a number of persons injured by the same product. If so, the cost of research could be borne equally between plaintiffs who could also be joined together for the purposes of the legal proceedings. There are now law firms in mainland capital cities which specialise in these sorts of large-scale international product-liability class actions. The Legal Aid Commission or the larger Tasmanian law firms should be able to assist in contacting such firms.

Finally, it is important to remember that in medical cases there is always the problem of possible alternative causes of the injury. It is very important that the patient clearly recount their physical and emotional injury, collect detailed medical records, and analyse the illness before taking legal action.

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