Act now to safeguard future personal injury claims for minors

Parents or guardians of minors who fear their children may have been exposed to hazardous substances, such as lead paint in schools, have been advised to register potential personal injury claims without delay.

Canberra litigation lawyer Bill McCarthy said there are a number of preliminary steps parents or guardians of minors who are concerned about adverse health outcomes should take, including completing an ACT Law Society personal injury claim notification form, obtaining the details of potential witnesses or photographic evidence, and keeping medical records.

“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 with the passing of time,” said Mr McCarthy, from BAL Lawyers.

Lead paint contamination has been detected at Alfred Deakin High School, and North Ainslie and Yarralumla primary schools, prompting the ACT Education Directorate to undertake testing and remediation.

Although lead is common in many old buildings in Canberra, it can be hazardous, especially if swallowed or breathed in, with children under the age of five at the greatest health risk.

In an airborne state, lead exposure can result in permanent intellectual impairment or brain damage in young children who are still in the developmental stage.

Mr McCarthy said some claims relating to the contamination of food, environmental tobacco smoke, pesticides, pollution and toxic chemicals have been pursued in Australian courts with some significant successes resulting in redress for victims.

However, he said other cases have “spectacularly failed” because of a dispute in the evidence as to the role of a particular chemical or contaminant, which has meant that a claimant with a debilitating illness will not recover compensation.

Mr McCarthy said pursuing a personal injury claim pursuant to exposure to hazardous substances, such as lead, is complex.

“There may be a lack of scientific or medical knowledge to be able to identify, on the balance of probabilities, the precise cause of the medical condition,” he said.

“The doctor may not be able to diagnose the condition, identify its cause or take an accurate history because the exposure happened many years before.

“Illnesses can take years to manifest and evolve, especially in minors, and they are not always easily identifiable. Medical opinions may differ, or other background environmental exposures may raise doubt as to the cause.

“For example, a claimant may have been exposed to a hazardous substance as a minor but then entered the workforce as a tradesman, or laboratory or factory worker, where they were exposed to toxic chemicals, vapours and fumes, or dust, significantly blurring the lines as to the precise cause of their illness.

“And, of course, not all children who have been exposed to the contaminant develop symptoms.”

Mr McCarthy said even when a duty of care could be established, questions may arise as to the scope of the duty of care, whether or not there has been a breach of the duty of care, and whether damage has flowed from the breach.

Legislation governing such claims is the ACT’s Civil Law (Wrongs) Act 2002, which specifically requires certain pre-court procedures for bringing about personal injury claims.

Under the ACT’s Limitation Act 1985, the relevant period for bringing about a claim is six years after the day the minor’s parent or guardian first knows that the child has suffered an injury, which includes a disease or illness.

The limitation period for which a claim is statute barred is three years after a minor reaches the age of 18 years.

In limited circumstances, a court can extend time if it is “just and reasonable to do so”, but it should not be assumed that the granting of an extension will be automatic. If the court does not grant an extension, the claim remains statute-barred with no grounds for relief.

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