Time’s (not) up: limitation periods in medical negligence cases
By Bridget Wall, Seun Idowu and Taylah Davidson
In the recent decision, LTP v Natalwala [2023] WASC 414, the Supreme Court of Western Australia extended the limitation period for a personal injury claim stemming from medical treatment in 2011.
Across Australia, there’s no single law governing limitation periods, which leads to variations in when these periods start (like from the injury date, the date the cause of action first arises, when the injury is discovered or when the person becomes aware of significant injury). However, the courts generally follow similar principles when considering requests to extend these limitation periods.
Below, we’ll give an overview of limitation periods in each Australian jurisdiction and review five recent medical defence cases where an application to extend the limitation period were made.
Overview of legislation
Jurisdiction | Legislation | Summary |
|---|---|---|
| Limitation period | ||
| Australian Capital Territory | Limitation Act 1985 - section 16B | Three years from date of injury. |
| New South Wales | Limitations Act 1969 - section 50C | Whichever of the two is to expire first:
|
| Northern Territory | Limitation Act 1981 - section 12 | Three years from the date the cause of action first accrues. |
| Queensland | Limitation of Actions Act 1974 - section 11 | Three years from the date the cause of action first arose. |
| South Australia | Limitation of Actions Act 1936 - section 36 | Three years from the date the cause of action first accrues. |
| Tasmania | Limitation Act 1974 - section 5A | Three years from the date of discoverability. |
| Victoria | Limitation of Actions Act 1958 - section 27D | Whichever of the two is to expire first:
|
| Western Australia | Limitation Act 2005 - section 14 and section 55 | Three years from the date the person becomes aware they have sustained a ‘not insignificant’ personal injury or the person experiences the first clinical sign or other manifestation of a ‘not insignificant’ personal injury, whichever is earlier. |
| Extension of time | ||
| Australian Capital Territory | Limitation Act 1985 - section 36 | Any period if just and reasonable. |
| New South Wales | Limitations Act 1969 - section 62A | 12-year period: can be extended for a maximum of three years from date of discoverability |
| Northern Territory | Limitation Act 1981 - section 44 | Any period, if material facts not ascertained until 12 months before end of limitation period or after end of period, or failure to sue due to representations or conduct of Defendant, and it is just to grant extension. |
| Queensland | Limitation of Actions Act 1974 - section 31 | One year after material facts of decisive character within plaintiff’s means of knowledge. |
| South Australia | Limitation of Actions Act 1936 - section 48 | Any period, if material facts not ascertained until 12 months before end of limitation period or after end of period, or failure to sue due to representations or conduct of defendant, and it is just to grant extension. |
| Tasmania | Limitation Act 1974 - section 5A | Six years from the date of discoverability if just and reasonable to do so. |
| Victoria | Limitation of Actions Act 1958 - section 27K | Any period, if just and reasonable. |
| Western Australia | Limitation Act 2005 - section 39 | Up to three years from when plaintiff became aware, or ought reasonably to have become aware, of physical cause of injury, or that injury is attributable to conduct of defendant, or of defendant’s identity, if court is satisfied that when limitation period expired plaintiff not aware of matter in question. |
Natalwala
The plaintiff applied for an extension of time to bring a medical negligence claim against the defendant, obstetrician and gynaecologist Dr Jay Natalwala. The plaintiff alleged the defendant breached common law and contractual duties of care owed to her when he performed several procedures, including vaginal mesh repair in August 2011, insertion of a Mirena device and mid-urethral sling in November 2011 (2011 cause of action) and a Gynecare TVT system implant in November 2013 (2013 cause of action). The plaintiff alleges after each procedure, she suffered symptoms including ‘sharp’ and ‘shooting’ pain to the buttocks, groin and leg regions.
Sometime around 2018, the plaintiff commenced investigations to determine the cause of her ongoing discomfort. Eventually, in June 2018, she had mesh removal surgery. The plaintiff’s evidence was that the surgeon who removed the mesh told her words to the effect of ‘[the] mesh implants were in the wrong place’.
Even with this information, the plaintiff didn’t realise she might have a legal claim until 2021. That’s when she received an expert report from Professor Mike O’Connor, consultant obstetrician and gynaecologist, which established her physical injuries were the result of the defendant’s treatment. The report was dated 30 April 2021 but was not provided to the plaintiff until 9 October 2021 (which is the date the court inferred she read it).
Justice Tottle of the Supreme Court of Western Australia:
extended the limitation period for the 2011 cause of action, finding the plaintiff only became of aware of the physical cause of her injury after reading Professor O’Connor’s report, which she received on 9 October 2021. The court determined earlier reports from 2018 were vague and didn't provide detailed information, unlike Professor O'Connor's report. Professor O'Connor's report was the first to suggest the plaintiff's injury was nerve damage caused by poor surgical technique.; and
determined the limitation period for the 2013 cause of action hadn’t expired because it wasn’t until after Professor O’Connor’s report the plaintiff realised her symptoms in January 2013 were signs of a significant injury. So, the limitation period for the 2013 cause of action didn’t start until 9 October 2021.
Other recent decisions
In Goodridge & Anor v Baker [2023], the Supreme Court of Victoria extended the limitation period for a 1996 cause of action. The court noted the ‘understandable delays’, the very significant injury the plaintiffs experienced and how quickly and reasonably they acted once they received legal advice regarding their potential claims.
In Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2022], the Queensland Court of Appeal declined to extend the limitation period for a 2013 cause action. The plaintiff failed to ‘take all reasonable steps’ to get expert evidence supporting her claim, even though she knew she had a claim and needed such evidence after appointing solicitors.
In Greenfield v Sydney Local Health District t/as Royal Prince Alfred Hospital [2020], the NSW Supreme Court declined to extend the limitation period for a 1997 cause of action. The plaintiff failed to provide any evidence to support of her claim and didn’t provide satisfactory reasons for the delay.
In Waldron v Joondalup Hospital Pty Ltd [2018], the NSW Court of Appeal extended the limitation period for a 2011 cause of action because the plaintiff didn’t realise her injury was due to the defendant’s actions until she received an expert report in 2017. It’s worth noting the proceedings started against the defendant eight months before the plaintiff received this expert report. The court stated while there may have been breach of duties by her legal representatives (a claim was commenced without proper instructions from the plaintiff and without her understanding the crucial elements for her claim’s success), but this shouldn’t prevent them from extending the time limit to when the proceedings began.
These cases demonstrate that while some courts may show more understanding towards a plaintiff’s situation (see Goodridge & Anor v Baker), the overall approach of the court’s to considering an extension to the limitation period is similar. While successfully defending against a limitation case is difficult and time alone might not heavily influence a court’s decision, it’s up to the plaintiff to prove why more time should be given.
Key points to consider
The facts matter. In all five cases, the courts methodically looked at the timelines provided by the plaintiffs along with all the evidence presented.
Plaintiffs need to be honest and believable. They must clearly explain why there was a delay in starting legal proceedings (ie they should give reasonable justification for the delay).
In states where the cause of action doesn’t start from the injury date, plaintiffs usually need solid expert evidence linking the injury to the negligent act before the limitation period commences. General expert evidence suggesting a possible cause of action without explaining the link may not convince the court.
It’s not sufficient for a plaintiff to say they knew they needed expert evidence but had to wait years to get it. They need to act promptly and reasonably or explain why they couldn’t.
Simply choosing not to pursue a cause of action at a certain time might not be enough to extend the time limit, but financial difficulties and other responsibilities could be valid reasons for not investigating a potential claim.
Hall & Wilcox is a national full-service firm. Our team includes specialist lawyers who can assist with various medical, health, aged care, disability and community industry issues. Please contact Bridget Wall, Seun Idowu and Mitch Stein for more information. Keep an eye on our website for updates and industry insights.
