Time Limits for Suing Doctors

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In all States and Territories in Australia, there are limitation periods within which litigation must be commenced by the patient. The difficulty is that in some medical negligence cases, the patient may not realise that their injury is the result of negligence by their doctor, or that there even is a compensable injury.

Below is some general information on time limits for suing doctors and other healthcare professionals in Australia. You should not take this information as legal advice, and instead make enquiries as to the particular time limit that would apply in your case, as every case is individual. Contact our helpline if you require legal assistance.

Limitation Periods

At the time of writing this article (2018), some States have a 3 year limitation period in which patients can commence actions for medical negligence, and some have a 6 year period. You will need to speak with a medical negligence solicitor for advice as to which time period is applicable in your State and in your particular case.

In NSW, Victoria, Western Australia and Tasmania, the time period begins at the date of discoverability. In NSW, Tasmania and Victoria, the legislation also provides that legal action will be statute-barred if no injury attributable to the defendant has occured within 12 years of the incident. The limitation period does not run while the patient is a child or has a legal disability, or is incapacitated by intellectual or mental disability.

In the Australian Capital Territory, the Northern Territory, Queensland and South Australia, the time limit starts to run from the date the action accrues.

Can the limitation period be extended?

In the ACT, Tasmania and Victoria an extension of time may be possible if you can prove that it is "just and reasonable".

In NSW, an extension can be applied for if it is "just and reasonable", and the extension must not extend beyond 3 years after the date on which the cause of action is discoverable. See Baker-Morrison v State of NSW [2009] NSWCA 35.

In the Northern Territory and South Australia, a court may grant an extension if they believe it would be just in all the circumstances of the case.

In Western Australia, the court must be satisfied that the plaintiff did not know of certain factors before the limitation period expired.

In QLD, the court may extend the limitation period for one year after a material fact of a decisive character has come to the attention of the plaintiff which provides evidence to establish the cause of action. An extension may be denied if there is prejudice to the possible defendant and a court will only grant the extension where justice is best served.

What factors will the court take into account?

When deciding whether to extend the time limit for a medical negligence claim, the court may consider:

  • The length of the delay.
  • The reasons for the delay in seeking legal advice and taking legal action.
  • When did the patient first become aware of certain factors, such as symptoms or that they had suffered an injury which could have been caused by the doctor?
  • Has the patient acted reasonably?
  • Can a fair trial still be held?
  • Are relevant medical records and other evidence still available, or have they been destroyed?
  • Is the defendant doctor (and/or other key witnesses) available to give evidence?

Legislation

Limitation Act 1969 (NSW)

Limitation of Actions Act 1958 (Vic)

Limitation of Actions Act 1936 (SA)

Limitation of Actions Act 1974 (Qld)

Limitation Act (NT)

Limitation Act 1985 (ACT)

Limitation Act 1974 (Tas)

See also Civil Liability legislation in each State.

 

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