The timing in which a medical negligence claim is made in New South Wales is important and is something that all potential claimants should be mindful of.
In New South Wales, if the alleged negligence has occurred on or after 6 December 2002, proceedings must be commenced in Court no later than three (3) years from the date on which the cause of action is discoverable. This means that the limitation period for commencing proceedings in Court expires on the third anniversary of the date before the date on which the cause of action is discoverable.
Determining when a cause of action is discoverable is not straightforward. By law, it is when you knew or ought to have known each of the following facts:
- the fact that the injury concerned has occurred;
- the fact that the injury was caused by the fault of the defendant; and
- in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
A number of factors are considered when determining the date of discoverability, including the date on which the claimant first sought legal advice, the potential defendant’s ongoing advice and treatment of the claimant’s injuries and the receipt of expert evidence in relation to the alleged negligence.
While exceptions apply (for example if a claimant has suffered a latent injury, or if the claimant were a minor or disabled at the time of the alleged negligence), claimants in New South Wales must also be mindful of the “12 year long-stop limitation period.” This is the period of 12 years running from the date of the alleged negligence. It is therefore prudent that proceedings are commenced prior to the 12 year anniversary of the alleged negligence.
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At Turner Freeman, we have specialist medical negligence lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our medical negligence lawyers are located across NSW including in our offices in Parramatta, Sydney, Wollongong, Newcastle and Toronto.