If you think you have a claim for compensation as the result of personal injury, it is important that you act quickly to instruct solicitors and obtain sound advice before the expiry of the Limitation Period.
The Legislation
In NSW under the Limitations Act 1969, a person cannot bring a claim for compensation for personal injury after the expiration of the first of the following:
- Three (3) years from the date on which the cause of action (claim) is ‘discoverable’; or
- Twelve (12) years running from the time of the act or omission alleged to have resulted in the injury or death concerned.
A claim is “discoverable” by a person on the first date that the person knows or ought to know of each of the following facts:
- The fact that the injury or death concerned has occurred;
- The fact that the injury or death 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 person “ought to know” of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps. Usually, this will mean taking medical or legal advice within a reasonable period of time.
Practical Application
In some cases, such as where a person is punched by another person and suffers injury, the date that the cause of action is discoverable is obvious and the clock will start to tick immediately. In other cases, such as medical negligence, where a doctor has allegedly failed to provide appropriate care and treatment, the date that the cause of action is discoverable becomes more difficult to determine.
In most instances in medical negligence, where peer professional opinion is necessary to determine whether or not the medical care and treatment concerned fell below that standard which is considered to be competent professional practice.
The limitation period ceases to run when the claim is filed in court.
It is extremely important to instruct a competent lawyer as soon as possible to ensure that appropriate steps are taken to investigate your claim and to commence proceedings before the expiration of the limitation period.
Case Study: Thompson v Rosen [2020] NSWSC 356
In the recent NSW Supreme Court case of Thompson v Rosen [2020] NSWSC 356, two gynaecologists brought an application to strike out a claim made by a former patient who alleged to have suffered injuries as the result of their care in excess of ten (10) years previously, on the basis that the claim was commenced out of time.
The doctors argued that the woman had known about her injuries from as early as 2007 when the treatment was performed, and ought to have known that her injuries were sufficiently serious to justify making. It was therefore more than three (3) years since the woman’s cause of action was discoverable.
However, NSW Supreme Court Associate Justice Harrison found that a cause of action is not discoverable by a person (‘the plaintiff’) until they become aware that their injuries are the fault of another (‘the defendant’). It was held that ‘fault’ in a legal context means more than just knowing who performed a procedure and being unhappy with the outcome. The plaintiff needs to have received an opinion from an appropriately qualified expert who is of the opinion that the defendants breached their duty of care and that this breach caused the plaintiff’s injuries. This must occur before it can be considered that the plaintiff knew that the defendant was at fault.
In this case, AsJ Harrison found that the woman did not know that the doctors were at fault until she received an expert report from another obstetrician/gynaecologist on 6 September 2018 stating that the treatment she received from the doctors would not be widely accepted in Australia by peer professional opinion as being competent professional practice, and that their poor treatment is what caused her injuries. The judge held that the date of discoverability in this case was the date the expert report was received on 6 September 2018. Consequently, the limitation period had not expired in respect of the woman’s claim.
Our team of expert personal injury lawyers would be pleased to meet with you in a free consultation to discuss your potential claim and the limitation period that applies to you.
Please contact our office on (02) 4050 0330 to make an appointment or book online.
