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      Is there a time limit to claim for medical negligence?

      Quick answer

      Yes, strict time limits apply to Medical Negligence claims. The exact limit varies from state to state, but you must generally begin your claim within 3 years of being injured. In some states, the 3-year period begins when you discover the injury.

      The Court may allow you to file outside the limit if there is a reasonable excuse for your delay. This includes situations where your injury developed over an extended period or your medical professional tried to prevent you from making a claim.

      If you’re outside your state’s time limit, speak to a lawyer immediately. In a free consultation, we’ll outline the most effective strategy to get your claim accepted.

      In depth answer

      You must begin a claim for Medical Negligence within a set time limit. Every state has different limits, so it’s crucial to understand which applies to your situation.

      In general, time limits are based on 1 of 2 criteria: the date the negligence occurred or the date you discovered the injury (the ‘date of discoverability’).

      Date the injury occurred

      The date of injury refers to the day you were injured due to a medical professional’s negligence. This time limit applies even if you didn’t realise you were injured at the time or if your injury only developed months (or years) later.

      Date of discoverability

      The date of discoverability means the date you realised you were injured by Medical Negligence. This may occur on the day of the negligence, or you may not realise until days, months or years after the incident. If you were aware of your injury but didn’t attribute it to Medical Negligence, the date of discoverability only begins when you become aware that the injury was caused by Medical Negligence.

      Notably, the date of discoverability must be ‘reasonable’. The Court assumes that an injured person would take reasonable steps to find the cause of their injury or condition. If you fail to take these steps, your date of discoverability will be the date you should have become aware of the Medical Negligence.

      Since the date of discoverability can be argued in Court (and is often established after the fact), we strongly advise filing your claim even if the date has not yet been determined.

      What happens if I’m outside the time limit?

      You can apply to the Court for an ‘exception’ if you’re outside the time limit. An exception is a reasonable excuse for the delay in filing your claim.

      To determine whether you qualify for an exception, the Court may look at any of the following:

      • Whether you had access to proper legal counsel
      • Your attempts to obtain medical or legal advice (if any)
      • The length of your delay
      • The extent and severity of your injuries
      • Whether your medical professional discouraged you from suing.

      If you were incapacitated due to injury, most states suspend the time limit while you recover. However, the time limit may apply if you have a guardian who can assist with your claim.

      ‘Long stop’ rule exceptions

      In NSW and Victoria, you can apply for an exception to the 12-year long stop rule if you only discovered your injury within the last 3 years. The Court uses the same criteria as above to assess whether you’re entitled to an exception.

      Crucially, you cannot apply for an exception if you’re outisde the 3-year ‘date of discoverability’ time limit.

      Say, for example, you were injured 14 years ago by a negligent surgeon. You didn’t know you were injured at the time but discovered the injury a year later.

      If you’re a NSW resident, you have 3 years from the ‘date of discoverability’ to begin your claim. In this case, your time limit began a year after your injury occurred (when you realised you were injured), and ended 3 years later. Since you’re now outside the 3-year time limit, the Court will not grant an exception to the 12-year stop rule.

      However, if you discovered the injury within the last 3 years (but outside the 12 year period), the Court may grant an exception.

      What time limits apply in my state?

      Different laws apply in different states. Please choose your state below so we can show you the most relevant content.

      In NSW, there are 2 time limits. You must make your claim either:

      • 3 years after discovering the injury, or
      • 12 years from the date you were injured (the ‘long stop’ rule).

      Whichever date you reach first will apply.

      Victoria’s time limits are similar to NSW. You have either:

      • 3 years from the date of discoverability, or
      • 12 years from the date of injury (the ‘long stop’ rule).

      However, Victoria differs in how it defines ‘date of discoverability’. Instead of simply meaning when you became aware of an injury, it refers to the date you discovered:

      • The injury, and
      • That a medical professional caused it, and
      • That it is serious enough to warrant a negligence claim.

      Children and people living with disability

      A child or a person living with disability has 6 years from when they discovered the injury to file a claim.

      In Queensland, the time limit is based on the date the injury occurred. You have 3 years from the date of negligent treatment to file a claim. However, you’re expected to provide notice of the claim within 9 months of the injury.

      Children

      Children have 3 years from their 18th birthday to begin a claim. The only exception is when their parent or guardian has formally consulted a lawyer about a potential claim before their 18th birthday. In this instance, the parent, guardian or child has 18 months from the consultation date to bring a negligence claim.

      In South Australia, the time limit begins at the date of discovery. You have 3 years after discovering the Medical Negligence to begin your claim.

      In Western Australia, your time limit is based on the date the injury occurred. This means you must file a claim within 3 years of the injury.

      However, if you do not experience any symptoms or signs of injury at the time, your 3-year time limit will begin when you first experience symptoms.

      In the ACT, the time limit varies depending on whether you’ve suffered a physical injury, disease, or disorder.

      Time limits for physical injuries relate to the date the injury occurred. You have 3 years from the injury date to begin legal proceedings.

      In contrast, time limits for diseases or disorders relate to the date of discovery. You have 3 years from the day that:

      • You became aware of the disease or disorder, and
      • That a medical professional’s negligence caused it.

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