NSW Limitation Act terms bring confusion to woman’s medical negligence case

Date: Aug 23, 2018

After a complex legal battle, a women who suffered a foot amputation finally got approval to move forward with an appeal, six years after the incident. Part of the holdup was an inaccurate assessment of the NSW Limitation Act from her previous solicitors.

Background of the injury and claim of negligence

The applicant is claiming damages for personal injury from a hospital in Perth. She had visited the hospital on 2 July 2011 complaining of extreme pain in her foot. She was then transferred to another hospital in Sydney, where her foot was amputated on 26 July 2011.

In the years following the incident, a report was released that detailed the applicant’s medical history from three different hospitals. The applicant’s solicitors at the time wrote to her indicating that the report would support a medical negligence claim, but they wanted it to be assessed by another surgeon to get a second opinion before proceeding.

After an assessment was done by another surgeon, it turned out not to be a supportive report for the woman regarding causation.

The solicitors decide to leave the case

The applicant’s solicitors wrote to her on 23 June 2014 that she would have three years from discoverability under the NSW Limitation Act to begin proceedings, but they failed to understand what the term “discoverability” meant under the Act.

The solicitors assumed that the three years would begin after the report was released, which was in April 2014. However, the Act states in section 50D(1) that the first date a cause of action is discoverable is when a person knows:

  • that an injury or death concerned has occurred.
  • that the injury or death was caused by the fault of the defendant.
  • that the injury was serious enough to justify bringing of an action on the cause of action.

Thus, because the applicant was aware back in 2011 of a cause of action, the limitation ended on 26 July 2014, three years following the amputation.

In May 2016, after the unsupported assessment was given by a second surgeon, the solicitors told the applicant they were no longer to provide her legal services.

New proceedings finally initiated

In February 2017 the applicant was finally able to initiate proceedings against the hospital claiming medical negligence after hiring new solicitors, claiming that she had been misled by her former representation and receiving another medical report that supported her claim. However, the applicant then filed a motion seeking an order to extend the proceedings further into 2017.

The primary judge dismissed the application for extension in December of 2017, stating that the applicant needed to establish when she had first been aware that her injury was due to the hospital’s negligence.

After the applicant filed for an appeal to extend the time to begin proceedings again in July and August of 2018, the judge ordered for the appeal to be allowed and for the decision in December 2017 to be set aside.

If you feel that you are eligible to receive medical negligence compensation, get in touch with our lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers right away.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.