A claim for medical negligence is basically a claim for compensation for personal injury and includes any disease suffered or any impairment to a person’s physical or mental condition. Generally, the time limit to bring a claim for medical negligence in South Australia is three years from the date that the medical negligence. This is found in the Limitations of Actions Act 1936 (SA) section 36.
In the case where an injury remains latent for some time after its actual cause, the period of three years doesn’t start until all the elements of negligence are met; that is has knowledge of the injury
In the Western Australia case, AME Hospitals Pty Ltd vs Dixon  WASCA63, the Court confirmed that in relation to medical negligence, there is some scope for persons to bring a claim outside the usual three year time limit.
In the Dixon case the Court decided that expert evidence on the physical cause of the plaintiff’s injury and whether that injury was due to anyone’s negligence was sufficient to extend the time in which to file proceedings. This was even so when in this particular case an expert opinion which stated there was no negligence had been provided prior to the expiry on the time period as there had been medical advances and different experts became available to assist.
Fundamentally the court confirmed that for “awareness” to come into effect, the person needed a solid basis or reason for their beliefs. It was not sufficient to merely have a suspicion about the matter. That solid basis was appropriately skilled experts.
In South Australia to be allowed to bring a claim beyond the three year time limit, a new “material fact” must be established. That is, that the person affected was not aware of a fact that once known materially contributes to their decision to bring a claim. As an example, the person was not aware of one or more of the following:
- The physical cause of the death/injury;
- That the physical cause of death/injury was caused by conduct of the person (e.g. a doctor) against whom the claim is to be made;
- The name of the person whose conduct caused the injury/death was not known and only came to light late despite reasonable enquiry.
While there may be scope to seek an extension of time there are some important things to remember when making the application:
- There is a three year limit for an application for an extension of time which commences with “awareness” of when the relevant matter. This means there needs to be some explanation for the delay; and
- While an extension of time can be sought it does not mean the application will be granted.
If you suspect you may have a claim for medical negligence compensation you should seek advice as soon as you can from an skilled medical negligence lawyer.
While a claim for medical negligence compensation requiring an extension of time is complicated this should not stop you from seeking advice from an appropriately skilled medical negligence lawyer.
Remember a lack of knowledge of the three year limitation period is not a sufficient excuse to make an application for an extension of time.