Tick Tock, time is up – or is it? NSW Supreme Court refuses extension of the limitation period for medical negligence claim

In circumstances where medical negligence has caused personal injury in NSW, the ‘standard time limit’ to bring a claim is three years from when the injury was suffered, the injury was caused by the medical professional and was serious enough for legal action to be taken. An extension of this time limit can be granted if ‘just and reasonable to do so’.[1]

If the injury happened after 2002, the action can be filed three years from the date of discoverability, or twelve years from the date of the act or omission, whichever expires first.[2]

In the recent Supreme Court of NSW decision of Black v Hillier [2025] NSWSC 851, the Court dismissed an application to extend time for a medical negligence claim arising from spinal surgery performed by a treating orthopedic surgeon in 2000. The decision highlights the Court’s strict approach to delayed claims and illustrates how a single contemporaneous document can be determinative. This decision aligns with two earlier decisions involving the same surgeon[3] with unsuccessful applications to extend the limitation period.

Background

The plaintiff, Ms Black, alleged that spinal surgery performed in 2000 by her treating orthopedic surgeon, Dr Hillier, was inadequate and resulted in long-term injury, including ongoing pain and disability.

Despite experiencing persistent symptoms, the plaintiff did not commence proceedings against the surgeon until July 2021, over two decades after the surgery. She sought to extend the three-year limitation period, relying on the threshold conditions under section 60I of Limitation Act 1969 (NSW), namely that she was unaware of the connection between her injury and the surgeon’s conduct until well after the limitation period had expired.

The plaintiff attributed the delay to a lack of familiarity with legal matters and stated that she only contacted solicitors in 2019 after her daughter heard a radio advertisement about surgery claims. She relied on a 2007 letter from the surgeon, in which he reassured her that the surgery had been appropriate, and argued that she only became aware of the alleged negligence upon receiving a medical report in 2021.

The central issue before the Court was whether the plaintiff knew, or through reasonable inquiries, ought to have known, that the alleged injuries were connected to her treatment by the surgeon.

Evidence considered

The Court found that a letter written by the plaintiff to the surgeon in 2007 was compelling evidence that she had been aware of her potential claim, as, in it, she had indicated that she intended to consult a solicitor at the time given her concerns.

Although the plaintiff denied writing the letter, the Court found no evidence to suggest the letter had been forged or altered by a third party. His Honour Elkaim AJ concluded that the letter was an “overwhelming indication” that she was aware of a possible connection between her injuries and the surgery at that time. That awareness triggered the limitation period, which therefore expired in 2011.

His Honour rejected the argument that the surgeon’s reassuring letter in reply could extinguish her awareness. The submission was described as novel and unsupported by authority, confirming that once awareness of a possible connection is established, it cannot be undone so as to postpone the running of the limitation period.

Even if the plaintiff’s 2007 letter had not been decisive, the Court held that it would still have been neither “just nor reasonable” to grant an extension under section 60G of the Limitation Act. The surgeon, now aged 81 as of 2025, faced the prejudice of defending allegations concerning events more than two decades earlier. By this stage, the plaintiff had experienced cognitive decline, key records had been lost, recollections had faded, and the medical evidence was contested.

The Court emphasised both actual and presumptive prejudice. His Honour adopted reasoning from Doughty v Hillier, citing Brisbane South Regional Health Authority v Taylor [4], noting that, after such a delay, “it is impossible for the defendant to know what he does not know.” Although the present case involved only one operation, unlike Doughty, which involved several, the speculative nature of the inquiry remained the same. The Court would be required to make findings about what a reasonably competent surgeon would have advised, and how the plaintiff would have responded; an inherently difficult exercise more than two decades after the event.

His Honour concluded that an extension could only be granted if the plaintiff was unaware, by 2007, of a link between her injury and the defendant’s conduct. On the evidence, that threshold was not met and the Court dismissed the plaintiff’s application to extend time with costs.

The Court granted leave for the parties to seek further orders concerning the substantive proceedings, which included dismissal of the claim. Without an extension, the claim cannot proceed.

Implications

Limitation laws are designed to balance the rights of plaintiffs to seek redress with the need to protect defendants from defending allegations many years after the event in question, particularly where records may be missing and memories fade.

The decision reinforces the difficulty of pursuing historic medical negligence claims, or indeed any personal injury claim where an extension of the limitation period is sought. Courts continue to apply the statutory provisions strictly, and this case demonstrates how a single document, and even a few words, can tip the balance against a plaintiff.

Where latent injuries are alleged, section 60I of the Limitation Act permits an extension of the limitation period if the plaintiff was unaware of the injury, its nature or extent, or its connection to the defendant’s conduct. However, once awareness arises, or ought to have arisen, the limitation period begins and cannot be paused or reset. Plaintiffs must act promptly or risk their claim being statute-barred.

For insurers and health providers the decision underscores the strength of limitation defences. When claims are brought decades after the alleged events, courts are likely to view the delay as inherently prejudicial.