Medical Negligence Time Limits in NSW: How Long Do I Have to Bring a Claim?
When a medical procedure or course of treatment goes wrong, it can take years before a patient realises that their pain or complications may have been preventable. Unfortunately, under New South Wales law, strict time limits apply to bringing a medical negligence claim. Once those limits expire, the right to recover compensation may be lost altogether.
The recent decision in Briggs v Hillier [2025] NSWSC 1021 highlights the difficulties faced by people who seek to bring proceedings long after treatment has occurred. The law requires that claims are brought within certain periods, and courts rarely make exceptions.
We wrote a detailed article on that decision here: Briggs v Hillier [2025] NSWSC 1021
The Legal Framework
Time limits for medical negligence claims are set out in the Limitation Act 1969 (NSW). Two key provisions govern when you can bring a claim:
Three-year discoverability period: this runs from the date you first knew, or ought reasonably to have known, that your injury may have been caused by another person’s fault.
Twelve-year long stop period: this is an absolute limit. No claim can proceed more than twelve years after the act or omission that caused the injury.
Both limits apply. You must start proceedings within three years of discovering the injury and before the twelve-year long stop expires.
The Date of Discoverability
The “date of discoverability” recognises that not every injury is immediately obvious. It begins when a reasonable person in your situation would have known:
That you suffered a personal injury;
That the injury was caused, or partly caused, by someone else’s conduct; and
That the injury was serious enough to justify bringing a claim.
This rule protects patients who genuinely could not have known earlier that their treatment might have been negligent. However, it does not excuse indefinite delay — the test is objective, not subjective.
Example 1:
A woman is repeatedly reassured that her symptoms are normal. Five years later, she learns that a delayed diagnosis caused her cancer to progress. Her three-year limitation period starts from the time of that discovery, not the earlier misdiagnosis.
Example 2:
A man experiences chronic pain after spinal surgery. Imaging years later reveals a misplaced screw. His discoverability period begins when that imaging result becomes known, not at the time of the operation.
The Twelve-Year Long Stop Period
The twelve-year long stop provides finality for defendants. Section 50C(2) of the Limitation Act prevents personal injury claims being brought more than twelve years after the alleged negligence. It exists to protect against the unfairness of litigating events from decades ago, when records are lost and memories have faded.
In Briggs v Hillier, the plaintiff underwent spinal fusion surgery in 1999 but filed her claim in 2023. By that stage, the Court found that:
Key medical records had been lost;
Professional standards had changed significantly since 1999; and
The surgeon’s recollection was understandably limited.
The Court held that the treatment had been reasonable at the time and that the long delay made a fair trial impossible.
Extensions of Time
Just because you are out of time does not mean that you will be prevented from proceeding.
The Court may grant an extension under section 60G of the Limitation Act. This will occur if:
It is just and reasonable to allow the claim to proceed; and
The delay has not caused substantial prejudice to the defendant.
Prejudice typically arises when evidence has deteriorated. Examples include:
Destruction or loss of medical records;
Unavailability of key witnesses;
Death or retirement of treating practitioners; or
Inability to determine what was standard medical practice at the time.
Courts apply these rules cautiously. The plaintiff must show that a fair trial remains possible.
Children and People Under a Disability
The law provides additional protection for those who cannot act on their own behalf:
Children: For minors, the limitation period does not begin until their 18th birthday, giving them until age 21 to commence proceedings.
Persons under a disability: Where a person lacks capacity to manage their legal affairs, the limitation period is suspended until capacity is restored or a guardian is appointed.
These rules ensure fairness for vulnerable claimants but do not remove the practical risks associated with delay. Evidence can still deteriorate, and witnesses may become unavailable over time.
The Civil Liability Act 2002 (NSW) operates alongside the Limitation Act. Even if a claim is brought within time, the plaintiff must prove:
That the care fell below widely accepted professional standards (section 5O); and
That this breach caused the injury (sections 5D–5E).
Both elements become harder to prove as time passes. Medical practice evolves, and expert witnesses can only assess conduct by reference to what was accepted at the time of treatment. Without contemporaneous records, reconstruction becomes speculative. The Briggs case underscores how difficult this is in practice.
Issues with delay
Time limits are not the only problem — the longer you wait, the weaker the evidence becomes. Delay can result in:
Missing or destroyed hospital records;
Faded or inconsistent witness memory;
Changes in medical standards and terminology;
Lost radiology, photographs, or laboratory data.
Even when a claim is technically within time, these evidentiary gaps can make it impossible to prove negligence or causation.
Why People Miss Deadlines
Patients often delay taking legal action for understandable reasons. Common factors include:
Trust in medical reassurance that complications were “normal”;
Fear of confrontation with medical professionals;
Emotional trauma, particularly after birth injuries or surgical complications;
Lack of awareness that legal time limits exist; and
Limited access to specialist legal advice.
While these reasons are human and sympathetic, the law applies an objective test. The Court asks when a reasonable person in the same situation should have realised there was cause for concern.
Steps to Protect Your Rights
If you suspect your treatment may have been negligent:
Request your medical records from all treating practitioners and hospitals. You are legally entitled to them.
Seek specialist legal advice as soon as possible. A medical negligence lawyer can determine your limitation period and preserve crucial evidence.
Record your symptoms, timeline, and correspondence. These details can help establish when you first became aware of the problem.
Act quickly. Even short delays can create procedural and evidentiary difficulties.
Lessons from Briggs v Hillier
Briggs v Hillier highlights the challenge of historical claims. The plaintiff’s pain was genuine, but the Court concluded that her surgeon’s care was reasonable according to the standards of 1999. The twenty-year delay meant that crucial records were missing and expert assessment of past practices was uncertain. The Court found that fairness required dismissal of the case.
The decision reinforces an essential point: even where an injury is severe, justice depends on timely action. Once time and evidence are lost, they cannot be recovered.
Conclusion
Medical negligence claims in New South Wales are subject to strict limitation periods. Generally, you have three years from when you discover the negligence and no more than twelve years from when it occurred. Courts can extend these limits but the longer the delay, the harder it becomes to prove what really happened.
The safest course is to obtain legal advice early. Acting promptly preserves your rights, strengthens your evidence, and maximises your chances of achieving justice.
