Late last year, in the decision of Black v Hillier [2025] NSWSC 851, the Supreme Court of New South Wales refused to extend time in a medical negligence claim brought by an orthopaedic surgeon’s former patient more than 20 years after the treatment was performed.
The case turned not on whether the surgical procedure was performed negligently, but on a far more fundamental question: when did the plaintiff first know enough to start the limitation clock running on claiming compensation for medical negligence?
The plaintiff, aged 77 years at the time of the decision, underwent treatment (including a lumbar laminectomy) as an adult in 1999 and 2000 and consequently alleged ongoing pain, weakness and functional decline from the treatment being negligently performed.
However, proceedings were not commenced until 2021, by which time the limitation period had certainly expired. [1] To overcome a limitation defence, the plaintiff sought an extension of the limitation period pursuant to section 60G of the Limitation Act 1969 (NSW) (the NSW Act). The only issues in dispute were when the plaintiff first became aware of the connection between her personal injury and the defendant’s act or omission, and if she commenced the application for leave within 3 years of that date.[2]
The decisive evidence was a letter that the plaintiff is said to have sent to the defendant in 2007. In that correspondence, the plaintiff:
The court found that this correspondence demonstrated the plaintiff’s awareness, as at 2007, of a possible connection between her alleged injury and the defendant’s conduct in performing the surgery. Even if the plaintiff later accepted that the cause of her ongoing symptoms was not due to the defendant’s negligence (because after that letter was sent he reassured her that he was not at fault), did not undo the state of her knowledge at the time the letter was sent.
Relevantly, the court held that under section 60I of the NSW Act, the plaintiff could only be afforded an extension of the limitation period if she filed an application for an extension of time within 3 years of that date.
The plaintiff did not file her application until 2024, and therefore the application for an extension of the limitation period under s60I failed.
In the alternative, the court found that even if the plaintiff did not become aware that her injury was due to the defendant’s conduct until after 2007, it would not be just and reasonable to allow the extension largely because of prejudice to the defendant. By the time the proceedings were commenced, the defendant was 81 years old and there were various crucial medical records missing from evidence that could not be recovered.
Although decided under the NSW regime, the case highlights important issues under the Limitation Act 2005 (WA) (the WA Act).
In Western Australia, personal injury limitation is governed primarily by:
Under section 55(1) of the WA Act, a cause of action for damages relating to personal injury accrues when the earlier of the following occurs:
This is materially different from the NSW Act and its current discoverability test, but is very similar to the former limitation provisions that applied to this case.
Under the WA Act:
For practitioners and health providers in WA, this means:
If, upon close analysis, the conclusion is that the limitation period has expired, that is not necessarily the end of it. While a limitation defence should be raised, a plaintiff in WA may nevertheless apply for an extension of the limitation period under s39 of the WA Act.
Although the wording is not exactly the same, there are some similarities to s39 of the WA Act and s60I of the NSW Act, in that a plaintiff in WA will be able to obtain an extension of the limitation period and save their cause of action if, at the time the limitation period expired, the plaintiff was not aware that their injury was attributable to the conduct of a person. They will also need to commence proceedings, or file an application seeking an extension of time and have it determined with sufficient time so that they can commence proceedings, within 3 years of the date they first became aware of their injury being attributable to the conduct of a person.
A plaintiff can also obtain an extension of the limitation period in WA if at the time the limitation period expired, they did not know the physical cause of their injury or the identify of the person who was responsible for their injury – provided they made reasonable inquiries to try and ascertain that person’s identity.
Key takeaways
Black v Hillier is a timely reminder that medical negligence cases can be won or lost before negligence is ever examined.
For healthcare providers and insurers, the decision reinforces the strategic importance of limitation defences in long-tail claims.
For claimants, it is a cautionary tale: delay can extinguish even potentially arguable claims.
Limitation periods are not mere procedural technicalities. They are substantive barriers. Once triggered, they are difficult to reverse.
The limitation period was calculated under the old limitation regime applying to causes of action that accrue prior to 5 December 2002. Accrual of a cause of action and the relevant limitation period are now ascertained based on a “discoverability” test. In our view, the plaintiff still would have failed on the discoverability test and her claim would have been statute barred given the ultimate findings of the court.
The court did not make any findings about when the cause of action accrued and when the limitation period expired. It seemed to be generally accepted by the parties that the limitation period had expired by the time the proceedings had commenced, and also that the limitation period expired prior to 2007.
If you would like to discuss this update or any related issues, please contact Erica Thuijs, Partner Insurance & Risk
This article was written by, Jade Quinlan Lawyer and Rosie Blakey-Scholes Senior Associate Insurance.