What can I do if more than 3 years has passed since my medical incident?
Under the Limitations of Actions Act 1974 (LAA), you have 3 years from the date of injury to file Court proceedings. If you do not file proceedings prior to this date, then you may not be able to bring a claim at all.
You may be able to extend this limitation period by application to the Court after the expiry of your limitation period. You should seek immediate legal advice if you become aware of a ‘material fact of a decisive character’ because you will need to take steps to file Court proceedings within one year of becoming aware of that fact. Again, if you do not take steps prior to this date, then you may not be able to bring a claim at all.
Legislative Framework
For the Court to grant you an extension under s31(2) LAA, it will assess four things:
- That a material fact of a decisive character related to your right of action was not within YOUR means of knowledge until after the expiry of the limitation period.
- That you have a reasonable cause of action.
- That YOU had taken all reasonable steps to find out the material fact.
- The defendant would not be unfairly prejudiced by the granting of the extension.
A material fact might be identifying a person responsible for your injury, receiving a late diagnosis, understanding the injury will not recover, finding out a person or entity is to blame.
Material facts are of a decisive character if, having taken appropriate advice, they prove you have reasonable prospects of winning your claim and being awarded enough compensation to justify bringing a claim.
There have been several recent decisions where the Courts have considered what steps the applicant took to identify a material fact of a decisive character. Noting that YOU bear the onus of proof, you and your lawyer should carefully consider every step that YOU took to ensure you can establish ALL of the above.
Recent court decisions
In Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2021] QSC 240 and [2022] QCA 189, the applicant, Jessie Magarey, suffered serious injury following ankle surgery in May 2015 and August 2016. Ms Magarey first contacted a law firm in November 2016, who advised in June 2017 they could not act for her. By then, she had developed osteomyelitis (a bone infection). Ms Magarey instructed a second law firm in August 2017. Each law firm advised Ms Magarey that she had until May 2018 to file Court proceedings. Ultimately, Ms Magarey underwent a below-knee amputation in August 2018.
There were significant delays by the lawyers in obtaining Ms Magarey’s medical records and appropriately briefing an Orthopaedic Surgeon to provide an opinion in her claim. An expert Radiologist provided a written opinion in June 2020, and the Orthopaedic Surgeon provided his written report in September 2020.
The court found that the Orthopaedic Surgeon’s evidence was a material fact of a decisive character, and it established a reasonable cause of action. However, the Court found that notwithstanding the fact that Ms Magarey had sought appropriate advice, namely engaging a law firm to conduct her claim, she failed to actively pursue those lawyers to ensure that they were taking the necessary steps to investigate her claim and protect her limitation period.
The decision was upheld on appeal with the Court of Appeal finding that the expert opinion could have been obtained earlier had reasonable steps been taken. Ms Magarey’s special leave application to the High Court was dismissed
In Star Aged Living Limited v Lee [2024] QCA 1, Mrs Lee was an aged care worker who suffered a back injury in December 2015 moving a resident. She underwent surgery in January 2016 and March 2019. 1-2 years after her injury, her parents encouraged her to seek legal advice which she did, but the law firm was unable to assist. She did not contact another law firm until December 2019, who took urgent steps to try and protect her limitation period.
Mrs Lee applied to the court for an extension on the basis that after her March 2019 surgery, she knew she couldn’t work again, and that she became aware that her ongoing symptoms after surgery were known complications of her 2016 surgery. The Court originally granted her the extension.
However, her employer appealed the decision on the basis that Mrs Lee had sufficient information about a possible compensation claim before the expiry of her limitation period, principally because she had not been able to work since her original injury, she had been accepted onto WorkCover and was in receipt of weekly benefits and there was evidence obtained within that process (which she hadn’t read). The Court of Appeal allowed the appeal stating that Mrs Lee “had within her means of knowledge a “critical mass of information” which was sufficient to justify bringing the action” prior to the expiry of her limitation period.
In Ringelstein v Metro North Hospital and Health Service [2025] QSC 75, Mrs Ringelstein suffered horrible complications after a total abdominal hysterectomy in June 2004. She approached two law firms—one in 2008 who were prepared to act on her behalf but she could not afford the fees – and the other in 2010, who advised they were unable to assist.
Mrs Ringelstein’s friend saw a TV program in May 2022 which discussed surgeries that had been performed at Caboolture Hospital dating back to her surgery. Mrs Ringelstein contacted the hospital’s representatives, and a meeting was held in June 2022, where they apologised for her ongoing ill health following surgery, stating it “should not have happened” and offered her $10,000. Because of that, Mrs Ringelstein instructed lawyers (19 years after her initial surgery) who secured an expert report that stated her treatment was below an appropriate standard.
The Judge found that “even after taking into account all of Mrs Ringelstein’s personal circumstances, there is no evidence to satisfactorily explain the lengthy delay in pursuing this matter. I find that Mrs Ringelstein failed to take all reasonable steps to obtain the relevant facts…” and dismissed her application. Mrs Ringlestein appealed this decision (Ringelstein v Metro North Hospital and Health Service [2025] QCA 188) and was successful. The Court of Appeal, when considering Mrs Ringelstein’s personal circumstances by reference to her health, education, and economic circumstances, found that she had in fact done everything within her power to discover the necessary and materials facts to bring her claim.
Conclusion
These cases remind us that the onus is upon the applicant to prove not only the above elements but also to show good reason for the exercise of the Court’s discretion in extending a limitation period.
You should never have to chase your law firm to understand the steps that are being taken in your claim, but if you do not receive regular updates, then active engagement with legal processes remains critical to invoking the court’s discretionary relief in this area.
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