A common question asked by injured people is “am I too late to make a claim?”. In certain situations, this can be a complex question to answer.
In personal injury claims such as:
- Medical/dental negligence claims
- Slip/trip and falls
- Claims against government entities/authorities
- Injuries sustained on job sites
- Injuries sustained when working at a non-employer’s premises
An injured person must commence their claim in court within 3 years from the “date of discoverability.” The discoverable date is the date when the injured person becomes aware of the following the fact that the injury (or death):
- has occurred,
- was caused by the fault of a party, and
- the injury was sufficiently serious to justify the bringing of an action.
In certain situations, the three years commences from when you first seek legal advice. However, that is not to say that an injured person can commence their matter at any time. There is a maximum period in which to commence the matter in court – that period is 12 years from the date of act of negligence.
In a medical/dental negligence, it is often difficult to realise that an injury (caused by the actions or inactions of a medical practitioner) is a serious enough injury to pursue a claim.
What happens if you seek legal advice after the 12-year period ends? This was considered in the recent case of Lewicki v Hunter New England Local Health District. In this case, Mr Lewicki had surgery on 16 January 2004. The operation outcome triggered a long period of medical complications, where Mr Lewicki had to undergo further operations, causing personal and financial problems over the next 10 years or so.
It was not until 2014 that Mr Lewicki sought legal advice. Between 2014 and October 2017, Mr Lewicki’s solicitors attempted to track down his clinical and hospital records. This proved difficult due to the passage of time. However, they were able to obtain the main hospital records (where the original surgery occurred). This was sufficient information for the medical expert to formulate an opinion that the operating surgeon carried out the surgery in a negligent manner and issued a report in November 2017. The Court found that it was not until November 2017 that Mr Lewicki was provided with the necessary legal advice that a claim for negligence could be pursued. The Court also found that there was no prejudice to the defendant in allowing the claim to proceed, as there were sufficient records to defend the claim. Accordingly, the Court allowed Mr Lewicki to pursue his claim.
If you believe that you may have a claim for personal injury, it is important that you contact Lionheart Lawyers to obtain early advice and protect your valuable rights.