Walsh, Anna; Holmes, Vicki; Morgan, Janelle; Dobson, Erica; Lim-Young, Jenica; Littlejohn, Matthew --- "Medical errors, limitation periods and children: a national review" [2014] PrecedentAULA 45; (2014) 124 Precedent 22

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MEDICAL ERRORS, LIMITATION PERIODS AND CHILDREN

A national review

By Anna Walsh, Vicki Holmes, Janelle Morgan, Erica Dobson,

Jenica Lim-Young, Matthew Littlejohn

Since the reform of civil liability legislation in Australia, limitation periods affecting children have altered in some jurisdictions from a long tradition of being suspended while the child is still a child, to a more complex regime. This article summarises the current laws in each Australian jurisdiction and highlights the practical implications of dealing with legal cases arising from medical errors affecting children.

A person’s minority is not always a reason to suspend the running of the limitation period and the knowledge of a child’s parent or guardian can be relevant to calculating when an action needs to be commenced. Over the past ten years, since the limitation laws were changed, case law has developed that provides some guidance to practitioners regarding the advice they need to provide to their clients and the speed at which they need to progress an investigation of a child’s case.

MINORITY AS A DISABILITY AND THE EFFECT OF A PARENT OR GUARDIAN

While many jurisdictions in Australia recognise disability as a reason to suspend the running of a limitation period for a plaintiff,^[1] one should never assume that just because the client is a child, the limitation period will be suspended until the child attains their majority. The states and territories differ in regards to whether a child is considered to be ‘under a disability’. In NSW, Victoria and Tasmania, persons under the age of 18 years are considered, for the purpose of commencing legal proceedings, to be under a disability^[2] unless they have a capable parent or guardian.^[3] A capable parent or guardian must be over the age of 18 years and not under a disability or legal incapacity themselves.^[4] Facts that are known or ought to have been known by the capable parent or guardian are taken to be facts that are known or ought to be known by the child.^[5]

In a similar vein, the limitation period in Western Australia is suspended for a person under the age of 18 years during any period in which they do not have a guardian (though, technically, this is not taken to mean that the child is under a ‘disability’).^[6] In the Australian Capital Territory, where pre-litigation procedures must be followed, if the defendant gives notice to the parent or guardian to proceed with the claim, the child will cease to be considered to be under a disability, as knowledge by the parent or guardian of the child is attributed to the child plaintiff.^[7]

However, in Queensland, South Australia and the Northern Territory, persons under the age of 18 years are considered to be under a disability, regardless of whether or not they have a capable parent or guardian.^[8] Once the child attains their majority, the limitation period will start running.^[9] When the child in question has a disability separate to their age, the limitation period will commence running from the date their disability ceases.^[10]

TIME LIMITS AND DISCOVERABILITY

In keeping with the traditional arrangement, child plaintiffs in the Northern Territory and South Australia have three years from the date of their 18th birthday to commence proceedings.^[11]

In NSW and Tasmania, child plaintiffs with a capable parent or guardian have three years from the date on which the cause of action is discoverable to commence proceedings, or 12 years from the time of the act or omission alleged to have resulted in the injury or death (‘long-stop period’), whichever period expires first.^[12] Virtually identical provisions exist in Victoria, except that the period of time is six years from the date on which the cause of action is discoverable.^[13]

A cause of action is considered to be discoverable on the first date that the person knows or ought to know: (1) that the injury or death has occurred; (2) that it was caused by the fault of the defendant (or, in Tasmania, that it was attributable to the conduct of the defendant); and (3) in the case of injury, that the injury was sufficiently serious to justify bringing an action.^[14] In regards to the second criterion, that the injury was caused by the fault of the defendant, the NSW Court of Appeal held in Baker-Morrison v State of New South Wales,^[15] that the concept of ‘fault’ was to be ascertained by reference to legal concepts.^[16]

Practitioners governed by limitation laws of this type generally advise clients that the obtaining of a liability report will satisfy the second criterion. The investigation of cases involving medical errors can often be protracted, expensive and labour-intensive. Determining whether there is ‘fault’ on the part of a healthcare provider is not always obvious. Even knowing that a person is injured can be far from straightforward where the nature of a claim is to do with failure by the healthcare provider to diagnose a medical condition in a timely manner. In cases involving children, the capacity to determine the quantum of a potential claim and whether certain injuries will affect the child into adulthood can take many years to determine. Practitioners should note recent decisions in which the court has emphasised that knowing that the injury is sufficiently serious to justify the bringing of an action does not require the prognosis or quantum of the claim to be certain.^[17] Additionally, case law suggests that prohibitions on the recovery of party/party cost penalties for cases where damages are less than a certain figure are not to be considered part of the test of whether the injury is sufficiently serious to justify the bringing of a legal action.^[18]

In the Australian Capital Territory, claims arising out of injury to a child through the provision of health services warrant a special section in the Act. The limitation period for such actions depends on whether the plaintiff has suffered an injury or a disease or disorder.^[19] In the case of injury, children in the Australian Capital Territory injured through a health service have six years from the date of the accident giving rise to the claim to commence proceedings.^[20] For a disease or disorder, proceedings must be commenced within six years from when the child (or their parent or guardian) knows or ought to have known that the child first suffered an injury including a disease or disorder or that the injury is related to someone’s act or omission; or 12 years from the date of the accident (whichever period ends first).^[21]

In contrast to the discoverability provisions in NSW, Victoria and Tasmania, the threshold of knowledge required by the parent or guardian in the Australian Capital Territory is lower as there is no need for them to be aware of fault on the part of the defendant, or that the injury was attributable to the conduct of the defendant. Rather, as long as the parent or guardian knows that the injury including the disease or disorder relates to someone’s act or omission, the criterion appears to be fulfilled.

In Western Australia, practitioners need to be aware of both the Limitation Act 1935 (WA), which applies to causes of action accruing before 15 November 2005 unless the plaintiff only became aware of the injury after 15 November 2005,^[22] and the Limitation Act 2005 (WA), applying to causes of action accruing after that date. Under the 2005 Act, the plaintiff has six years to commence proceedings where the plaintiff is under 15 years of age.^[23] Where a plaintiff is 15 to 17 years of age when the cause of action accrued, proceedings must be commenced before their 21st birthday.^[24] The 2005 Act also provides a special limitation period for cases involving personal injury to a child sustained during their birth or immediately after their birth.^[25] A cause of action is said to accrue at the earlier of when the person becomes aware that they have sustained a not insignificant injury, or when the first symptom, clinical sign or other manifestation of personal injury occurs.^[26] Knowledge of fault or wrongdoing on the part of the defendant is not a criterion for calculating the limitation period in Western Australia, save for where an extension is sought (see below).

EXTENSIONS

In NSW and Tasmania, the legislation allows for a person to be granted an extension of the 12-year long-stop limitation period for up to three years after the date of discoverability, if the court thinks it is just and reasonable to do so.^[27] The legislation provides a non-exhaustive list of factors that the court is to take into consideration. In NSW, the court is required to hear from persons likely to be affected by the application for extension.

Cases involving injuries at the time of birth or in the neonatal period could well make use of the long-stop period. This is especially so where the injury is a head injury and cognition and its impact upon intellectual functioning and employment opportunities might not be known for some time and there might not be other injuries that can satisfy the severity limb of the discoverability test referred to above.

Legislation in NSW and Western Australia also recognises the peculiar problems that can arise where the child plaintiff is bound by decisions made by their parent or guardian that might not accord with their views once they attain adulthood. A specific avenue for extension of the limitation period exists in these circumstances. The person may apply to the court for an extension of the limitation period on the basis that the failure to bring an action within the appropriate limitation period was due to a decision by their parent or guardian which was ‘irrational’ (in NSW)^[28] or ‘unreasonable’ (in Western Australia).^[29]

In NSW, if it appears to the court that this is in fact the basis of the failure to bring a cause of action within the limitation period; that the limitation period expired before or within one year after the person reached 18 years of age; and that there is evidence to establish the cause of action, then the court may grant an extension for one year after the making of the court’s order.^[30] To the authors’ knowledge, there is no case law on this provision to date and it remains to be seen what the court will consider constitutes an ‘irrational’ decision by the child’s parent or guardian. Guidance can of course be taken from cases involving extension applications in other jurisdictions. Obiter comments in the Western Australian case Asher Relf v Minister for Health and Ors^[31] highlight common contexts in which parents fail to seek legal advice for their children. These include a family breakdown, the parent having mental health issues, and/or the parent not being aware of the full extent of the child’s injuries. Circumstances such as the parents deciding not to litigate due to concerns regarding liability for legal fees, upfront payment of disbursements or the effect litigation might have on the balance of the family unit will present a challenging dilemma for courts to consider.

Similar provisions exist in Victoria for extending limitation periods.^[32] The legislation provides a non-exhaustive list of factors for the court to take into consideration which include weighing up the reasonableness of the delay by the plaintiff against the effect of prejudice on the defendant.^[33] Such powers can be exercised even if a limitation period has expired or proceedings have commenced.^[34] Case law in Victoria suggests that the court may be generous in determining extensions.^[35]

Where a child in the Australian Capital Territory has suffered a disease or disorder arising out of the provision of health services, a court may consider an application to extend the limitation period if it decides that it is just and reasonable to do so.^[36] This is different to where an injury has been sustained out of the provision of health services, where there is no extension possible. Interestingly, the legislation imposes an additional requirement that the court consider medical expert opinion on the question of when the plaintiff (or the plaintiff’s parent or guardian) first knew or ought reasonably to have first known that the plaintiff had suffered the injury, or that the injury was related to someone’s act or omission.^[37] The relevance of a medical expert’s opinion on facts that ought to have been known to a plaintiff, presumably about their diagnosis of a disease or disorder, has not been tested in any cases that the authors are aware of. A cause of action for medical negligence presents a unique problem in that the failure of the doctor to diagnose the condition may well be the issue being sued upon. It is not clear, therefore, how this requirement would be applied in an application to extend the limitation period for a disease or disorder in the medical negligence context.

While there is provision in the Australian Capital Territory to extend the limitation period for children, it should be noted that the severity of the injury and its impact upon a parent or guardian’s decision to commence legal proceedings is not a relevant criterion for calculating the limitation period, unlike in NSW, Victoria and Tasmania. Parents or guardians in the Australian Capital Territory, therefore, may need to consider commencing a claim to preserve the limitation period which will involve costs, to guard against the possibility that an action brought later, with more knowledge of the particulars, might not warrant an extension of time to commence a claim.

In Queensland, upon application to the court, the limitation period can be extended^[38] if the plaintiff can point to a material fact of a decisive nature that was not within their means of knowledge and show evidence establishing their right of action.^[39] A plaintiff can also commence proceedings outside the limitation period if they provided the required notice within the limitation period.^[40] In these cases, proceedings are generally stayed until the plaintiff complies with the remainder of the Act.^[41] In the Northern Territory and Queensland, if a plaintiff fails to comply with the pre-court notice provisions, they will be unable to commence proceedings unless they can establish reasonable excuse for the delay.^[42]

In South Australia and the Northern Territory, a court may extend the limitation period for a child plaintiff (a) if it is satisfied that the material facts were not ascertained by the plaintiff until some point of time within 12 months before the expiration of the limitation period; or (b) if it is satisfied that the material facts were not ascertained by the plaintiff until after the expiration of the limitation period as long as the action was commenced within 12 months of ascertaining those facts. A court may also extend the limitation period if it is satisfied that the plaintiff’s failure to institute the action within the limitation period was due to representations or conduct of the defendant. The court must also consider that it is just to grant the extension in all the circumstances.^[43]

PRE-COURT PROCEDURES AND LIMITATION PERIODS

In some jurisdictions, there are additional pre-court requirements that will have an impact on the relevant limitation periods for both adults and children. In the Australian Capital Territory, mandated pre-court procedures require potential plaintiffs to give notice in writing to a potential defendant within nine months of the injury, or within four months of instructing a lawyer.^[44] Similar requirements exist in Queensland although initial pre-court notice requirements vary, depending on when a cause of action accrued.^[45] In South Australia, a child must give notice of an intended action if the limitation period has been extended to more than six years from the date the cause of action arose.^[46] In the Northern Territory, a plaintiff must give notice within 12 months of the day the incident occurred, or within 12 months from when symptoms first appeared.^[47]

Children in the Australian Capital Territory are required to give notice through their parent or guardian.^[48] However, in Queensland, the position in relation to children providing notice is unclear, as the legislation provides that notice ‘may’ be given by the parent or guardian on behalf of the child.^[49] In the Northern Territory and South Australia, the defendant can serve a notice on the parent or guardian requiring the child to bring a claim within six months of receipt of the notice.^[50]

Practitioners in Queensland must provide further notice of a claim for a child as soon as practicable after receiving instructions and within the earlier of either six years from the day when the parent or guardian knew (or ought reasonably to have known) that the injury occurred, or 18 months after they consult a solicitor.^[51] If a parent or guardian is notified of an adverse incident by a person providing health services to the child and these notice provisions are not met, the parent or guardian will be barred from giving notice without leave of the court. If a claim does not settle at the pre-court statute-imposed conference, court proceedings must be filed within 60 days of the conclusion of the conference, notwithstanding any other limitation periods.^[52]

The relevant Northern Territory legislation, the Personal Injuries (Civil Claims) Act 2007, incorporates similar provisions to those in Queensland, but the sections of the legislation introducing these processes have not yet been commenced. Practitioners should check the date of enactment of these sections before commencing such a claim.

Practitioners investigating medical negligence claims in Queensland must be very careful to apply the appropriate time limit, as in cases where the notice provisions are not met, a plaintiff can be barred from proceeding with a claim. Even in circumstances where leave is granted by the court to continue, the plaintiff will be unable to claim damages for past medical expenses, legal expenses and gratuitous services, often resulting in a significant reduction in the value of the claim.^[53] This is also the case where the notice requirements have not been met in South Australia^[54] and in the Australian Capital Territory, unless the defendant has waived the notice obligations.^[55]In Queensland, failure to comply with these notice provisions constitutes professional misconduct.^[56]

SPECIAL PROVISIONS

In NSW, Victoria and Tasmania, special provisions apply in cases where the cause of action is against a person who was a parent or guardian of the child, or close associate of a parent or guardian of the child. The situation of a healthcare provider treating their own child and causing injury would be extremely unusual and against accepted medical standards and accordingly would not arise in a medical negligence context. With regard to a close associate of a person, the legislation defines ‘a close associate’ as a person who may influence the guardian not to bring an action on behalf of the minor, or a person whose relationship with the guardian means that the minor might be unwilling to disclose the act to their guardian.

In these cases, in NSW and Victoria the cause of action is discoverable at the later of two dates: either when the minor turns 25 years of age, or when the cause of action is actually discoverable. The long-stop limitation period in this circumstance is 12 years from when the minor turns 25 years of age.^[57] In Tasmania, the action must be commenced within 3 years from the date the minor turns 25 years of age.^[58] In a practical sense, the circumstances where this provision may apply in the medical context may include cases where the treating healthcare practitioner is a close friend of the family. The authors are unaware of any cases on point.

CONCLUSION

Parents of disabled or injured children are often not in a position, either emotionally or financially, to consider legal action for many years, and it is only when the child gets older and there is fear as to who may be responsible for his or her future needs that parents consider seeking legal advice. Medical negligence claims may have the additional impediment of non-disclosure or late disclosure by a healthcare provider of the circumstances leading to an injury, or active discouragement to bring a claim. Parents’ concerns about the legal costs involved in investigating a claim, and potentially jeopardising their relationship with healthcare practitioners providing ongoing care for their child, are other obvious practical impediments to seeking legal advice. Notwithstanding these real concerns of parents, while the courts and/or legislation have demonstrated a practical approach in favour of giving parents time to obtain information to inform them on matters such as prognosis as well as negligence so that parents can consider whether they ought to seek legal advice, there is also a need for the defendant to have the forensic ability to defend any action against it. The case law described above highlights issues a practitioner needs to be aware of when acting for children in cases involving medical error.

Anna Walsh is a Principal, Medical Law Department, Maurice Blackburn Lawyers, NSW and ACT. EMAIL [e-mail].

Vicki Holmes is a Senior Associate, Medical Law Department, Maurice Blackburn Lawyers, Qld. EMAIL [e-mail].

Janelle Morgan is an Associate, Medical Law Department, Maurice Blackburn Lawyers, Victoria. EMAIL [e-mail].

Erica Dobson is an Associate, Medical Law Department, Maurice Blackburn Lawyers, Perth. EMAIL [e-mail].

Jenica Lim-Young is a lawyer, Medical Law Department, Maurice Blackburn Lawyers, NSW and ACT. EMAIL [e-mail].

Matthew Littlejohn is a trainee lawyer, Medical Law Department, Maurice Blackburn Lawyers, Qld. EMAIL [e-mail].

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^[1] Limitation Act 1985 (ACT) s30(1); Limitation Act 1969 (NSW) s50F(1); Limitation Act 1981 (NT) s36(1)(d); Limitation of Actions Act 1958 (Vic) s27J(2); Limitation of Actions Act 1936 (SA) s45(1); Limitation of Actions Act 1974 (Qld) s29, Limitation Act 1974 (Tas) s26(6). Note that in some jurisdictions, an ultimate bar of 30 years exists (Limitation Act 1981 (NT) s36(4); Limitation Act 1969 (NSW) s51; Limitation of Actions Act 1936 (SA) s45(3)).

^[2] Limitation Act 1969 (NSW) s11(3)(a); Limitation of Actions Act 1958 (Vic) s3(2); Limitation Act 1974 (Tas) s2(2).

^[3] Limitation Act 1969 (NSW) s50F(2)(a); Limitation of Actions Act 1958 (Vic) s27J(1)(a); Limitation Act 1974 (Tas) s26(6). Note that in Tasmania, there is no requirement for the parent to be ‘capable’.

^[4] Limitation Act 1969 (NSW) s50F(4); Limitation of Actions Act 1958 (Vic) s27J(4).

^[5] Limitation Act 1969 (NSW) s50F(3); Limitation of Actions Act 1958 (Vic) s27J(3). In NSW, this was applied in Baker-Morrison [2009] NSWCA 35 at [8], where the court held that in the case of a child, the ‘person’ referred to in s50D of the Act is in fact the parent or guardian.

^[6] Limitation Act 2005 (WA) s32.

^[7] Limitation Act 1985 (ACT) s31.

^[8] Limitation of Actions Act 1974 (QLD), s5(2); Limitation of Actions Act 1936 (SA) s45(2); Limitation Act 1981 (NT) s4.

^[9] Limitation Act 1981 (NT) s36(1)(e); Limitation of Actions Act 1974 (QLD), s29(1); Limitation of Actions Act 1936 (SA) s45(1).

^[10] Limitation of Actions Act 1974 (QLD), s29(1); Limitation of Actions Act 1936 (SA) s45(1); Limitation Act 1981 (NT) s36(1)(e).

^[11] Limitation Act (NT) s36(1)(e); Limitation of Actions Act 1936 (SA) s45(1).

^[12] Limitation Act 1969 (NSW) s50C(1); Limitation Act 1974 (Tas) s5A(3)(a).

^[13] Limitation of Actions Act 1958 (Vic) s27E(2).

^[14] Limitation Act 1969 (NSW) s50D(1); Limitation of Actions Act 1958 (Vic) s27F; Limitation Act 1974 (Tas) s2(1).

^[15] [2009] NSWCA 35.

^[16] This view was applied in the NSW case Bostik Australia Pty Ltd v Warren Liddiard & Anor [2009] NSWCA 167; and by the Supreme Court of Victoria in Callan v Healthscope & Anor [2008] VSC 88, where Justice Williams concluded that the plaintiff’s injuries were not discoverable until the plaintiff’s parents received the report commissioned by the solicitors, which linked the plaintiff’s injuries to the obstetrician’s negligence; and Tucker v Barwon Health [2008] VSC 229, where the court held that the mother of the plaintiff became aware of a cause of action only when she obtained expert medical and legal advice. This was despite her having read an article in the newspaper about negligence in the treatment of her child’s condition, obtained her child’s medical records and worked in a law firm.

^[17] See, for example Frizelle v Bauer [2009] NSWCA 239. In Harris v Woolworths Pty Ltd [2010] NSWSC 25, the court held that ‘the 3-year post discoverability limitation period does not commence to run only from the time the plaintiff knows (or ought to know) the precise extent to which the injury is serious, and/or the heads of damages under which a claim can be made, and/or the quantum of damages that may be recoverable. For example, consideration of whether the legal costs may be capped because damages might not exceed a certain amount is no part of the statutory test.’

^[18] See Harris v Woolworths Pty Ltd [2010] NSWSC 25.

^[19] Limitation Act 1985 (ACT) ss30B(2) and 30B(3). Note that the same distinction applies to adult plaintiffs in the ACT.

^[20] Ibid s30B(2).

^[21] Ibid s30B(3).

^[22] Limitation Act 1935 (WA) ss6(2). See also Phillips v Minister for Health [2012] WADC 83.

^[23] Limitation Act 2005 (WA) s30.

^[24] Ibid s31.

^[25] Ibid ss7(2)(b) & 7(3). For actions accruing before 15 November 2005 which were still in time, the plaintiff has six years from 15 November 2005 to commence proceedings. For those actions not in time, the plaintiff cannot commence proceedings. See also Burns v Minister for Health [2012] WASCA 267 at [3].

^[26] Ibid s55. If the cause of action accrued before 15 November 2005, the Limitation Act 1935 (WA) will apply, unless the plaintiff only became aware of the injury after the 15 November 2005 (see Limitation Act 2005 (WA) s6(2) and Phillips v Minister for Health [2012] WADC 83).

^[27] Limitation Act 1969 (NSW) ss62A and 62B; Limitation Act 1974 (Tas) s5A(5).

^[28] Limitation Act 1969 (NSW) s62D(1).

^[29] Limitation Act 2005 (WA) s41.

^[30] Limitation Act 1969 (NSW) s62D(2).

^[31] [2009] WADC 202.

^[32] Limitation of Actions Act 1958 (Vic) s27K.

^[33] Limitation Act 1985 (ACT) s36(3); Limitation of Actions Act 1958 (Vic) s27L.

^[34] Limitation Act 1985 (ACT) s36(4); Limitation of Actions Act 1958 (Vic) s27M.

^[35] See, for example, Callan v Healthscope & Anor [2008] VSC 88. Here, the court held that it was reasonable for the plaintiff’s parents to delay litigation, given that they were unaware of the extent of his disability, they had received advice which suggested they had 22 years to bring an action and they anticipated that it would be difficult to conduct litigation from overseas. Additionally, his Honour noted that the defendant could not show they would suffer any specific prejudice. See also Tucker v Barwon Health [2008] VSC 229, where the court held that the availability of comprehensive contemporaneous hospital records diminished any prejudice to the defendant.

^[36] Limitation Act 1985 (ACT) s36.

^[37] Limitation Act 1985 (ACT) s30B(4).

^[38] Limitation of Actions Act 1974 (Qld) s31; Personal Injuries Proceedings Act 2002 (Qld) s59.

^[39] Limitation of Actions Act 1974 (Qld) s31.

^[40] Personal Injuries Proceedings Act 2002 (Qld) s59(1).

^[41] Ibid s59(3).

^[42] Personal Injuries (Civil Claims) Act 2007 (NT) s8(3); Personal Injuries Proceedings Act 2002 (Qld) s9(5). In Queensland, reasonable excuses include where the claimant has lodged their notice of claim as soon as practicable after resolution of a Health Ombudsman complaint (see Personal Injuries Proceedings Act 2002 (QLD) s9(6)). Reasonable excuses have also been held to include an injured person’s hope or belief that the condition will improve as long as the belief is not unreasonable or illogical (see, for example, Nestorovic v Milenkovic [2010] QSC 143; Thomas v Transpacific Industries Pty Ltd [2002] QCA 160; Chapman v The Body Corporate for Endeavour Inn [2005] QDC 18). Other reasonable excuses include the respondent actively seeking medical evidence before the claim is lodged, a solicitor’s mistake or failure to advise, and unreasonable or intractable behaviour of the respondent (see, for example, Sarina v Thursday Afternoon Pty Ltd [2003] QDC 149; Sheehy v Hobbs [2010] QSC 108; Chapman v The Body Corporate for Endeavour Inn [2005] QDC 18).

^[43] Limitation of Actions Act 1936 (SA) s48; Limitation Act 1981 (NT) s44.

^[44] Civil Law (Wrongs) Act 2002 (ACT) s51.

^[45] Amendments to the Personal Injuries Proceedings Act 2002 (Qld) introducing additional pre-court steps for bringing an action for medical negligence came into force on 9 April 2003, pursuant to s83 of the Civil Liability Act 2003 (Qld). These amendments were not retrospective (see Civil Liability Act 2003 (Qld) s2(2)). For medical negligence claims accruing after 9 April 2003, initial notice must be given within the earlier of nine months after the day of the injury or the appearance of symptoms of the injury; or one month after the claimant first instructs a law practice (see Personal Injuries Proceedings Act 2002 (Qld) s9A(4)). Although these provisions are 11 years old, it is not uncommon for practitioners to be consulted in relation to claims that have occurred prior to this date. For claims accruing prior to 9 April 2003, initial notice must be given within nine months after the day of the injury or appearance of symptoms, or one month after the claimant consults a solicitor. This also applies to claims accruing before 8 December 2003 (see Justice and Other Legislation Amendment Act 2003 (Qld) s104 and Gazette Vol. 334, No. 70 published 5 December 2003, p1114). Practitioners must be careful to distinguish between the time when a claimant instructs and when a claimant consults a solicitor.

^[46] Limitation of Actions Act 1936 (SA) s45A. Notice of an intended action must be given within six years of the date of the incident out of which the injury arose.

^[47] Personal Injuries (Civil Claims) Act 2007 (NT) s8(1).

^[48] Limitation Act 1985 (ACT) s51(4).

^[49] Personal Injuries Proceedings Act 2002 (Qld) s9A(5). It is the author’s view that the initial notice must be served and that the word ‘may’ allows the parent or guardian to serve the notice on behalf of the child.

^[50] Limitation Act 1981(NT) s39; Limitation of Actions Act 1936 (SA) s45(6).

^[51] Personal Injuries Proceedings Act 2002 (Qld) s20C.

^[52] Ibid s42.

^[53] Ibid ss20F(2) and 20J(2).

^[54] Limitation of Actions Act 1936 (SA) s45A(7).

^[55] Civil Law (Wrongs) Act 2002 (ACT) s62.

^[56] Personal Injuries Proceedings Act 2002 (Qld) s20C(3).

^[57] Limitation Act 1969 (NSW) s50E(1); Limitation of Actions Act 1958 (Vic) s27I.

^[58] Limitation Act 1974 (Tas) s26(7).