In Black v Hillier [2025] NSWSC 851, delivered by Elkaim AJ on 1 August 2025, the Supreme Court of New South Wales denied the plaintiff’s application to extend the statutory limitation period in a medical negligence claim relating to surgery performed between 1999 and 2000. The plaintiff filed the statement of claim on 30 July 2021 and sought extension until May 2022, but the court rejected the application.
The plaintiff, now aged 77, alleged that an orthopaedic surgeon’s treatment had caused long-term injury. To proceed, she relied on section 60G of the Limitation Act 1969, seeking to extend the three-year limitation period, and on the threshold conditions under section 60I. Elkaim AJ emphasised that the extension could only be granted if the plaintiff was unaware, by 2007, when she purportedly sent a letter to the surgeon, of a link between her injury and his conduct.
Central to the Court’s conclusion was a letter attributed to the plaintiff and dated 2007. In it, she wrote that she was “seeking an explanation … before seeing my Solicitor” and referenced possible surgery on the “wrong vertebrae.” The plaintiff denied authorship, citing her limited typing ability at the time, but the Court found no evidence of forgery or involvement by any third party. The most plausible scenario, given cognitive decline over recent years, was that the plaintiff had simply forgotten writing it. Thus, the Court treated it as compelling evidence she was aware by 2007 of a potential connection triggering limitation.
The Court concluded that even the surgeon’s reply reassuring her of no negligence could not “undo” existing awareness for limitation purposes. Once an awareness of a possible link is established, the limitation period begins running and cannot be reset by later satisfaction.
Even if the plaintiff had satisfied section 60I, the Court would still have declined to grant the extension under section 60G. The delay was substantial and unexplained, and the evidence supporting awareness was scanty. The plaintiff was now cognitively impaired and unable to give testimony, and numerous records—including GP notes, imaging, and a 2000 patient pamphlet were missing. These circumstances gave rise to both actual and presumptive prejudice.
Accordingly, the motion filed on 3 December 2024 was dismissed; costs were ordered against the plaintiff. The Court granted leave for either party to seek further orders within 21 days, including dismissal of the main proceedings.
An alleged connection, once established, such as by written correspondence indicating intent to consult a solicitor can conclusively trigger the limitation period. A defendant’s assurances do not erase that awareness. The absence of detailed affidavits and contended timelines for awareness further undermine extension applications. Finally, when a plaintiff suffers cognitive decline and evidentiary materials have been lost, the combination of actual and presumptive prejudice can be fatal.
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