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Taking legal action

In South Australia, an action for negligence causing personal injury must be begun within three years of the cause of action arising (which is usually the date on which the relevant medical treatment or advice was provided). If the documents are not filed in court within the three year limit the claim becomes statute barred, which means the court's permission is required for the claim to go ahead.

However, an applicant must within 6 months after the day on which the incident giving rise to the personal injury occurred, serve on the person potentially liable a written notice of injury [See Uniform Civil Court Rules 61.6(2)]. If the applicant is not aware that they have suffered personal injury, or that the injury has caused material loss or damage or was arguably caused by the negligence of the person potentially liable, then the time limit of 6 months is extended until one month after the person becomes so aware [r 61.6(3)].

An extension of time to begin court proceedings can be granted in certain circumstances. Under section 48(3) of the Limitation of Actions Act 1936 (SA), the patient must show that a material fact came to his or her attention less than twelve months before the application for an extension of time was made and that it is just and equitable to extend the time. If the other party has been prejudiced (disadvantaged), for example, if records have been destroyed or witnesses have disappeared or died, an extension may be refused. This is a very complicated area and it is important to seek legal advice as soon as possible as special time limits apply in product liability claims.

Taking legal action  :  Last Revised: Thu Jun 4th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.