By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 20 April 2026.
Key points
- Time limit: 3 years from when the claim is discoverable (you know of the injury, that the defendant's fault caused it, and that it is serious enough to sue), or 12 years from the act or omission, whichever ends first.
- Children: what a capable parent or guardian knows counts, so the time limit can run during childhood.
- The test: a professional who acted as widely accepted in Australia by peer professional opinion as competent practice is not liable, unless the opinion is irrational, but the defence does not cover warnings.
- Pain and suffering: nothing unless the harm is at least 15% of a most extreme case; the maximum was $804,000 from 1 October 2025.
- Costs: if $100,000 or less is recovered, your lawyer's costs are capped at 20% of it or $10,000, whichever is greater.
- Complaints are not compensation: the Health Care Complaints Commission cannot order compensation, and legal aid is not available for medical negligence.
- For advice about a possible claim, call 1800 577 015 at any hour: free general legal information, and a 60-minute consultation with a lawyer who practises in NSW for a fixed $295.
In New South Wales, a medical negligence claim must be brought within 3 years of when it became discoverable, and no more than 12 years after the act or omission unless a court extends that; damages for pain and suffering are available only if the harm is at least 15% of a most extreme case, up to a maximum of $804,000 from 1 October 2025.
Checked on 23 October 2026 against the Civil Liability Act 2002 and the Limitation Act 1969 as quoted in recent NSW judgments, the NSW Parliament's copies of those laws as passed, the District Court of NSW, the Health Care Complaints Commission, Ahpra and Legal Aid NSW.
What has to be proved
- A breach: a health professional is negligent only if the risk was foreseeable, was not insignificant, and a reasonable person in their position would have taken precautions against it.
- The peer professional opinion defence: a professional is not liable if they acted in a way that, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice. The court will not rely on an opinion it considers irrational, and the professional must prove the defence.
- Warnings: the defence does not cover warnings or information about risk. A doctor must warn of a material risk: one a reasonable person in the patient's position would be likely to think significant, or one the doctor knows or should know this patient would (the High Court's test in Rogers v Whitaker).
- Causation: the negligence must have been a necessary condition of the harm, and it must be appropriate for liability to extend to the harm caused.
Time limits
| Situation | Time limit |
|---|---|
| The basic rule | 3 years from the date the claim is "discoverable", or 12 years from the act or omission, whichever ends first |
| When a claim is discoverable | The first date you know, or ought to know, that the injury happened, that it was caused by the defendant's fault, and that it is serious enough to justify suing |
| Children | Time stops running only while a child has no capable parent or guardian; otherwise what a capable parent or guardian knows is treated as what the child knows |
| Injury by a parent, guardian or their close associate | Not discoverable before the injured child turns 25 |
| Extending the 12 years | A court can extend the 12-year period if it is just and reasonable, but not beyond 3 years after the claim became discoverable |
If the defence says you sued too late, it must prove that you knew those facts more than 3 years before you started the claim.
Compensation
- Pain and suffering (non-economic loss) is awarded only if it is at least 15% of a most extreme case. The maximum, for a most extreme case, was $804,000 from 1 October 2025; it is indexed each 1 October, and we could not confirm a 2026 figure when we checked.
- A sliding scale applies below a third of a most extreme case: at 15% you receive 1% of the maximum, at 20% 3.5%, at 25% 6.5% and at 30% 23%; from 33% the two percentages are the same.
- Lost earnings: the court disregards earnings above 3 times average weekly earnings.
- No exemplary, punitive or aggravated damages where the injury was caused by negligence.
Legal costs
- Smaller recoveries: if $100,000 or less is recovered on a personal injury claim, the maximum costs for your lawyer's services are fixed at 20% of the amount recovered or $10,000, whichever is greater.
- No win, no fee: any uplift fee in a conditional costs agreement is allowed only if success is reasonably likely, is capped at 25% of the legal costs (excluding disbursements) in a court matter, and fees calculated as a share of the award or settlement are banned.
Which court
- Local Court: claims up to $100,000.
- District Court: claims up to $1,250,000, or more if the parties consent.
- Supreme Court: larger claims.
Complaints are not compensation
- The Health Care Complaints Commission cannot order a provider to pay compensation, give a refund or reduce fees. It aims to assess complaints within 60 days. Its Enquiry Line is 1800 043 159, 9am to 5pm, Monday to Friday.
- Ahpra can act only on a practitioner's registration and cannot arrange compensation; NSW has its own process for concerns about practitioners.
Free help in New South Wales
| Service | Number | Hours |
|---|---|---|
| LawAccess NSW (Legal Aid NSW) | 1300 888 529 | 9am to 5pm, Monday to Friday, excluding public holidays |
| Health Care Complaints Commission (complaints, not compensation) | 1800 043 159 | 9am to 5pm, Monday to Friday |
Legal Aid NSW's policy is that legal aid is not available for medical negligence matters.
How Go To Court Lawyers can help
Our free line, 1800 577 015, answers at any hour. Jen, our AI legal information assistant, gives general legal information and takes your details; Jen is not a lawyer and does not give advice about your case. A 60-minute consultation with a lawyer who practises in New South Wales is a fixed $295, by phone, video or in person where the lawyer offers it. The lawyer can advise on the time limit, whether the harm may reach the 15% threshold, and what a claim may be worth. Requests are taken at any hour; how soon a lawyer can see you depends on who is available. Request a $295 consultation.
General information only, not legal advice. Updated 23 October 2026. The NSW legislation website could not be read on 23 October 2026, so the Civil Liability Act 2002 and Limitation Act 1969 were checked as quoted in NSW judgments: Zvicer v Hunter New England Local Health District [2026] NSWSC 1241, SC v Integroe Partners Pty Ltd [2026] NSWDC 367, Stott v Rashid [2025] NSWSC 1379, Music v State of NSW (No 2) [2026] NSWDC 35, Hannam v State of NSW (No 9) [2022] NSWSC 648 and Sivonen v Smith [2023] NSWSC 984. The rules on warnings, children, injuries by close relatives, extending the 12 years and the sliding scale are from those laws as passed in 2002 and may since have been amended. Also checked: the District Court of NSW, the Health Care Complaints Commission, Ahpra, Legal Aid NSW and the Legal Profession Uniform Law, on 23 October 2026.