Just a short note that argument has taken place before Judge Schoombee in relation to this question, in the matter of Lola Phillips v Min for Health. As expected Judge Schoombee reserved her decision..
The key facts in the case are:
1) Lola was born in March 2002, and was born with congenitally dislocated hips.
2) Lola’s case alleges negligent child health care by a community nurse, in failing to act on a finding of ‘clicky hips’ at a review 10 days after her birth.
3) it is alleged that it was not until Lola began kindly in 2006 that the problem with her hips was noticed. By this time it was too late for effective treatment and despite surgery Lola has significant long term disability. Had treatment been arranged in 2002, it is likely such disability would have been avoided, with simple conservative treatment.
If the 2005 changes to the law apply to Lola’s claim, the time when her time for claim began to run is 2006, when the problem with her hips became apparent (and her case is brought within time).
There is no question that before such changes in the Law in Nov 05, Lola’s claim would be taken to have accrued and so time was running even before identification of the problem. The injustice of this was a well recognized reason for the law’s reform in 2005.
The question in issue is whether the changes in 2005 retrospectively benefit claimants like Lola. In my view, perhaps predictably, the 2005 changes are retrospective and Lola may rely upon them. Only time will tell whether Judge Schoombee agrees….