On 14 December 2012 the Court of Appeal upheld an appeal in the claim brought by Tahlia Burns against King Edward Memorial Hospital (formally the Minister for Health), alleging negligent obstetric care at the time of her birth in April 2004.
Tahlia’s claim had previously been dismissed by the District Court as being out of time (being commenced more than 6 years after her birth) + crucially, because she was born before changes to the time limit for claims law (the Limitation Act 2005 ("LA 2005")), not a claim in which any extension of time could be allowed.
The Court of Appeal overturned this decision concluding that although born before such change in the Law, nonetheless, she could rely upon the changes it made, permitting extensions of time for claims. This was based on the Court of Appeal’s interpretation of section 7 of the LA 2005, which they confirmed specifically gave the power for such extensions of time, even in birth cases for children born before such Act came into force (so retrospectively).
Interestingly, one member of the Court, Justice Pullin went further and appears to have supported the power to extend time in cases in which the 6 year limitation period that applied in cases against public hospitals before the LA 2005, had already expired at the time the LA 2005 came into force (November 2005). In other words, claims which the public hospitals (and their insurers) would have assumed to be forever lost + out of time. As I have commented previously, for many years it had been recognised that this 6 year time limit for childrens’ claims relating to birth injury could be very unfair indeed.
It will be interesting to see whether Justice Pullin’s ‘invitation’ is accepted and any older obstetric claims (pre Nov 99 birth dates) are now sought to be brought with a request for an extension of time.
it is important to appreciate that birth injury cases are a special category of cases + this power to seek an extension does not retrospectively apply to other cases (medical or otherwise).