A firm declining your claim does not stop the limitation clock. Time keeps running while you wait for an answer, and the weeks or months you spent waiting are not added back at the end.
The Limitation of Actions Act 1958 (Vic) fixes your deadline by reference to two things: when you knew enough to bring a claim, and when the treatment happened. Neither changes because a law firm formed a view about your case. The Act contains no provision that pauses time while a claim is being assessed, and none that pauses it while a complaint sits with a regulator.
That makes the period you are in now the most exposed part of being turned away. Someone who is declined, takes a few months to absorb it, then starts looking for a second opinion can lose a year of a three-year period without doing anything wrong. Nobody tells them, because the firm that said no has closed the file and the next firm has not opened one.
| Where you are now | What sets the date the clock started | What that means in practice |
|---|---|---|
| A firm declined you a while ago and nothing has happened since | Unchanged by the rejection — still the date you first knew, or ought to have known, that you were injured, that fault caused it, and that it was serious enough to justify a claim (s 27F) | The time that has passed is gone. It is not added back when you start again |
| You only understood what went wrong when a second firm or a report explained it | May be the date you received that explanation, if that is when you first knew your injury was caused by someone's fault (Waldron v O'Callaghan [2024] VSCA 196) | Your position may be better than you assume, but the date is a contested question of fact, not one you can set yourself |
| The treatment was years ago and you have only just found out | Discoverability may be recent, but the twelve-year long-stop runs from the act or omission whatever you knew (s 27D) | Whichever of the two periods expires first is the one that applies to you |
| You suspected something at the time but never pursued it | A suspicion is not knowledge, but the test also captures what you ought reasonably to have known | This is the most commonly argued date of all, and it is decided on evidence |
| You made a complaint to Ahpra or the Health Complaints Commissioner and are waiting | Unaffected. The Act has no provision pausing time while a complaint is on foot | The complaint and the claim run on separate tracks, and only one of them has a deadline |
Section references are to the Limitation of Actions Act 1958 (Vic) as in force on 12 September 2026. How the Act applies to a particular set of dates is fact-specific.
This is a guide to the questions worth asking. It is not a calculation to make on your own, and the dates that decide it are often not the obvious ones. For the wider picture after being turned away — the reasons firms say no, and what to do next — start with the guide to what happens after a rejection. This page takes one part of it: what the clock does while a firm is deciding, and after it says no.
How long do you have after a lawyer says no?
Exactly as long as you had before, minus the time that has passed. Section 27D gives you whichever of two periods expires first:
- three years from the date the cause of action was discoverable by you; or
- twelve years from the act or omission alleged to have caused the injury.
The first turns on you and what you knew. The second is a long-stop that runs from the treatment itself, whatever anyone knew. A rejection letter moves neither date.
It is worth saying that plainly, because the assumption usually runs the other way. People treat a firm's involvement as having started something. Nothing is started until a proceeding is issued in a court, and an assessment that ends in a no never gets there.
Nor does a refusal tell you the claim lacked merit. A firm also weighs whether the likely compensation can carry the cost of proving the case, which is a separate question — why lawyers decline medical negligence claims and whether a claim is too small to investigate deal with it. What matters here is that neither kind of no touches your dates.
When does the clock actually start in Victoria?
On the date the claim became discoverable. Section 27F sets that as the first date you knew, or ought reasonably to have known, all three of the following:
- that the injury occurred;
- that it was caused by the fault of the person you would be suing; and
- that it was serious enough to justify bringing a claim.
All three, not any one of them. Knowing you were injured is not enough by itself, and neither is knowing the outcome was poor. The middle limb decides most medical cases, because whether care fell below the standard is rarely obvious to a patient at the time.
A suspicion that something went wrong is not the same as knowing that it did. That distinction is real and it has decided cases. It cuts both ways, though, because the test also captures what you ought reasonably to have known. An unexamined suspicion is not a safe place to sit for years. Time limits for medical negligence claims sets out the general position, including the different rules for children and for people under a disability. This page is the narrower case: what the clock does while a firm is deciding, and after it says no.
What if you only found out what went wrong from a second opinion?
Then your starting date may be much later than the treatment, and a Victorian appellate decision says so.
In Waldron v O'Callaghan [2024] VSCA 196, a patient had been treated between 2005 and 2012 and suffered a stroke in August 2012. The date of discoverability was found to be 2020 — the year her solicitors passed on a medico-legal opinion identifying fault. The Court of Appeal, constituted by Ferguson CJ, Macaulay JA and Tsalamandris AJA, granted leave to appeal but dismissed the appeal on 10 September 2024, leaving that finding in place.
The practical point is this. Actual knowledge that an injury was caused by someone's fault can arrive many years after the treatment, and it commonly arrives as an expert opinion. If nobody has ever obtained one for you, what looks like an old claim may not be out of time at all.
That case has another edge, and for this audience it matters more than the first. Part of what was in issue was enquiries the patient had made with an earlier firm of solicitors in 2016, and what she ought to have known about the alleged fault had she taken reasonable steps to find out at that time. An earlier approach to a firm was not treated as neutral in the limitation analysis.
You have, by definition, already approached at least one firm. If you had a conversation with a lawyer about what went wrong, that conversation may be part of what a court later looks at in fixing when your knowledge began — particularly if the firm explained what it thought had happened. That is a reason to have your dates checked promptly. It is not a reason to avoid asking.
So discoverability is a contested question of fact, argued on evidence about what you were told and when. A judge decides it — not you, and not the firm that declined you.
Does a complaint to Ahpra or the Health Complaints Commissioner stop the clock?
No. A complaint and a civil claim are separate processes with separate purposes, and the Act has no provision pausing a limitation period while a complaint is on foot.
This matters because the two so often run together. Someone who has been declined by a firm will frequently make a complaint instead, which feels like keeping the matter alive. It is a reasonable thing to do and both bodies do work a court cannot. Neither of them is holding your limitation date open while they do it.
Ahpra deals with a practitioner's registration — caution, conditions, suspension or cancellation. It does not award compensation. The Health Complaints Commissioner runs a free, independent complaints and conciliation service, and its own fact sheet explains that compensation is awarded by the courts and that this is separate from the assistance it offers.
Can a court extend the time limit after it has run out?
Yes. Section 27K lets a court extend a limitation period where it decides it is just and reasonable to do so. It is a real power and it is used.
Goodridge & Anor v Baker [2023] VSC 331 is the clearest recent illustration. A child born on 27 July 1996 was later diagnosed with cerebral palsy and dystonic quadriplegia. The claim was not filed until 2022 — twenty-six years later, and well outside the twelve-year long-stop. On 16 June 2023 the Supreme Court of Victoria granted the extension.
The judgment records something the readers of this page will recognise. In 1998, about two years after the birth, the family did seek legal advice from a firm. Those discussions did not go past the initial consultation, in part because of a concern about paying legal fees upfront. No medical records were requested and no reports were commissioned then. Twenty-four years passed before the claim was filed. That is a Victorian court recording, as a matter of fact, what the cost of finding out can do to a claim.
The reasoning matters more than the result:
- the delay was understandable in the circumstances, and the injury was very significant;
- the plaintiffs acted promptly once they obtained legal advice in 2020; and
- the doctor's antenatal records had been lost, but keeping them had been his own responsibility, and enough other material survived for experts to form an opinion.
What to take from it is that the passage of time by itself does not defeat an extension. A defendant resisting one generally has to point to actual, significant prejudice.
So can you count on getting an extension?
No, and this page would be doing you a disservice if it suggested you could.
An extension is a discretionary decision, not an entitlement. Obtaining one means running a separate application, supported by affidavit evidence explaining the delay, and answering whatever prejudice the other side raises. That is more work, more cost and more uncertainty than filing inside the period, and you do not know the answer until a judge gives it. It also sits on top of the ordinary expense of investigating, which what it costs to investigate a claim sets out.
Both decisions above were fought. Neither was a formality. The honest position is that the clock is running now, that courts do extend time in appropriate cases, and that you cannot plan around one.
What should you do while you look for a second opinion?
Treat the limitation position as a live question rather than something the first firm settled.
- Keep the rejection letter. It shows how far the first assessment actually got, and whether an independent expert opinion was ever obtained. What to do after a rejected claim explains what the wording of a refusal tends to tell you.
- Write down the dates — the treatment, when symptoms appeared, when anyone first suggested something may have gone wrong. Those are what discoverability turns on.
- Request your records now rather than after you find a new firm. How to get your medical records in Victoria sets out how, from whom, and how long it should take.
- Find out what a second review involves before you spend weeks arranging one. Getting a second opinion on a medical negligence claim covers what to bring and how long it takes.
- Ask any firm you approach for its view on limitation specifically, and ask early. It is a separate question from whether the claim has merit, and the answer to one does not decide the other.
Get your dates checked
You do not need to work out which period applies to you. That is part of what an assessment is for, and it is usually the quickest question to answer.
Our technology does the organising work of assembling records into a chronology. Our lawyers read the evidence and make every legal decision. Any AI-assisted assessment is preliminary and is signed off by one of our lawyers.
If a firm has already declined you, send the letter with whatever records you hold. If you do not have them, start a free assessment and you will be told what to request and from whom. There is no obligation. We do not assume the first firm reached the wrong answer — we look at the dates and the evidence independently, and tell you plainly where you stand.
Common questions
Does a law firm rejecting your claim stop the limitation period?
No. The limitation period is set by the Limitation of Actions Act 1958 (Vic) and runs regardless of what any firm has told you. The Act contains no provision that pauses time while a claim is being assessed, and the weeks or months you spent waiting for a decision are not added back. If you have been declined, the safe assumption is that you have less time than you did when you first made contact.
How long do you have after a lawyer says no in Victoria?
Whatever remains of the original period. Section 27D of the Limitation of Actions Act 1958 (Vic) gives you whichever expires first: three years from the date the claim was discoverable by you, or twelve years from the act or omission. A rejection neither restarts nor extends either period, so work out where you sit against those two dates rather than counting from the date of the letter.
Does making a complaint to Ahpra or the Health Complaints Commissioner extend your time limit?
No. A complaint is a separate process from a civil claim, and the Act contains no provision pausing a limitation period while one is on foot. Ahpra deals with a practitioner's registration, and the Health Complaints Commissioner runs a free complaints and conciliation service whose own fact sheet explains that compensation is awarded by the courts. Neither process holds your claim date open.
Can a court extend a medical negligence time limit in Victoria?
It can. Section 27K allows a court to extend a limitation period where it is just and reasonable to do so, and extensions have been granted after very long delays — in Goodridge & Anor v Baker [2023] VSC 331 the Supreme Court of Victoria extended time for a claim filed twenty-six years after the birth in question. An extension is a discretionary decision made on evidence rather than an entitlement, so it is not something to plan around.
Sources
- Limitation of Actions Act 1958 (Vic) — ss 27D, 27F and 27K.
- Goodridge & Anor v Baker [2023] VSC 331 — Supreme Court of Victoria, 16 June 2023. Extension of time granted under s 27K.
- Waldron v O'Callaghan [2024] VSCA 196 — Court of Appeal, 10 September 2024. Leave to appeal granted, appeal dismissed.
- Health Complaints Commissioner Victoria — Medical negligence fact sheet (PDF) — the twelve-year outer limit, and that compensation is awarded by the courts.
- Australian Health Practitioner Regulation Agency — what a notification about a practitioner can and cannot achieve.