In the recent matter of Martin v von Marburg [2025] NSWDC 259, the plaintiff (Mr Nicholas Martin) commenced a medical negligence compensation claim against the defendant, Dr Roland von Marburg.

The plaintiff alleges medical negligence and trespass against the defendant in relation to a consultation that took place between the parties on 16 April 2003 and in relation to surgery performed upon Mr Martin by Mr von Marburg on 13 May 2003. Mr von Marburg has retired and is no longer a registered medical practitioner, but, at all relevant times in relation to these proceedings, he was an ear, nose and throat surgeon.

The proceedings have been commenced more than twenty years after the consultation and the surgery. In his Defence, Mr von Marburg pleads that the claim is statute barred pursuant to section 50C(1)(b) of the Limitation Act 1969 (NSW).

On 6 March 2025, Mr Martin filed a Notice of Motion seeking leave nunc pro tunc to commence proceedings against the defendant pursuant to section 62(A) Limitations Act 1969.

It is common ground that the claim is not maintainable unless an extension of the 12 year long-stop limitation period to 21 December 2023 is granted to Mr Martin under s 62A of the Act. The acts or omissions relied upon for the claim occurred on 16 April 2003 and 13 May 2003. The 12 year long-stop limitation period expired on 15 April 2015 and 12 May 2015. The claim is more than eight years and seven months out of time.

The plaintiff seeks an extension of time to 21 December 2023, and the defendant opposes the granting of an extension.

In addition to bearing the burden of establishing that the court should exercise its discretion to extend the 12 year long-stop limitation period, pursuant to section 62A(2) of the Act, the plaintiff needs to establish that his claim was not discoverable more than three years prior to the filing of his Statement of Claim.

In its consideration, the Court provided as follows:

The date upon which the cause of action was discoverable is the date upon which Melinda Griffiths Lawyers, or counsel briefed by them, advised Mr Martin to the effect that there was sufficient evidence available to prove, on the balance of probabilities:

    • that Mr von Marburg was negligent in relation to Mr Martin in the consultation of 16 April 2003 or in the operation on Mr Martin’s left ear on 13 May 2003, and
    • that such negligence caused Mr Martin injury or loss, and
    • that the injury or loss was sufficiently serious to justify the bringing of proceedings (at [54]).

It is probable that the date upon which the cause of action was discoverable is 16 August 2023 (at [55]).

The extension of the 12 year long-stop limitation period to 21 December 2023 would not constitute an extension beyond the period of 3 years after the date on which the cause of action was discoverable (at [56]).

The delays thereafter were not the fault of Mr Martin. It was reasonable for him to rely on his solicitors not to put him in a position where he would lose his ability to bring proceedings at such time as he was advised that he had a cause of action against Mr von Marburg, and I’m satisfied that he placed that reliance on Harris Lieberman. In the context of his medical condition at all relevant times, particularly his increasing deafness, I do not think that it would be reasonable to expect him to question the advice he was getting from his solicitors any more than he did (at [71]).

I accept that there may be some prejudice to Mr von Marburg on account of his inability to have recourse to his contemporaneous notes of 2000 and 2003 and to the results of the tests referred to in [79] above. However, given that there are letters regarding Mr Martin, including the letters mentioned above, hospital records, including those written by Mr von Marburg, the account of Dr Iseli about the condition of Mr Martin’s left ear when she opened it during the surgery in November 2018, and Dr Iseli’s photographs of Mr Martins inner ear, I do not believe that the extent of the prejudice should, by itself, dictate that the time for bringing proceedings should not be extended. It is a factor to be weighed with other factors (at [82]).

Weighing up all of those factors, in the context of the circumstances of the case, I find that it is just and reasonable that the application to extend the limitation period be granted and I determine that the limitation period will be extended to 21 December 2023 so that these proceedings are within time (at [97]).

Ultimately, on 18 July 2025, the District Court of New South Wales ordered, pursuant to section 62A of the Limitations Act 1969, the time within which proceedings may be brought by the plaintiff against the defendant is extended to 21 December 2023, and the plaintiff has leave nunc pro tunc to commence proceedings against the defendant.

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