Court of Appeal (WA)|2015-03-27|Before: Mr J, Lure P, Buss JA, Newnes JA

AME HOSPITALS PTY LTD -v- DIXON [2015] WASCA 63 (27 March 2015)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AME HOSPITALS PTY LTD -v- DIXON [2015] WASCA 63

LAYNE CARMEL DIXON by her next friend ANDREW NIGEL DIXON

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : DIXON -v- CLARKE [2013] WASC 471

Tort - Personal injury - Actions relating to childbirth - Limitation periods - Limitation Act 2005 (WA) - Proper construction of s 39 of the Act - The factual matrix in which the matters in s 39(3) and s 39(4) are to be evaluated - Meaning of 'injury' in s 39(3) and s 39(4) - Meaning of 'physical cause' in s 39(3) and s 39(4) - Meaning of 'aware' in s 39(3) and s 39(4) - Meaning of 'ought reasonably to have become aware' in s 39(4) - Meaning of 'attributable to' in s 39(3) and s 39(4) - Relationship between s 6(1), s 14(1), s 39 and s 55(1) of the Act

Acts Amendment (Asbestos-Related Diseases) Act 1983 (WA)

Crown Suits Act 1947 (WA), s 6 (repealed)

Limitation Legislation Amendment and Repeal Act 2005 (WA), s 4, s 8

Adams and A v Hoare [2008] UKHL 6; [2008] 1 AC 844

Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76

Baker-Morrison v The State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276

Cartledge v E Jopling & Sons Ltd [1963] AC 758

Castlemaine Perkins Ltd v McPhee [1979] Qd R 469

Central Asbestos Co Ltd v Dodd [1973] AC 518

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159

Commonwealth v Smith [2005] NSWCA 478

Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129

Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234

Dobbie v Medway Health Authority [1994] EWCA Civ 13; [1994] 1 WLR 1234

Gillespie v Swift Australia Pty Ltd [2009] QCA 316

GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440

Halford v Brookes [1991] 1 WLR 428

Harris v Commercial Minerals Ltd [1996] HCA 49; (1996) 186 CLR 1

Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682

Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539

Hoffmueller v Commonwealth (1981) 54 FLR 48

Honour v Faminco Mining Services Pty Ltd as Trustee for Faminco Trust (in liq) [2009] QCA 352

Jocumsen v Thiess Pty Ltd [2005] QCA 198

Laminex (Australia) Pty Ltd t/as Laminex Industries v Coutts [2006] NSWCA 186

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Nader v Urban Transport Authority (NSW) (1985) 2 NSWLR 501

Nash v Eli Lilly & Co [1993] 1 WLR 782

NF v The State of Queensland [2005] QCA 110

Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27

Read v Brown (1888) 22 QBD 128

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

Spargo v North Essex District Health Authority [1997] EWCA Civ 1232; [1997] PIQR P235

Thomson v Lord Clanmorris [1900] 1 Ch 718

Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352

Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465

1 McLURE P: I agree with Buss JA that the appeals must be dismissed. However, I propose to state my reasons and conclusions relating to the construction and application of s 39 of the Limitation Act 2005 (WA) (the 2005 Act).

2 The relevant background is detailed by Buss JA. It is sufficient for my purposes to provide a chronological summary of events.

3 The respondent was born, floppy and not breathing, on 7 August 2001 at Attadale Private Hospital. She was revived and shortly thereafter transferred to Princess Margaret Hospital (PMH) for observation and treatment.

4 The PMH discharge summary dated 28 August 2001 (Discharge Summary) recorded a diagnosis of 'hypoxic ischaemic encephalopathy', a disease of the brain resulting from asphyxia (lack of oxygen). The natural and ordinary meanings of the individual terms are as follows:

Hypoxic - pertaining to, or exhibiting 'hypoxia', a deficiency of oxygen reaching the tissues;

Ischaemic - pertaining to or characterised by 'ischaemia', a reduction of blood supply to a part of the body;

Encephalopathy - degenerative disease of the brain.

5 A PMH developmental review report dated 1 August 2002 concerning the respondent (Review Report) refers to the diagnosis of hypoxic ischaemic encephalopathy in the Discharge Summary. The Review Report indicates it was copied to the respondent's parents.

6 In November 2002 the respondent was assessed by the PMH early intervention clinic. Global developmental delay in the respondent's gross motor skills and speech was confirmed.

7 In June 2003 the PMH early intervention clinic referred the respondent to the Cerebral Palsy Association. The PMH referral letter states that the respondent has cerebral palsy with moderately effected quadriplegia and that she had hypoxic ischaemic encephalopathy at birth.

8 In 2006, the respondent's parents sought legal advice from Ilberys Lawyers. Ilberys obtained an expert report dated 23 October 2006 from Professor CA Michael. It is apparent from Professor Michael's report that Ilberys had provided to him relevant medical records from Attadale Private Hospital and PMH and Dr Simon Clarke's clinical notes. Professor Michael's report is silent as to the cause, physical or otherwise, of the respondent's hypoxic ischaemic encephalopathy on delivery or her cerebral palsy. I infer he was not asked to opine on that subject. Professor Michael made no criticism of the conduct of Dr Clarke or AME Hospitals Pty Ltd (AME Hospitals) in the management of the delivery of the respondent.

9 Some years later, on the initiative and advice of Ilberys, the respondent's parents obtained a second medical opinion relating to the management of the delivery of the respondent by Dr Clarke at Attadale Private Hospital. The second opinion was provided by Professor Gustav Dekker in a report dated 15 August 2012. On the basis of the available information, Professor Dekker concluded that the respondent's 'neurological problems are totally consistent with major intra-partum [during the process of delivery] hypoxia'. Professor Dekker concluded:

[The respondent's] diagnosis is hypoxic ischemic encephalopathy resulting in quadriplegia. Nowadays it is extremely rare that deficiencies in intrapartum care lead to cerebral palsy. In [the respondent's] case the intrapartum temporal pattern of events following her birth support the diagnosis of intrapartum events as the cause of the hypoxic ischemic encephalopathy. The lack of appropriate electronic fetal monitoring during a major part of the prolonged 2nd stage has apparently resulted in not recognising the deterioration in the fetal condition with as final outcome the birth of [the respondent] in a very poor condition.

10 It was agreed that the respondent's cause of action against AME Hospitals and Dr Clarke accrued on the commencement date of the 2005 Act, being 15 November 2005.

11 It was also agreed that the relevant limitation period expired on 15 November 2011.

12 In July 2013, the respondent applied under s 39, s 41 and s 42 of the 2005 Act for an extension of time to commence proceedings. On 23 December 2013 the master granted leave under s 39 to extend the time in which the respondent's action against the appellants could be commenced.

13 The background to and the framework of the current statutory scheme is detailed by Buss JA. I will focus on s 39 and s 41. Section 39 of the 2005 Act relevantly provides:

(1) A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.

...

(3) On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues -

(a) was not aware of the physical cause of the death or injury;

(b) was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or

(c) was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.

(4) On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware -

(a) of the physical cause of the death or injury;

(b) that the death or injury was attributable to the conduct of a person (whether a defendant or not); and

(c) of the identity of the person mentioned in paragraph (b).

14 The 'person to whom the cause of action accrues' means, in the case of a person who is under 18 years of age when the cause of action accrues, either that person or a guardian of that person.

(1) A plaintiff who was under 18 years of age when a cause of action accrued to that person may apply to a court for leave to commence an action even though the limitation period provided for under this Act has expired.

(2) Subject to subsection (3), on an application a court may extend the time in which the action can be commenced up to when the plaintiff reaches 21 years of age.

(3) A court is not to extend time on an application unless the court is satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action.

16 The respondent was aged 4 when the causes of action accrued and 11 when the extension application was filed. For reasons which are not clear to me, the focus at first instance was confined to s 39 of the 2005 Act.

17 In order to apply s 39(3) and (4) to the facts of this case it is necessary to construe the meaning of the statutory terms: 'injury', 'the physical cause of the ... injury', 'attributable', 'aware' and 'ought reasonably to have become aware'. Before going to the detail, some general observations provide context.

18 First, to enliven the power to extend time under s 39(3) the applicant has to prove at least one negative, being the lack of awareness of the person to whom the cause of action accrues, at the time when the limitation period expired, of the physical cause of the injury, or that the injury was attributable to the conduct of a person, or the identity of that person.

19 The applicant for an extension must also establish when the person to whom the cause of action accrued first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) (being the physical cause of the injury, that the injury was attributable to the conduct of a person and the identity of that person).

20 In practical terms, the focus of attention in an application under s 39 should be on when the person to whom the cause of action accrues (and guardian if under 18) first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) because the application has to be made within three years from that date. That exercise will inevitably provide the evidentiary basis for determining the matters necessary to enliven the power under s 39(3).

21 Second, the matters listed in s 39(3) do not correspond with the material elements of a cause of action for damages for personal injury. In particular, no attention is required to the legal issue of whether there is a duty of care, the factual issue of whether the standard of care has been breached or issues going to the legal aspect of causation and remoteness of damage.

22 Third, s 39 (unlike s 56) does not separately require awareness of the injury. That is because awareness of a patent or latent injury is, under s 55(1)(a) and s 55(1)(b) respectively, the trigger for the accrual of the cause of action for damages for personal injuries in non-asbestos cases. How s 39 applies in a case where a latent injury becomes patent after the expiry of the limitation period does not need to be determined in this case.

23 The term 'injury' in s 39(3) and s 39(4) of the 2005 Act means the personal injury the subject of the application for leave under s 39(1).

24 The expression 'personal injury' is defined in s 3(1) of the 2005 Act to include 'a disease, impairment of a person's physical condition, and mental disability'.

25 The personal injury the subject of the respondent's extension application is identified in the draft indorsement of claim as 'injuries ... including, inter alia, brain damage and cerebral palsy with quadriparesis'.

26 As I understand the limited medical evidence, the respondent's cerebral palsy is causally connected with her hypoxic ischaemic encephalopathy at birth. However, hypoxic ischaemic encephalopathy at birth may, not must, result in cerebral palsy, the latter being in the serious category of potential developments. Having regard to the pleaded claim, I would identify cerebral palsy as the relevant injury for the purpose of s 39(3) and s 39(4). However, the outcome is unaffected by whether the injury is cerebral palsy or hypoxic ischaemic encephalopathy, for the reasons discussed below.

27 The notion of causation as an element of a cause of action for damages for personal injuries is directed at the causal connection between the defendant's negligent act or omission and the personal injury the subject of the claim.

28 The 'physical' cause of a personal injury is the different and logical first question of 'what' caused the injury, not 'whom'. If a motor vehicle hits a pedestrian, the collision is the physical cause of the pedestrian's personal injuries. In lung cancer, the physical cause may be cigarette smoke. In mesothelioma, the physical cause may be asbestos fibres. In a failure to warn of the risks of surgery, it will be the performance of the surgical procedure. However, it is not a requirement that the injury result from direct physical contact (Nader v Urban Transport Authority (NSW) (1985) 2 NSWLR 501, 516) or that the effect be an organic injury. It makes sense that the notion of physical cause applies to the whole range of compensable personal injuries.

29 There may be multiple successive (or concurrent) physical causes of a single injury. On the available evidence, the respondent's cerebral palsy was physically caused by her hypoxic ischaemic encephalopathy. In hypoxic ischaemic encephalopathy the last physical cause is (as the name implies) an interruption in the blood flow (and thus oxygen) to the brain. However, none of this information is capable of providing or leading to an awareness of whether the injury was attributable to the conduct of any person. In this case the last and penultimate physical causes are each in substance an 'effect' for the purpose of s 39(3) and (4). There must be one (or more) prior physical cause which had the effect of interrupting the blood flow to the respondent's brain.

30 The expert evidence establishes for the purpose of the extension application that intra-partum second stage events (which is wide enough to cover acute and non-acute events) interrupted the blood flow to the respondent's brain. That is the relevant physical cause in this case. Having regard to the alleged conduct of the appellants (the failure to properly monitor the state of the baby during the prolonged second stage, thereby failing to both recognise that there was a problem and act to avoid or minimise the extent of any neurological damage) it is unnecessary to know anything more precise about the physical cause for s 39 purposes.

31 The phrase 'attributable to' has been the subject of judicial consideration in a number of cases including Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, Laminex (Australia) Pty Ltd v Coutts [2006] NSWCA 186 and Central Asbestos Co Ltd v Dodd [1973] AC 518, 533.

32 In Roncevich the High Court considered the meaning of s 70(5) of the Veterans' Entitlement Act 1986 (Cth), which referred to an injury which 'arose out of, or was attributable to' defence service. In the joint judgment, the High Court said:

A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate [27].

33 That is, a causal connection in fact (as distinct from causation at law) will satisfy the requirement that the injury be attributable to a person's conduct. Whether a non-causal connection could satisfy the requirement does not arise for determination in this case. However, there is much to be said for the view of the New South Wales Court of Appeal in Commonwealth of Australia v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325 [25] that the statutory requirement in s 60I of the Limitation Act 1969 (NSW) of a 'connection between the personal injury and the defendant's act or omission' must be understood as involving an element of causal relationship. The case is more compelling when the injury must be 'attributable' to a person's conduct.

34 The natural and ordinary meaning of the term 'aware' is cognisant or informed of. That is, awareness can result from information provided by a third party. In the context of s 39(3), actual awareness is required, not constructive awareness: Harris v Commercial Minerals Ltd [1996] HCA 49; (1996) 186 CLR 1, 9 - 10.

35 The appellants do not contend that awareness includes actual awareness of the relevant person's duly authorised agent (such as the respondent's solicitors). In that circumstance, awareness would be imputed rather than constructive. However, that issue can be put to one side.

36 What constitutes actual awareness will depend on the nature of the fact or matter in issue. In this case, awareness of the physical cause of the respondent's injury is a matter of inference, from primary facts, that requires expert medical knowledge and experience. That the respondent's father may have been aware of some or all of the primary facts and of the opinion of a non-qualified person as to the physical cause of the respondent's injury cannot satisfy the actual awareness requirement.

37 There is no conflicting expert evidence as to the physical cause of the respondent's injury. In those circumstances it is proper for the purpose of the extension application to find that the respondent's father first became aware of the physical cause of the respondent's injury on receipt of Professor Dekker's opinion in August 2012. Accordingly, the discretion in s 39(3) is enlivened.

38 Even if that is wrong, the next question is when did the respondent's father become aware that the respondent's injury was attributable to the conduct of the appellants.

39 Conduct means an act or omission of a person. Whether or not the injury was attributable to the conduct of the appellants is also a matter that requires expert medical knowledge and experience. On this subject, there is a conflict of expert opinion in the reports of Professor Michael and Professor Dekker.

40 I am not persuaded of the applicability or suitability of the test of awareness (and attributability) applied in the English and other cases to which Buss JA refers (awareness of relevant facts with sufficient confidence reasonably to justify the commencement of proceedings against the proposed defendants in the relevant causes of action). As previously noted, the matters in s 39(3) and (4) do not equate with all the material facts of a cause of action for damages for personal injuries. Moreover, awareness (actual or constructive) of the matters in s 39(4) triggers a further three years in which to commence proceedings.

41 In my view, a person will be aware of a matter which requires expert knowledge and experience if he is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing the relevant facts (that is, the physical cause of the injury is attributable to the conduct of an identified person). Only Professor Dekker's report satisfies both those requirements.

42 I agree with Buss JA that the objective test of reasonableness is assessed having regard to the characteristics, attributes and circumstances of the particular person to whom the cause of action accrues.

43 By the time the limitation period expired on 15 November 2011, the respondent's father was aware that the respondent had cerebral palsy; based on the Review Report and his evidence in the proceedings, it was open to find he was also aware that the respondent at birth had hypoxic ischaemic encephalopathy; and he ought reasonably to have become aware of all the primary facts in the documents with which Professor Michael was briefed.

44 The appellants contend that by 23 December 2010 at the latest (being three years prior to the extension orders) the respondent's father ought reasonably to have become aware of all the matters in pars (a), (b) and (c) of s 39(4) as all relevant primary facts were known. That submission must be rejected.

45 Awareness of the matters in pars (a) and (b) of s 39(4), both actual and constructive, depends on inferences from the primary facts drawn by a medical expert. As I see it the real issue is whether, after receipt of

Professor Michael's report, reasonableness required that further investigations be undertaken, such as seeking a conference with Professor Michael to clarify and test his opinion or obtaining a second expert opinion. On balance, it was reasonable to cease investigations on receipt of Professor Michael's report. He is and was at the time a highly qualified and experienced specialist in the field; he was briefed with all available documentation; and his opinion was expressed without qualification or equivocation. The absence from that opinion of any reference to the physical cause of the respondent's injuries is of little significance because of Professor Michael's conclusion that they were not attributable to the conduct of the appellants.

46 In this case, actual and constructive awareness of all relevant matters in s 39(4) did not occur prior to receipt of Professor Dekker's report.

47 I have concluded that when the limitation period expired the respondent's father was not aware of the physical cause of the respondent's hypoxic ischaemic encephalopathy or cerebral palsy and was not aware that either injury was attributable to the conduct of a person. Accordingly, the court's power to extend time was enlivened.

48 The respondent and her guardian first became aware, and ought reasonably to have become aware, of all the matters in s 39(4) upon receipt of Professor Dekker's report in August 2012.

49 I would uphold ground 1 for the reasons given by Buss JA. Having regard to my conclusion that the relevant injury is cerebral palsy, I would also uphold ground 4. However, the successful grounds do not alter the outcome.

50 The master granted an extension of time by order dated 23 December 2013, well within the three-year period the subject of s 39(4). Thus, the master had the power to make the order which was within the proper exercise of his discretion. I would grant leave to appeal but the appeals must be dismissed.

51 BUSS JA: The appellant in each appeal has applied for leave to appeal against a judgment of Master Sanderson.

52 On 23 December 2013, the master granted the respondent an extension of time under s 39 of the Limitation Act 2005 (WA) (the 2005 Act) to commence an action against the appellant in CACV 4 of 2014,

Simon Clarke (Dr Clarke), and the appellant in CACV 145 of 2013, AME Hospitals Pty Ltd (AME Hospitals), for breach of contract, further or alternatively for negligence, in connection with the respondent's birth on 7 August 2001 at Attadale Private Hospital.

53 The critical issues in the appeals concern the proper construction of s 39 of the 2005 Act and its application to the relevant facts and circumstances.

Outline of the respondent's circumstances and her claim against Dr Clarke and AME Hospitals

54 The respondent's father, Andrew Nigel Dixon, is her next friend.

55 After the respondent's mother, Amanda Carmel Dixon, became pregnant with the respondent, she consulted Dr Clarke, an obstetrician. Her pregnancy was relatively uneventful.

56 On the morning of 7 August 2001, Mrs Dixon was admitted to Attadale Private Hospital, which is operated by AME Hospitals. Labour was induced. The respondent was delivered by a natural birth at 11.30 pm. Mrs Dixon was under the care of Dr Clarke and AME Hospitals' nursing staff during the labour and delivery.

57 The respondent suffers from cerebral palsy with quadriparesis.

58 The papers filed by the respondent in support of her application dated 24 July 2013 for an extension of time under s 39 of the 2005 Act included a draft writ with an indorsement of claim. In the indorsement the respondent's claim against Dr Clarke and AME Hospitals is pleaded as follows:

The [respondent] claims damages against the [appellants] for breach of contract and/or negligence, arising out of the delivery and birth of the [respondent] at [Attadale Private Hospital] on or about 7 August 2001, in circumstances where the management of the labour of the [respondent's] mother, the consequent foetal distress to the [respondent] during labour and/or delivery, and/or the post-natal care and advice provided with respect to the [respondent] resulted in injuries to the [respondent] including, inter alia, brain damage and cerebral palsy with quadriparesis.

59 'Hypoxia ischemia' denotes the changes which occur in tissues when the blood supply is cut off, particularly in a foetus or infant with asphyxia. The term 'encephalopathy' refers to any degenerative disease of the brain. 'Hypoxic ischemic encephalopathy' or 'HIE' is encephalopathy resulting from asphyxia. Common symptoms, in the case of infants presumed to have suffered prenatal or perinatal asphyxia, are lethargy, feeding difficulties and convulsions. Serious cases may involve necrosis of neurons in the brain with psychomotor retardation and spastic motor deficits such as cerebral palsy. The term 'cerebral palsy' describes any of a group of persisting, non-progressive motor disorders appearing in young children and resulting from brain damage caused by trauma at birth or intrauterine pathology. These disorders are characterised by delayed or abnormal motor development: for example, spastic paraplegia, hemiplegia or tetraplegia, and may be accompanied by mental retardation, seizures or ataxia. 'Hypotonia' is a condition of diminished tone of the skeletal muscles and, in the case of babies, a condition marked by signs of weakness and floppiness due to non-progressive weakness of skeletal muscles from birth. The term 'quadriparesis' refers to muscular weakness affecting all four extremities. See Dorland's Illustrated Medical Dictionary (30th ed, 2003) 610, 611, 900, 1353, 1556, 1890.

60 The respondent's application before the master was supported by an affidavit of Mr Dixon affirmed on 27 September 2013. The respondent did not file any other affidavits. Neither Dr Clarke nor AME Hospitals sought to rely on any affidavit evidence.

62 Counsel for Dr Clarke and AME Hospitals (who was not counsel for those parties in the appeals) attempted to establish, through cross-examination of Mr Dixon, when Mr Dixon initially became aware of the respondent's condition and the possibility that Dr Clarke and nursing staff employed by AME Hospitals may, by some act or omission, have caused or contributed to her condition.

63 Mr Dixon's evidence was, relevantly, as follows.

64 Mr Dixon is a painter and decorator. Mrs Dixon is a part-time data entry operator.

65 When the respondent was born she was 'floppy and not breathing'. She was revived by Dr Clarke and the nursing staff.

66 Later on the night of 7 - 8 August 2001, the nursing staff informed Mr and Mrs Dixon that the respondent might be having seizures. The respondent was transferred to Princess Margaret Hospital for observation and treatment. She was an inpatient for a few days.

67 At Princess Margaret Hospital the respondent had a computed tomography scan (CT Scan) and an electroencephalogram (EEG). The person who performed the EEG told Mr Dixon that 'the results were fine'.

68 However, a document from Princess Margaret Hospital dated 28 August 2001, headed 'Discharge Summary' and signed by Jenni Sokol, a consultant neonatologist, stated that an 'ultrasound and CT Scan of [the respondent's] head showed cerebral oedema' and that the 'EEG was abnormal as it showed burst suppression-like activity in the background'. Mr Dixon did not receive a copy of the discharge summary until 2012. At that time the respondent's solicitors obtained copies of some of her medical records.

69 In August 2001, when the respondent was an inpatient at Princess Margaret Hospital, staff informed Mr Dixon that the respondent had 'settled down' after being given the medication 'Phenobar', and they 'no longer suspected that she was having seizures'. On 11 August 2001, the respondent was returned to Attadale Private Hospital. She was monitored until her discharge on 15 August 2001.

70 A few months after her birth, Mr Dixon became concerned that the respondent was 'not developing properly, both mentally and physically', compared with other children he had observed. Mrs Dixon had the same concerns.

71 Mr and Mrs Dixon raised their concerns with Corrado Minutillo, a paediatrician. Dr Minutillo said the respondent had 'some hip issues', but otherwise dismissed their concerns.

72 Over the next few months, Mr and Mrs Dixon remained concerned about the respondent because she did not appear to be 'at the same level as other children'.

73 When the respondent was aged about 10 months, Dr Minutillo, at Mrs Dixon's request, referred the respondent for physiotherapy and to the Developmental Clinic at Princess Margaret Hospital (PMH Clinic). Staff at the PMH Clinic informed Mrs Dixon that the respondent was 'developmentally delayed'. The staff appeared to attribute this delay to the respondent's hip splinting and Mrs Dixon's family history of late development.

74 A report from the PMH Clinic dated 1 August 2002 and signed by Judy McMichael, a developmental paediatrician (PMH Clinic report), stated:

Neonatal details include some seizures in the neonatal period and hypoxic ischaemic encephalopathy ... as shown on the discharge summary.

75 At the conclusion of the report, Dr McMichael summarised the respondent's condition as follows:

[The respondent] demonstrates global developmental delay particularly in the areas of gross motor skills with relative strength in personal/social and communication scales. It is hard to confirm whether this is a result of her hip splinting for DDH combined with a family history of late development in her mother. She should continue with regular physiotherapy and may at a later stage in addition benefit from some speech therapy and occupational therapy through [the] Early Intervention Program. Her follow up will remain with Dr Minutillo, although she will continue to receive questionnaires as part of the neonatal follow up program.

76 The PMH Clinic report appears, on its face, to have been copied to Mr and Mrs Dixon.

77 During cross-examination it was not specifically put to Mr Dixon that he had received a copy of the PMH Clinic report. Instead, after being questioned about the report, he was asked whether he had received 'correspondence from the hospital and doctors from time to time' (ts 9). His response was:

We may have. I don't recall it. But it's quite possible. We have extensive folders at home, with stuff for [the respondent's] treatment (ts 9).

78 Earlier in cross-examination Mr Dixon was asked about the diagnosis in the PMH Clinic report. He said he did not recall 'the diagnosis being mentioned to [him] at this stage by anybody' (ts 8).

79 Mr Dixon said the respondent appeared to be assisted by physiotherapy. Her motor skills improved. However, he thought she still had some difficulties, especially with speech. Mrs Dixon shared his views.

80 In November 2002, the respondent was referred to the Early Intervention Clinic at Princess Margaret Hospital. Mr Dixon said he was informed by staff at the clinic that, on their assessment, the respondent was 'globally delayed across the board, including motor skills and speech'. A document from the Early Intervention Clinic dated 26 November 2002 is consistent with Mr Dixon's evidence about the information he was given. Mr Dixon did not receive a copy of the document until 2012, when the respondent's solicitors obtained copies of some of her medical records.

81 During 2003, a medical practitioner informed Mr Dixon that the Cerebral Palsy Association (CPA) could provide the respondent with assistance when she was older. However, at the time, Mr Dixon was not informed that the respondent had cerebral palsy.

82 In or about June 2003, the Early Intervention Clinic at Princess Margaret Hospital referred the respondent to the CPA. In a letter dated 26 June 2003 from the Early Intervention Clinic to the CPA, Philomena Fitzgerald, a developmental paediatrician, said, relevantly:

(a) the respondent had 'cerebral palsy with moderately effected quadriplegia';

(b) the respondent was 'presenting with hypotonia, difficulty with coordination, some overflow movements and associated movements';

(d) it had 'become clear that [the respondent's] problem is cerebral palsy'; and

(e) Dr Fitzgerald was not concerned about the respondent's intellectual development.

83 Mr Dixon did not receive a copy of the letter dated 26 June 2003 until 2012, when the respondent's solicitors obtained copies of some of her medical records.

84 Shortly after June 2003, Mr and Mrs Dixon attended a 'handover appointment' with the CPA. At the appointment they were informed that the respondent had cerebral palsy. Mr Dixon was shocked because he had understood, on the basis of previous advice from medical practitioners, that the respondent was merely 'delayed', and his impression was that she appeared to be improving with assistance from the Early Intervention Clinic.

85 Mr Dixon was not given any explanation by staff at the CPA about the possible causes of the respondent's cerebral palsy.

86 Later, either Mr Dixon or Mrs Dixon asked medical practitioners about the possible causes of the respondent's cerebral palsy, but the medical practitioners would 'either not answer or provide evasive or circular responses'. Thereafter, Mr Dixon 'simply stopped asking about possible causes as finding out the cause of [the respondent's] cerebral palsy would not change the fact that she had it'. The focus of discussions which Mr and Mrs Dixon then had with medical practitioners was providing the respondent with the assistance she needed rather than endeavouring to identify the cause of her condition.

87 After the respondent was referred to the CPA, she began receiving treatment from Ildiko Szivek, a 'conductive therapist'. Ms Szivek informed Mr Dixon that in her opinion the respondent's condition 'was caused during [her] birth'.

88 Mr Dixon disregarded Ms Szivek's opinion for the following reasons:

(b) he was present at the respondent's birth and he did not think that Dr Clarke or the nursing staff had done anything wrong;

(c) he thought that, if Dr Clarke or the nursing staff had done anything wrong, one of the many medical practitioners he had seen after the respondent's birth would have raised the matter with him;

(d) he did not want to cause trouble for Dr Clarke or the nursing staff if they had done nothing wrong, and he did not want to make a claim that was unwarranted;

(e) he was not sure how serious the respondent's condition would become because she was improving with the CPA's assistance; and

(f) he and Mrs Dixon were not in a financial position to seek legal or medical advice.

89 Nevertheless, in 2006 Mr and Mrs Dixon decided to seek advice from Ilberys, solicitors, because Ms Szivek had reiterated her view, Mr Dixon had heard of another child with cerebral palsy who had made a legal claim, and Mr and Mrs Dixon could at that stage afford to pay for some legal advice.

90 Mr and Mrs Dixon, on Ilberys' advice, obtained an opinion from a medical expert, Professor Con Michael. Professor Michael gave his opinion as to the management by Dr Clarke and the nursing staff of Mrs Dixon's labour and the respondent's delivery. His opinion was based on information in a letter from the solicitors, medical records from Attadale Private Hospital and Princess Margaret Hospital, and Dr Clarke's clinical notes. Mr Dixon said in cross-examination that he would not have seen the records sent by Ilberys to Professor Michael (ts 16).

91 Professor Michael said that Dr Clarke and the nursing staff had acted appropriately. His report dated 23 October 2006 reads, relevantly:

I believe that appropriate monitoring had occurred according to the partogram.

I agree that there had been some delay in the second stage of labour but this was probably due to the loss of effective pushing because of the epidural and because the fetal head had not descended to the pelvic floor. Given that the fetal heart rate was satisfactory and there were no abnormal features in the labour it was appropriate to allow [Mrs] Dixon to progress in labour. Once the fetal head had descended to the pelvic floor there was obviously quick progress to the delivery and therefore assisted delivery was considered to be unnecessary.

92 Mr and Mrs Dixon accepted Professor Michael's opinion and did not take the matter further.

93 However, on or about 5 May 2012, Mrs Dixon received a telephone call from a representative of Ilberys. She was told that:

(a) Ilberys had received information that had caused them to review their 'childbirth files'; and

(b) after reviewing the files, they were of the view that Mr and Mrs Dixon should consider obtaining a second opinion from a medical expert.

94 Mr Dixon instructed Ilberys to obtain an estimate of the cost of obtaining a second opinion and, if possible, preliminary views.

95 After being advised about estimated costs and preliminary views, Mr Dixon instructed Ilberys to obtain an opinion from their recommended medical expert, Professor Gus Dekker. In a report dated 15 August 2012, Professor Dekker said a lack of appropriate electronic foetal monitoring during a major part of Mrs Dixon's prolonged second stage of labour appeared to have resulted in Dr Clarke and the nursing staff failing to recognise a deterioration in the respondent's condition. Professor Dekker summarised his opinion as follows:

[The respondent's] diagnosis is hypoxic ischemic encephalopathy resulting in quadriplegia. Nowadays it is extremely rare that deficiencies in intrapartum care lead to cerebral palsy. In [the respondent's] case the temporal pattern of events following her birth support the diagnosis of intrapartum events as the cause of the hypoxic ischemic encephalopathy. The lack of appropriate electronic fetal monitoring during a major part of the prolonged 2nd stage has apparently resulted in not recognising the deterioration in the fetal condition with as [sic] final outcome the birth of [the respondent] in a very poor condition (unfortunately cord pH data are missing).

It is appropriate to note that this particular scenario happens not infrequently in any major maternity unit. Mostly 'mother nature' is friendly, ie fetal reserve is adequate to sustain a prolonged 2nd stage, and notwithstanding inadequate monitoring perinatal outcome is good. Sadly, [the respondent] clearly got compromised intrapartum. It is not clear to me why the obstetrical team did not decide to place a scalp electrode, a routine step in all maternities. Such a fetal scalp electrode would have at least provided a reliable fetal heart trace. CTG is notorious for 'over diagnosing' fetal distress. The available CTG copies are certainly no proof of a poor fetal condition, but the trace is consistent with loss of fetal signal, multiple episodes of recording maternal signals and lack of any reassuring fetal trace - all of this in [a] patient with a prolonged 2nd stage on intravenous oxytocin.

96 Mr Dixon only became aware on or about 15 August 2012, after receiving a copy of Professor Dekker's report, and Ilberys' explanation of it, that:

(a) the respondent had suffered an injury during birth;

(b) her condition was caused by the injury she sustained during birth; and

The master's findings in relation to Mr Dixon's evidence

97 The master said, in his reasons for decision, that he was satisfied Mr Dixon was 'a witness of truth'; none of the answers Mr Dixon gave in cross-examination 'diminished from [sic] his written evidence'; and his affidavit evidence should be 'accepted in its entirety' [15].

98 The 2005 Act came into operation on 15 November 2005.

99 The relevant statutory framework for the purposes of these appeals is as follows.

100 Section 3(1) contains a number of definitions. It provides, relevantly, that in the Act:

action means -

(a) any civil proceeding in a court, whether the claim that is the subject of the proceeding or relief sought is under a written law, at common law, in equity or otherwise; ...

...

commencement day means the day on which this Act comes into operation;

defendant means a person against whom an action is brought or proposed to be brought;

extension application means an application under section 38, 39, 40, 41 or 42;

...

mental disability, in relation to a person, means a disability suffered by the person (including an intellectual disability, a psychiatric condition, an acquired brain injury or dementia) an effect of which is that the person is unable to make reasonable judgments in respect of matters relating to the person or the person's property;

...

personal injury includes a disease, impairment of a person's physical condition, and mental disability;

plaintiff means -

(a) a person bringing, or proposing to bring, an action; or

(b) a person acting on behalf of a person mentioned in paragraph (a).

101 The terms 'disease' and 'physical condition' are not defined in s 3(1) or elsewhere in the 2005 Act.

102 Section 4(1) states that the limitation periods provided for under the 2005 Act apply only to causes of action that accrue on or after the commencement day. However, s 4(2) states that s 4 is 'subject to sections 7 and 8'.

103 Section 6 relates to personal injury actions. Section 6(1) states that s 55 or s 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues.

104 Section 7 makes special provision for certain personal injury actions relating to childbirth. It provides:

cause of action (childbirth) means a cause of action for damages relating to a personal injury to a person that was incurred -

(a) in the course of the person's mother giving birth to the person; or

(b) immediately after, and arising from, the person's mother giving birth to the person,

whether the birth was by way of natural childbirth or a medical procedure.

(2) An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before commencement day and -

(a) 6 years have elapsed since commencement day; or

(b) the limitation period that would have applied but for this section has expired.

(3) This section has effect subject to Part 3 but -

(a) sections 30 and 31 do not apply; and

(b) sections 32 and 41 do not apply if the person has reached 15 years of age at commencement day.

(4) For the purposes of the provisions of Part 3 that apply under subsection (3), a cause of action (childbirth) is to be taken as having accrued on commencement day.

105 Part 2 is headed 'Limitation periods' and comprises s 11 - s 29.

AME HOSPITALS PTY LTD -v- DIXON [2015] WASCA 63 (27 March 2015)

At a glance

Court

Decision date

Before

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Judgment (473 paragraphs)

AME HOSPITALS PTY LTD -v- DIXON [2015] WASCA 63 (27 March 2015)

Legislation Cited (5)

Cases Cited (19)