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Crown Suits Act 1947 (WA), s 6 (repealed)

Limitation Act 1935 (WA) (repealed), s 38(1), s 38A, s 40, s 47A

Limitation Act 2005 (WA), s 3(1), s 4, s 6(1), s 7, s 11(1), s 12(1), s 14(1), s 30, s 31, s 32, s 39, s 41, s 44, s 55, s 56, s 79(3)

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

Cheney v Duncan [2001] NSWCA 197; (2001) 34 MVR 28

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

Commonwealth v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325

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

Pearce v Commonwealth [2006] NSWCA 210; (2006) Aust Torts Reports 81-856

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

Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302

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

Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497

Wilson v Rigg [2002] NSWCA 246; (2002) 36 MVR 451

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';

(c) the respondent had hypoxic ischaemic encephalopathy (HIE);

(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

(c) her injury and condition were attributable to the conduct of Dr Clarke, further or alternatively, the nursing staff.

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.

106 Section 12(1) states that, in pt 2, a reference to the commencement of an action is a reference to the issue in the appropriate court of a writ or other originating application in relation to the action.

107 Section 14(1) provides that an action for damages 'relating to a personal injury to a person' cannot be commenced if three years have elapsed since the cause of action accrued. Section 11(1) provides in effect that s 14(1) is subject to pt 3.

108 Part 3 is headed 'Extension or shortening of limitation periods' and comprises s 30 - s 54.

109 Section 30(1) provides that if a person is under the age of 15 years when a cause of action accrues to the person, an action on that cause of action cannot be commenced if six years have elapsed since the cause of action accrued. By s 30(2), s 30(1) does not apply if pt 2 div 3 (which comprises s 14 - s 29) provides for a longer limitation period for commencing the action.

110 Section 31(1) provides that if a person is aged 15, 16 or 17 years when a cause of action accrues to the person, an action on that cause of action cannot be commenced if the person has reached the age of 21 years. By s 31(2), s 31(1) does not apply if pt 2 div 2 (which comprises s 13) or pt 2 div 3 (which comprises s 14 - s 29) provides for a longer limitation period for commencing the action.

111 Section 32 provides for the suspension of time while a person under the age of 18 years is without a guardian.

112 Section 39 empowers a court to extend time to commence actions for personal injury to a person. It provides, relevantly:

(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).

(5) In this section -

person to whom the cause of action accrues -

(a) in the case of a person who is under 18 years of age when the cause of action accrues, means either that person or a guardian of that person;

(b) in the case of a person with a mental disability, means either that person or a guardian of that person.

113 Section 41(1) provides that a plaintiff who was under the age of 18 years when a cause of action accrued to him or her may apply to a court for leave to commence an action even though the limitation period under the 2005 Act has expired. Section 41(2) provides that, subject to s 41(3), on an application a court may extend the time in which the action can be commenced up to when the plaintiff reaches the age of 21 years. By s 41(3), a court is prohibited from extending 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 applicable limitation period.

114 Section 7(3) provides that s 7 has effect subject to pt 3 but, relevantly, s 41 does not apply if the plaintiff has reached the age of 15 years at the commencement day. Also, by s 7(4), for the purposes of the provisions of pt 3 that apply under s 7(3), a cause of action (childbirth) is to be taken as having accrued on the commencement day.

115 Section 43 specifies the jurisdiction and procedure applicable to an extension application.

116 Section 44 enumerates certain matters to which a court must have regard when deciding, on an extension application, whether to extend the time for the commencement of an action. It provides:

When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to -

(a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).

117 Part 4 is headed 'Accrual of particular causes of action' and comprises s 55 - s 73.

(1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs -

(a) the person becomes aware that he or she has sustained a not insignificant personal injury;

(b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

(2) This section does not apply to a personal injury that is attributable to the inhalation of asbestos.

119 Section 56 is concerned with the accrual of a cause of action for damages relating to a personal injury that is attributable to the inhalation of asbestos.

120 By s 79(3), the plaintiff in an extension application has the burden of proving that a court should extend the relevant limitation period.

121 A number of matters were not in dispute before the master, namely:

(a) for the purposes of s 39(1), the limitation period provided for under s 7 had expired;

(b) by reason of s 7(4), the respondent's causes of action against Dr Clarke and AME Hospitals were to be taken as having accrued on 15 November 2005 (being the date on which the 2005 Act came into operation);

(c) for the purposes of s 7(2)(a), an action on the respondent's causes of action against Dr Clarke and AME Hospitals was not commenced within six years after 15 November 2005;

(d) for the purposes of s 7(2)(b), the limitation period that would have applied to the respondent's causes of action, but for s 7, had expired; and

(e) for the purposes of s 39(3), the relevant time for determining the matters referred to in par (a) and par (b) of s 39(3) was 'when the limitation period expired', namely 15 November 2011.

The master's findings of fact and legal reasoning

(a) The cause of the respondent's 'present disability' was HIE [26].

(b) If HIE 'can be correctly said to be the injury then it cannot be said Mr Dixon had an awareness of the physical cause of that injury' [26].

(c) Indeed, 'from the evidence that is presently available it is by no means clear what the "physical cause" of the injury may be' [26].

123 Counsel for Dr Clarke and AME Hospitals submitted to the master that he should make two findings favourable to the appellants.

124 First, on or as at 15 November 2011, Mr Dixon knew that the respondent had cerebral palsy [27].

125 The master said that was not 'the test'. Cerebral palsy was not the 'injury' referred to in s 39(3). The master concluded that 'although [he] would make [the] finding sought' by counsel for Dr Clarke and AME Hospitals, that finding did not advance their case [27].

126 Secondly, on or as at 15 November 2011, Mr Dixon suspected that the cerebral palsy was caused by events at the respondent's birth [28].

127 The master said that was not 'the proper test'. Dr Clarke and AME Hospitals would not advance their case unless a finding was made that Mr Dixon was 'aware' that the HIE suffered by the respondent was caused by events at her birth. The master was 'not so satisfied':

Mr Dixon said he was not aware of the diagnosis and had not been told by any medical or health professional this was the position. It is true that [Mr Dixon] appears to have been provided with a report from Health West dated 1 August 2002 which refers to the diagnosis: see annexure ANDA 6 to Mr Dixon's affidavit. During the course of cross-examination Mr Dixon was unable to say what became of that report or if he had seen it. While the fact the report appears to have been copied to Mr and Mrs Dixon, and it is evidence in favour of concluding Mr Dixon was aware of the diagnosis, I am not satisfied weighing all of the evidence in the balance he did know of the 'injury' [28].

128 It appears, on a fair reading of his reasons as a whole (in particular, [28]), that the master held that the 'injury' suffered by the respondent, for the purposes of s 39 of the 2005 Act, was HIE.

129 The master said that, even if Mr Dixon did know the nature of the 'injury' sustained by the respondent, 'he did not know what the physical cause of that injury was' [29]. The master elaborated:

(a) after Mr Dixon received Professor Michael's report, 'he had no reason to believe [Dr Clarke and AME Hospitals] were at fault'; and

(b) '[g]iven the fact the test to be applied is subjective and given the clear evidence of Mr Dixon', he was not satisfied that Mr Dixon was 'aware' of the 'physical cause' of the respondent's 'injury' [29].

130 Accordingly, the master concluded that the respondent 'falls within the provisions of s 39(3)(a) and necessarily (b) of the Limitation Act' [30].

131 After noting it had not been suggested on behalf of Dr Clarke or AME Hospitals that there was 'any other objection to leave to commence proceedings being granted', the master said he would make orders 'largely' in terms of the respondent's originating summons [30].

132 Dr Clarke relies on five grounds of appeal. They read:

1. The learned Master erred in law in failing to consider or apply section 39(4) of the Limitation Act 2005 at all, and in particular he failed to find:

(a) when the respondent's guardian ought reasonably to have become aware of the physical cause of the respondent's injury;

(b) when the respondent's guardian ought reasonably to have become aware that the respondent's injury was attributable to the conduct of a person;

(c) when the period of 3 years from the date referred to in paragraph a, alternatively paragraph b, expired.

(a) the respondent's guardian ought reasonably to have become aware of the physical cause of the respondent's injury by October 2006, alternatively before 23 December 2010 (being the date three years prior to the orders of the learned Master extending time);

(b) the respondent's guardian ought reasonably to have become aware that the respondent's injury was attributable to the conduct of a person by October 2006, alternatively before 23 December 2010;

(c) in the circumstances of paragraphs 2.1 and 2.2, he had no power (by reason of s 39(4) of the Limitation Act 2005) to extend the time in which the respondent could commence an action against the appellant.

1. The learned Master erred in law in concluding that the word aware in sections 39(3) and (4) of the Limitation Act 2005 means actual knowledge.
2. The learned Master erred in law and in fact in finding that the injury (suffered by the respondent) for the purpose of s 39(3) was hypoxic ischemic encephalopathy (the learned Master's Reasons at [26] - [27]). The error of law is an erroneous interpretation of the word injury in s 39 and the error of fact is that the finding of hypoxic ischemic encephalopathy was against the weight of the evidence. The learned Master ought to have found that the injury was brain injury or cerebral palsy or spasticity.
3. In the alternative to Ground 3, if the learned Master correctly found that the injury suffered by the respondent was hypoxic ischemic encephalopathy, the learned Master erred in fact in finding that the respondent's father (being the person to whom the cause of action accrues in terms of s 39) was not aware that the respondent suffered this injury as at the time that the limitation period expired (the learned Master's Reasons at [28]). Such a finding was against the weight of the evidence.

133 At the hearing of the appeal, the court granted AME Hospitals leave to amend its grounds. They are now identical to those of Dr Clarke (appeal ts 11 - 12).

The organisation of the balance of these reasons

134 It is necessary, before considering the grounds of appeal:

(a) to examine the historical context in which Parliament enacted s 39 and other relevant provisions of the 2005 Act;

(b) to identify the purpose or object of the 2005 Act;

(c) to note the decision of this court in Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276 in relation to the proper construction of s 7 of the 2005 Act;

(d) to construe some of the fundamental concepts in s 39 of the 2005 Act; and

(e) to decide what is, in the present case, the 'injury' and the 'physical cause' of the injury, within s 39(3) and s 39(4) of the 2005 Act.

The Limitation Act 1935 (WA)

135 In general, the Limitation Act 1935 (WA) (the 1935 Act) attached specific limitation periods to specific causes of action. For example, by s 38(1), subject to the other provisions of the Act, 'actions, suits, or other proceedings as herein set out shall and may be commenced within the time herein expressed after the cause of such actions, suits, or other proceedings respectively'. The limitation period specified in s 38(1) for 'actions founded on tort', apart from actions for 'slander' or for 'trespass to the person, menace, assault, battery, wounding, or imprisonment', was 6 years. See s 38(1)(c)(vi) read with s 38(1)(a)(ii), s 38(1)(b) and s 38(1)(c)(iv).

136 A cause of action comprises 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court': Read v Brown (1888) 22 QBD 128, 131 (Lord Esher MR). See also Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 245 (Wilson J); Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415; (2000) 23 WAR 159 [31] (Malcolm CJ, Kennedy J agreeing).

137 A cause of action in tort for negligence (including in respect of a personal injury) is not complete until the plaintiff first suffers damage caused by the defendant's breach of duty. The damage must be measurable or more than negligible. Subject to that qualification, whether and when a plaintiff has suffered damage is a question of fact. See Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465, 474 (Dixon CJ, McTiernan, Williams, Webb & Kitto JJ); GRE Insurance Ltd v Bristile Ltd (1991) 5 WAR 440, 451 (Nicholson J, Pidgeon & Murray JJ agreeing); Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302 [13]- [14] (Handley JA); Cheney v Duncan [2001] NSWCA 197; (2001) 34 MVR 28 [24] - [26] (Ipp AJA, Meagher & Handley JJA agreeing); Wilson v Rigg [2002] NSWCA 246; (2002) 36 MVR 451 [23] (Giles JA, Santow JA & Foster AJA agreeing).

138 In general, a cause of action accrued and time began to run, for the purposes of a limitation period applicable to an action as specified in s 38(1) of the 1935 Act, when, first, all of the facts had occurred which the plaintiff was required to prove in order to succeed on the cause of action and, secondly, legal persons or entities were in existence who were capable of suing and being sued. See Thomson v Lord Clanmorris [1900] 1 Ch 718, 728 - 729 (Vaughan Williams LJ); Handford PR, Limitation of Actions, (3rd ed, 2012) [5.10.450].

139 In general, a cause of action accrued and time began to run, for the purposes of s 38(1) of the 1935 Act, whether or not the plaintiff knew that the cause of action had accrued. The accrual of the cause of action and the running of time were not dependent on the plaintiff knowing that all of the facts comprising the cause of action had occurred. See Cartledge v E Jopling & Sons Ltd [1963] AC 758, 771 - 772 (Lord Reid, Lord Hodson agreeing); Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539, 587 - 588 (Deane J, Mason CJ & Wilson J relevantly agreeing); Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] VicRp 4; [1993] 1 VR 27, 67 (Brooking, Tadgell & Hayne JJ). So, in the case of an action for damages relating to a personal injury, the limitation period began to run when the first not insignificant injury occurred. In 1983, Parliament introduced s 38A of the 1935 Act to ameliorate the harshness of this rule where a plaintiff's cause of action arose from the plaintiff having suffered a latent injury that was attributable to the inhalation of asbestos. See the Acts Amendment (Asbestos-Related Diseases) Act 1983 (WA).

140 By s 40 of the 1935 Act, if 'any person entitled to any such action as is referred to in section 38(1) was at the time ... the cause of action accrued within the age of 18 years ... , then such person may commence the same within such time as is before limited after being of full age ... as if that was the time at which the cause of action accrued'. Accordingly, where a person was injured at birth and the injury was caused by a defendant's breach of a duty of care, the person had 24 years from the date on which the cause of action accrued to commence proceedings against the defendant in tort for negligence. However, by s 6 of the Crown Suits Act 1947 (WA) and s 47A of the 1935 Act, limitation periods applicable to causes of action against the Crown and government entities were not suspended while the plaintiff was a child.

141 Section 8(1) of the Limitation Legislation Amendment and Repeal Act 2005 (WA) (the Amendment and Repeal Act) repealed s 6 of the Crown Suits Act but, by s 8(2) of the Amendment and Repeal Act, s 6 of the Crown Suits Act, as it was immediately before the commencement day (namely 15 November 2005), continues to apply to causes of action that accrued before the commencement day as if s 8(1) had not been enacted.

142 The 1935 Act was repealed by s 4(1) of the Amendment and Repeal Act but, by s 4(2) of the Amendment and Repeal Act, the 1935 Act continues to apply to causes of action that accrued before the 2005 Act commenced operation (namely 15 November 2005).

143 In June 1982 the adequacy of the State of Western Australia's limitation laws was referred to the Law Reform Commission of Western Australia for consideration.

144 In October 1982 the Commission published its report on Limitation and Notice of Actions: Latent Disease and Injury (Project No 36 Part I). The Acts Amendment (Asbestos-Related Diseases) Act 1983 was enacted in response to that report.

145 In 1992 the Commission published a discussion paper entitled Limitation and Notice of Actions which examined proposals for the general amendment of the 1935 Act.

146 In 1997 the Commission published its report on Limitation and Notice of Actions (Project No 36 Part II).

147 In its 1997 report the Commission made numerous recommendations for reform. Notably, the Commission recommended that, subject to certain limited exceptions, there should be a common approach to limitation periods, namely:

(a) ordinarily, claims should be able to be brought within three years of the plaintiff becoming aware of certain specified facts (in particular, knowledge of the fact of the injury or damage, knowledge that the injury or damage in question was attributable to the proposed defendant's conduct, and a belief that proceedings were warranted), provided that this date also occurred within 15 years after the date of the conduct giving rise to the claim; and

(b) the courts should be empowered, in exceptional circumstances, to permit the plaintiff to commence proceedings outside the initial three-year period or the long stop 15-year period if the granting of an extension was in the interests of justice.

See par 7.20 - par 7.48 of the Commission's 1997 report.

148 In 2002 the Attorney General, the Hon Mr JA McGinty, published a paper entitled Limitations Law Reform. The paper set out the Government's preferred position for the reform of limitation periods in Western Australia. The Government rejected some of the Commission's recommendations for reform including the recommendation referred to at [147] above. As to tortious actions for personal injury, the paper stated that the Government recognised that actions in tort for personal injury were a 'special case' which ought to be subject to 'some special rules' (3). The proposed 'special rules' were as follows:

Firstly, in the case of latent injury or disease, the cause of action in tort should be deemed to have accrued not when the injury or disease occurred (which is the present position) but when it first manifested itself in a not insignificant form. This overcomes the present anomalous potential for a claim for damages being time barred even before the victim was aware that he or she had contracted a disease.

Secondly, the Courts should be empowered to extend time for the commencement of proceedings in tort for personal injury for a period of three years

(a) from when the victim knew, or if reasonable enquiries had been made ought to have known, both the physical cause of his or her injury and that the injury was attributable to the conduct of some person (whether the defendant or not, and whether still in existence or not), or

(b) upon their being satisfied that the victim's failure to commence proceedings was attributable to fraudulent or other improper conduct of the proposed defendant, from when the proceedings ought reasonably to have been brought.

The latter ground for exemption ought [to] be extended to all claims, whether for personal injury or not.

The Courts would be empowered to refuse leave, notwithstanding the above criteria being met, if the grant of leave would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action). The critical issue in this regard would be the prospects of a fair trial (3).

149 In 2004 the Government introduced the Limitation Bill 2004 (WA) which provided for the repeal of the 1935 Act and the reform of the law relating to time limits for commencing civil legal proceedings and arbitrations. However, the Bill was referred to a committee and it lapsed with the prorogation of Parliament.

150 In 2005 the Government introduced the Limitation Bill 2005 (WA) and that Bill, upon enactment, became the 2005 Act.

151 The 1935 Act was antiquated. As the Attorney General noted in his second reading speech on the Limitation Bill 2005, some of the language of the 1935 Act was archaic, some of its provisions were obsolete or anomalous, some aspects of the Act were unnecessarily complex and, most significantly, 'its provisions [were] unfair and [represented] the harshest provisions in Australia'. The Government's object was 'to achieve a modern limitation regime that is fairer and more flexible than our current law and that delivers a large measure of certainty'. See Western Australia, Parliamentary Debates, Legislative Assembly, 7 April 2005, 563.

152 The Attorney noted in relation to extension applications that the courts would have 'a broad discretion as to whether to grant or refuse leave once the necessary criteria are met', but the courts will be specifically required 'to have regard to the prospects of a fair trial and to whether the grant of leave would significantly prejudice the defendant' (565).

Section 7 of the 2005 Act and Burns v Minister for Health

153 In Burns, Martin CJ (Newnes JA agreeing) held that s 7 of the 2005 Act applies to all causes of action accruing before the 'commencement day' (that is, before 15 November 2005) which 'had not become finally barred by the lapse of time as at the commencement day' [14].

154 In the present case, counsel for Dr Clarke and AME Hospitals confirmed at the hearing of the appeals that there was no challenge to this court's decision in Burns in relation to the proper construction of s 7 of the 2005 Act and that the appellants accepted that the limitation period in the present case derives from the 2005 Act (appeal ts 6).

The proper construction of some of the fundamental concepts in s 39 of the 2005 Act

155 By s 14(1) of the 2005 Act, subject to pt 3 including, relevantly, s 39, an action for damages relating to a 'personal injury' to a person cannot be commenced if three years have elapsed since the cause of action accrued.

156 Section 39 applies, relevantly, to actions for damages relating to a 'personal injury' to a person: s 39(1). A person may apply to a court under s 39 for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under the 2005 Act has expired. Section 39 applies generally to actions for damages relating to personal injury. The provision is not confined to actions on a 'cause of action (childbirth)' within s 7 of the 2005 Act.

157 By s 39(3), a court is empowered to extend the time in which an action to which s 39 applies 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 ... injury;

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

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

158 The court's power to extend time under s 39(3) is enlivened if the court is satisfied that one of the conditions in pars (a), (b) or (c) is applicable.

159 By s 39(4), a court is empowered to extend the time in which an action to which s 39 applies can be commenced up to three 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 ... injury;

(b) that the ... 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).

160 Section 39(4) relates to the length of any extension of time which a court may grant.

161 In the present case, the fundamental concepts in s 39 which require some analysis are these:

(a) the factual matrix in which the matters enumerated in s 39(3) and s 39(4) are to be evaluated in a particular case (the first issue);

(b) 'injury', in the context of 'the physical cause of the ... injury', in s 39(3) and s 39(4) (the second issue);

(c) 'physical cause', in the context of 'the physical cause of the ... injury', in s 39(3) and s 39(4) (the third issue);

(d) 'aware', in the context of a person to whom the cause of action accrues being 'aware' or 'not aware' of 'the physical cause of the ... injury', or being 'aware' or 'not aware' that 'the ... injury was attributable to the conduct of a person', in s 39(3) and s 39(4) (the fourth issue);

(e) 'ought reasonably to have become aware', in the context of when a person to whom the cause of action accrues 'became aware, or ought reasonably to have become aware', of the matters enumerated in pars (a), (b) and (c) of s 39(4) (the fifth issue); and

(f) 'attributable to', in the context of an injury being 'attributable to the conduct of a person', in s 39(3) and s 39(4) (the sixth issue).

162 As to the first issue, the matters enumerated in s 39(3) and s 39(4) arise for determination in the context of the proposed plaintiff having made an application to the court for leave to commence a specific action for damages.

163 In my opinion, the factual matrix in which the matters enumerated in s 39(3) and s 39(4) are to be evaluated is:

(a) the material facts alleged by the proposed plaintiff in support of his or her action against the proposed defendant, in the context of the pleaded cause of action in the proposed indorsement or statement of claim, including the material facts relating to the alleged duty of care, negligence, personal injury and other loss or damage; and

(b) the evidence adduced at the hearing of the extension application, including the evidence relied on by the proposed plaintiff in connection with his or her awareness or absence of awareness at material times of the matters enumerated in s 39(3) and s 39(4).

164 As to the second issue, the term 'injury' is not defined in the 2005 Act. However, the term 'personal injury' is defined in s 3(1) to include 'a disease, impairment of a person's physical condition, and mental disability'. The term 'mental disability' is defined in s 3(1), in relation to a person, to mean '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'. The terms 'disease' and 'physical condition' are not defined in s 3(1) or elsewhere in the 2005 Act.

165 The term 'injury', in its ordinary and natural meaning, connotes, amongst other things, damage or harm to any tissues or other bodily structures and damage or harm to any physiological bodily functions.

166 When a person suffers an injury or contracts a disease he or she may be ignorant of the injury or disease. For example, the first symptoms, clinical signs or other manifestations of the injury or disease may not become apparent to the person until a substantial time after he or she has suffered the injury or contracted the disease.

167 Section 6(1), s 14(1) and s 55(1) of the 2005 Act are part of the context in which the meaning of the term 'injury' in s 39(3) and s 39(4) must be determined.

168 By s 14(1), the limitation period for an action for damages relating to a personal injury to a person is three years after the cause of action accrues.

169 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.

170 By s 55(1), a cause of action for damages relating to a personal injury to a person (other than a personal injury which is attributable to the inhalation of asbestos: s 55(2) and s 56) accrues 'when the only or earlier of such of the following events as are applicable occurs':

(a) the person becomes 'aware' that he or she has sustained 'a not insignificant personal injury';

(b) 'the first symptom, clinical sign or other manifestation of personal injury' consistent with the person having sustained a not insignificant personal injury.

171 Section 6(1), s 14(1) and s 55(1) are relevant to the proper construction of the term 'injury' in s 39(3) and s 39(4) because they are related provisions. Section 55(1), read with s 6(1), specifies when a cause of action for damages relating to a personal injury (other than a personal injury which is attributable to the inhalation of asbestos) accrues, for the purposes of the three-year limitation period in s 14(1). Section 39 confers on the courts a discretion to extend, by up to an additional three years, the time in which such an action can be commenced.

172 Section 39(3) and s 39(4) distinguish between an 'injury' and the 'physical cause' of the injury.

173 However, s 55(1) does not distinguish between an 'injury' and the 'physical cause' of the injury. Instead, it distinguishes in effect between an 'injury', on the one hand, and when the person who suffers the injury becomes 'aware' that he or she has sustained the injury or when 'the first symptom, clinical sign or other manifestation' of the injury occurs, on the other.

174 Section 55(1) altered the law as to when a cause of action for damages relating to a personal injury (other than a personal injury which is attributable to the inhalation of asbestos) accrues in that the provision is not concerned with when the person suffers the injury. Time no longer begins to run when the first not insignificant injury occurs. Time now begins to run upon the earlier of when the person becomes aware that he or she has sustained a not insignificant personal injury or when the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury occurs.

175 The provisions of s 55(1), in relation to the accrual of a cause of action, are not adopted in s 39. However, at least one of the events specified in s 55(1) will have occurred at least three years before an extension application is made under s 39. That is, either the proposed plaintiff will have become 'aware' that he or she has sustained 'a not insignificant personal injury', or 'the first symptom, clinical sign or other manifestation of personal injury' consistent with the proposed plaintiff having sustained a not insignificant personal injury will have occurred, at least three years before s 39 is invoked.

176 Section 39(3) focuses upon whether the person was 'aware' or 'not aware', when the limitation period expired:

(b) that the injury was 'attributable to the conduct of a person'; and

177 Section 39(4) focuses upon when the person became 'aware', or 'ought reasonably to have become aware':

(b) that the injury was 'attributable to the conduct of a person'; and

178 Section 39(3) and s 39(4) do not focus upon the 'injury' itself. Those provisions presuppose the existence of the 'personal injury' referred to in s 55(1). The focus of s 39(3) and s 39(4) is upon other matters relating to the 'injury' (for example, the 'physical cause' of the injury).

179 In my opinion, it is apparent from the language and focus of s 39, read in the context of:

(a) the definitions of 'personal injury' and 'mental disability';

(b) the ordinary and natural meaning of the term 'injury';

(d) the relationship between s 6(1), s 14(1), s 39 and s 55(1),

that the relevant 'injury', in s 39(3) and s 39(4), is synonymous with the relevant 'personal injury', in s 55(1).

180 The relevant 'personal injury', for the purposes of s 55(1), and the relevant 'injury', for the purposes of s 39(3) and s 39(4), will be:

(b) the actual impairment of the person's physical condition;

(c) the person's actual mental disability (as defined in s 3(1));

(d) the actual damage or harm to the person's tissues, other bodily structures or physiological bodily functions; or

(e) any other actual injury, within the ordinary and natural meaning of that term, suffered by the person,

as the case may be, which is the subject of the person's cause of action or proposed cause of action for damages.

181 The term 'injury', in s 39(3) and s 39(4), is concerned with the actual injury itself, and not with the symptoms, clinical signs or other manifestations of the injury.

182 As to the third issue, the term 'physical cause' is not defined in the 2005 Act.

183 The concept of causation in the law of negligence is complex and multifaceted. See, for example, the analysis in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 509 - 512 (Mason CJ), 528 - 534 (McHugh J).

184 In Hoffmueller v Commonwealth (1981) 54 FLR 48, Mahoney JA (who dissented in the result) noted that the term 'cause' is used to denote, amongst other things, three distinct kinds of relationship, namely:

Where C is described as having been the cause of E, it may be meant that it was the physical cause of E, that it was the cause of E in the interpersonal sense, or that it was the occasion of E (60).

185 His Honour then elaborated upon the notion of 'cause' when used in the 'physical sense':

When cause is used in the physical sense, it normally refers to a situation in which, given the introduction of C into a particular situation or 'field': see JL Mackie, The Cement of the Universe (OUP 1974), p 35; the effect E occurs, and to the fact that E so occurs because that is the nature of the physical world or the relevant part of it. The effect follows from the cause, because, given the existing facts, that is how the laws of nature operate in the physical world (60).

186 The term 'physical cause' is used in s 39(3) and s 39(4), not only in connection with an injury to a person, but also in connection with a person's death.

187 The 'cause' of an injury or a death, in its ordinary and natural meaning, connotes, relevantly, the mechanism or circumstances which actually produced it.

188 In my opinion, it is apparent from the language and focus of s 39, read in the context of:

(a) the ordinary and natural meaning of the term 'cause';

(b) the notion of 'cause' when used in the 'physical sense';

(d) the relationship between s 6(1), s 14(1), s 39 and s 55(1); and

(e) the meaning of 'injury' in s 39(3) and s 39(4),

that the term 'physical cause', in the context of 'the physical cause of the death or injury', in s 39(3) and s 39(4), is concerned with causation in fact as distinct from causation at law.

189 The word 'physical', in the context of 'the physical cause of the death or injury', directs attention to the bodily mechanism or circumstances by which, as a matter of fact, the death or injury was occasioned or brought about.

190 The relevant bodily mechanism or circumstances may be triggered, directly or indirectly, by other preceding or contemporaneous mechanisms or circumstances. There may be two or more bodily mechanisms or circumstances which would each be sufficient to occasion or bring about the death or injury. Multiple bodily mechanisms or circumstances may, in combination, occasion or bring about the death or injury. One or more of the bodily mechanisms or circumstances may be predominant and immediate, and others may be more removed.

191 The term 'physical cause', in s 39(3) and s 39(4), is not concerned with whether the physical cause of the death or injury is attributable to the conduct of a person.

192 Also, the term 'physical cause', in s 39(3) and s 39(4), is not concerned with whether the physical cause of the death or injury is attributable to a wrongful act or omission.

193 As to the fourth issue, the term 'aware' is not defined in the 2005 Act.

194 The term 'aware', in its ordinary and natural meaning, connotes, relevantly, knowledge of facts or circumstances.

195 The terms 'aware' and 'not aware', in s 39(3) and s 39(4), are to be compared to and contrasted with the phrase 'ought reasonably to have become aware', in s 39(4), which imports the notion that the person, acting reasonably, should have taken steps to acquire knowledge of relevant facts or circumstances (emphasis added). See [201] - [206] below.

196 The term 'aware', in the context of a person to whom the cause of action accrues being 'aware' or 'not aware' of 'the physical cause of the ... injury', or being 'aware' or 'not aware' that 'the ... injury was attributable to the conduct of a person', in s 39(3) and s 39(4), must be construed having regard to:

(a) the ordinary and natural meaning of the term 'aware';

(c) the relationship between s 6(1), s 14(1), s 39 and s 55(1);

(d) the meaning of 'injury' in s 39(3) and s 39(4);

(e) the meaning of 'physical cause' in s 39(3) and s 39(4); and

(f) the different and contrasting concept embodied in the phrase 'ought reasonably to have become aware' in s 39(4).

197 In my opinion, when 'aware' and 'not aware' in that context are construed having regard to those matters, it is apparent that s 39 is concerned with whether the person had 'actual awareness or knowledge', or did not have 'actual awareness or knowledge', of the relevant matter or matters enumerated in s 39(3) or s 39(4), as the case may be. See, in an analogous legislative context, Harris v Commercial Minerals Ltd [1996] HCA 49; (1996) 186 CLR 1, 9 - 10 (Dawson, Toohey, Gaudron, McHugh & Gummow JJ). See also Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd [1983] HCA 44; (1983) 155 CLR 129, 151 (Mason, Deane & Dawson JJ).

198 The term 'aware', in s 39(3) and s 39(4), does not mean 'reasonable belief' or 'suspicion', and it does not refer to 'constructive awareness or knowledge'. There is no warrant in the statutory text, or the subject matter or purpose, of s 39 for qualifying the term 'aware' by reference to notions of 'reasonable belief' or 'suspicion' or by reading into s 39(3) and s 39(4) a doctrine of constructive awareness or knowledge.

199 Actual awareness or knowledge is derived from information and depends upon understanding. However, a person may be aware of or know a fact with differing degrees of certainty as to its existence and in differing degrees of detail. What degree of certainty and detail is required by s 39?

200 In my opinion, the degree of certainty and detail required by s 39 must be determined in the context of the subject matter and purpose of s 39; namely the granting of an extension of time, in certain circumstances, to commence an action for damages, after the limitation period has expired, in respect of personal injury. The 'actual awareness or knowledge' with which s 39 is concerned does not require knowledge of the relevant fact or facts with complete certainty as to its or their existence and beyond the possibility of error, or in complete detail. Rather, 'actual awareness or knowledge', within s 39(3) and s 39(4), means awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process. This construction is consistent with the statutory text, and the subject matter and purpose, of s 39. See and compare, in differing legislative contexts, the approaches adopted or approved in Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1366 (Slade LJ, Croom-Johnson LJ agreeing); Halford v Brookes [1991] 1 WLR 428, 433 - 434 (Russell LJ), 438 (Nourse LJ), 443 (Lord Donaldson of Lymington MR); Nash v Eli Lilly & Co [1993] 1 WLR 782, 791 - 792 (Purchas LJ, delivering the judgment of the Court of Appeal); Dobbie v Medway Health Authority [1994] EWCA Civ 13; [1994] 1 WLR 1234, 1240 (Sir Thomas Bingham MR, Steyn LJ agreeing); Spargo v North Essex District Health Authority [1997] EWCA Civ 1232; [1997] PIQR P235, P242 (Brooke LJ, Nourse & Waller LJJ agreeing); Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682 [8] - [11] (Lord Nicholls of Birkenhead); Baker-Morrison v The State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 [45] - [56] (Basten JA, Ipp & Macfarlan JJA agreeing).

201 As to the fifth issue, the phrase 'ought reasonably to have become aware', in s 39(4), is not defined in the 2005 Act.

202 As I have mentioned, 'ought reasonably to have become aware', in s 39(4), imports the notion that the person, acting reasonably, should have taken steps to acquire knowledge of relevant facts or circumstances (emphasis added).

203 In Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76, Lord Hoffmann said in relation to the word 'reasonable' in a statutory provision relating to the date of commencement of a limitation period:

(a) the word is generally used in the law to import an objective standard;

(b) however, the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question; and

(c) the breadth of the appropriate assumptions, and the degree to which they reflect the actual situation and characteristics of the person in question, will depend upon the reasons why the law imports an objective standard [33].

204 Ultimately, in every case, the meaning of 'reasonable' in a statutory provision depends upon and is controlled by the context and the underlying purpose or object of the provision.

205 In my opinion, s 39(4) is concerned with the state of awareness or knowledge that ought reasonably to have been acquired by the actual 'person to whom the cause of action accrues', within s 39(5). It is that person who is referred to in s 39(4). The court does not assess how a reasonable person in the position of the person to whom the cause of action accrues would have acted and, in making that assessment, disregard aspects of that person's actual characteristics, qualities and circumstances. The task of the court is to determine whether the person to whom the cause of action accrues ought reasonably to have become aware of the matters enumerated in pars (a), (b) and (c) of s 39(4) by reference to what can reasonably have been expected of that person having regard to the actual subjective factors I have mentioned. See, in analogous legislative contexts:

(a) Castlemaine Perkins Ltd v McPhee [1979] Qd R 469, 472 - 473 (Connolly J, Wanstall CJ & Kelly J agreeing); NF v The State of Queensland [2005] QCA 110 [28] - [31] (Keane JA, Williams JA & Holmes J agreeing); Jocumsen v Thiess Pty Ltd [2005] QCA 198 [9] (Williams JA), [45] (Muir J, McPherson JA agreeing); Gillespie v Swift Australia Pty Ltd [2009] QCA 316 [20] (Holmes JA, McMurdo P & Applegarth J agreeing); Honour v Faminco Mining Services Pty Ltd as Trustee for Faminco Trust (in liq) [2009] QCA 352 [45] (Chesterman JA), [97] (P Lyons J, Fraser JA agreeing); and

(b) Commonwealth v Smith [2005] NSWCA 478 [102] - [103], [109] - [110] (Santow JA, Handley JA substantially agreeing); Commonwealth v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325 [30] - [31] (Basten JA, Handley & Ipp JJA agreeing); Pearce v Commonwealth [2006] NSWCA 210; (2006) Aust Torts Reports 81-856 [33] (Basten JA, Handley & Ipp JJA agreeing).

206 It is unnecessary, in the present case, to analyse the approach of the House of Lords in Adams and A v Hoare [2008] UKHL 6; [2008] 1 AC 844. Those cases were concerned with the proper construction and application of provisions (in particular, s 14(2)) of the Limitation Act 1980 (UK). The text of the provisions considered by the House of Lords is materially different from the text of s 39. Also, the provisions under consideration dealt with the date of commencement of a limitation period applicable to a claim in negligence for personal injuries, and not with a jurisdiction to extend time.

207 As to the sixth issue, the term 'attributable to', in the context of an injury being 'attributable to the conduct of a person', in s 39(3) and s 39(4), is not defined in the 2005 Act.

208 The word 'attribute', in its ordinary and natural meaning, connotes, relevantly, to ascribe to as belonging or pertaining.

209 In my opinion, the term 'attributable to', in s 39(3) and s 39(4), refers to a connection between the death or injury, on the one hand, and the conduct of a person, on the other.

210 It is significant that Parliament used the term 'attributable to' and not the term 'caused by'. The term 'attributable to' is able to accommodate a degree of uncertainty in relation to whether the person to whom the cause of action accrues is aware, or ought reasonably to have become aware, of a connection between the relevant death or injury and the conduct of a person, within s 39(3) or s 39(4), as the case may be.

211 In my opinion, it is apparent from the language and focus of s 39, read in the context of:

(a) the ordinary and natural meaning of the word 'attribute';

(c) the meaning of 'ought reasonably to have become aware' in s 39(4); and

(d) the subject matter and purpose of s 39 (namely the granting of an extension of time, in certain circumstances, to commence an action for damages, after the limitation period has expired, in respect of personal injury),

that the term 'attributable to', in s 39(3) and s 39(4), requires that the person to whom the cause of action accrues was aware, or ought reasonably to have become aware, of a connection between the death or injury, on the one hand, and the conduct of a person, on the other, with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process. See and compare, in differing legislative contexts, the approaches adopted in Wilkinson (1362, 1364 - 1366); Halford (433 - 434, 438, 443); Nash (796); Dobbie (1240); Spargo (P242); Haward [8] - [11].

212 The connection need not be the sole or dominant connection. See and compare, in an analogous legislative context, Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 [27] (McHugh, Gummow, Callinan & Heydon JJ); Laminex (Australia) Pty Ltd t/as Laminex Industries v Coutts [2006] NSWCA 186 [28] - [33] (Giles JA, Hodgson & Bryson JJA agreeing).

213 The conduct of a person, within s 39(3) and s 39(4), includes acts and omissions of the person. The relevant conduct of the person is to be ascertained from the proposed particulars of negligence relied on by the proposed plaintiff and the evidence adduced at the hearing of the extension application.

(a) whether the proposed plaintiff was aware or not aware that the injury was attributable to the conduct of a person, within s 39(3)(b); and

(b) when the proposed plaintiff became aware, or ought reasonably to have become aware, that the injury was attributable to the conduct of a person (whether a defendant or not), within s 39(4)(b),

215 It is unnecessary, in the present case, to consider how s 39(3) and s 39(4) apply where the proposed plaintiff is aware, or ought reasonably to have become aware, of some but not all of the relevant conduct of a person, within s 39(3) and s 39(4).

216 Finally, I note, for the sake of completeness, that it is unnecessary, in the present case, to examine any of the mandatory considerations specified in s 44, or any other considerations, which are relevant to the exercise of a court's discretion to extend time. Other relevant considerations would include, at least arguably, the apparent viability of the proposed plaintiff's action against the proposed defendant. See, in an analogous legislative context, Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497, 508 (Kirby P). See also Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 554 (McHugh J, Dawson J agreeing).

217 Dr Clarke and AME Hospitals did not rely on s 44, or any other discretionary factors, before the master in opposing the respondent's extension application.

In the present case, what is the 'injury', and the 'physical cause' of the injury, within s 39(3) and s 39(4)?

218 In the present case, the 'injury', and the 'physical cause' of the injury, within s 39(3) and s 39(4), are to be determined by reference to:

(a) the material facts relied on by the respondent to support her action against Dr Clarke and AME Hospitals, as pleaded in her proposed indorsement of claim; and

(b) the evidence adduced at the hearing of the extension application,

in the context of the concepts of 'injury' and 'physical cause', in s 39(3) and s 39(4), as I have explained them.

219 In the present case, the causal progression appears, on the evidence, to have been oxygen deprivation, then HIE and then cerebral palsy.

220 The respondent's indorsement of claim on her draft writ describes her injuries as 'including, inter alia, brain damage and cerebral palsy with quadriparesis'. This description of the respondent's alleged injuries is broader than the concept of 'injury' for the purposes of s 39(3) and s 39(4). As I have mentioned, the term 'cerebral palsy' describes any of a group of persisting, non-progressive motor disorders appearing in young children. These motor disorders result from brain damage caused by trauma at birth or intrauterine pathology. HIE is a degenerative disease of the brain resulting from asphyxia. HIE may, in a particular case, result in cerebral palsy. When cerebral palsy results from HIE, cerebral palsy will be a consequence of the degenerative disease of the brain that is HIE. See [59] above.

221 In the present case, the material facts relied on by the respondent to support her action and the evidence before the master established that the relevant 'injury', within s 39(3) and s 39(4), was the HIE which the respondent suffered during Mrs Dixon's labour and the respondent's delivery. In other words, the respondent appears, on the evidence, to have sustained encephalopathy or a degenerative disease of her brain during the labour and delivery process. This was the relevant 'personal injury' sustained by the respondent for the purposes of s 55(1), and the relevant 'injury' sustained by her for the purposes of s 39(3) and s 39(4).

222 In the present case, the material facts relied on by the respondent to support her action and the evidence before the master established that the relevant 'physical cause', within s 39(3) and s 39(4), of the respondent's injury was a cutting off of, or a material reduction in, the blood supply to the respondent's brain (with associated oxygen deprivation) during Mrs Dixon's labour and the respondent's delivery.

223 Ground 1 alleges that the master erred in law in failing to consider or apply s 39(4) of the 2005 Act. The ground further alleges that, in particular, the master failed to make findings as to:

(a) when Mr Dixon ought reasonably to have become aware of the physical cause of the respondent's injury;

(b) when Mr Dixon ought reasonably to have become aware that the respondent's injury was attributable to the conduct of a person; and

(c) when the period of three years from the date referred to in par (a), alternatively par (b), expired.

224 The complaint in ground 1 is remarkable in that at the hearing before the master counsel for Dr Clarke and AME Hospitals did not rely upon s 39(4).

225 At the hearing below Dr Clarke and AME Hospitals relied jointly on written submissions dated 30 October 2013 and a document headed 'findings that should be made'.

226 Neither the written submissions, nor the document headed 'findings that should be made', mentioned s 39(4).

227 At the hearing of the appeal, counsel for Dr Clarke and AME Hospitals said, when confronted with this point, that 'the operation of s 39(4) was not pressed with any vigour or mentioned in any real way in the closing submissions' (appeal ts 9). I then asked counsel whether s 39(4) was referred to at all, on behalf of Dr Clarke and AME Hospitals, below. Counsel responded that it was not referred to 'other than perhaps in passing at the very introduction' (appeal ts 9).

228 It is apparent, on my examination of the record at first instance, that the parties did not, in substance, litigate the matters which arise under s 39(4).

229 A trial judge (or a master) does not, ordinarily, make an error of law by failing to decide or make findings on an issue which was not litigated. However, in the present case it was essential, as a matter of law, to the proper exercise of the master's discretion to extend time under s 39, for findings to be made in relation to the matters enumerated in pars (a), (b) and (c) of s 39(4). By s 79(3), the respondent had the burden of persuading the master to make findings of fact that would enliven the exercise of his discretion. Dr Clarke and AME Hospitals did not concede at first instance that any of the matters enumerated in pars (a), (b) and (c) of s 39(4) had been satisfied.

230 Nevertheless, the master's failure to consider s 39(4) cannot, in the circumstances, affect the conduct of these appeals. If the matters which arise under s 39(4) had, in substance, been litigated at first instance, there is no reasonable possibility that the respondent would have adduced additional evidence. The master found that Mr Dixon was an honest and reliable witness. He said Mr Dixon's affidavit evidence should be 'accepted in its entirety' [15]. Dr Clarke and AME Hospitals do not challenge the master's credibility findings in relation to Mr Dixon.

231 Ground 1 of each appeal has been made out. However, it does not follow from that ground being established that the appeal should be allowed.

232 Ground 2 alleges that the master should have found that:

(a) Mr Dixon ought reasonably to have become aware of the physical cause of the respondent's injury by October 2006, alternatively before 23 December 2010 (being the date three years prior to the orders of the master extending time);

(b) Mr Dixon ought reasonably to have become aware that the respondent's injury was attributable to the conduct of a person by October 2006, alternatively before 23 December 2010; and

(c) in the circumstances, the master had no power (by reason of s 39(4)) to extend the time in which the respondent could commence an action against Dr Clarke and AME Hospitals.

233 According to counsel for Dr Clarke and AME Hospitals:

(a) Mr Dixon merely had to be aware of 'the relevant facts and not necessarily the medical explanation proceeding from those facts';

(b) the relevant facts 'were all known and all provided to the solicitors and to Professor Michael'; and

(c) any inference, expert or otherwise, that must be drawn from the source facts is irrelevant to Mr Dixon's awareness (appeal ts 33).

234 Counsel for Dr Clarke and AME Hospitals submitted that the master should have found that:

(a) Mr Dixon ought reasonably to have become aware, when he received a copy of the PMH Clinic report, of the respondent's injury, the physical cause of her injury and that the physical cause of her injury was attributable to the conduct of a person.

(b) Alternatively, Mr Dixon ought reasonably to have become aware of the relevant matters when he received a copy of Professor Michael's report.

(c) Alternatively, Mr Dixon ought reasonably to have become aware of the relevant matters because he knew the respondent had cerebral palsy and he had retained solicitors and Professor Michael to investigate.

235 As I have explained, the term 'aware', in s 39(3) and s 39(4), is concerned with whether the person to whom the cause of action accrues had 'actual awareness or knowledge'. It is not concerned with 'constructive awareness or knowledge'. Also, as I have explained, s 39(4) is concerned with the state of awareness or knowledge that ought to have been acquired by the actual person to whom the cause of action accrues. The task of the court is to determine whether that person ought reasonably to have become aware of the matters enumerated in pars (a), (b) and (c) of s 39(4) by reference to what can reasonably be expected of that person having regard to his or her actual characteristics, qualities and circumstances. On my construction of s 39(3) and s 39(4), the contention advanced on behalf of Dr Clarke and AME Hospitals to the effect that Mr Dixon merely had to be aware of 'the relevant facts and not necessarily the medical explanation proceeding from those facts', and that any expert or other inference that must be drawn from the source facts is irrelevant to Mr Dixon's awareness, must be rejected.

236 In my opinion, there was nothing in the PMH Clinic report which suggested the 'physical cause' of the respondent's HIE. The report listed various 'neonatal details' including the HIE. However, the report said nothing about the 'physical cause' of the HIE or when it had occurred, and the report did not attribute the HIE to the conduct of any person.

237 Similarly, the other medical records, to the extent they mentioned the respondent's HIE, said nothing about the 'physical cause' of the HIE or when it had occurred, and did not suggest that the HIE was attributable to the conduct of any person.

238 The letters of instruction dated 7 August 2006 and 28 August 2006 from Mr Dixon's solicitors, Ilberys, to Professor Michael appear to have enclosed various documents that referred to the respondent's HIE including, for example, the PMH Clinic report and Dr Fitzgerald's letter dated 26 June 2003.

239 However, the solicitors' letters of instruction to Professor Michael, and Professor Michael's report, dealt only with the care provided by Dr Clarke and the nursing staff. The solicitors' letters and Professor Michael's report referred to the respondent's cerebral palsy. However, the solicitors did not request Professor Michael to advise on what may have caused the respondent's cerebral palsy, and Professor Michael did not express a view about it.

240 The solicitors told Mr Dixon that Professor Michael thought the medical staff had acted appropriately. On receipt of that advice there was no reason why Mr Dixon, acting reasonably, should have undertaken further inquiries.

241 The first occasion on which Mr Dixon was given information:

(a) about the 'physical cause' of the respondent's 'injury' (namely the HIE she suffered during the labour and delivery process); and

(b) that the 'physical cause' (namely a cutting off of, or a material reduction in, the blood supply to the respondent's brain, with associated oxygen deprivation, during the labour and delivery process) may be attributable to the conduct of a person (namely Dr Clarke and nursing staff at the hospital),

was on or about 15 August 2012, when Mr Dixon received a copy of Professor Dekker's opinion.

242 Professor Dekker was the first person to assert that the respondent's HIE may have been caused by an event or events during labour or delivery.

243 Professor Dekker was the first person to assert that the respondent's HIE may be attributable to the failure by Dr Clarke and the nursing staff to ensure that appropriate electronic foetal monitoring (for example, the use of a foetal scalp electrode) was undertaken during Mrs Dixon's prolonged second stage of labour and, as a result, Dr Clarke and the nursing staff failed to recognise a deterioration in the respondent's condition.

244 Prior to receiving a copy of Professor Dekker's opinion, Mr Dixon acted reasonably in accepting Professor Michael's opinion that Dr Clarke and the nursing staff had acted appropriately. It was reasonable for Mr Dixon to adopt that position until his solicitors suggested, on or about 5 May 2012, that another opinion should be sought.

(a) Mr Dixon did not know, and had not been told, that:

(i) the respondent's HIE, or any other injury, had been caused by intrapartum events;

(ii) the respondent's cerebral palsy was occasioned by the HIE;

(iii) her cerebral palsy was connected to the labour and delivery process, apart from the views expressed by Ms Szivek, the 'conductive therapist'; or

(iv) Dr Clarke or the nursing staff had done anything (whether negligently or not) which had contributed to the respondent's HIE or her cerebral palsy or had failed to do anything (whether negligently or not) which might have avoided it.

(b) No medical record or report had stated any of the matters referred to at [245(a)] above.

(c) Mr Dixon had asked questions of a number of health care professionals over a lengthy period. In particular, he had enquired of medical practitioners about the possible causes of the respondent's cerebral palsy. He was not informed that her cerebral palsy was connected to any difficulties encountered during the labour and delivery process (except by Ms Szivek).

(d) Professor Michael's opinion, which was obtained in 2006 by Mr Dixon's solicitors:

(i) did not mention that the respondent had suffered HIE;

(ii) did not suggest that her cerebral palsy was occasioned by the HIE;

(iii) did not suggest that her cerebral palsy was connected to her birth;

(iv) indicated that Mrs Dixon's second stage of labour, while delayed, was normal and had no abnormal features;

(v) did not mention the failure to use a foetal scalp electrode; and

(vi) did not suggest that the respondent's HIE or cerebral palsy could be attributed to anything or anyone.

246 Further and in any event, as at 23 December 2010, Mr Dixon was not aware, and ought not reasonably to have become aware, of the relevant facts with respect to the physical cause of the respondent's injury, or that the physical cause of her injury was attributable to the conduct of a person, with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against Dr Clarke or AME Hospitals on the relevant cause of action by the issue of a writ.

247 In the circumstances, the appropriate findings to be made under s 39(4) are that:

(a) prior to 23 December 2010, Mr Dixon ought not reasonably to have become aware of the physical cause of the respondent's injury;

(b) prior to 23 December 2010, Mr Dixon ought not reasonably to have become aware that the physical cause of her injury was attributable to the conduct of a person;

(c) Mr Dixon did not become aware of the physical cause of the respondent's injury until on or about 15 August 2012, and he ought not reasonably to have become aware of that matter before that date; and

(d) Mr Dixon did not become aware that the physical cause of her injury was attributable to the conduct of a person until on or about 15 August 2012, and he ought not reasonably to have become aware of that matter before that date.

249 Ground 3 alleges that the master erred in law in concluding that the term 'aware', in s 39(3) and s 39(4), means actual knowledge.

250 Counsel for Dr Clarke and AME Hospitals argued that a person will be 'aware' of the matters specified in s 39(3) and s 39(4) if he or she has 'a suspicion or broad understanding of the essence' of those matters.

251 In my opinion, counsel's argument is not supported by the statutory text, or the subject matter or purpose, of s 39.

252 The term 'aware', in s 39(3) and s 39(4), bears the meaning I have explained at [193] - [200] above.

254 Ground 4 alleges that the master erred in law and in fact in finding that the injury suffered by the respondent, for the purposes of s 39, was HIE. It is further alleged in ground 3 that the master should have found that the injury in question was 'brain injury or cerebral palsy or spasticity'.

255 The term 'injury', in s 39(3) and s 39(4), bears the meaning I have explained at [164] - [181] above. In particular, the term 'injury', in those provisions, refers to the relevant 'personal injury' within s 55(1).

256 The relevant ' injury' sustained by the respondent, for the purposes of her proposed action against Dr Clarke and AME Hospitals, was the HIE she suffered during Mrs Dixon's labour and the respondent's delivery.

257 The reference in ground 4 to 'brain injury' does not advance the appellants' case because HIE is a degenerative disease of the brain.

258 The references in ground 4 to 'cerebral palsy' and 'spasticity' are misconceived in that those disorders are a consequence of the relevant 'injury'. That is, the material facts relied on by the respondent to support her action and the evidence before the master established that the 'cerebral palsy' and the 'spasticity' were a consequence of the encephalopathy or degenerative brain disease sustained by the respondent (the HIE) as a result of a cutting off of, or a material reduction in, the blood supply to the respondent's brain (with associated oxygen deprivation) during the labour and delivery process.

260 Ground 5 alleges, in the alternative to ground 3, that if the master correctly found that the injury suffered by the respondent was HIE, the master erred in fact in finding that Mr Dixon was not aware that the respondent had suffered this injury when the limitation period expired.

261 The master's decision did not turn on whether Mr Dixon was aware of the respondent's HIE. Rather, his decision turned on his satisfaction that Mr Dixon was not aware, at the material time, of the physical cause of the respondent's HIE or that the physical cause of her HIE was attributable to the conduct of a person.

262 The master's findings on these issues were based on his acceptance of Mr Dixon as 'a witness of truth' [15]. The master's credibility-based conclusions were not flawed by incontrovertible facts or other uncontested evidence. His conclusions are not glaringly improbable or contrary to compelling inferences. It is not apparent that the master's conclusions were erroneous, either to the extent they were based on credibility findings in relation to Mr Dixon or at all.

264 I would grant each of Dr Clarke and AME Hospitals leave to appeal, but the appeals must be dismissed.