(c) generally, the application will be determined on the basis that the evidence in the affidavits filed on behalf of the part of the plaintiff will be accepted at trial, at least where that evidence is not inherently incredible.[31]

(a) where there are important gaps in the evidence put up by a plaintiff, summary judgment may still be refused where there are reasonable grounds to suppose that the evidence to fill those gaps exists but is not reasonably available to the plaintiff at the pre-trial stage;[32] and

(b) summary judgment based on a limitations defence is only to be granted in the clearest of cases.[33]

1. As for the strike out orders sought under O 20 r 19(1) of the RSC, the Application itself did not specify the particular sub-rule relied upon.
2. However, the defendant's submissions referenced case authority for the proposition that a claim that is subject to a limitation bar may be struck out on the ground that it is frivolous or vexatious (within the meaning of O 20 r 19(1)(b)) of the RSC or an abuse of the process of the court (within the meaning of O 20 r 19(1)(d)).[34]
3. In the past, there has been considerable discussion as to whether and when it is appropriate to strike out pursuant to O 20 r 19(1) of the RSC on the basis of a good limitation defence.[35]
4. I have not found it necessary to resolve that issue because neither party submitted to me that anything material turned on the application being addressed under O 20 r 19(1) of the RSC as opposed to O 16 r 1; that is to say, the issues for consideration remained essentially the same in either case.

1. It was common ground that the plaintiff's cause of action in negligence against the defendant accrued on or shortly after the accident of 17 September 2020, such that the limitation period had expired on or about 18 September 2023.[36]
2. The plaintiff intends to rely on either s 38 or s 39 of the Limitation Act in order to procure the necessary extension of the limitation period.
3. Having regard to how the Application was argued by the parties,[37] the two primary issues arising for consideration are as follows:

(a) whether the application of s 38 of the Limitation Act to the facts of this case is capable of giving rise to a triable issue such as would preclude its summary determination; and

(b) whether in the alternative the application of s 39 of the Limitation Act to the facts of this case is capable of giving rise to such a triable issue.

1. Although both s 38 and s 39 envisages an application must be brought (and no such application is presently before the court), I approached these issues on the assumption that the plaintiff intended to, and would, bring such an application.[38]

1. For the reasons set out in detail below, I find that the Application is liable to be dismissed.
2. In summary, I have found that there are triable issues arising out of the application of both s 38 and s 39 to the facts of this case.
3. The existence of these issues makes it inappropriate to summarily extinguish the plaintiff's claim based on the foreshadowed limitations defence.

Does the application of s 38 of the Limitation Act 2005 (WA) give rise to a triable issue here?

The issues that will arise on a s 38 application

1. In order to consider the operation of s 38 of the Limitation Act in the context of this case, the court will have to resolve the following issues:
   1. First, can any part of the plaintiff's failure to bring the action earlier be attributed to any conduct of the defendant (or any person for whom the defendant is vicariously liable)?
   2. Second, if the answer to the first question is yes, was the relevant conduct either fraudulent or improper within the meaning of s 38?
   3. Third, if the answer to the second question is yes, on what date ought the plaintiff have reasonably commenced the action?
   4. Fourth, having regard to the date identified in answer to the third question, is a sufficient extension of time available to the plaintiff under s 38 of the Limitation Act that would cover the date on which the plaintiff commenced this action (28 June 2024)?
   5. Fifth, if the answer to the fourth question is yes, what extension of time should be granted to this plaintiff?

How to approach these issues in the context of the Application

1. On the Application, my task is merely to identify whether the plaintiff's action is untenable to such an extent that it is appropriate to summarily extinguish it.
2. While this necessarily involves a consideration of the merits of any application pursuant to s 38 of the Limitation Act, it does not require the determination of any such application.
3. Rather, I consider the issues I have identified in [40] above by reference to:

(a) whether, on the evidence before the court on the Application, it is possible to say it is reasonably arguable that a court may find in favour of the plaintiff in respect of the issue; and

(b) whether in any event there is a potentially triable issue identified in respect of the issue that precludes a summary determination of the question.

(a) as to the first issue, it is reasonably arguable that there was a delay in the commencement of the action which can be attributed to the conduct of person for whom the defendant is vicariously liable, namely the admission of the defendant's safety and security officer (Damian) to provide the plaintiff with a copy of the CCTV video when he first requested it; and

(i) it is not possible to determine on the evidence before me whether it is reasonably arguable that the (arguably) delaying conduct was improper;

(ii) nevertheless, there is a potentially triable issue identified on that question because the plaintiff (reasonably) does not presently have access to all relevant information that may bear upon that question;

(i) it is reasonably arguable that the action ought reasonably to have been commenced at some time in or after July 2021;

(ii) it is not possible to determine on the evidence on the Application precisely when the action ought to have been commenced; and

(iii) there is nonetheless a potentially triable issue identified on that question because the plaintiff (reasonably) does not presently have access to all relevant information that may bear upon that question;

(d) as to the fourth issue, it is conceivable that a sufficient extension of time is available under s 38 that would capture the date on which the plaintiff commenced this action (28 June 2024); and

(e) as to the fifth issue, as a matter of discretion, it is conceivable that the plaintiff would be granted a sufficient extension of time to cover the date on which the plaintiff commenced this action.

1. These findings provide a sufficient basis to refuse the summary extinguishment of the plaintiff's action on the basis of a limitation defence.

First issue: Whether any delay in bringing action attributable to defendant's conduct

1. Relevant to the question of whether any delay in bringing the action is attributable to the defendant's conduct, the authorities indicate that:

(a) there must be a causal connection between the conduct in question and the delay in bringing the action;[39]

(b) it is not necessary that the conduct be the sole, dominant, direct, or proximate cause of the delay in bringing proceedings - but it must be a cause;[40] and

(c) typically, s 38 of the Limitation Act is concerned with conduct 'that is liable or intended to impede or delay the commencement of an action by the prospective plaintiff', such as conduct that conceals the existence of a claim, or of facts critical to the claim.[41]

1. Turning to this case, the plaintiff submitted that the security and safety officer's conduct in telling the plaintiff that he had done nothing wrong formed part of the conduct that was 'diversionary'.[42]
2. For my part, I do not see how such a statement from the officer was diversionary or delaying in any relevant sense. If anything, it would tend to have the opposite effect.
3. Nevertheless, there is other relevant conduct from the officer in the form of an omission to hand over the CCTV video to the plaintiff on that day.
4. In that regard, the gist of the plaintiff's evidence is that:

(a) the security and safety officer (Damian) had declined to hand over the CCTV video of the accident to the plaintiff;

(b) the plaintiff was operating under a belief that the accident occurred when he was working (and fell) from a platform ladder with wheels;

(c) it was only when the plaintiff viewed the CCTV video some years later that he realised that his belief about the type of ladder involved was wrong, and that in fact he had been working from an A-frame ladder of a substantially different type; and

(d) it was this revelation that rapidly led the plaintiff and his lawyers down an investigatory path that ultimately catalysed the plaintiff to file the writ in June 2024.

1. The defendant submitted that it was difficult, even impossible, to fathom how the plaintiff had come to make a mistake about the type of ladder involved.[43]
2. While it is surprising that the plaintiff made such a mistake, I am not satisfied that the plaintiff's evidence about his error is so inherently incredible that I ought to disregard it, particularly in circumstances where the plaintiff was not subjected to cross-examination.
3. It is not inconceivable that the plaintiff's memory failed him shortly after the accident and caused him to make the mistake that he did.
4. Accordingly, on the evidence before me I find that it is arguable that:

(a) the security and safety officer that the plaintiff spoke with on the day of the accident was a person for whom the defendant was vicariously liable;

(b) the acts and omissions of the security and safety officer in not handing over a copy of the video to the plaintiff on the day of the accident is 'conduct' for the purposes of s 38 of the Limitation Act;

(c) the plaintiff's mistake about the ladder type prevailed at all material times before the video was ultimately disclosed in 2024 and led to him to pursue fruitless lines of investigation and refrain from commencing proceedings;

(d) had the security and safety officer supplied the plaintiff the video on the day of the accident, he would not have laboured under the mistake about the ladder type for any material length of time;

(e) with the benefit of having the video in 2020 he would have pursued the investigatory line that he ultimately did in 2024, at least at or around the time that he consulted his solicitors in April 2021; and

(f) in the above circumstances, it is appropriate to attribute a delay in the plaintiff commencing proceedings to the conduct of the security and safety officer.

1. I acknowledge the defendant submitted in essence that:

(a) there was no substantive refusal by the defendant to provide the video; rather the security and safety officer simply informed the plaintiff that he (personally) was not authorised to provide a copy of the video to the plaintiff;

(b) it was implicit in the position taken by the officer on the video that a request for disclosure of the video needed to be made directly to the defendant;

(c) any reasonable person in the plaintiff's position would have made a prompt formal request to the defendant for a copy of the video, which (it is to be inferred) would have led to the plaintiff being provided a copy; and

(d) there was in effect gross negligence on the part of the plaintiff and his solicitors for not requesting the video earlier and properly investigating the accident, and this was the real cause of the delay in the action being brought.[44]

1. I accept that it will be open to the defendant to argue that, in all of the circumstances, the conduct of the plaintiff and his solicitors was such that the court should not attribute any material delay in the commencement of the action to the initial conduct of the defendant's officer.
2. However, I am not persuaded that this argument will necessarily succeed in the determination of a s 38 application.

Second issue: Whether the defendant's conduct either fraudulent or improper

1. It has been held that 'other improper conduct' in s 38 refers to 'a breach of the standards of conduct that would be expected of a person in the defendant's position determined objectively and there is no requirement that the defendant had a consciousness of the impropriety nor an element of moral turpitude'.[45]
2. As noted above, the defendant denies that there was any substantive refusal to hand over the video by the defendant.
3. The defendant further submitted there was nothing to suggest that the security and safety officer acted improperly or unconscionably in acting the way he did.[46]
4. The defendant submitted that there may be good reason why the officer would decline to hand over the video, including to protect the privacy of third parties.[47]
5. The defendant denied the plaintiff's submission that the officer had 'ostensible authority' to hand over the video.[48]
6. In my view, there are critical gaps in the evidence that mean it would be inappropriate to find that the plaintiff has no reasonable prospect of persuading the court on a s 38 application that the conduct of the officer was improper.
7. The precise motivations of the security and safety officer are unclear and are not within the knowledge of the plaintiff.
8. Also not in evidence before me, and not expected to be within the plaintiff's knowledge, are:

(a) any policies and procedures that the defendant had in place regarding the disclosure of CCTV video to others; and

(b) any other documents, such as job descriptions and the like, that indicate the scope of the officer's authority.

Such documents may explain or shed light on why the officer acted in the way he did.

1. As the evidence stands, it is unclear whether the officer had any basis to state that he was not allowed to provide the video to the plaintiff.
2. The defendant's submission that there may be good reason, such as privacy considerations, to justify the officer's position is speculative.
3. The plaintiff cannot be criticised for not having filled these gaps in his evidence on the Application given the early stage of these proceedings.
4. Subject to some other fatal flaw in the plaintiff's position on a potential s 38 application being identified on the remaining issues, I am satisfied there is a triable issue with respect to the issue of whether the conduct of the officer (being a person for whom the defendant was vicariously liable) was improper.

Third issue: When the plaintiff ought reasonably have commenced the action

1. The application of s 38 of the Limitation Act involves a determination being made as to when the plaintiff ought reasonably have commenced the action, as that date constitutes the start point for the maximum three year extension of time.
2. I have identified above the sequence of events that led to the commencement of the action, and the defendant's submission that it was gross negligence on the plaintiff's side that explains why proceedings were commenced late.
3. I accept that it is plainly arguable that the plaintiff ought to have commenced the proceedings earlier than he did (June 2024) on the basis that he ought to have procured a copy of the CCTV video much earlier.
4. Nevertheless, I find that it is arguable that:

(a) reasonableness did not require the plaintiff to have commenced the proceedings in the immediate aftermath of the accident;

(b) given the plaintiff had made a workers' compensation claim and was undergoing ongoing treatment and ongoing surgery, it was reasonable for the plaintiff not to focus on pursuing a common law action earlier than he did, namely in April 2021 when he consulted his solicitors;

(c) further, it is reasonable to afford the plaintiff a reasonable time period commencing in or after April 2021 to garner relevant evidence in respect of a potential common law claim, including procuring CCTV vision and expert ergonomist evidence;

(d) that reasonable period expired sometime after June 2021; and

(e) by extension, reasonableness did not require the plaintiff to commence proceedings before July 2021 at the earliest.

1. I further accept that the plaintiff may be able to argue that the date should be even later than July 2021.
2. This is so where it is unclear on the evidence precisely what would have happened if the plaintiff had made a formal request for the release of the video in April 2021.
3. Making a finding about that issue would require a consideration of evidence going to what the defendant would likely have done when faced with such a formal request.
4. There is no evidence going to that issue before me. That is not the fault of the plaintiff given the nature of the evidence and context in which the Application is brought.
5. I am not prepared to assume in the absence of evidence that the defendant would have produced the video forthwith.
6. It is conceivable that the evidence, once produced, will permit the plaintiff to pursue a line of argument that the plaintiff would have experienced a material delay in getting access to the video, and that this evidence ought to be factored into finding the date on which the plaintiff ought to have commenced this action.
7. The plaintiff ought to be given an opportunity to test such matters via a formal application for an extension of time under s 38 of the Limitation Act.
8. Nevertheless, for completeness I shall consider the remaining issues that will arise under s 38 lest those issues reveal some fatal flaw that would necessarily lead to any s 38 application being dismissed.

Fourth issue: Whether a sufficient extension of time available to the plaintiff (covering up to 28 June 2024)

1. Given my finding at [73] above, it is arguable on a s 38 application that there is a sufficient extension of time available to this plaintiff, given the writ was issued on 28 June 2024.
2. If a court were to find that the proceedings ought to have been commenced on (say) 1 July 2021 (or later), a three-year extension would suffice to cover the date on which the plaintiff in fact commenced proceedings.

Fifth issue: What extension of time to grant as a matter of discretion

1. Even if the conditions for the exercise of the extension of time power are satisfied, the court retains a broad discretion (guided by the interests of justice) as to whether to grant the extension.[49]
2. I also accept that in exercising the discretion the court has the option of granting an extension of less than three years.
3. There are certain mandatory considerations set out in s 44 of the Limitation Act, but the defendant did not seek to rely on those considerations in the context of the Application.[50]
4. While again I acknowledge the criticisms the defendant makes of the plaintiff's failure to take steps to procure the CCTV video, I am unable to find on this Application that a court determining the s 38 application would necessarily exercise its discretion in a way that granted the plaintiff an insufficient extension, particularly where I am uncertain as to what date the plaintiff ought reasonably to have commenced this action.

1. Given my findings above, I am satisfied that there is a triable issue regarding whether the plaintiff will be able to succeed in obtaining a sufficient extension of time under s 38 of the Limitation Act.
2. It is therefore appropriate that the Application be refused.

Does the application of s 39 of the Limitation Act 2005 (WA) give rise to a triable issue here?

1. Given that conclusion, it is not necessary that I determine whether s 39 of the Limitation Act gives rise to a triable issue here.
2. Nevertheless, given the question was fully argued, I proceed to resolve that issue as well.

The four issues that may arise on a typical s 39 application

1. As I observed in Gale v East Metropolitan Health Service,[51] s 39(3) and s 39(4) of the Limitation Act work in tandem and in particular:

(a) section 39(3) works as a 'gateway', whereby if the plaintiff is able to pass one of the three limbs (or gateways) of s 39(3), the court's discretion to grant an extension of time is enlivened;

(b) once enlivened, s 39(4) dictates the extent of the extension that is available, and the discretion is to be exercised having regard to the matters set out in s 44 of the Limitation Act.[52]

1. A court hearing an application to extend time under s 39 of the Limitation Act in this case will be confronted by the following issues:[53]
   1. First, when did the limitation period expire in respect of the cause of action that the applicant wishes to pursue?
   2. Second, has the plaintiff satisfied any of the three limbs (or 'gateways') of s 39(3) of the Limitation Act (Gateway Issue)?
   3. Third, if the plaintiff has satisfied a relevant limb of s 39(3) of the Limitation Act, is an extension of time available to the plaintiff under s 39(4) that will be sufficient to cover the time period in which the action was (or will be) brought (Sufficiency Issue)?
   4. Fourth, if a sufficient extension of time is available under s 39(4) of the Limitation Act, and having regard to any relevant considerations the subject of s 44, what extension of time should be granted (Discretion Issue)?

1. In this case, as I have observed, it was common ground that the action had commenced out of time, with the statute of limitation expiring on or about 18 September 2023.
2. Consequently, only the Gateway Issue, the Sufficiency Issue and the Discretion Issue identified above will arise for resolution.

How to approach these issues in the context of the Application

1. I approach these issues in the same way as I approach the issues arising on the s 38 application, as set out at [41] - [43] above.
2. That is, my task is to identify whether the plaintiff has a reasonably arguable position on each of the relevant issues, and in any event whether there is any feature of the case that gives rise to a triable issue that ought not be resolved summarily.

Summary of findings on each of the three live issues

(a) as to the Gateway Issue, it is reasonably arguable that the plaintiff will be able to pass through either the first gateway (s 39(3)(a)) of the Limitation Act or the second gateway (s 39(3)(b)) of the Limitation Act, which would enliven the discretion to grant an extension of time pursuant to s 39(4) of the Limitation Act;

(b) as to the Sufficiency Issue, there is a triable issue (unsuitable for summary determination) as to the appropriate date on which any extension of time would commence, and by extension it is conceivable that a sufficient extension of time will be available under s 39(4) that would capture the date on which the plaintiff commenced his action in this court (28 June 2024); and

(c) as to Discretion Issue, it cannot be ruled out that, as a matter of discretion, the plaintiff will be granted an extension of time up to and including 28 June 2024.

1. These findings are sufficient to justify dismissal of the Application, independently of the findings I made with respect to the s 38 application.

Gateway Issue (whether the plaintiff has passed through any of the three s 39(3) gateways)

1. The Gateway Issue incorporates various sub-issues:[54]
   1. What is the relevant injury for the purposes of s 39(3) of the Limitation Act?
   2. What is the relevant physical cause for the purposes of s 39(3)?
   3. Was the plaintiff aware of the physical cause of his injury at the time the limitation period expired?
   4. If so, was the plaintiff aware at that time that his injury was attributable to the conduct of a person?
   5. If so, was the plaintiff unable (at the time the limitation period expired) to establish that person's identity after reasonable enquiry?

(a) What is the relevant injury for the purposes of s 39(3) of the Limitation Act?

1. In Gale, I set out the relevant principles regarding what is the relevant injury for the purposes of s 39(3).[55]
2. In the context of this case, the parties' submissions gave little attention to the issue and I do not understand it to be a point of contention.[56]
3. I proceed on the basis that the relevant injury is to be characterised as the musculoskeletal injuries suffered by the plaintiff in the fall on 18 September 2020.
4. It is not necessary for present purposes to describe the injury with any greater particularity.

(b) What is the relevant physical cause for the purposes of s 39(3) of the Limitation Act?

1. In Gale, I set out the relevant principles regarding what is a physical cause for the purposes of s 39(3).[57]
2. The defendant submitted that the relevant physical cause of the injury in this case was the falling off the ladder and that the cause of the fall was the ladder.[58]
3. The plaintiff's written submissions indicated that the plaintiff was aware of the relevant physical cause of the injury but did not identify what that cause was said to be.[59]
4. I consider that there are a variety of different ways that the physical cause may be characterised in this case.
5. One option is to characterise it very simply (and narrowly) as the plaintiff falling from the ladder and striking the hard floor.
6. Another option is to characterise it more broadly to capture what instigated the ladder to move, inducing the plaintiff to fall.
7. The plaintiff's affidavit evidence appears to reflect a belief on his part that that the ladder moved in effect of its own volition without contribution on his part. This would tend to suggest that the physical cause of the plaintiff's injury was some feature or fault of the ladder itself.
8. However, this appears to be a mistaken understanding (or at least one unsupported by other evidence) and does not reflect the case that the plaintiff will run in this action.[60]
9. Rather, the plaintiff's intended case in this action, as outlined by the expert ergonomist evidence, will focus on the type of ladder was inappropriate for the work that the plaintiff was doing at the time, and specifically presented an unacceptably high risk that the ladder may become unstable in response to the movements of a worker using it in a similar manner to the plaintiff.[61]
10. In light of on the ergonomists' evidence, it is arguable that the physical cause of the plaintiff's injury is to be broadly conceived of as being the shift in the weight and balance of the plaintiff's body while standing on the ladder sufficient to cause the ladder to become unbalanced.[62]
11. For the purposes of the Application, it is not necessary that I make any finding as to what the physical cause is; though I do find that there are multiple different characterisations that may be argued.

(c) Was the plaintiff aware of the physical cause of his injury at the time the limitation period expired (first gateway)?

1. Whether the plaintiff can pass through the first gateway turns on the question of whether he was aware at the date the limitation period expired (18 September 2023) of the physical cause of the injury.
2. In Gale, I set out the relevant legal principles informing the resolution of this question.[63] I specifically note that:

(a) actual subjective awareness of the physical cause is required;

(b) merely to believe that something may be a physical cause of injury, or to suspect that something is a physical cause, is not to be equated as awareness of the physical cause of injury; and

(c) in an appropriate case, and most frequently occurring in medical negligence cases, awareness of the relevant physical cause may not arise until revealed to the plaintiff via expert evidence.

1. In this case, both parties made submissions to the effect the plaintiff was aware of the physical cause in September 2023.[64]
2. However, I approach the plaintiff's submission with caution given that:

(a) in making that particular submission it is not clear how the plaintiff was characterising the relevant physical cause; and

(b) elsewhere, the plaintiff made a submission that there was a triable question as to whether or not the accident was attributable to the conduct of the defendant, as opposed to 'any failure on his part to use three points of contact, or other cause'.[65]

1. Though at first glance that submission appears directed at the second gateway (s 39(3)(b)), it is also consistent with the plaintiff contending that at the relevant time he lacked awareness of why he fell (that is, he could not rule out 'other cause' for his fall).
2. Also consistent with that contention are oral submissions made on the plaintiff's behalf that:

(a) the plaintiff thought that it was the movement of the ladder that caused him to fall;[66] and

(b) the plaintiff's belief that the ladder had a faulty foot was clearly wrong,[67] and was speculative and unsupported by evidence.[68]

1. Given this context, I find the plaintiff's position equivocal on the question of whether he was aware of the physical cause of his injury in September 2023.
2. Ultimately, whether the plaintiff will be found to be so aware will turn in large part on how the relevant physical cause is defined.
3. I have identified that the relevant physical cause may be conceived of in a variety of different ways. There are reasonable arguments to support each of the different conceptions.
4. On the narrowest conception of physical cause identified, namely that at [109] above, I accept that there appears to be no doubt that the plaintiff was aware of that matter in September 2023.
5. On the other hand, on a broader conception of physical cause identified, namely that at [114] above, it is reasonably arguable that the plaintiff was not aware of the relevant physical cause until sometime after review of the CCTV video (which was received after expiration of the limitation period).
6. It is not appropriate to make definitive findings about such matters in the context of the Application.
7. Rather, I find that it is reasonably arguable that the plaintiff can access the first gateway provided by s 39(3)(a) of the Limitation Act and thereby enliven the discretion to extend time.

(d) If so, was the plaintiff aware at the relevant time that the injury was attributable to the conduct of a person (second gateway)?

1. Given my finding that the plaintiff can reasonably argue he is able to access the first gateway under s 39(3)(a) of the Limitation Act, it is not strictly necessary that I address the second gateway.
2. Nevertheless, I shall do so in case I am wrong in my finding about the first gateway, and because both parties focused their submissions on the second gateway.
3. Whether the plaintiff can access the second gateway turns on the question of whether the plaintiff was aware on 18 September 2023 that the injury was attributable to the conduct of a person.
4. Previously it has been suggested that a plaintiff will be relevantly aware of a s 39(3) matter upon knowing the relevant 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'.[69]
5. The defendant explicitly sought to rely on this approach in this case.[70]
6. However, more recent authority suggests that this does not reflect the current state of the law and that the court must approach awareness without reference to specifics of the legal claim sought to be brought.[71]
7. I shall proceed accordingly.
8. I also have had regard to the summary of relevant principles set out in Gale.[72]
9. From those relevant principles I specifically note that:

(a) attribution in the context of s 39(3)(b) of the Limitation Act does not necessarily require the satisfaction of any legal test of causation, but rather is concerned with whether the plaintiff (at the relevant time) was aware that the conduct of a person was responsible for the injury that the plaintiff suffered;

(b) similarly to s 39(3)(a) of the Limitation Act, suspicion and speculation in the mind of a plaintiff as to the conduct of a person playing a role in bringing about the injury do not amount to awareness; and

(c) a plaintiff's awareness of the link between injury and conduct under s 39(3)(b) of the Limitation Act may not arise until the receipt of credible expert opinion addressing that link.

1. On the facts of this case, and having regard to the above principles, I find that the plaintiff has a reasonable prospect of establishing that, as at September 2023, he was not aware that his injury was attributable to the conduct of a person.
2. The rationale for that finding is as follows:

(a) it is arguable on the evidence presently before the court that, before reviewing the CCTV video in 2024, the plaintiff held a belief that the ladder moved in an uncontrollable fashion because of a fault with the ladder;

(b) it is further arguable that, if the plaintiff's belief was correct, that belief was not necessarily consistent with fault on the part of any person (for instance, there could have been an unforeseeable and latent defect in the ladder beyond the reasonable control of any person);

(c) alternatively, it is arguable that the plaintiff's belief was no more than suspicion or speculation on his part, not amounting to actual awareness that a person could be held responsible for the injury in the relevant sense; and

(d) it is arguable that it was only after reviewing the video in 2024 that the plaintiff acquired actual awareness that the defendant's conduct had a role in causing in his injury.

1. Accordingly, I conclude that it is arguable that the plaintiff will be able to access the second gateway provided by s 39(3)(b) of the Limitation Act.

(e) If so, was the plaintiff unable (at the time the limitation period expired) to establish the responsible person's identity after reasonable enquiry (third gateway)?

1. The third gateway, provided by s 39(3)(c) of the Limitation Act, is potentially available to a plaintiff unable to pass through the first two gateways.
2. Given I am satisfied that the plaintiff has a reasonable prospect of accessing either of the first or second gateways in s 39(3)(a) and s 39(3)(b) respectively, it is not necessary for me to further consider s 39(3)(c).
3. Rather, I turn to consider whether a sufficient extension is available to this plaintiff if an extension of time were to be granted under s 39(4).

Sufficiency Issue (whether a sufficient extension is available under s 39(4) of the Limitation Act)

1. The Sufficiency Issue is concerned with the sufficiency of the extension available to the plaintiff.
2. As I noted in Gale:[73]

(a) the three-year extension of time period (to commence proceedings) available under s 39(4) commences from the date that the person becomes aware (or ought reasonably to have become aware) of all of the relevant matters specified in s 39(4);

(b) once an application is brought in practical terms the plaintiff must establish that the requested extension is not beyond the maximum three-year extension period; and

(c) section 39(4) imports both subjective and objective tests of awareness.

1. The Sufficiency Issue concerning the extent of the extension of time available under s 39(4) of the Limitation Act, incorporates the following sub-issues,[74] which I will consider in turn:
   1. What date did the plaintiff become aware of all of the following matters:

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

1. What date ought the plaintiff have reasonably become aware of all of the following matters:

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

1. Having regard to the earlier of the above dates,[75] what is the maximum extension of time that is available and is it sufficient to capture the time period within the main action was brought (28 June 2024)?

(a) What date did the plaintiff become aware of all of the relevant s 39(4) matters (physical cause, attributability, identity)?

1. The first matter to consider in the context of s 39(4) is whether and when the plaintiff actually became aware of all of the relevant matters.
2. The court approaches the question of actual awareness under s 39(4) in the same manner as it does under s 39(3).[76]
3. In this case, consistent with the findings I have made above in the context of the Gateway Issue, I find that is reasonably arguable that the plaintiff did not become aware the relevant matters in s 39(4) until sometime after he reviewed the CCTV in or about April or May 2024.

(b) What date ought the plaintiff have reasonably become aware of all of the relevant s 39(4) matters (physical cause, attributability, identity)?

1. The relevant legal principles governing the application of the objective element of s 39(4) of the Limitation Act are set out in my decision in Gale.[77]
2. In summary, I note that:

(a) the plaintiff will be deemed to be armed with the awareness that he would have had if he had taken reasonable steps to investigate the relevant matters (preventing him from taking advantage of any wilful blindness or unreasonably held ignorance); and

(b) in considering what steps were reasonable for the plaintiff to have undertaken, the court will have regard to his particular characteristics, attributes and circumstances.

1. I have already observed the defendant's criticisms of the quality of the investigatory steps that the plaintiff and his solicitors undertook before expiration of the limitation period.
2. However, even if I were to accept the validity of those criticisms, it is not sufficient for me to rule out an argument that the plaintiff still will have a sufficient extension of time available to him under s 39.
3. I re-iterate the matters set out at [70] - [79] above, in the context of when the plaintiff ought reasonably have commenced this action.
4. The gist of those findings includes the following:

(a) it is reasonably arguable that the plaintiff cannot be expected to have commenced garnering the key evidence in support of his claim (including the CCTV video) until after the plaintiff consulted his solicitors in April 2021; and

(b) it is not possible to determine the date that the plaintiff would have been given the CCTV video if a request had been made at or about that time, and that question ought to be determined at a later time with the benefit of additional relevant evidence going to when the defendant was likely to have released the video to the plaintiff.

1. I acknowledge that in making those findings the issue I am determining is different to the issue I am required to determine under s 39(4) of the Limitation Act.
2. However, the findings are relevant and instructive to establish a reasonable argument in the context of s 39(4) as follows:

(a) the attributes of this plaintiff include that the plaintiff, from on or about the date of the accident, was labouring under a mistake as to the type of ladder involved in the accident;

(b) having regard to that attribute and the facts set out in the plaintiff's affidavit, the court ought not find that the plaintiff could acquire awareness of all of the relevant matters in s 39(4) until the mistake became apparent to the plaintiff, which turned on when the plaintiff reviewed the CCTV video;

(c) in applying the objective element of s 39(4), the court needs to determine by what date the plaintiff ought to have reasonably procured the CCTV video (at least); and

(d) consistent with what is set out in [155] above, it is not appropriate on this Application to make a definitive finding about when the plaintiff ought to have obtained the CCTV video, but it is possible to conceive that that date may have been a date in or after July 2021.

(d) Having regard to the earlier of the above two dates, what extension of time is available and is it sufficient to capture the time period within the main action is or will be brought?

1. Given the above findings, it is not possible to say at this juncture what date may be found to be applicable when considering the objective element of s 39(4).
2. It is conceivable that the earliest date will be found to be a date in or sometime shortly after July 2021.
3. If so, the maximum available extension of time available to the plaintiff under s 39 will be three years from that date, which will be sufficient to capture the date when the writ was issued in this action (28 June 2024).
4. Accordingly, it is now necessary to proceed to consider the issue of exercise of the discretion to extend time (to see if there is any flaw on that issue that would be fatal to the plaintiff's foreshadowed s 39 application).

Discretion Issue (the extension to be granted, if any)

1. On a s 39 application, the plaintiff must 'not only prove the facts which enliven the discretion, but also good reason for exercising the discretion in [the plaintiff's] favour ...'.[78]
2. The court's discretion to extend in the context of s 39 is 'whether and to what extent to extend time'.[79]
3. In addition to the s 44 of the Limitation Act considerations, the court may also have regard to matters such as:

(a) the nature and extent of any delay in bringing the extension application;

(c) by what date it is reasonable to expect the plaintiff could have commenced the proceedings to which the application relates;[80] and

(d) the apparent viability of the main proceedings.[81]

1. In this case, the defendant confirmed in oral argument that it did not seek to rely on any s 44 factors.[82]
2. Having put those considerations to one side, I find that the plaintiff has a reasonable prospect of persuading a court to favourably exercise the discretion to extend time under s 39 of the Limitation Act.
3. Again, I am cognisant of the defendant's criticisms of the plaintiff's dilatory conduct in pursuing this action.
4. Nevertheless, it is not possible to say at this juncture that the court will necessarily refuse the plaintiff a sufficient extension of time.

1. I therefore conclude that there is a triable issue arising out of the potential for the plaintiff to be able to obtain an extension of time pursuant to s 39 of the Limitation Act.
2. This presents a further reason to refuse the Application.

1. I will hear from the parties following publication of these reasons as to the precise orders to be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] The chamber summons incorporating the applications was filed 7 March 2025 in a context where (1) the defendant was served with the writ on 21 August 2024 (affidavit of Eve Burt filed 7 March 2025, par 17) and (2) an appearance had been entered on 2 October 2024.

[2] For O 16 r 1 of the RSC, see HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [9]. For O 21 r 19 of the RSC, see Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214 [154].

[3] Affidavit of Eve Burt filed 25 March 2025, pars 12 - 13.

[4] As discussed later in these reasons, the defendant sought to challenge the credibility of the plaintiff's evidence to the effect that he made, and was labouring under, a mistake as to the type of ladder involved in the fall incident, which mistake was not apparent to him until 2024 when he had an opportunity to review (for a second time) the CCTV video that the defendant had of the incident.

[5] Plaintiff's affidavit filed 19 May 2025, par 5.

[6] Plaintiff's affidavit filed 19 May 2025, par 5.

[7] Plaintiff's affidavit filed 19 May 2025, par 18.

[8] Plaintiff's affidavit filed 19 May 2025, par 6.

[9] Plaintiff's affidavit filed 19 May 2025, pars 6, 7.

[10] Plaintiff's affidavit filed 19 May 2025, par 8.

[11] Plaintiff's affidavit filed 19 May 2025, par 9.

[12] Plaintiff's affidavit filed 19 May 2025, par 9.

[13] Plaintiff's affidavit filed 19 May 2025, par 9.

[14] Plaintiff's affidavit filed 19 May 2025, pars 11, 12.

[15] Plaintiff's affidavit filed 19 May 2025, par 13.

[16] Plaintiff's affidavit filed 19 May 2025, par 14.

[17] Plaintiff's affidavit filed 19 May 2025, par 18.

[18] Plaintiff's affidavit filed 19 May 2025, par 18.

[19] Plaintiff's affidavit filed 19 May 2025, par 20.

[20] Plaintiff's affidavit filed 19 May 2025, par 20.

[21] Plaintiff's affidavit filed 19 May 2025, par 21.

[22] Plaintiff's affidavit filed 19 May 2025, par 23.

[23] Plaintiff's affidavit filed 19 May 2025, par 24.

[24] Plaintiff's affidavit filed 19 May 2025, pars 24, 25.

[25] Plaintiff's affidavit filed 19 May 2025, par 28.

[26] Plaintiff's affidavit filed 19 May 2025, par 26.

[27] Affidavit of Eve Burt filed 7 March 2025, Attachment EB-3.

[28] Pisano v South Metropolitan Health Service [2023] WASCA 80 (Pisano) [48] - [52] (Buss P, Vaughan & Hall JJA).

[32] Ridgepoint Corporation Pty Ltd v McCallum Donovan Sweeney [2011] WASC 167 [52] (Kenneth Martin J); Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [49]. See also Diedler v Borowiec [2021] WASC 394 [82] (Acting Master Strk), specifically acknowledging the relevance of broader 'interests of justice' considerations.

[33] Neil James Duckworth as trustee for The Ocean Farm Trust v Water Corporation [2024] WASC 90 [33] (Howard J).

[34] Specifically, the cases cited by Vaughan J (as his Honour then was) in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [48].

[35] For example, see Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [39] - [53]. In that case, Vaughan J concluded that it was inappropriate to strike out on limitation grounds under O 20 r 19 in circumstances where it was not yet apparent whether a limitation defence would be relied upon.

[36] See defendant's outline of submissions dated 4 June 2025, par 7; counsel for the plaintiff's oral submissions, ts 95.

[37] Which included the defendant's concession that the Application would fail if I were to find that the plaintiff had a reasonably arguable case for an extension of the limitation period pursuant to the Limitation Act: see ts 74.

[38] The indorsement on the writ indicates that '[i]f and to the extent necessary, the plaintiff will seek leave from [the court] at the trial of this action, pursuant to s 43 Limitation Act 2005 (WA)'. By s 43(5) of the Limitation Act an application under s 38 or s 39 can be sought and determined at any time, including at trial.

[39] Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2024] WASCA 123 [57]; Latchman v Maybo Ltd [2023] WADC 17 [26] (Latchman) (Bowden DCJ).

[40] Latchman [38] (Bowden DCJ); Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460 [86] (Trans Petroleum) (Smith J).

[41] Trans Petroleum [85] (Smith J).

[49] Trans Petroleum [85] (Smith J).

[51] Gale v East Metropolitan Health Service [2026] WADC 3 (Gale).

[56] The defendant described the relevant injury as the 'ankle knees neck' injury referred to in the plaintiff's 25 September 2020 workers' compensation claim: Defendant's outline of submissions filed 4 June 2025, par 38.

[59] Plaintiff's outline of submissions filed 1 July 2025, par 21.

[60] As accepted by the plaintiff's counsel in my exchange with him: ts 79 - ts 81. Mr Nugawela ultimately accepted that there was an 'overbalancing of some sort, and the ladder did actually divert from the vertical axis, and then he fell off it' (ts 81). The plaintiff's belief that the ladder had a faulty footing was nothing more than speculation unsupported by evidence (ts 87).

[61] See the report of Professor Timothy Ackland dated 2 September 2024 (Attachment KJ7 to the affidavit of the plaintiff filed 19 May 2025) and Wendy Pietrocola dated 5 September 2024 (Attachment KJ6 to the affidavit of the plaintiff filed 19 May 2025).

[62] See Ackland report, page 8 (referring to movement of the body of the operator outside the ladder's base of support).

[64] Plaintiff's outline of submissions filed 1 July 2025, par 21; defendant's outline of submissions filed 4 June 2025, par 44.

[65] Plaintiff's outline of submissions filed 1 July 2025, par 3.

[69] AME Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139 [200] (Buss JA); see also Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 [4820] (Katzmann J).

[70] Defendant's outline of submissions filed 4 June 2025, par 47. The plaintiff also initially did so in the written submissions (see plaintiff's outline of submissions filed 2 July 2025, par 4) but retracted this in oral argument: ts 103.

[71] See Mullaley v State of Western Australia [2020] FCA 13 [44] (Colvin J).

[75] As set out in Gale [149] - [154], I consider that it is the earlier date that prevails when it comes to reckoning the date from which the extension of time is granted.

[78] Ethicon Sàrl v Gill [2021] FCAFC 29 [903].

[79] Meyer v Solomon [2021] WASCA 168 [134] (Buss P).

[80] Meyer v Solomon [136] - [137] (Buss P). See also Mitchell JA [211] - [212].

[81] AME Hospitals Pty Ltd v Dixon [216] (Buss JA).