(c) given the evidence of the apparently unconscious state of the plaintiff in the period commencing on or about 16 January 2022 and ending at some time after his admission to the Burns Unit on 27 January 2022, there is a triable issue arising out the application of s 35 of the Limitation Act to the facts of this case, because the plaintiff's unconscious state was arguably a mental disability within the meaning of s 35;

(d) given my finding that there is a triable issue identified in respect of s 35 of the Limitation Act that is sufficient to justify dismissal of the Summary Disposition Application (relating to the first defendant), it is not necessary to determine whether a triable issue exists with respect to s 39 of the Limitation Act;

(e) it is not appropriate to grant (at this juncture) a declaration on the Limitation Act Application that the action was commenced within time, since that necessarily involves making findings as to the application of s 35 of the Limitation Act to the facts of this case which is properly a matter for determination at trial; and

(f) it is not appropriate to determine (at this juncture) the plaintiff's application for an extension of time under s 39 of the Limitation Act; rather that matter should also be deferred for determination at trial (if required).

Does the plaintiff have any arguable cause of action against the second defendant?

1. I deal with the issue of whether the plaintiff has any cause of action against the second defendant first as it is straightforward and can be simply disposed of.
2. The plaintiff explained that he had joined the second defendant as a party as he believed that the first defendant might divert profits and assets to the second defendant to limit any liability and frustrate the plaintiff's ability to recover damages.[54]
3. Other than identifying that there is an overlap in the personnel involved in the management and ownership of the defendants,[55] no basis is stated for this belief which appears to be no more than speculation.
4. At any rate, the manner in which the first and second defendant manage their financial affairs between themselves is irrelevant to whether the second defendant carries any arguable liability.
5. The defendants led hearsay evidence that the second defendant had no role in the management, occupation or ownership of the premises where the fire occurred at the time of the fire.[56] There was no evidence before me that suggested otherwise.
6. Further, in his written submissions, the plaintiff accepted that the second defendant did not have a management role in the storage facility where the fire took place.[57]
7. The plaintiff ultimately conceded at the special appointment he would have to abandon his claim against the second defendant,[58] and I expressly flagged at that time that it appeared 'inevitable' that summary judgment would be granted against the plaintiff on that claim.[59]
8. I am satisfied that the concession was appropriately made and that the plaintiff has no arguable cause of action against the second defendant.
9. The consequence is that there will be summary judgment for the second defendant against the plaintiff.
10. Accordingly, the balance of these reasons should be seen as a consideration of the position as between the plaintiff and first defendant.

Does the application of s 55 of the Limitation Act 2005 (WA) give rise to triable issue here?

1. I turn to the issue of whether s 55 of the Limitation Act operates in this case to give rise to triable issue.
2. This issue arises because:

(a) by s 6 of the Limitation Act, the date of accrual of a personal injury cause of action is determined in accordance with s 55 of the Limitation Act;[60]

(b) the plaintiff says that, although he was injured on 16 January 2022, his cause of action did not accrue for the purposes of s 55 of the Limitation Act until on or after 26 January 2022; and

(c) if the plaintiff is correct, by filing a writ on 24 January 2025, the plaintiff will have commenced his action within the standard three-year limitation period applicable to personal injury claims.[61]

1. Under s 55 of the Limitation Act, time begins to run for limitation purposes of a personal injury claim upon the earlier of the following dates:

(a) the date on which the plaintiff became aware that he or she had sustained a not insignificant injury (Awareness Date); and

(b) the date of occurrence of the first symptom, clinical sign or other manifestation of personal injury consistent with the plaintiff having sustained a not insignificant injury (Manifestation Date).

1. Thus, time does not necessarily begin to run on the date of accident or initial injury.[62]
2. Rather, the focus is on (on the one hand) the Awareness Date and (on the other hand) the Manifestation Date. The earlier of the two dates governs when time begins to run.[63]

1. I identify the following sub-issues arising for consideration, which I will consider in turn:
   1. What is the plaintiff's 'not insignificant injury' for the purposes of s 55 of the Limitation Act?
   2. On what date did the first symptom or other manifestation of injury consistent with the plaintiff having sustained a not insignificant injury occur (Manifestation Date)?
   3. On what date did the plaintiff become aware that he had sustained a not insignificant injury (Awareness Date)?[64]
   4. Which is the earlier of the above two dates, namely the Awareness Date and the Manifestation Date?
   5. Having regard to the earlier of the above dates, when did the plaintiff's cause of action accrue under s 55?
   6. Having regard to s 14 of the Limitation Act, when did the limitation period expire?

(a) What is the plaintiff's 'not insignificant injury' for the purposes of s 55 of the Limitation Act 2005 (WA)?

1. In order to apply s 55 of the Limitation Act, it is necessary to identify the plaintiff's 'not insignificant injury'.
2. 'Injury' in the context of s55 is a 'personal injury' as defined in s 3 of the Limitation Act, and is the same 'injury' that is referred to in s 39(3) and s 39(4) of the Limitation Act. In AME Hospitals Pty Ltd, Buss JA stated:[65]

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:

(a) the actual disease contracted by the person;

(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.

1. Further, for there to be an injury there needs to be an event or circumstance which gives rise to the harm that underpins the injury. In this sense, each injury will be attributable to an event or circumstance.[66]
2. A 'not insignificant' injury is 'an injury which is not 'trifling' or 'of no consequence': Macquarie Dictionary. Whether or not an injury is of such nature must depend upon the extent of the injury itself'.[67]
3. Severe pain experienced by a plaintiff for a period of weeks following a surgical procedure, and requiring a second surgical intervention, has been found to indicate a not insignificant injury.[68]
4. The injury need not be permanent, nor be believed by the plaintiff to be a permanent injury, in order to qualify as 'not insignificant'. The fact that a plaintiff may have (at some point in time) believed he or she would make a full recovery, or be uncertain (at some point in time) as to the full extent of the injury, does not preclude a finding that there has been (at that same point of time) a not insignificant injury under s 55.[69]
5. Similarly, a not insignificant injury can be found to exist even when a treating doctor may have considered the plaintiff's condition temporary and treatable.[70]
6. In the context of this case, it is plain on the evidence before me set out at [26] above the plaintiff suffered an injury on 16 January 2022.
7. It is not necessary to precisely describe or characterise the nature of the injury; it is sufficient to describe it as multiple and extensive burns.
8. Further, I readily accept and find that the injury suffered on 16 January 2022 was 'not insignificant'.
9. The significance of the injury is manifest from the evidence. I specifically note that, shortly after his admission to hospital, the plaintiff was admitted to the ICU where he remained until 27 January 2022 (before being transferred to the Burns Unit).

(b) On what date did the first symptom or other manifestation of injury consistent with the plaintiff having sustained a not insignificant injury occur (Manifestation Date)?

1. The fact that symptoms consistent with an injury may become evident at a certain point does not necessarily mean that that point in time marks the inception of the relevant injury.
2. Rather there must be:[71]

[A] manifestation that is consistent with the [plaintiff] having sustained a not insignificant personal injury. ... [I]nherent in the concept of personal injury is the occurrence of an external event or circumstance that is the source of harm to the person. So, the manifestation referred to is the manifestation of an injury of a kind that is attributable to an external event or circumstance.

1. Further, there needs to be 'considerable certainty' that the symptom or sign is consistent with the particular injury.[72] This is a matter which may require expert medical input in order to reveal that what the plaintiff has been experiencing (or manifesting) are symptoms or signs of an injury caused by an external event.[73]
2. In reckoning the Manifestation Date, the plaintiff's subjective awareness of having suffered the relevant injury is not determinative.[74] Put another way, the Manifestation Date can arise independently of the knowledge of the plaintiff.
3. To the extent that the plaintiff sought to contend otherwise and argue that the plaintiff's subjective awareness of the injury (or the manifestation of the symptoms of the injury) is required in all personal injury cases for a cause of action to accrue,[75] I reject such contention.
4. It is inconsistent with the plain words of s 55 (in which the plaintiff's awareness is clearly an ingredient in s 55(1)(a) and clearly not an ingredient in s 55(1)(b)).
5. At any rate, I consider the approach advocated by the plaintiff is inconsistent with the approach taken by the Supreme Court in authority binding upon me, specifically in the approach taken by Tottle J LTP v Natalwala.
6. In that case, the plaintiff had two causes of action, one relating to treatment in 2011, and the other relating to treatment in 2013.
7. In concluding that the limitation period had not yet expired for the 2013 cause of action, his Honour plainly had regard not just to whether the manifestations of injury were apparent to the plaintiff, but rather whether those manifestations were apparent to the medical specialists treating the plaintiff. If it was merely a question of the manifestations being apparent to the plaintiff, where his Honour was comfortably satisfied as a lay person she was not, his Honour would not have gone on to consider what was apparent to others.[76]
8. This approach is also consistent with his Honour's earlier conclusion that the (separate) 2011 cause of action accrued in September 2011 even though the plaintiff was not aware that she had suffered a not insignificant injury at that point in time.[77]
9. Further, this approach is consistent with that taken by Russell DCJ (as the Learned Master then was) in Tompkins v Natalwala (No 2).[78]
10. Finally, I note Federal Court authority to the effect that the Manifestation Date can arise before the Awareness Date; that is, it may arise even in circumstances where the plaintiff has no subjective awareness a not insignificant injury has been sustained.[79]

1. In line with these authorities, I approach this case on the basis that the Manifestation Date can occur before the plaintiff was even aware that he had suffered any injury.
2. In this case, I find that it is beyond argument the Manifestation Date occurred on 16 January 2022, being the date of the fire and the plaintiff's hospitalisation from the fire.
3. I am satisfied that the first symptom or other clinical sign consistent with a non-insignificant injury had manifested by that date.
4. A sufficient basis for that finding is that the Discharge Summary indicates that upon the plaintiff's admission to hospital on 16 January 2022, it would have been obvious to anyone who had the opportunity to observe the plaintiff that he had suffered very serious and extensive burn injuries threatening his life. So much is also evident from the evidence of Ms Hip, and I have no doubt at that point the event the subject of s 55(1)(b) had occurred.
5. That is, by that time, the first symptom, clinical sign or other manifestation of personal injury consistent with the plaintiff having sustained a not insignificant personal injury had occurred.

(c) On what date did the plaintiff become aware that he had sustained a not insignificant injury (Awareness Date)?

1. In Mullaley, Colvin J described 'awareness' in the following terms:[80]

Awareness requires actual perception or conscious understanding. Awareness does not arise from mere notice or some form of deemed or constructive knowledge. Rather, the term awareness refers to a subjective state of mind which involves the conscious knowing of facts and their significance. ...

1. In determining whether the plaintiff was aware, the court has regard to the plaintiff's particular characteristics and circumstances, including levels of education, mental acuity and insight.[81]
2. In this case, in circumstances where it is at least arguable on the evidence that the plaintiff was unconscious for a period following the suffering of his injuries, plainly there is an argument that the Awareness Date is a date after the Manifestation Date.
3. However, given the earlier of the two dates (Awareness Date and Manifestation Date) prevails, and given I am satisfied that the Manifestation Date occurred on the same day as the accident, it is not necessary for present purposes to make a finding as to whether and how much later the Awareness Date is compared to the Manifestation Date.

1. The Manifestation Date (16 January 2022) is either earlier than the Awareness Date or is the same as the Awareness Date.
2. It is not necessary to resolve that issue at this point - what is relevant is that by 16 January 2022 one of the relevant dates had occurred.

(e) Having regard to the earlier of the above dates, when did the plaintiff's cause of action accrue?

1. I therefore find it beyond argument that the plaintiff's cause of action accrued on 16 January 2022.
2. Specifically, I do not consider that that the plaintiff can reasonably argue in this case that, by the operation of s 55, his cause of action accrued later than the date of the fire (16 January 2022).

(f) Having regard to s 14 of the Limitation Act 2005 (WA), when did the limitation period expire?

1. Section 14 of the Limitation Act provides that an action for damages for personal injury cannot be commenced if three years have elapsed since the cause of action accrued.
2. I note from s 61(1)(b) of the Interpretation Act 1984 (WA), where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period.
3. I consider s 14 of the Limitation Act, by using the word 'since', expresses a period of time (namely three years) to be reckoned from or after a specified day (namely the date the cause of action accrued, being 16 January 2022).
4. That being the case, the relevant three-year period commenced on 17 January 2025 and the question becomes when that period of time will have elapsed. By s 14, upon that period elapsing, the action cannot be commenced.
5. I find that the period of three years commencing on 17 January 2022 runs to the end of the day on 16 January 2025.
6. By extension, and subject to consideration of whether there is scope for an extension of the limitation period, I find that it is beyond argument:

(a) the relevant limitation period under s 14 of the Limitation Act must have expired on 16 January 2025; and

(b) this action was commenced on 24 January 2025 and thus after the expiration of that period.

1. I therefore need to proceed to consider whether there is any triable issue arising as to whether the effective limitation period has been extended (by operation of s 35 of the Limitation Act) or may be extended (by the exercise of a discretion under s 39 of the Limitation Act).

Does the application of s 35 of the Limitation Act 2005 (WA) give rise to a triable issue here?

1. During the special appointment there was some confusion as to whether the plaintiff intended to invoke s 35 of the Limitation Act in aid of his position. It was not referenced in the Limitation Act Application, and aspects of his submissions appeared to indicate that he did not seek to rely on s 35.[82]
2. Ultimately, however, I clarified with the plaintiff that he did intend to rely on s 35.[83]
3. In view of that clarification and given the way that the issue had come to light, I permitted the parties leave to file supplementary submissions on the application of s 35 to the facts of this case.
4. This led to the defendants filing supplementary written submissions on 16 October 2025, and the plaintiff filing supplementary written submissions on 6 November 2025.

The issues that arise in light of s 35 of the Limitation Act 2005 (WA)

1. In the context of this case,[84] s 35 provides in effect that if:

(a) the plaintiff was suffering from a mental disability at any time after a cause of action accrues to him (ie 16 January 2022 consistent with my findings above); and

(b) during that time of disability the plaintiff was without a guardian,

the time during which the plaintiff was without a guardian does not count in the reckoning of the three-year limitation period for commencing the action.

1. Accordingly, in considering the application of s 35 of the Limitation Act to the facts of this case, the following issues arise:
   1. Was the plaintiff suffering from a mental disability within the meaning of s 35 for any period of time after his cause of action accrued on 16 January 2022?
   2. If so, was the plaintiff without a guardian within the meaning of s 35 during such period of time?

1. For the reasons set out below, I find that there is a triable issue arising out of the application of s 35 to the facts of this case because it is reasonably arguable that:

(a) the plaintiff was suffering from a mental disability within the meaning of s 35 for a period commencing on or about 16 January 2022 and ending at some point after his admission to the Burns Unit on 27 January 2022; and

(b) the plaintiff was without a guardian within the meaning of s 35 during such time.

(a) Was the plaintiff suffering from a mental disability within the meaning of s 35 for any period of time after the cause of action accrued?

1. Section 3 defines 'mental disability' 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.

1. Thus, in order to find that this plaintiff has a relevant mental disability, it will be necessary to find two things:

(a) the plaintiff suffered from a 'disability'; and

(b) an effect of that disability was that the plaintiff was unable to make a reasonable judgment in respect of matters relating to his person or his property.

1. The evident intent behind s 35 is that a person who is disabled from being able to make the sort of decisions necessary in order to launch legal action should not be disadvantaged from a limitations perspective whilst that person labours under that disability.
2. There is very little authority on s 35 of the Limitation Act.
3. In Kent v Mullaly,[85] Mr Kent was injured in a work accident. He had a claim against the occupier of the premises where the accident occurred, but failed to issue the writ until more than three years after his accident. He sued two defendants for failing to advise him about the three-year limitation period to commence legal proceedings against the occupier.
4. The defendants brought an application seeking leave to amend their defence to allege that the plaintiff was suffering from a mental disability at a material time such that, when the writ was issued, the plaintiff's cause of action was not actually statute barred.
5. In considering that application, Davis DCJ had occasion to consider the proper interpretation of s 35 of the Limitation Act. Relevant to this case, her Honour reasoned as follows:[86]

(a) the definition of 'mental disability' in s 3 of the Limitation Act is similar to the provisions of s 3, s 43 and s 64 of the Guardianship and Administration Act 1990 (WA) (GAA) which provide for the appointment of a guardian or administrator;

(b) section 3 of the Limitation Act also invokes the GAA to assist in the definition of other terms;

(i) the test for the appointment of a guardian involves consideration of whether a person is 'unable to make reasonable judgments in respect of matters relating to his person' (s 43(1) GAA);

(ii) the test for the appointment of an administrator involves consideration of whether a person is 'unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate' (s 64 GAA);

(iii) 'mental disability' includes intellectual disability, a psychiatric condition, an acquired brain injury and dementia (s 4(3) GAA);

(d) in interpreting s 35 of the Limitation Act, guidance can be obtained from the authorities considering these provisions of the GAA;

(i) whether a person is unable to make reasonable judgments by reason of a disability involves both subjective and objective tests;

(ii) the subjective test involves consideration of the person's actual capacity in relation to his or her actual estate; and

(iii) the objective test, when applied to whether a person is able to pursue a damages claim in respect of an accident, involves consideration of the person's ability to give appropriate instructions to his or her advisers, to understand the matters on which instructions might need to be given, and to appreciate the nature of the claim, and to make a reasonable judgment as to its settlement.

1. Having regard to the medical reports that were before her on the amendment application,[87] Davis DCJ found that there was a sufficient basis for the defendants to argue that the plaintiff was the subject of a relevant mental disability which extended the limitation period.
2. Her Honour plainly considered that was an issue properly left for final determination at trial.[88]
3. In Whitford and Whitford,[89] the court was considering an application by a wife to set aside a financial agreement in a family law context. The husband contended that the wife's application was statute barred by operation of the Limitation Act.
4. Berry J found that the Limitation Act defence was not made out for various reasons. One of these reasons was that his Honour was satisfied that the wife was suffering from a mental disability within the meaning of s 3 of the Limitation Act 2005 and this was sufficient to overcome the husband's limitations defence. This finding was based on evidence before the court that showed the wife was suffering from post-traumatic stress disorder and depression at a material time.[90]
5. Turning back to this case, I observe that there are no expert medical reports which specifically address the issues arising by virtue of s 35.
6. However, there is other evidence that provides a platform upon which it may be reasonably argued that the plaintiff was the subject of a mental disability for a period following the accident (and relevantly for a material period after the cause of action which accrued on 16 January 2022).
7. I refer to the evidence at [26] above, specifically sub-paragraphs [4], [7], [8], [12], [15], [16], [17], [18], [20][91]nd [21].91
8. Based on that evidence, it is reasonably arguable that:

(a) the plaintiff was unconscious in a period commencing either before he arrived at the hospital on 16 January 2022 or some time shortly thereafter;

(b) the plaintiff remained unconscious for a period of time which did not end until some time after he was admitted to the Burns Unit (which admission took place on 27 January 2022); and

(c) the plaintiff was not able to make any decisions of any kind regarding his person or his estate while he was so unconscious.

1. It is also reasonably arguable that being unconscious, at least where that unconscious state is attributable to a person's medical condition (as was evidently the case here), is a 'mental disability' within the meaning of s 3 of the Limitation Act. That definition is broad and is plainly not limited to psychological or psychiatric impairment.
2. I see no reason why a person who is rendered unconscious, either by the direct effects of an injury, or by the treatment he or she receives for that injury, should not be entitled to the benefit of s 35 of the Limitation Act.

(b) Was the plaintiff without a guardian within the meaning of s 35 of the Limitation Act 1935 (WA) during such time?

1. Section 3 defines 'guardian' for the purposes of s 35 as a person who:

(a) is either a guardian of the mentally disabled person, or an administrator of that person's estate; and

(b) is charged with the function of considering the appropriateness of commencing an action on behalf of the mentally disabled person, such charging coming from the operation of the GAA or a guardianship or administration order made under it (as the case may be).

1. Here there is no suggestion that there was any person connected to the plaintiff who might have met this definition.
2. Plainly it is arguable that the plaintiff was without a guardian for the entirety of the time that he was unconscious.

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 35 of the Limitation Act.
2. Specifically, I have found it is arguable that the plaintiff was the subject of a relevant mental disability in the period commencing on or about 16 January 2022 and ending at a time some after his admission to the Burns Unit on 27 January 2022.
3. By extension, it is reasonably arguable that the plaintiff will be able to rely on s 35 to contend that he had (for limitations purposes) until some date later than the date he commenced this action (24 January 2025) to commence it.
4. It is therefore appropriate that the Summary Disposition Application be refused.

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

1. Given my conclusion that a triable issue has been identified related to s 35 of the Limitation Act, it is not necessary (in order to dispose of the Summary Disposition Application) that I determine whether s 39 of the Limitation Act also gives rise to a triable issue.

Is it appropriate to determine any part of the Limitation Act Application at this time?

1. There are two elements to the Limitation Act Application.
2. Primarily, the plaintiff seeks in effect a declaration that, by operation of s 55(1)(a) of the Limitation Act, he commenced his action for damages within the applicable limitation period.
3. Alternatively, the plaintiff seeks an order pursuant to s 39 of the Limitation Act which has the effect of extending the time within which he could commence the action.
4. I have found that there is a triable issue as to whether s 35 will operate in this case so as to extend the period of time within which the plaintiff was entitled to commence the action.
5. Having made that finding, and for the reasons I will now outline, I also find that it is inappropriate to determine at this juncture any part of the Limitation Act Application.

Is it appropriate to consider, at this juncture, granting a declaration that the action was commenced within time?

1. Specifically in this case, I consider the following circumstances indicate that I ought not, at this juncture, grant a declaration that the plaintiff has commenced this action within time:

(a) the granting of such a declaration would necessarily involve final determination of the operation of s 35 in the context of this case;

(b) in contrast to s 39, the operation of s 35 of the Limitation Act is not dependent on the operation of an application from the plaintiff which application can expressly be heard and determined at any time;[92]

(c) the application for a declaration is akin to an application for determination of a preliminary issue pursuant to O 32 r 4 of the RSC, which will only be granted where the interests of justice demand it, which is typically where 'there is a clear demarcation between issues and the determination of separate issues is likely to result in a substantial saving in time, inconvenience and expense';[93] and

(d) given the Summary Disposition Application is to be dismissed (insofar as it concerns the first defendant), there will be a trial at which (given the nature of the claim) it is highly likely that evidence relevant to the application of s 35 Limitation Act will be led in any event (meaning that there is no obvious saving to be gained from a declaration in terms of reducing the length of any trial).

1. I am additionally mindful of the High Court's warning in Wardley Australia Ltd v State of Western Australia that it is generally undesirable to decide limitation questions at an interlocutory stage, except in the clearest of cases.[94]
2. I am not prepared to say that this cause falls into the category of 'clearest of cases' given these circumstances:

(a) the plaintiff originally sought the declaration on the basis of the operation of s 55(1) of the Limitation Act rather than s 35;[95]

(b) the plaintiff's intention to rely on s 35 to extend the limitation period was not initially clear and was only clarified during the course of the special appointment;

(c) the defendants had prepared for the special appointment on the basis that the plaintiff was not invoking s 35;[96]

(d) in contrast to the two cases I have identified earlier which considered s 35, I do not have the benefit of any expert medical evidence which directly addresses the plaintiff's post-accident state of consciousness and ability to manage his affairs;

(e) although not contesting the facts put forward by the plaintiff, the defendants ultimately contested whether it was appropriate to find based on those facts that s 35 was engaged;[97] and

(f) as I observed earlier, there is little case law addressing the proper interpretation and application of s 35 of the Limitation Act.

1. I also note the approach taken by Feutrill J in Ascic v Australian Federal Police.[98] In that case, the respondent sought to summarily dismiss the applicant's action on the basis that the Limitation Act 1935 (WA) (1935 Limitation Act) operated as a bar to the granting of relief.
2. His Honour found that the plaintiff had an arguable case (based on the evidence before the court) that the limitation period applicable to his claim may have been effectively extended by operation of s 40 of the 1935 Limitation Act. Section 40 was engaged with respect to 'insane' persons. Based on this arguable case, his Honour was not prepared to grant summary judgment on the respondent's application at that juncture.[99]
3. As well as referring to 'the general undesirability of resolving limitation defences in interlocutory proceedings', his Honour observed that he lacked the benefit of:[100]

[A] defence and a reply and any evidence concerning diagnosis, prognosis and progression of the applicant's ... psychiatric illness between December 1987 (when the applicant ceased work due to psychiatric illness) and October 2023 (when [the action] was commenced) ...

1. In all the circumstances, Feutrill J found that the appropriate way forward was to dismiss the respondent's summary judgment application; but in doing so his Honour indicated that the respondent:[101]

[M]ay renew the application at the close of pleadings if, at that time, the pleadings and (or) evidence demonstrate(s) that the applicant has no reasonable prospect of prosecuting the proceeding.

1. While plainly Ascic is distinguishable from this case in many respects, the approach taken tends to underline the appropriateness of proceeding cautiously on limitations questions involving mental impairment, particularly in the absence of full pleadings and expert evidence.
2. Consistent with that approach, in this case it is prudent to defer the ultimate findings to be made with respect to s 35 of the Limitation Act (and whether the action was commenced within time) to the trial of the action.

Is it appropriate to determine, at this juncture, the plaintiff's application under s 39 of the Limitation Act 2005 (WA)?

1. I find that it is inappropriate to determine, at this juncture, the plaintiff's application under s 39 of the Limitation Act.
2. Rather, the determination of that application ought to be deferred to the trial of the action.
3. The rationale for this finding is as follows:

(a) consistent with the findings I have made above, there is a triable issue in this case as to whether the plaintiff commenced the action within the applicable limitation period;

(b) it is conceivable that the trial judge in determining that issue might rule that the plaintiff did commence his action within time;

(c) such a finding would render the s 39 application at least arguably otiose (on the basis that the court ought not, in the exercise of its discretion under s 39(4) of the Limitation Act, grant an extension of time which extension would have no utility);

(d) by extension, to determine the s 39 application at this point would involve me doing so based on a hypothetical, namely that the trial judge would find against the plaintiff on the triable issue identified above;

(e) it makes sense in these circumstances to defer determination of the s 39 application to the trial judge, if required; and

(f) in any event, determination of the s 39 application necessarily requires a finding to be made as to 'when the limitation period expired',[102] which finding necessarily turns on the manner in which the trial judge determines the triable issue as to whether the action was commenced in time.

(a) the second defendant is entitled to summary judgment on the Summary Disposition Application;

(b) the Summary Disposition Application is otherwise to be dismissed; and

(c) the Limitation Act Application is to be deferred for determination until trial.

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 27 May 2025 in a context where (1) the first and second defendants were served with the writ in or about late January or early February 2025 (based on the date of the appearances) and an appearance was entered for the first and second defendants on 3 February 2025.

[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 Chelsea Rice filed 27 May 2025; Attachments CR-4, CR-5 and CR-6.

[4] There was also a claim against a third defendant, which was dismissed by consent orders made 30 April 2025. Where reference is made in these reasons to 'the defendants' the reference is to the first and second defendants.

[5] The fact of the fire and its date is supported by emails sent to the plaintiff by persons associated with the facility on 16 January 2022; Plaintiff's affidavit filed 25 July 2025; Attachment 2.1 - 2.2. Further, the defendants relied on the fact of a fire occurring on 16 January 2022 to support their contention that the plaintiff's action was statute barred by 16 January 2025: see Affidavit of Chelsea rice filed 27 May 2025; Attachment CR-4, letter from the defendants' solicitors to the plaintiff dated 25 February 2025 and Affidavit of Chelsea Rice filed 27 May 2025; Attachment CR-6, letter from the defendants' solicitors to the plaintiff dated 14 April 2025.

[6] Affidavit of Chelsea Rice filed 27 May 2025, par 7.

[7] Management Agreement, cl 4(a)(iv), cl 4(a)(vii), cl 4(a)(xi), cl 4(a)(xix), cl 4(a)(xxii).

[9] Plaintiff's affidavit filed 25 July 2025; Attachment MJS1.1 - MSJ1.4, Fiona Standley Hospital discharge summary dated 3 March 2022 (Discharge Summary).

[12] Affidavit of Kelly Anne Hip filed 25 July 2025, pars 2 - 5; Attachment CR-1, being the management agreement (Management Agreement).

[13] Affidavit of Kelly Anne Hip filed 25 July 2025, par 6.

[14] Affidavit of Kelly Anne Hip filed 25 July 2025, par 6.

[18] Affidavit of Kelly Anne Hip filed 25 July 2025, par 7.

[19] Affidavit of Kelly Anne Hip filed 25 July 2025, par 7.

[20] Affidavit of Kelly Anne Hip filed 25 July 2025, par 7.

[21] Affidavit of Kelly Anne Hip filed 25 July 2025, par 8.

[22] Affidavit of Kelly Anne Hip filed 25 July 2025, par 11; Attachments 1.1 - 1.7 to that affidavit.

[23] Affidavit of Kelly Anne Hip filed 25 July 2025, par 12.

[24] Affidavit of Kelly Anne Hip filed 25 July 2025, par 12.

[25] Affidavit of Kelly Anne Hip filed 25 July 2025, par 15.

[26] Affidavit of Kelly Anne Hip filed 25 July 2025, par 15.

[27] Plaintiff's affidavit filed 25 July 2025, pars 4, 5.

[28] Affidavit of Kelly Anne Hip filed 25 July 2025, par 15.

[29] Plaintiff's affidavit filed 25 July 2025, pars 5, 8.

[30] Plaintiff's affidavit filed 25 July 2025, par 6.

[31] Plaintiff's affidavit filed 25 July 2025, par 5.

[32] Plaintiff's affidavit filed 25 July 2025, par 5.

[33] Plaintiff's affidavit filed 25 July 2025, par 7.

[34] Plaintiff's affidavit filed 25 July 2025, par 9.

[35] Affidavit of Kelly Anne Hip filed 25 July 2025, par 17.

[36] Plaintiff's affidavit filed 25 July 2025; Attachments 3.1 - 3.4.

[37] Plaintiff's affidavit filed 11 September 2025, par 10.

[38] Plaintiff's affidavit filed 11 September 2025, par 7.

[39] Plaintiff's affidavit filed 11 September 2025, par 11. The outcome of the first defendant's investigation into the fire, and the nature of the any actions taken by the first defendant following the fire is not in evidence. Also not in evidence is a report of the 'Fire Department' though the existence of that report is referenced in the plaintiff's affidavit materials: plaintiff's affidavit filed 11 September 2025, par 11. Ultimately, given the way I have disposed of the applications, nothing presently turns on these particular gaps in the evidence.

[40] Plaintiff's affidavit filed 11 September 2025; Attachment 1.1.

[41] Plaintiff's affidavit filed 11 September 2025, par 11.

[42] Plaintiff's affidavit filed 11 September 2025, par 11.

[43] Affidavit of Chelsea Rice filed 27 May 2025, pars 11, 14.

[44] Defendants' submissions filed 8 August 2025, pars 25 - 26.

[45] Defendants' submissions filed 8 August 2025, par 27.

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

[50] Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [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.

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

[52] 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] (Gates). See the defendants' submissions filed 8 August 2025, pars 29 - 30.

[53] For example, see Gates [39] - [53]. In that case, Vaughan J concluded that it was inappropriate to strike out on limitation grounds under O 20 r 19 of the RSC in circumstances where it was not yet apparent whether a limitation defence would be relied upon.

[54] Plaintiff's affidavit filed 25 July 2025, par 14; plaintiff's affidavit filed 11 September 2025, par 9.

[55] Plaintiff's affidavit filed 11 September 2025, par 4.

[56] Affidavit of Chelsea Rice filed 27 May 2025, par 10.

[57] Plaintiff's submissions filed 12 September 2025, par 81.

[60] Special provisions of the Limitation Act apply to asbestos and child sexual abuse related claims. These provisions are not relevant here.

[61] Section 14(1) of the Limitation Act provides that an action for damages for personal injury cannot be commenced if three years have elapsed since the cause of action accrued.

[62] Tompkins v Natalwala (No 2) [2022] WADC 50 [14] - [15] (Russell DCJ), applying AME Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139 [173] - [174] (Buss JA) (AME Hospitals Pty Ltd).

[63] Mullaley v State of Western Australia [2020] FCA 13 [22] - [23] (Colvin J) (Mullaley).

[64] The ordering of [66.2] and [66.3] is the opposite of the structure of s 55(1), which deals with the Awareness Date first (s 55(1)(a)), the Manifestation Date second (s 55(1(b)). I consider the Manifestation Date first, since it strikes me that in a typical case the Manifestation Date will occur before the Awareness Date. Ultimately nothing turns on the order of consideration, since it is the earlier of the two dates that prevails.

[65] AME Hospitals Pty Ltd [180].

[67] Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [40].

[68] LTP v Natalwala [2023] WASC 414 [83] (Tottle J).

[69] Espinos v Chong [2013] WADC 174 [29], [34], [35] (Goetze DCJ). See also Gill v Ethicon Sàrl (No 5) [2019] FCA 1905 [4851] (Katzmann J) (Gill).

[70] LTP v Natalwala [82] (Tottle J).

[73] Mullaley [34], [37] (Colvin J).

[75] See for instance the plaintiff's submissions filed 12 September 2025, pars 18, 27 - 46; plaintiff's submissions filed 6 November 2025, pars 3 - 4.

[76] LTP [83], [102] - [103].

[78] Tompkins v Natalwala (No 2) [2022] WADC 50 [14] - [18] (Russell DCJ). Her Honour stated: '[t]he action must be commenced within three years of such awareness or manifestation'. Plainly, her Honour considered the question of manifestation in s 55(1)(b) as separate from the question of the plaintiff's awareness in s 55(1)(a). I also note her Honour reviewed and discussed the relevant authorities.

[79] Mullaley [28] (Colvin J); Gill [4792] - [4804], [4852] (Katzmann J). In Gill, Katzmann J considered at length, and ultimately rejected, an argument that the plaintiff needed to be actually aware of the symptom or other manifestation relevant to the reckoning of the Manifestation Date. Her Honour stated ([4803]): 'The premise for paragraph (b) [of s 55(1)] is that the damage is manifest: the injured person has detectable indications of a not insignificant injury, not that the injured person has detected that s/he has such an injury'.

[80] Mullaley [27] (Colvin J), applying AME Hospitals Pty Ltd [34], [36] (McLure P, Newnes JA agreeing). It is apparent that Colvin J considered that the meaning of 'aware' is consistent across both s 39 and s 55.

[81] Mullaley [29], [60] (Colvin J).

[82] Specifically, the statement in the plaintiff's submissions filed 12 September 2025, par 48 that 'the plaintiff does not have and did not have a mental disability within the meaning of [s 35] ...'.

[84] By s 35(2) there is in effect a 12-year limit imposed on when actions can be commenced notwithstanding the impact of any mental disability. Plainly that 12-year limit is irrelevant on the facts of this case. Further, though s 35 is expressly subject to s 36, s 36 is inapplicable to the facts of this case and I put s 36 to one side.

[85] Kent v Mullaly [2015] WADC 117 (Kent).

[86] Kent [41] - [51] (Davis DCJ).

[87] The medical evidence presented an equivocal picture of the plaintiff's mental health at the relevant time, but there was some evidence to suggest that the plaintiff was suffering from significant depression which impaired his functioning and cognition in a sufficiently material way. See Kent [24] - [32].

[89] Whitford and Whitford [2023] FCWA 15.

[90] Whitford and Whitford [96] (Berry J).

[91] Insofar as that evidence encompasses the observations of a layperson about the plaintiff's state of consciousness, it is at least arguable that such evidence is admissible: see JD Heydon, Cross on Evidence, (14th ed, 2023) [29090].

[92] By s 43(5) of the Limitation Act, an application pursuant to s 39 of the Limitation Act 'can be sought or determined at any time before or after the issue, or close of, the pleadings'.

[93] Jones v Waterdale Enterprises Pty Ltd [No 2] [2025] WASC 71 [15] (Whitby J).

[94] Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron & McHugh JJ).

[95] Limitation Act Application, proposed order 1.

[96] ts 5. Although I gave leave for the parties to file supplementary submissions once the plaintiff confirmed he relied on s 35, I note that this did not extend to the leading of additional evidence.

[97] Defendants' supplementary submissions filed 16 October 2025, pars 16 - 18.

[98] Ascic v Australian Federal Police [2025] FCA 124 (Ascic).

[99] Ascic [60], [62], [65] (Feutrill J).

[100] Ascic [65] (Feutrill J).

[101] Ascic [66] (Feutrill J).

[102] Limitation Act, s 39(3).