CITATION : TANSY ANN BARR (an infant) by her next friend NIGEL MORRISON BARR -v- FARRELL [2012] WADC 116

BETWEEN : TANSY ANN BARR (an infant) by her next friend NIGEL MORRISON BARR

Limitations Act 2005, s 7, s 41, s 44 - Whether guardian's conduct in not commencing proceedings unreasonable

Interpretation Act 1984 (WA)

Limitation Act 1935 (WA)

Limitation Legislation Amendment and Repeal Act 2005 (WA)

Declaration that s 7 of the Limitations Act 2005 applies to the plaintiff's cause of action made

Application for leave to commence proceedings out of time dismissed

Asher-Relf by his next friend Douglas Bean v Minister of Health [2009] WADC 202

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Rayney v The State of Western Australia [No 3] [2010] WASC 83

Tahlia Burns (by her next friend David Burns) v Minister for Health [2011] WADC 205

1 BOWDEN DCJ: The plaintiff was born on 30 April 1994 and alleges negligence by the first and second defendants in the management and control of her delivery.

2 She seeks a declaration that s 7 of the Limitation Act 2005 (the 2005 Act) has no application to her cause of action, alternatively if it does she seeks an order pursuant to s 41 of that Act granting leave to commence her action against the first and second defendants.

3 This application is made because the plaintiff's action is a (childbirth) cause of action within s 7 the 2005 Act and she has not yet commenced the action. If the 2005 Act applies she requires an extension of time to do so if the Limitation Act 1935 (the 1935 Act) applies she does not.

4 At that time of the plaintiff's birth the 1935 Act applied.

5 It is not disputed that pursuant to s 35 and s 40 of that Act the plaintiff had 24 years from the date of her birth to commence proceedings against the defendants.

6 However, that Act was repealed by the Limitation Legislation Amendment and Repeal Act 2005 which came into effect on 15 November 2005.

7 The Limitation Legislation Amendment and Repeal Act provided as follows:

Limitation Legislation Amendment and Repeal Act 2005

1. Limitation Act 1935 repealed and savings provisions

(1) The Limitation Act 1935 is repealed.

(2) The Limitation Act 1935 continues to apply, despite its repeal and the enactment of the Limitation Act 2005, to causes of action that accrued before commencement day.

(3) Subsection (2) is subject to the Limitation Act 2005 sections 6 and 7.

(4) The Limitation Act 1935 applies, despite its repeal and the enactment of the Limitation Act 2005 (the 'new Act'), to a post-commencement action, as defined in section 8(2) of the new Act, to which section 15 of the new Act does not apply because of section 8(2) of the new Act.

(5) A reference in a written law to the Limitation Act 2005 may, where the context so requires, be read as if it were a reference to the Limitation Act1935 in relation to a cause of action -

8 The Limitation Act 2005 also came into effect on 15 November 2005 and provides as follows:

Limitation Act 2005

1. Application of limitation periods under this Act

(1) The limitation periods provided for under this Act apply only to causes of action that accrue on or after commencement day.

1. Special provisions for certain personal injury actions relating to childbirth

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

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

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

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

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

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

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

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

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

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

9 The two paragraphs of s 7(2) are disjunctive, accordingly a cause of action (childbirth) cannot be commenced if it accrued before the commencement day and any one of the two defined events has occurred. The defined events are the action not been commenced before 15 November 2011 or the limitation period that would have applied but for that section expiring.

10 Asher-Relf by his next friend Douglas Bean v Minister of Health [2009] WADC 202 dealt with the second of those defined events. It determined the court has no power under the 2005 Act to grant leave extending the time to commence a cause of action which could not be commenced prior to the commencement of the 2005 Act because the limitation period under the 1935 Act had expired.

11 Asher-Relf has been followed in Tahlia Burns (by her next friend David Burns) v Minister for Health [2011] WADC 205 and Joseph Harrall (by his next friend Simone Harrall) v Minister for Health [2011] WADC 226.

12 In this case at the time the 2005 Act was passed the limitation period under the 1935 for the plaintiff's cause of action had not expired.

13 The plaintiff says the 1935 Act applies and therefore leave is not required.

14 They submit that s 38 of the 1935 Act proscribes a limitation period (six years) and is procedural section, whereas s 40 provides rights to persons, inter alia, under 18, which are not provided to others and creates substantive rights.

15 The plaintiff says legislation which effect existing substantive rights only acts prospectively unless that legislation clearly and unambiguously expresses its intention to act retrospectively: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261.

16 The plaintiff says that s 4(1) of the 2005 Act specifically provides that the 2005 Act applies only to causes of action that accrue on or after the commencement date and although s 4(2) qualifies that by subjecting s 4(1) to s 7 and s 8, s 7 does not 'cover the field' as it does not expressly provide that it is intended to affect a limitation period which has not expired at the commencement of the 2005 Act.

17 The defendants say s 7 is clear and unambiguous and a plain reading of the section shows it explicitly address causes of action accruing before the commencement date and that interpretation is supported by the purpose behind the Act and the admissible extrinsic materials.

19 The legislature has clearly, by s 4(2), provided that s 7 and s 8 can affect causes of action that have accrued before the commencement date.

20 The fundamental principles of statutory interpretation were summarised in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384:

The duty of a court is to give the words of a statutory provision the meaning that legislature is taken to have intended then to have ...

21 In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 the court referred to the need to consider the context at first instant, not merely at a later stage, when ambiguity might be thought to arise and 'context' is considered in its wider sense to include such things as the existing state of the law and the mischief which the court may discern the statute was intended to remedy.

22 By its express terms s 7 applies to causes of action (childbirth) which accrue before the commencement date and the legislature, as required by Maxwell v Marshall, clearly and unambiguously expresses its intention to act retrospectively.

23 In my opinion there is no need to resort extrinsic materials because the literal meaning of s 7(2) is unambiguous.

24 However, if I am wrong s 19 of the Interpretation Act 1984 (WA) allows reference to extrinsic material including explanatory memorandum and second reading speeches.

25 The explanatory memorandums' clause notes in respect of the 2005 Act say:

[C]lause 7 applies to actions in respect of personal injuries incurred in the course of childbirth or immediately after, and arising from, the childbirth, which accrued before the commencement day and where the limitation period had not expired before the commencement day. Clause 7 provides that the limitation period for these actions is the earlier of six years from the commencement day or until 24 years of age. However, that limitation period may be extended in certain circumstances under Part 3 of the Bill.

26 In his Second Reading Speech the Attorney General, the Hon Mr JA McGinty said:

[T]he situation will now be that if a person has suffered a personal injury in the course of being born or immediately after and arising from the birth, and has not begun an action before the commencement day of the new act, provided the limitation period has not already expired, the action must be commenced within six years of the commencement day or before the date on which the person turns 24, whichever is the earlier... However, in general terms the effect will be that the limitation clock, so to speak, of babies who are injured during birth before the Bill comes into effect, will start ticking from the date the Bill becomes law ...

... The situation in relation to obstetrics is of particular significance. Under our current law an obstetrician can be sued by a person up to 24 years after his or her birth. This has resulted in increased insurance premiums for obstetricians and led to a shortage of obstetricians in the private sector ...

... It is the very long 'tail' for obstetrics that concerns many obstetricians. It pushes up already high indemnity costs, as insurance organisations find it difficult to estimate future liability and cannot remove potential liabilities from their books for up to 24 years. The long period of time available for obstetric claims makes it extremely difficult for the doctor to have any personal memory of the event when defending the claim. It also makes it very difficult to ensure that the case is judged by contemporaneous standards ...

... [t]he proposed limitation regime is not to be retrospective, with the exceptions outlined earlier in relation to causes of action accruing from when a latent disease or injury first manifested itself and in respect of obstetrics.

27 These extracts are set out in more detail by Stevenson DCJ in Asher-Relf.

28 The extrinsic materials only reinforce the conclusion I have reached that the purpose and intent of the legislation has been to reduce the Limitation period that would otherwise have applied under the 1935 Act for plaintiffs with childbirth causes of action which accrued before the commencement of the 2005 Act. This has been achieved by the clear unambiguous language of s 7.

29 This view is supported by Stevenson DCJ dicta in Asher-Relf at [61] - [64]:

... In my view, the intention of the legislature in enacting s 7, and in particular s 7(2), was to provide a prospective limit for the commencement of actions for childbirth causes of action in circumstance where, and only where, the claim had not expired ...

... In this context the 'special provisions' contained in s 7 relating to childbirth causes of action are intended to refer to the shortened limitation period under the new Act where parties' substantive legal rights had not accrued.

Section 7(2) purports to deal with childbirth causes of action which accrued before 15 November 2005. Section 7(2)(a) specifies the limitation period for such claims as expiring on 15 November 2011 ...

30 The clear effect of s 7 is that if the limitation period under the 1935 Act has not expired an action cannot be commenced without leave, after the earlier of 15 November 2011 (six years from the commencement date of the 2005 Act) or the expiration of the limitation period that would have applied but for the section and leave can only be granted if the court is satisfied of the s 41(3) pre-condition.

31 Section 7 of the 2005 Act does apply to the plaintiff's cause of action and it is therefore necessary for the plaintiff to apply under s 41 for an extension of time to commence her action.

32 The Limitation Act 2005 (WA) provides as follows:

1. Court may extend time to commence action by person under 18 when cause of action accrues, with guardian

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

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

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

(4) This section does not apply to an action relating to the publication of defamatory matter.

1. Further matters for court's consideration on extension applications

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

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

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

33 It is not in dispute s 41(1) has been complied with because the plaintiff was under the age of 18 years when the cause of action accrued. Similarly s 41(2) has also been complied with because the application has been made before the plaintiff is 21 years of age and s 30(1) does not apply as a result of s 7(3).

34 Section 41(3) prohibits the court from extending time unless the court is satisfied that in the circumstances it was unreasonable for the plaintiff's guardian not to commence the action on or before 15 November 2011.

35 The plaintiff says s 41 is a remedial section and ought be construed generously and urges me to construe the section in a manner broadly consistent with the decision of Stevenson DCJ in Asher-Relf by her next friend Douglas Bean v Minister of Health.

36 In that case his Honour view was that the s 41(3) requirement was only one requirement that conditioned the power to grant leave extending time stating:

... The court is entitled to, and should, consider all relevant matters that are normally taken into account when considering whether to grant a party an indulgence to permit a departure from a rule or requirement. These considerations include regard to all relevant factors including an examination of the conduct of the parties seeking the relief, the explanation proffered for the actual non-compliance in question, the degree and nature of the delay, the effect on other parties if the non-compliance is permitted to be overcome by the grant of an extension of time and, in particular, the prejudice they might suffer in responding to the change in position and the extent that orders can be made minimising the impact on the defendant if leave is granted [73].

... In my view, s 41(3) properly construed provides that the court may extend time unless the potential defendant satisfies the court by reason of some fact that it was unreasonable for the plaintiff's guardian not to have commenced the action within the limited period, for example if the guardian deliberately allows a limitation period to expire, or delays for a further inordinate period of time or offers no explanation for the conduct (see generally Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2001) 54 NSWLR 207, Conroy v Scott's Refrigerated Freightways Pty Ltd (2008) Aust Tort Reports 81-944; [2008] NSWCA 60) ... [75].

37 The plaintiff says consideration should be given inter alia to the fact that the plaintiff has a strong claim on its merits, and suffered a significant injury as an infant, at the time the cause of action arose the 2005 Limitations Act had not been passed, the failure to institute proceedings was no fault of hers, her guardian had acted promptly in instructing lawyers and following their advice and had acted promptly when it was suggested that her claim was out of time and that there was no evidence that the defendants had suffered any prejudice and there was nothing to impact upon a fair trial.

38 The defendant's submission was that s 41(3) provided either a jurisdictional barrier or a condition precedent so that unless the court is satisfied in the circumstances it was unreasonable for the plaintiff's guardian not to have commenced the action within the limitation those other factors need not be considered.

39 In Rayney v The State of Western Australia [No 3] [2010] WASC 83 Martin CJ considered s 38, s 39, s 40, s 41 and s 42 of the 2005 Act commenting that each section commenced by empowering a plaintiff to apply to the court for leave to commence an action when the limitation period had expired and each section was followed by a specification on the powers of the court such that the power of the court was conditioned by that specification, after which a discretion arises.

40 Consistent with this view it is only upon after the condition specified in s 41(3) is satisfied that the court has the discretion to extend time.

41 The court should consider all the relevant matters normally taken into account when considering an application to extend time including those referred to in s 44 as the are all circumstances within which the guardians conduct must be considered pursuant to s 41(3), however unless the court is satisfied that in those circumstances it was unreasonable for the plaintiff's guardian not to commence the action within the limitation period it cannot grant an extension of time.

42 I do not consider that there is a burden of proof on either an applicant or respondent, the question is whether having considered all of the circumstances the court is satisfied it was unreasonable for the plaintiff's guardian not to commence the action within the limitation period.

The steps taken by the Plaintiffs guardian to pursue her claim

43 Before the introduction of the 2005 Act the plaintiff's guardian sought legal advice.

44 He first consulted solicitors on 4 July 2003 and subsequently instructed them to obtain the plaintiff's medical records from Princess Margaret Hospital and St John of God Hospital. These records were received by August 2003. He was advised the limitations period expired six years from the date the plaintiff turned 18.

45 In October 2003 the guardian commissioned an experts opinion to investigate the alleged negligence of the first and second defendants. That report was received in March 2004.

46 He consulted the same solicitors on 19 March 2004 and provided instructions to forward letters of demand to both defendants notifying them of the plaintiff's intention to claim damages. He was advised on that date the plaintiff's claim could not be quantified as she was only aged 9 and she would have to wait until she turned 15 or 16 to determine whether there was any loss of earning capacity and was told again the limitations period would expire six years from the date the plaintiff turned 18.

47 At that time the advice was correct as the 2005 Act had not been passed.

48 However by the time the guardian consulted the solicitors again on 30 November 2009 the 2005 Act had been enacted.

49 On the 30 November 2009 the guardian was advised that the plaintiff's claim could not be quantified until there was a decision made on her career path and that they should wait until the end of year 12 (2011) before a decision was made to launch legal action.

50 The guardian met with the solicitors again on 12 January 2012 and was advised that the plaintiff should be examined by an upper limb specialist and a rehabilitation physician for updated medical opinions.

51 On the 12 April 2012 the guardian was told there was a potential Limitations problem and advised to apply for an extension of time under the 2005 Act immediately and he promptly made the current application.

Was it unreasonable for the plaintiff's guardian not to commence the action within the time period?

52 It is clear the guardian obtained and relied on the legal advice and the guardians conduct cannot be said to be unreasonable.

53 The uncontradicted evidence of the guardian is that he was advised by the solicitors up until 12 April 2012 that the limitations period expired on the plaintiffs 24th birthday and that legal proceedings against the defendants should be delayed until a proper assessment of the quantum of damages could be made and that could not be made until the plaintiff's loss of earning capacity could be ascertained and updated medical opinions obtained from medical specialists.

54 The second defendant pointed out that a reasonable course of action open to the plaintiff would have been to commence proceedings within the limitation period and (1) not serve the writ until close to the time it ceased to be valid for service, or (2) apply for a stay of proceedings until the plaintiff's injuries stabilise, or (3) apply for the issue of liability to be determined prior to the assessment of damages so as to not cause the defendants' prejudice due to the passage of time prior to trial.

55 The second defendant submitted the failure to advise the plaintiff's guardian of these options meant that the legal advice given to the guardian was unreasonable however that was a different question from whether the guardian acted unreasonably.

56 In my opinion there is absolutely nothing to establish that the plaintiff's guardian acted unreasonably.

57 I reject the suggestion that as the guardian consulted a lawyer those lawyers were the guardian agents and therefore the acts of the agent bound the guardian such that if the agent's advice was unreasonable and the guardian acted on that advice the guardian acted unreasonably.

58 Section 41(3) focuses on the acts of the guardian not those he seeks advice from. The guardian's acts in obtaining and relying on the legal advice provided were not unreasonable, on the contrary his actions were at all times reasonable.

59 In light of the legal advice received by the guardian I am not satisfied in the circumstances it was unreasonable for him not to commence the action within the limitation period and accordingly an extension of time cannot be granted.

60 I add that I do not consider the delay in commencing the proposed action would unacceptably diminish the prospect of a fair trial or significantly prejudiced the defendants. Significant, in this context, I take to mean prejudice that is of importance or of consequence.

61 I accept delay must inevitably create some prejudice.

62 In civil and criminal trials the courts regularly deal with cases involving witnesses asked to recount events occurring many years previously. The court's experience shows fact finders are able to determine the facts of these types of cases notwithstanding the delay.

63 I accept that the defendants would be prejudiced however there is no evidence indicating records have been lost or destroyed. The evidence establishes the first notification of this claim was given to them in 2004 and, although 10 years after the events in question, at a time when the 1935 Act applied and within the then limitation period which potentially exposed the defendants to events occurring up to 24 years previously.

64 I do not consider that the prospects of a fair trial have been unacceptably diminished or the defendants would be significantly prejudiced if an extension was granted and whilst I accept the plaintiffs conduct is blameless, as was her guardians, as I am not satisfied in the circumstances of this case it was unreasonable for a guardian not to commence the action within the limitation I am unable to grant an extension of time.

65 Accordingly the declarations and orders I make are as follows:

1. Section 7 of the Limitation Act 2005 does apply to the plaintiff's cause of action;
2. The plaintiff's application for leave to commence an action against the first and second defendants is dismissed; and
3. The plaintiff pay the costs of the first and second defendants to be taxed if not agreed.