BETWEEN : TAHLIA BURNS (by her next friend DAVID BURNS)

Limitation Act 1935 (WA), s 47A

Limitation Act 2005 (WA), s 7

Asher-Relf v Minister of Health [2009] WADC 202

Bingham v England (1996) 17 WAR 226

Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269

Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348

Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

1 COMMISSIONER GETHING: By writ filed 18 October 2011 the plaintiff claimed damages against the Minister for Health and others arising out of injuries sustained at her birth at King Edward Memorial Hospital on 21 April 2004. The Minister for Health is responsible for the management and control of King Edward Memorial Hospital. The second and third defendants were midwives working at the hospital, and the fourth defendant was a medical practitioner at the same hospital. The plaintiff sues by her father as her next friend.

2 By application filed 4 November 2011, the plaintiff sought leave to commence the action pursuant to the Limitation Act 2005 (WA) (2005 Act) s 39, s 41 and s 42. The first defendant accepts that it would be vicariously liable for the second, third and fourth defendants if the act complained of occurred in the course of their employment with it.

3 The plaintiff's position is that the limitation period in relation to her cause of action had not expired by 15 November 2005, being the date on which the 2005 Act commenced. That being so, by 2005 Act s 7, the relevant limitation period expired six years from the commencement of the 2005 Act, being 15 November 2011, and the action was validly commenced prior to this date. The defendant's position is that the limitation period expired prior to the commencement of the 2005 Act, and by 2005 Act s 7(2) no action could subsequently be commenced. The resolution of the issue turns on the construction of the Limitation Act 1935 (WA) (1935 Act) s 47A.

4 As a general rule, the limitation periods provided for under the 2005 Act apply only to causes of action that accrue on or after commencement day: s 4(1). This general rule is subject to s 7 and s 8: s 4(2).

5 Section 7 of the 2005 Act contains a specific provision for actions for personal injuries relating to childbirth:

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.

6 It is common ground that the plaintiff's cause of action is a 'cause of action (childbirth)' for the purposes of s 7.

7 The commencement day for the 2005 Act is 15 November 2005. It was accepted by the parties that the cause of action accrued on 21 April 2004. The cause of action thus accrued before the commencement day.

8 For the purposes of s 7(2)(a), six years from the commencement day is 15 November 2011. The present action was commenced on 18 October 2011. The present action does not fall within s 7(2)(a).

9 The key issue is whether the cause of action falls within s 7(2)(b):

[T]he limitation period that would have applied but for this section action has expired.

10 If the cause of action is not within s 7(2), then the cause of action could not be commenced.

11 2005 Act s 7(2)(b) directs the court to inquire as to what limitation period would have applied but for the operation of s 7. The answer to this question lies in 1935 Act s 47A.

12 The ongoing operation of the 1935 Act is governed by the Limitation Legislation Amendment and Repeal Act 2005 (WA) (Repeal Act). Part 2 of the Repeal Act reads as follows (so far as is relevant):

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.

13 The operative provision of the 1935 Act is s 47A, which is in the following terms (so far as is relevant):

47A. Protection of persons acting in execution of statutory or other public duty

(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless -

(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and

(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued,

and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues.

(2) A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given.

(a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.

(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.

(c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made.

(a) In this section person includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown.

(b) This section is to be construed so as not to affect the provisions of the Crown Suits Act 1947.

14 It is common ground between the parties that each defendant is a 'person' within the meaning of 1935 Act s 47A(4)(a) and is sued in respect of neglect or default in the execution of a public duty or authority within s 47A(1), so as to make the action one which would fall under that section.

15 The plaintiff (through the next friend) did not write to the Minister for Health notifying him of an intention to make a claim until May 2011. The circumstances surrounding this delay are set out in the affidavit of the plaintiff's father sworn 4 November 2011.

16 The action was not commenced within the 12 months required by 1935 Act s 47A(1)(b).

17 Where an action to which s 47A applied was not commenced within 12 months, the plaintiff may apply to the court for leave to bring the action: 1935 Act s 47A(3). The application has to be made, and the action commenced, before the expiration of six years from the date on which the cause of action accrued. Had the 2005 Act not been enacted, the plaintiff would have had to have made the extension application, and commenced the action, by 21 April 2010.

18 The plaintiff construed s 47A as providing a six-year limitation period subject to 'some procedural steps' (par 4, submissions).

19 The defendant construed s 47A as providing a one-year limitation period, subject to the right to seek the leave of the court to extend this period, provided the application was made, and the action commenced, within six years of the date of accrual.

20 The leading case on the construction of s 47A is the decision of the five-member Full Court in Matheson v Commissioner of Main Roads [2001] WASCA 402; (2001) 25 WAR 269. In that case, the plaintiff had filed and served an application pursuant to s 47A 4 days before the expiration of six years from the date on which the cause of action accrued. A District Court judge was able to hear the application before the expiration of the six-year period, but refused to grant leave. The plaintiff appealed to the Full Court, which was heard after the expiration of the six-year period.

21 The issue before the Full Court was whether it had the power to make an order granting leave pursuant to s 47A(3). The appellant (plaintiff) argued that what was required by s 47A(3), was that the application was made 'before the expiration of six years from the date on which the cause of action accrued'. Murray J, with whom the other four members of the court agreed, disagreed. His Honour held that what must be sought is leave 'to bring an action at any time before the expiration of six years from the date on which the cause of action accrued' [25]. His Honour stated at [45]:

It is therefore my opinion that the ordinary and natural meaning of s 47A is that if leave is to be granted it must be granted prospectively. No question of backdating the grant of leave or making the order nunc pro tunc can arise because no matter what date leave was granted from, the clear purpose and intention of the legislation is that what may then be done with leave is the bringing of the action and the writ would then need to issue or the other appropriate proceedings would need to be instituted. If by that time the six-year period has expired, then no grant of leave may be effectively made because the action has become statute-barred upon the expiry of the six-year period.

22 The court did not deal specifically with the effect of a failure to bring an action within 12 months as required by s 47A(1)(b). The following general comments of Murray J are, however, apposite [24] - [25]:

Section 47A imposes a special limitation of action. In common with all other provisions of the Limitation Act, including particularly the general provisions of s 38, the crucial act which must be performed within the limitation period is the commencement of proceedings in pursuit of an accrued cause of action. So it is that s 47A(1) provides simply that 'no action shall be brought ...' unless within the terms of the section. In common with the other provisions of the Limitation Act, a failure to bring the action within the period allowed effectively extinguishes the cause of action, not substantively, but by an absolute procedural bar. The potential harshness of that consequence upon a dilatory plaintiff is alleviated to an extent by the capacity to grant leave, subject to the action being brought within the further period which may be allowed.

In my opinion, the wording of subs (3)(a) clearly means that if leave is granted, it may in terms of the section allow the plaintiff 'to bring an action at any time before the expiration of six years from the date on which the cause of action accrued'. That remains, in terms of limitation, the operative event. The provision, in my view, reflects a clear statutory policy that after that period, the justice of every case will be best served by not permitting a dilatory plaintiff to ventilate a cause of action against a prospective defendant, no matter what merits his case may be seen objectively to possess. It is at that point that potential injustice to a plaintiff is by the statute outweighed by the interests of the prospective defendant not to be further exposed to the expense and inconvenience of defending an action and not to be exposed to the liability which might arise.

23 His Honour thus interprets s 47A(1) as imposing an absolute procedural bar that effectively extinguishes the cause of action, subject to an application being brought to extend the period. Put slightly differently, it seems implicit in what his Honour states that the effect of non-compliance with s 47A(1) is to extinguish the cause of action unless and until leave is sought and granted to extend it.

24 In Matheson, Murray J followed, and approved, the earlier Full Court decisions in Stevens v Motor Vehicle Insurance Trust [1978] WAR 232, Bingham v England (1996) 17 WAR 226 and Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348.

25 In Stevens v Motor Vehicle Insurance Trust, Burt CJ, with whom the other members of the court agreed, considered the two-stage process of a 12 month initial limitation period with the ability to extend contained in the Fatal Accidents Act 1959 (WA) s 7. His Honour adopted a similar interpretation to that adopted in Matheson: the court's power is to grant leave to commence an action at any time before the expiration of the six-year period. His Honour makes a comment consistent with the view that a cause of action not commenced within 12 months is extinguished:

In this case over six years has elapsed since the date of the death of the person in respect of whose death the cause of action arose. Counsel for the appellant submitted that nevertheless, if leave is now granted to bring the action, the action would be maintainable notwithstanding the fact that it would not be commenced within the six year period. The basis for that submission is the construction which he places upon s 7(2)(c) of the Fatal Accidents Act, the submission being that the words 'at any time before the expiration of six years from the date of the death of the person in respect of whose death the cause of action arose' refer back to and place a time limitation upon the making of the application. I do not read the provision in that way. In my opinion those words condition and limit the power of the court to grant leave to bring the action, that power being to grant leave to bring the action 'at any time before the expiration of' the six year period. Once that period has expired, as it has in this case, the cause of action is extinguished, and finally extinguished, it then being beyond the power of the court to resuscitate it.

It is implicit in the last sentence that if the six-year period had not expired, it would have been within the power of the court to resuscitate it; however, until resuscitated, it is dead.

26 In Asher-Relf v Minister of Health [2009] WADC 202, Stevenson DCJ reviewed in detail the second reading speech for the 2005 Act in relation to s 7. That case also concerned a claim that was a cause of action (childbirth) within 2005 Act s 7. The cause of action accrued on 2 November 1996. In that case, the plaintiff accepted that the limitation period under the 1935 Act had expired. The defendants were entitled to the benefit of 1935 Act s 47A. The action was not commenced within one year of accruing, nor was any application made for leave pursuant to 1935 Act s 47A(3). The issue in that case was whether the plaintiff could obtain leave to commence the action within 2005 Act s 41(1). His Honour held that there was no power the grant leave pursuant to s 41, as the cause of action has expired prior to the commencement of the 2005 Act [61].

27 Stevenson DCJ reviewed in detail the portions of the second reading speech for the 2005 Act relevant to s 7. His Honour concluded on this issue [61] - [67]:

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. This takes into account the fact that the special protections provided by s 47A of the 1935 Act no longer apply to public authorities. At the same time it does not retrospectively take away the substantive legal rights of those defendants where the limitation period had already expired.

In my opinion, s 4, s 5 and s 6 make it plain that the 2005 Act does not change the limitation period that applied under the 1935 Act for any cause of action that accrued before commencement day under the 2005 Act, namely 15 November 2005. 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. Section 7(2) must be read having regard to s 4(1). In my opinion, this informs the intention and meaning of s 7(2)(b) such that, if the limitation period set by s 7(2)(a) expired, then the limitation period is to be ascertained in accordance with s 4(1).

It is not necessary in this case to determine the legal position pertaining to a plaintiff's claim arising out of child birth where the plaintiff's limitation period under the 1935 Act has not expired at the time of commencement of the 2005 Act.

The clause notes in respect of the Limitation Bill 2005 for cl 7 state as follows:

Clause 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.

In my view, Parliament's intention was that cl 7 was not intended to apply or to have any operation if the limitation period had expired under the 1935 Act before 'commencement day'.

Notwithstanding the difficulty in arriving at this conclusion, in my view if parliament had intended to 'revive' childbirth causes of action which had expired under the 1935 Act then this would have been an easy matter for parliament to have drafted and enacted in plain and unambiguous language.

28 In Asher-Relf the issue in the present case did not arise as the commencement date of the 2005 Act (15 November 2004) was more than six years after the cause of action accrued (2 November 1996).

29 The plaintiff submitted that, properly construed, 1935 Act s 47A provides a six-year limitation period subject to 'some procedural steps' (par 4, submissions). As this limitation period had not expired by the commencement of the 2005 Act, and as the action was commenced within six years of the commencement date, s 7(2) posed no bar to the present action being commenced. However, words of s 47A do not lend themselves to this construction. At its core, s 47A(1) provides:

[N]o action shall be brought against any person ... unless ... the action is commenced before the expiration of one year from the date on which the cause of action accrued.

30 As Murray J observes in Matheson, a failure to bring the action within the period allowed effectively extinguishes the cause of action ([24]).

31 The plaintiff also advanced an interpretation of s 7(2)(b) that the reference to 'limitation period' is general enough to include any periods of time in which there was a discretion to extend. In my view this unnecessarily strains the language of s 7(2)(b). The questions which the Court is directed to answer under s 7(2)(b) are straightforward: What limitation period would have applied but for this section? And has it expired? The answer to the first question in relation to a claim falling within s 47A is one year, unless and until the court extends it up to six years.

32 The plaintiff also submitted that under operation of the transitional provisions, 1935 Act s 47A ceases to apply save to set a six-year limitation period. This is because Repeal Act s 4(3) makes the continuing application of the 1935 Act subject, relevantly, to s 7. Section 7(2)(b), the submission continues, simply refers to the limitation period; it does not refer to the procedural provisions that go with it. In my view, if this interpretation were adopted, the relevant limitation period would be one year, as it is only by operation of the procedural provisions that the one year may be extended to six years. Moreover, this interpretation also seems unnecessarily strained. As I have already stated, in my view, s 7(2)(b) directs the court to make straight forward inquiry: What limitation period would have applied but for this section? And has it expired? The answer to the first question in relation to a claim falling within s 47A is one year, unless and until the court extends it up to six years.

33 The two paragraphs of 2005 Act s 7(2) are disjunctive. As I have noted, s 7(2)(a) is not relevant as a bar to commencement. Removing that paragraph, s 7(2) reads:

An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before the commencement day and ... the limitation period that would have applied but for this section has expired.

34 The limitation period that would have applied but for 2005 Act s 7 is that in 1935 Act s 47A. This limitation period expired one year after the cause of action accrued, that is, on 21 April 2005.

35 It cannot be said that the limitation period under s 47A was six years. This is because it is in the discretion of the court as to whether to allow an extension. If no extension were granted, there would be no impact on the limitation period which had by then expired; the legal outcome is the same as if the plaintiff had not made an application for an extension. It is if, and only if, the court extended the limitation period that it could be said that the 'limitation period that would have applied but for this section has [not] expired': 2005 Act s 7(2)(b).

36 I agree with the analysis of the second reading speech for the 2005 Act, in particular s 7, undertaken by Stevenson DCJ in Asher-Relf. His Honour observes that the limitation period for actions against public authorities under the 1935 Act is one year ([53]):

From the above extrinsic materials it can be seen that s 7 needs to be understood in the context of the limitation periods under the 1935 Act being reduced in time for ordinary defendants, not increased. The reality of course is that, for public authorities and the State as potential defendants, the limitation period as of right is increased from the one year provided under s 47A of the 1935 Act.

37 The limitation period could have been extended to two ways. First, if the cause of action had accrued within a year of the commencement of the 2005 Act, then the 'limitation period that would have applied but for' the commencement of 2005 Act s 7 would not have expired. It would then become six years from commencement by operation of 2005 Act s 7(2)(a). Second, in a case like the present case, it would have been open for the plaintiff to have made an application pursuant to 1935 Act s 47A(3) to have 'resuscitated' the cause of action to allow an action to have been commenced before 21 April 2010, that being a date '6 years from the date on which the cause of action accrued'. The 2005 Act s 7 would thus have allowed the plaintiff to have commenced an action in accordance with the regime in 1935 Act s 47A. However, no such application was made so the relevant limitation period remained one year.

38 The application should be dismissed. I will hear from counsel as to the order which ought to follow and costs.