Limitation Act 2005 (WA) - Application for extension of time to bring proceedings - Test to be applied - Meaning of 'injury' and 'physical cause' in s 39(3)(a) and (b) of the Limitation Act

Limitation Act 2005 (WA)

1 MASTER SANDERSON: By originating summons dated 24 July 2013 the plaintiff sought relevantly the following order:

Pursuant to section 39 and/or 41 and/or 42 of the Limitation Act 2005, the Plaintiff have leave to commence an action against the Defendants for breach of contract and/or negligence, arising out of the delivery and birth of the Plaintiff at Attadale Private Hospital, Attadale in the State of Western Australia on or about 7 August 2001.

2 The application was supported by an affidavit of Andrew Nigel Dixon affirmed 27 September 2013. Mr Dixon is the father of Layne and is her duly appointed next friend. Mr Dixon and his wife Amanda were married in December 1999. After the couple found Amanda was pregnant they consulted the first defendant an obstetrician. The pregnancy appears to have been relatively uneventful. Mrs Dixon attended all prenatal appointments with the first defendant. She discussed with the first defendant the possibility of delivery be caesarean section. The first defendant indicated a natural birth was preferable and there was no reason why a caesarean would be necessary. Mr Dixon says prior to Layne's birth both he and his wife were assured both mother and baby were healthy and there were no complications. The first defendant operated from Attadale Private Hospital. That hospital is operated by the second defendant. It was at Attadale Private Hospital Mr and Mrs Dixon chose for the birth.

3 Mrs Dixon was admitted to Attadale Private Hospital on the morning of 7 August 2001 and labour was induced. Layne was born at 11.30 that evening. Mr Dixon says at one point during the labour both he and his wife noticed that the CTG machine did not appear to be working properly. Mr Dixon mentioned this to the hospital staff who were unconcerned. The hospital staff also advised the first defendant of the failure of the machine but no remedial action was taken.

4 When Layne was born she was floppy and not breathing. The medical staff worked for 10 minutes on Layne immediately after she was born. Layne was revived and the medical staff gave her to Mrs Dixon to hold. Mr Dixon says no one mentioned to him Layne had suffered any injury. Later that evening Layne was transferred to the neonatal unit at the hospital. During the course of the night medical staff informed Mr and Mrs Dixon that they thought Layne may be having seizures. Both parents asked the staff why this might be so. The staff indicated they did not know. The position was sufficiently serious to require Layne's transfer to Princess Margaret Hospital, and she remained in that hospital for a number of days.

5 While at Princess Margaret Hospital Layne had a CT scan and an EEG performed. Mr Dixon says at the time he was told Layne was fine. This does not accord with the medical records from Princess Margaret Hospital which appear as annexure ANDA 5 to Mr Dixon's affidavit. Those records say amongst other things Layne's 'ultrasound and CT scan of head showed cerebral oedema'. They also say that 'EEG was abnormal as it showed burst suppressionlike activity in the background'. It is important to note it was Mr Dixon's evidence that he was told none of this while Layne was in Princess Margaret Hospital. The first time he saw these records was, he says, in 2012.

6 After her discharge from Princess Margaret Hospital Layne returned to Attadale Private Hospital. Layne and Mrs Dixon remained in hospital until about 15 August. At that stage, according to Mr Dixon, neither parent had reason to suspect there had been any permanent damage.

7 As time passed Mr Dixon and his wife became increasingly concerned about Layne's progress. They felt she was not developing as she should have. They were reassured by their paediatrician, Dr Corrado Minutillo, that Layne's progress was fine. However when Layne was 10 months old Dr Minutillo referred Layne for physiotherapy and to the Developmental Clinic at Princess Margaret Hospital. The Developmental Clinic informed Mrs Dixon Layne was 'developmentally delayed'. However this was not seen to be a problem. Rather it was thought to be within the normal range of developmental delay. But Mr and Mrs Dixon remained concerned. Eventually Layne was referred to the Early Intervention Clinic at Princess Margaret Hospital in November 2002. The Early Intervention Clinic informed Mr Dixon they had assessed Layne as being globally delayed across the board including motor skills and speech. Although concerned Layne's development was delayed Mr and Mrs Dixon were happy that Layne was receiving assistance. Furthermore in the months following the referral Layne appeared to be improving.

8 Mr Dixon says at some point in 2003 a medical practitioner informed him he thought the Cerebral Palsy Association could provide further assistance to Layne when she was older. Mr Dixon says he was not advised at this time Layne had cerebral palsy. In June 2003 Layne was formally referred to the Cerebral Palsy Association by the Early Intervention Clinic. Appearing as annexure ANDA 8 to Mr Dixon's affidavit is a copy of the referral letter from the Early Intervention Clinic to the Cerebral Palsy Association. Mr Dixon did not see this letter he says until 2012. At the handover appointment with the Cerebral Palsy Association Mr Dixon and his wife were advised that Layne had cerebral palsy. He was shocked. This he says was the first time anyone had told him Layne had such a disability. Prior to that various medical practitioners had simply informed him Layne's development was 'delayed'.

9 Layne has cerebral palsy with quadriparesis. Layne's primary symptoms are spasticity in all four limbs. This affects her fine motor skills and speech. Her problems with speech make it difficult for people who are not familiar with her to understand her. Intellectually Layne appears to be a little below average for her age. She is now in year 6. At present it is unclear how she will develop intellectually. As might be expected Layne requires extensive ongoing treatment.

10 Between pars 59 80 of his affidavit Mr Dixon deals in detail with his knowledge of Layne's condition over time. Mr Dixon confirms it was not until Layne was seen by the Cerebral Palsy Association he became aware his daughter had the condition. He was satisfied, based upon what he had been told, it was simply a case of development delay. He says neither he nor his wife were advised how the condition may have arisen. After the diagnosis of cerebral palsy Mr and Mrs Dixon did ask from time to time what the possible causes of the condition might be. He says he was advised by medical practitioners and others they did not know. After a while he and his wife stopped asking the questions. Mr Dixon says he and his wife were more concerned about obtaining treatment for Layne than they were about knowing the cause of her condition.

11 After Layne was referred to the Cerebral Palsy Association she started receiving treatment from a 'conductive therapist' named Ildiko Szivek. According to Mr Dixon conductive therapy is 'an alternative holistic type of treatment'. Ms Szivek at some point between 2003 and 2006 advised Mrs Dixon on a number of occasions she (Ms Szivek) was of the view that Layne's condition was caused by events during Layne's birth. Mr Dixon says although these comments were made over a three year period he did not act upon them for a number of reasons. Principally this was because Ms Szivek was not a medical practitioner and Mr Dixon and his wife had been assured by various medical practitioners and other health professionals that neither the first defendant nor the hospital staff were at fault. Furthermore Layne's condition was improving and that was the focus of Mr and Mrs Dixon's attention. Mr Dixon also mentions financial constraints as being a reason why he did not seek legal or medical advice.

12 This changed in 2006. Mr Dixon consulted solicitors. The solicitors obtained an opinion from Professor Con Michael. That opinion is dated 23 October 2006 and appears as annexure ANDA 9 to Mr Dixon's affidavit. Mr Dixon says he was informed by his solicitors it was Professor Michael's opinion neither Dr Clarke nor the medical staff at Attadale Private Hospital had acted inappropriately. On that basis Mr Dixon did not take the matter further.

13 In May 2012 (that is some six years later) Mr and Mrs Dixon were contacted by the same solicitors. They suggested a further medical opinion. An opinion was obtained from a Professor Gustav Dekker. That opinion appears as annexure ANDA 10 to Mr Dixon's affidavit. In summary Professor Dekker was of the view Layne's condition was consistent with the deprivation of oxygen during childbirth. He was further satisfied neither the first defendant nor the medical staff employed by the second defendant had acted in accordance with accepted medical practice. As a consequence the failure to recognise a deterioration in Layne's condition during labour led to cerebral palsy. Mr Dixon says this was the first time he had realised the actions of the first defendant or the medical staff at Attadale Private Hospital could have been responsible for Layne's condition.

14 Mr Dixon was crossexamined on his affidavit. Counsel's line of questioning was understandably directed at attempting to establish when Mr Dixon first became aware of Layne's condition and the possibility the first defendant and the medical staff employed by the second defendant might have been responsible. Effectively counsel put it to Mr Dixon it was inconceivable he (Mr Dixon) would not have asked questions when Layne's development problems emerged.

15 Two things emerged from crossexamination of Mr Dixon. First I am satisfied he was a witness of truth. He answered all questions in crossexamination as best he could and he was in no way evasive. It was also apparent how deeply he felt for his daughter and how concerned he was about her condition. None of the answers he gave in crossexamination diminished from his written evidence. I am satisfied the affidavit evidence should be accepted in its entirety.

16 The second point to make is that it is extremely difficult in circumstances such as the present to draw from crossexamination alone a conclusion a witness is not telling the truth. It might be different if there had been evidence perhaps from the medical staff present at the birth that they had told Mr and Mrs Dixon of the problems which had arisen and the possible consequences thereof. But this is an application which by its nature is limited in scope. An avalanche of affidavits and crossexamination on those affidavits could turn an extension of time into a full blown hearing. That is to be avoided at all costs. But it does mean in a case such as this the evidence of Mr Dixon must be taken in isolation. For that reason I considered very carefully the nature of the evidence and the responses in crossexamination. Even then I was satisfied Mr Dixon was a witness of truth and his evidence should be accepted.

17 Section 39 of the Limitation Act 2005 (WA) is in the following terms:

1. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959

(1) A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.

(2) A plaintiff may apply to a court for leave to commence an action under the Fatal Accidents Act 1959 for damages relating to the death of a person even though the limitation period provided for under this Act has expired.

(3) On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues -

(a) was not aware of the physical cause of the death or injury;

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

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

(4) On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware -

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

(c) of the identity of the person mentioned in paragraph (b).

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

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

(c) in the case of an action under the Fatal Accidents Act 1959 to be brought by a personal representative of a deceased person, means the personal representative;

(d) in the case of an action under the Fatal Accidents Act 1959 to be brought by a person under section 9(1) of that Act, means that person;

(e) in the case of an action of a kind to which the Law Reform (Miscellaneous Provisions) Act 1941 section 4 applies, means either the deceased person or a personal representative of that person.

18 Before dealing with this section in detail I should note matters which are not in dispute:

(1) in terms of s 39(1) the limitation period in s 7 has expired;

(2) in terms of s 7(2) of the Act, the commencement day was 15 November 2005;

(3) by reason of s 7(4) the plaintiff's cause of action accrued on 15 November 2005;

(4) in terms of s 7(2)(a) this action was not commenced within six years of 15 November 2005;

(5) in terms of s 7(2)(b) the limitation period that would have applied (as to which see s 6(2)) has also expired;

(6) the relevant time for determination of the matters in s 39(3)(a) and (b) was 'when the limitation period expired' - 15 November 2011.

19 The use of the word 'aware' in a statute is unusual. If the phrase 'knew or ought to have known' was used there would be no difficulty in deciding the present case. Such a phrase imports an objective test. But here the test is clearly subjective - it is the state of mind of Mr Dixon that is important.

20 Section 39 of the Limitation Act is unique to Western Australia. Decisions from other jurisdictions are consequently of little assistance. It would appear the section has only been considered once in this state, and that was by Keen DCJ in Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31. His Honour said:

From that analysis it seems to me reasonably clear that the words in s 39(3)(b) Limitation Act 'attributable to the conduct of a person' does not require knowledge to the extent that a plaintiff is aware that the facts giving rise to the injury will support, as a matter of law, a claim in negligence or otherwise. It seems clear to me that all that is required is for a plaintiff to know that his or her injury was the clear and direct result of an act or omission on the part of another [132].

21 With respect that analysis seems to me to be correct. The Macquarie Dictionary defines 'aware' as 'cognisant or conscious; inform'.

22 The difficulties in interpreting s 39(3) do not stop there. Section 39(3)(a) and (b) both refer to 'the physical cause of ... the injury'. There can be a number of different interpretations of that phrase. By way of example, if an individual is involved in a motor vehicle accident, as a consequence of which his head comes into contact with the steering wheel, he suffers a head injury. The consequences of that head injury may be anything from intermittent headaches to severe brain damage. There are at least two possible ways of applying s 39(3) to this scenario. The 'injury' might be the blow to the head. The 'physical cause' of the injury must be the collision. The alternative interpretation is to say 'the injury' are the headaches or the brain damage which afflict the victim. The 'physical cause' of that injury is the blow to the head.

23 There is nothing in the structure of the section which favours one or other of these possible interpretations. During the course of their submissions both counsel referred to the decision of Dobbie v Medway Health Authority [1994] EWCA Civ 13; [1994] 1 WLR 1234. The facts of that case taken from the headnote are as follows:

In April 1973 the plaintiff was admitted to hospital for the removal of a lump in her breast. During the operation, the surgeon considered the lump to be cancerous and performed a mastectomy. Subsequent microscopic analysis showed that the growth was benign. The plaintiff was devastated by the effect of the mastectomy and suffered consequent psychological illness, but she accepted the view of the surgeon that she was fortunate that the growth had not proved to be malignant. In May 1988 the plaintiff heard of a similar case in which a surgeon had been held to have been negligent in removing a breast and appreciated, for the first time, that her breast need not have been removed until the lump had been microscopically examined and found to be malignant. On 5 May 1989 the plaintiff issued proceedings against the defendant health authority, claiming damages in respect of the negligent performance of the operation in 1973. In its defence, the health authority contended that the plaintiff's claim had arisen more than three years before the issue of proceedings and that her cause of action was accordingly timebarred.

24 The limitation statute the Court of Appeal was dealing with is so fundamentally different from the Limitation Act that no direct parallel can be drawn. But some of the comments of the Master of the Rolls, Sir Thomas Bingham, are relevant. His Lordship said:

The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all times, reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority's act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run (459).

25 What is of interest about this passage is that the Master of the Rolls saw the injury as being the removal of the breast. It was not the psychological damage which followed. To adapt that reasoning to the case of the motor vehicle accident it would have to be said it was the blow to the head which was the injury. The physical cause of the injury was the motor vehicle collision.

26 It seems clear in this case the cause of Layne's present disability is hypoxic ischaemic encephalopathy. The medical evidence available is necessarily limited. That diagnosis is found on the discharge summary from Princess Margaret Hospital which appears as annexure ANDA 5 to Mr Dixon's affidavit. If that can be correctly said to be the injury then it cannot be said Mr Dixon had an awareness of the physical cause of that injury. Indeed from the evidence that is presently available it is by no means clear what the 'physical cause' of the injury may be. Based on the report of Professor Dekker it may be the plaintiff will allege it was the negligence of the defendants which gave rise to the physical cause of the injury. But it is equally possible nothing done by the health professionals affected the position. We are not hear dealing with causation. What is at issue is the awareness of Mr Dixon of the physical cause of the injury.

27 Counsel for the defendants contended I should make three crucial findings in the defendants' favour. First, that on or as at 15 November 2011 Mr Dixon knew that Layne had cerebral palsy. As I have indicated above that, to my mind, is not the test. That is not the 'injury' referred to in s 39(3). So although I would make that finding it does not advance the defendants' position.

28 Second, it was submitted I should find Mr Dixon suspected the cerebral palsy was caused by events at Layne's birth. As I have indicated that is not the proper test. The defendants, to advance their position, would need to have me find that Mr Dixon was 'aware' that the hypoxic ischaemic encephalopathy was caused by events at Layne's birth. As I have indicated I am not so satisfied. Mr Dixon said he was not aware of the diagnosis and had not been told by any medical or health professional this was the position. It is true that the plaintiff appears to have been provided with a report from Health West dated 1 August 2002 which refers to the diagnosis: see annexure ANDA 6 to Mr Dixon's affidavit. During the course of crossexamination Mr Dixon was unable to say what became of that report or if he had seen it. While the fact the report appears to have been copied to Mr and Mrs Dixon, and it is evidence in favour of concluding Mr Dixon was aware of the diagnosis, I am not satisfied weighing all of the evidence in the balance he did know of the 'injury'.

29 But even if Mr Dixon did know the nature of the 'injury' sustained by Layne he did not know what the physical cause of that injury was. After he received the report of Professor Michael he had no reason to believe the defendants were at fault. Given the fact the test to be applied is subjective and given the clear evidence of Mr Dixon I am not satisfied he was 'aware' of the 'physical cause' of Layne's injury.

30 It follows I am satisfied the plaintiff falls within the provisions of s 39(3)(a) and necessarily (b) of the Limitation Act. It was not suggested there was any other objection to leave to commence proceedings being granted. Accordingly I would make orders largely in terms of the originating summons. However there should in my view be a temporal limitation in par 1 to ensure that proceedings are issued within a specified period. As to costs they can either be reserved or the costs of this application will be costs in any proceedings the plaintiff may issue.