Opbroek bhnf Crittall v Australian Capital Territory [2016] ACTSC 64 (8 April 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Opbroek bhnf Crittall v Australian Capital Territory

[2016] ACTSC 64

PRACTICE AND PROCEDURE - application for leave to amended statement of claim - medical negligence case - proposed additional claims of negligence - whether Limitation Act 1985 (ACT) s 30B applicable - discretionary considerations - reasons for late amendment - no newly obtained evidence -presumed prejudice to defendant - application refused

STATUTORY INTERPRETATION - Limitation Act 1985 (ACT) s 30B - meaning of "a child (the plaintiff) suffers personal injury" for the purposes of s 30B(1) - at what point does a child plaintiff suffer personal injury - injury must be suffered post birth - pre-birth injury only relevant as part of evidentiary chain leading to post birth injury

Acts Interpretation Act 1901 (Cth), s 15AA

Court Procedures Rules 2006 (ACT), rr 501, 502, 503

Human Rights Commission Act 2005 (ACT), s 7

Legislation Act 2001 (ACT), ss 5, 6(3), 7(3), 138, 139, 142, 144, 160, Dictionary

Limitation Act 1985 (ACT), ss 30, 30B

Alcan (NT) v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Barrett v Coroner's Court of South Australia (2010) 108 SASR 568

Burow v The Queen [2015] ACTCA 61

Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138

Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

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

Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104

Golski v Kirk (1987) 72 ALR 443

Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52

Haureluik v Furler (2012) 259 FLR 28

Kenjar v ACT [2014] ACTSC 69

Kennedy v Anti-Discrimination Commission of the Northern Territory [2006] NTCA 9; (2006) 226 FLR 34

Lynch v Lynch (1991) 25 NSWLR 411

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

Montgomery v Lanarkshire Health Board [2015] UKSC 11

Naidu v Fergusson [2013] ACTSC 208

Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57

R v Fearnside [2009] ACTCA 3; (2009) 228 FLR 77

R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681

Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514

Re Estate of the Late K (1996) 5 Tas R 365

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871

Smith v ACT [2015] ACTSC 7

Talbot v Norman [2012] FamCA 96; (2012) 46 Fam LR 530

Watt v Rama [1972] VicRp 40; [1972] VR 353

X and Y (By her tutor X) v PAL (1991) 23 NSWLR 26

Thomson Reuters, The Laws of Australia, vol 33 (at Service 307)

D C Pearce and R S Geddes (eds), Statutory Interpretation in Australia (Butterworths, 8th ed, 2014)

Australian Capital Territory Government Solicitor (Defendant)

1. By application in proceeding dated 22 January 2016 the plaintiff has sought leave to amend her Statement of Claim. The proceedings are medical negligence proceedings relating to the plaintiff's birth. The plaintiff was born on [date redacted] September 2004. The proceedings were commenced by the plaintiff acting through her litigation guardian on 3 September 2010.

2. In support of the application the plaintiff read two affidavits of her solicitor, Mr Freer, dated 21 January 2016 and 15 March 2016. The plaintiff also tendered a bundle of medical records which became Exhibit 1.

3. The defendant read two affidavits of its solicitor, Mr Bayliss, dated 23 February 2016 and 17 March 2016.

4. The Statement of Claim alleges negligence on the part of the defendant arising after the time the plaintiff's mother presented at the Canberra Hospital on the evening before the plaintiff was born. The essential allegation is that the staff of the defendant should have, but did not, perform an emergency Caesarean section earlier than the Caesarean section that was ultimately performed. The pleading points to various features of the plaintiff's mother's presentation which collectively are alleged to have made the delay in performing a Caesarean section a breach of duty.

5. The proposed Amended Statement of Claim pleads more fully the facts relied upon in relation to the originally pleaded claim, as well as articulating additional causes of action. In so far as the amendment to the pleading is merely to more completely plead the facts relating to the original cause of action, the amendments are not opposed by the defendant. However, the amended pleading also makes three additional claims of negligence arising prior to the presentation of the plaintiff's mother at the hospital on the evening before the plaintiff's birth.

6. The first and second additional allegations are that at her mother's initial assessment on 10 March 2004 and at a subsequent attendance at the hospital on 18 August 2004 the staff, in summary:

(a) failed to ensure that her mother was aware of material risks involved in any proposed management or treatment;

(b) failed to inform her mother of any reasonable alternative or variant form of management or treatment;

(c) following her mother's specific request for a Caesarean delivery, failed to discuss with her mother and take all reasonable steps to ensure that her mother was aware of any material risks involved in a Caesarean delivery;

(d) failed to permit her mother to decide which if any of the proposed methods of birthing to proceed with;

(e) failed to obtain from her mother her properly informed consent for the method of birth she wished to proceed with.

7. The third additional allegation is that the staff of the hospital failed at any time between 18 August 2004 and the date of her presentation at the hospital to take any of the steps outlined above or to "take steps for the delivery of [the plaintiff] by Caesarean section, upon following [her mother] reaching 39 weeks gestation" (proposed Amended Statement of Claim [2](e)(vi)).

8. Thus, the amended pleading would open up the management of the pregnancy of the plaintiff's mother in the six months prior to the plaintiff's birth. Specifically, it would open up the conduct of the defendant in relation to the provision of advice on 10 March 2004 and 18 August 2004, as well as alleging that the failure to arrange an elective Caesarean section in the period 18 August 2004 up until the date of presentation at the hospital in September 2004 was negligent.

9. Material facts relevant to the additional three claims of negligence are also sought to be pleaded (proposed Amended Statement of Claim [1F]-[1T])) and the pleading of those facts is opposed by the defendant.

10. Finally, even if the plaintiff is not permitted to amend the pleadings so as to include the three additional claims of negligence, the plaintiff wishes to plead those same facts in order to provide a context or background to the allegations of negligence relating to [date redacted] September 2004. The defendant opposes the inclusion of those additional facts, even if leave to include the plaintiff's additional claims of negligence is refused.

11. The plaintiff submits that the claim was filed in circumstances where there was incomplete information available to the plaintiff. She submits that she has now had full discovery and the benefit of expert opinions from:

(a) Professor Philip Baker, a consultant obstetrician from Auckland;

(b) Professor Ross Keenan a consultant neuroradiologist from Auckland; and

(c) Professor Simon Mitchell a consultant neonatologist from Manchester, England.

... it was not until the provision of the further documents after full discovery, their consideration by Senior and Junior Counsel, and the obtaining of and considering the effect of the reports of Professor Baker, Professor Keenan and Professor Mitchell, that the matters referable to the antenatal care of the plaintiff's mother became sufficiently clear, and were appreciated to be matters of significance in relation to the Claim generally.

13. The plaintiff contends that the present application falls for consideration under rr 501 and 502 of the Court Procedures Rules 2006 (ACT) (CPR), as the relevant limitation period is that under s 30 of the Limitation Act 1985 (ACT) (Limitation Act) and that period has not yet expired. The plaintiff contends that s 30B has no application to the claim. As the limitation period has not expired, she submits that r 503 has no relevance to the application.

14. The plaintiff submits that leave should be granted because:

(a) the application is brought in good faith;

(b) an explanation for the delay has been given;

(c) the fact that the amendment is of significant importance for the plaintiff;

(d) the fact that in circumstances where the limitation period has not expired the prejudice to the defendant is considered in a different light;

(e) the fact that only presumptive prejudice has been identified;

(f) the fact that the application is not brought at a late stage of the proceedings and in particular it is brought before the defendant has served any of its expert evidence;

(g) the fact that it is not a necessary ingredient under rr 501 and 502 that the amendment arises out of substantially the same facts as the previous claim;

(h) the fact that there are medical records demonstrating the plaintiff's mother's request for an early delivery by way of elective Caesarean section; and

(i) the fact that the proceedings were commenced with incomplete information in order to protect against the perceived expiry of a limitation period.

15. The plaintiff also submitted, relying upon the decision of the United Kingdom Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11 (Montgomery) that this was a "recently developing area of the law". Counsel placed particular reliance upon the concurring judgment of Lady Hale which emphasised the significance of a woman's informed choice in relation to the delivery of her child by "natural and traditional" means or by Caesarean section. Counsel submitted that the judgment was consistent with the proposed claims in so far as those claims emphasised the plaintiff's mother's autonomy and entitlement to make an informed choice as to the method of delivery of her child.

16. The defendant contends that the contested amendments to the pleadings constitute new causes of action. It submits that s 30B of the Limitation Act is applicable and that the limitation period has expired. Therefore it submits that r 503 of the CPR is the applicable rule. It submits that there is no proper explanation for the delay and that matters relating to the provision of discovery did not explain the delay.

17. It further submits that the documentary evidence demonstrates that the plaintiff's mother was clearly aware that a Caesarean section was a course which was available, and there is no expert evidence that the advice given was negligent.

18. The defendant points to the prejudice arising from allegations relating to exchanges between the plaintiff and various members of staff in circumstances where:

(a) because of the nature of the claims, the evidence is that Mr Bayliss did not, upon being served with the claim, take steps to obtain witness statements from those involved prior to [date redacted] September 2004; and

(b) the characterisation of the interactions for the purpose of a claim in negligence are quite nuanced given the precise nature of the exchange, how a reasonable person would understand the request for information and how the information that was given would be likely to have been understood in the circumstances.

19. Section 30 of the Limitation Act is the generally applicable provision relating to persons under a disability. It provides that a person under a disability who has a cause of action in relation to which the limitation period has commenced to run has the limitation period suspended for the duration of the disability. It does not, however, apply to a cause of action which is governed by s 30B: s 30(3). Section 30B provides, relevantly:

30B Special provision in relation to children - claims relating to health services

(a) a child (the plaintiff) suffers personal injury that gives rise to a claim for damages; and

(b) the claim relates to the provision of a health service.

(2) A cause of action for damages in relation to the claim is not maintainable if brought 6 years or more after the day the accident giving rise to the injury happened.

health service - see the Human Rights Commission Act 2005, section 7 (1) and (3) (a).

20. Section 7 of the Human Rights Commission Act 2005 (ACT) provides:

(1) For this Act, a health service is a service provided in the ACT to someone (the service user) for any of the following purposes:

(a) assessing, recording, maintaining or improving the physical, mental or emotional health, comfort or wellbeing of the service user;

(b) diagnosing or treating an illness, disability, disorder or condition of the service user.

(a) a service provided by a health practitioner in the practitioner's capacity as a health practitioner; and

21. The plaintiff contends that s 30B does not apply to the circumstances of the plaintiff because the injury suffered by the plaintiff occurred before the plaintiff was born and, as a consequence, the plaintiff was not "a child" for the purposes of s 30B(1) at the time the personal injury was suffered. The word "child" is not defined in the Limitation Act. In order to understand the submission it is necessary to have regard to various definitions relevant the operation of s 30B.

22. The definitions in Part 1 of the Dictionary in the Legislation Act 2001 (ACT) (Legislation Act), which define commonly used terms, apply to all Acts: s 144. Section 144 is not a determinative provision because it is not declared to be so: s 5. As a non-determinative provision, s 144 may be displaced expressly or by a contrary intention: s 6(3). The Dictionary in the Legislation Act provides the following relevant definitions:

adult means an individual who is at least 18 years old.

child, if age rather than descendancy is relevant, means an individual who is under 18 years old.

_person - _see section 160 (References to people generally).

23. Section 160 of the Legislation Act, referred to in the signpost definition of "person" set out above, provides that a reference to a person generally includes a reference to a corporation as well as an individual.

24. Two points which the plaintiff emphasises about the definition of child are:

(a) it defines childhood temporally by the period since birth; and,

(b) because the term is defined using the word "individual" it relates to a "person".

25. The plaintiff then points to the position at common law which is that a human embryo or foetus does not have legal rights unless and until it is born and has a separate existence from its mother: Re Estate of the Late K (1996) 5 Tas R 365, 367; Barrett v Coroner's Court of South Australia (2010) 108 SASR 568, 573 [22], 598-99 [133]; Talbot v Norman [2012] FamCA 96; (2012) 46 Fam LR 530, 535 [34].

26. The plaintiff also points to the definition of "health service" and identifies the fact that in the present case, in the pre-birth period, the only relevant health service was one which was provided to the plaintiff's mother because at that point the plaintiff's mother was the only relevant "someone" within s 7(1) of the Human Rights Commission Act, that is, a person. It would only be in the post birth period that the plaintiff would be "someone" to whom a service of the relevant kind was provided.

27. In Watt v Rama [1972] VicRp 40; [1972] VR 353 (Watt), a Full Court of the Supreme Court of Victoria held that a plaintiff, who at and after birth suffered injuries caused by the negligent driving of the defendant prior to the plaintiff's birth, had a cause of action in negligence against the defendant in respect of those injuries. That decision resolved some uncertainty about the state of the law in Australia and has been accepted since as stating the common law: X and Y (By her tutor X) v PAL (1991) 23 NSWLR 26; Lynch v Lynch (1991) 25 NSWLR 411; Ren v Mukerjee (unreported, Supreme Court of the ACT, 12 December 1996, 5-6); Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, 146 [407]; Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52, 74 [66], 106 [176], 128 [257]; Laws of Australia [33.2.1380]. In reaching that decision, the Court rejected the submission that the defendant did not owe to the plaintiff prior to her birth any duty because she was not then a human being. The conclusion reached in Watt is the foundation for a cause of action such as that in the present case, where conduct of a defendant in relation to the pre-natal period is relied upon to give a cause of action to a child who has been born alive.

28. In rejecting the contention of the defendant that no duty to the plaintiff could have been owed at the time of the negligence, Winneke CJ and Pape J found that an injury to a pregnant woman and an injury on birth to the child she was carrying were reasonably foreseeable and continued at 360-61:

Those circumstances, accordingly, constituted a potential relationship capable of imposing a duty on the defendant in relation to the child if and when born. On the birth the relationship crystallized and out of it arose a duty on the defendant in relation to the child. On the facts which for present purposes must be assumed, the child was born with injuries caused by the act or neglect of the defendant in the driving of his car. But as the child could not in the very nature of things acquire rights correlative to a duty until it became by birth a living person, and as it was not until then that it could sustain injuries as a living person, it was, we think, at that stage that the duty arising out of the relationship was attached to the defendant, and it was at that stage that the defendant was, on the assumption that his act or omission in the driving of the car constituted a failure to take reasonable care, in breach of the duty to take reasonable care to avoid injury to the child. On this view the fact that damage was done to the embryo or foetus before birth, if such was sought to be established, was not an independent element in the plaintiff's cause of action, but merely an evidentiary facts relevant to the issue of causation.

... it must be emphasised that this action is brought by the infant plaintiff complaining of damage to her as an existing human being. True it is, for the purpose of linking up the defendant's fault with the physical disabilities suffered by her at and after her birth, the plaintiff does aver in para.10 damage to her whilst unborn. But the foundation of the claim is the physical condition of the infant plaintiff after birth and after she had obtained a status enabling her to invoke the jurisdiction of this Court to obtain compensation for a disability existing at and after birth.

30. The significant point about these judgments is that they emphasise that the injury upon which the plaintiff is entitled to sue is that which occurs at birth, at the point where the plaintiff suffers those injuries as a human being and not before. Any damage pre-birth is not an independent element of the cause of action but, merely an evidentiary fact relevant to the issue of causation.

31. The reasoning in Watt compels the conclusion that for the purposes of a cause of action arising from negligence which is alleged to have occurred prior to a childbirth, the relevant injury is only suffered upon birth, namely at the point where a human being comes into existence suffering the consequences of the negligence.

32. The underlying premise of the plaintiff's argument is that the plaintiff suffered her personal injury prior to being "a child" because she suffered an injury prior to birth. Having regard to the decision in Watt, that contention is not correct because the point at which the plaintiff suffers the injury giving her a cause of action is the point at which she was born.

33. Further, in so far as s 30B requires the provision of a health service to "someone", that is satisfied by the provision of a health service to the plaintiff's mother. That is sufficient to satisfy the requirement in s 30B(1)(b) that the claim "relates to" the provision of a health service. That is because the phrase "relates to" is a broad connecting phrase: see the summary of the authorities in Statutory Interpretation in Australia (8th ed, 2014) at [12.7], and it is sufficient to connect the provision of a health service to the plaintiff's mother with the injury to the plaintiff.

34. For these reasons s 30B of the Limitation Act applies in the present case, because what must be alleged is the suffering of injury upon the plaintiff's birth. Any pre-birth injury is only part of the evidentiary chain leading to an individual's injury post birth and hence to an entitlement to sue.

35. In case I am wrong in my conclusion that the reasoning in Watt makes s 30B applicable because the suffering of "personal injury" within the meaning of paragraph 30B(1)(a) only occurs upon the birth of the plaintiff, and instead personal injury for the purposes of the section can be suffered pre-birth, I will consider the context in which the section appears (including extrinsic materials) in order to determine how it should be interpreted. Essentially the question that then arises is whether the word "child (the plaintiff)" is confined, as the Legislation Act indicates, to "a person" or whether a contrary intention is demonstrated so as to permit the section to be interpreted as extending to injuries suffered by a foetus pre-birth.

36. The provisions of ch 14 of the Legislation Act apply both in relation to an Act as a whole and as well as a provision of an Act: s 7(3). Section 138 defines the meaning of "working out the meaning of an Act" as meaning:

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

37. The interpretation of statutes must be text based. The current approach to statutory interpretation has been described as "text in total context": R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681,687 [13] (Young). "The language which has actually been employed in the text of the legislation is the surest guide to legislative intention" Alcan (NT) v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Alcan).

38. Where language of a statute is "clear" or "unambiguous" then a court cannot depart from that language: Alcan at 46-7 [47], Casey v Alcock (2009) 3 ACTLR 1, [100]-[101] (Casey); Burow v The Queen [2015] ACTCA 61, [37]. Before there is capacity to choose between different interpretations of a provision of a statute there must be "competing interpretations reasonably open": Haureluik v Furler (2012) 259 FLR 28, [23] (Haureluik); Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, 687 [12];. Therefore, it is not open for a court to use extrinsic material to depart from the clear meaning of a provision: Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 517-518. As a consequence, the utility of extrinsic materials is to illuminate the purpose of the statute or the mischief sought to be addressed, rather than to directly indicate the effect of the provision: Haureluik at [30]; R v Fearnside [2009] ACTCA 3; (2009) 228 FLR 77, [60].

39. However, a court is entitled to have regard to the total context of a provision in order to determine whether there is more than one meaning open and hence, if there is, to open up access to interpretation provisions compelling a preference to be given to an interpretation that gives effect to the legislative purpose. In the Australian Capital Territory, the express reference in s 138 of the Legislation Act to "confirming or displacing the apparent meaning of the Act" is consistent with the approach to interpretation that would be adopted even in the absence of such an express invitation: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Casey at [103].

40. The judgments of Besanko J in Casey at [103] and Fearnside at [60] leave open the issue of whether there is a difference of substance between the duty under s 139 of the Legislation Act to interpret a statute to "best achieve" the purpose of the provision and the duty in s 15AA of the Acts Interpretation Act 1901 (Cth) to prefer a construction that would promote the purpose or object underlying the provision to a construction that would not promote that purpose or object. The difference in wording would suggest that there is a difference, the ACT provision having a greater capacity to distinguish between the degrees to which an interpretation would achieve the purpose of the Act, whereas the Commonwealth provision appears to contemplate a choice which only operates where one of the interpretations does not promote that purpose or object. The remarks of the plurality in Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 262, although not directly addressing a comparison between such statutory provisions, suggests there is a difference. The extent of any difference may not be great in practice because, if it is possible to define the purpose or object of the Act to a sufficient extent to be able to differentiate between the extent to which alternative interpretations achieve that purpose then, it will probably be possible to say that the interpretation which does not "best achieve" the purpose of the Act is one which does not promote that purpose or object.

41. Where legislation strikes a balance between competing interests, it may be unhelpful to refer to general objects of the legislation as the intended balance between those competing interests is often best reflected in the words of the legislation itself and will be distorted by construing it as though the legislature had pursued the generally stated purpose to the fullest extent: Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138, 142-3 [5] (Carr).

42. Where a definition is provided by the Legislation Act then the definition must be applied except so far as it is displaced: ss 6, 144. Because s 144 is not a determinative provision it may be displaced either expressly or by a contrary intention. What is required to establish a contrary intention is not elucidated except to the extent that it is clear that the contrary intention need not be "manifest": cf s 6(2) and to the extent that an example of contrary intention is given at the end of s 6. There is no simple formula for determining when a contrary intention has been demonstrated: Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104, 108 (Mutton). A contrary intention may appear not only from an express or necessary implication, but also from the general character of the Act: Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57, 73-4 [56]. What a court must ultimately do is decide whether it was the intention of the legislature that the statutory provision as to interpretation of the defined term should apply to the particular section: Mutton at 108. A definition will be displaced if a court can conclude that if it had effect the section would operate in a way clearly not intended: Kennedy v Anti-Discrimination Commission of the Northern Territory ; , 39 [29]. These statements reflect the position that arises under , but also as a result of the operation of , which must be given effect to when determining the operation of

43. In interpreting the section, it is permissible to have regard to any explanatory statement for the Bill that became the Act and the official reports of proceedings of the Legislative Assembly in relation to the Bill that became the Act: s 142 and Table 142 items 4 and 6 of the Legislation Act.

44. The Supplementary Explanatory Memorandum for the Civil Law (Wrongs) Amendment Bill 2003 provided in relation to cl 59A, which inserted s 30B, a discussion of the clause, but that discussion does not shed light on the present issue. It is therefore not useful in the present case.

45. The debates in the Legislative Assembly, however, are of some use. During the course of the debate in detail on the provisions of the Bill (Hansard, 21 August 2003, pp 3073-3077) the debates were as follows:

MR STANHOPE (Chief Minister, Attorney-General, Minister for Environment and Minister for Community Affairs) (6.11): I move amendment No 7 circulated in my name [see schedule 2 at page 3089].

Amendment 7 inserts new clause 59A into the bill. Clause 59A will add a new section 30B into the Limitation Act 1985. The ambit of section 30B is the establishment of a special provision in respect of children concerning claims relating to health services. The amendment was requested by the ACT branch of the Australian Medical Association.

The amendment is based on the statute of limitations adopted in Victoria, which for straight-out injury cases limits the commencement of actions to six years from the date of the incident, and for cases where symptoms do not appear for some time, six years from when the symptoms first appear but no more than 12 years from the date of the incident claimed to have caused disease or disability. The 12-year limit can only be extended by the court in the interests of justice. In determining whether the court considers the interests of justice, the court will be required to consider the expert medical evidence, along with other evidence.

Subsection (6) clarifies that section 30B applies to a cause of action that arises on or after 1 July 2003. Under section 30B (7), if the cause of action arose prior to that date then the cause of action is not maintainable after the first to occur of the periods found in paragraphs (a) and (b). Paragraph (a) is the period that would apply to the cause of action under section 30B. If applied to the section, the period in paragraph (b) is the limitation period that applied to the cause of action before 1 July 2003.

46. The points which emerge from this record of the debates are:

(a) the section was inserted at the request of the Australian Medical Association;

(b) the intention of the provision was to reduce the limitation period that would be applicable from the general provision relating to persons under a disability;

(c) specific reference was made to the desirability of limiting incidents relating to birth; and

(d) the legislature gave no specific consideration to the distinction that the plaintiff draws between injuries suffered in utero and those suffered immediately post birth.

47. In my view, it is clear that the mischief that the legislature was addressing was the potential for a very long period during which the running of the limitation period was suspended pursuant to s 30 of the Limitation Act, and hence the very long period of the exposure of doctors and their insurers to claims relating to children. I take judicial notice of the fact that claims relating to the birth of children have the potential to be very large claims because of the catastrophic and lifelong effects of mishaps related to birth.

48. There is no suggestion in the debate in the Legislative Assembly (or in any other extrinsic materials to which regard may be had under s 142 of the Legislation Act) of a distinction between injuries pre-birth and post birth. There is no suggestion in the debates or other extrinsic materials that there would be a category of child plaintiffs in relation to health services who would be excluded from the operation of s 30B because their injuries occurred pre-birth.

49. To adopt an interpretation which treated pre-and post birth injuries in different ways would be contrary to s 139 of the Legislation Act, because it would not achieve, and would certainly not best achieve, the purpose of the legislative provision which is to impose a more limited provision than exists in s 30 in order to reduce the exposure of health professionals to claims by children. This is not a case where to adopt such an approach involves impermissibly imposing a general statement of the legislative purpose onto a finely worked out balance between the interests of competing parties: Carr at 143 [5] . Rather, it involves a choice consistent with s 139 to give the provision an operation consistent with the legislature's intention, in preference to giving it an operation which would both undermine the legislative intention and give rise to arbitrary differences in the operation of that legislation. The arbitrariness would arise because making s 30 the relevant provision for pre-birth injuries and s 30B the relevant provision for post birth injuries would be to place significance on the distinction between pre-and post birth injuries in the limitation provisions when that distinction has no apparent relevance in the light of the policy disclosed in the extrinsic materials, or indeed otherwise.

50. As a consequence, if it were necessary I would interpret the words "a child (the plaintiff)" as including an unborn child who following birth has a claim for damages arising from an injury suffered before birth. To the extent that such an interpretation departs from the definition of "child" in the Legislation Act, I would have been satisfied that a contrary intention was demonstrated having regard to the subject matter of the provision and the extrinsic materials to which regard may be had under the Legislation Act.

51. Because of my conclusion that the limitation period for the plaintiff's claim has expired, the application must be determined in accordance with r 503 of the CPR rather than rr 501-502. This means that, in so far as the application relates to the new causes of action, it is a precondition to the granting of leave to amend that those new causes of action arise out of "substantially the same facts" as the presently pleaded causes of action. In my view, having regard to the decision in Golski v Kirk (1987) 72 ALR 443 each of the additional allegations of negligence involves a new cause of action.

52. As I have pointed out in my decisions in Naidu v Fergusson [2013] ACTSC 208 at [52] (Naidu) and Kenjar v ACT [2014] ACTSC 69 at [45], what constitutes "substantially the same facts" for the purposes of r 503 is, by reason of the words used and the authorities on those words, inevitably a matter of difficulty. The purpose of that threshold test is to reduce the likelihood of prejudice arising from the incorporation of a new cause of action but, as I have pointed out in previous cases, a narrow or broad interpretation of what constitutes "substantially the same facts" is reasonably available. Ultimately, having regard to the conclusion that I have reached, I have not had to finally determine whether or not the new causes of action satisfy this test. My discussion below of the considerations that arise is based on the assumption that the statutory threshold is met.

53. In exercising the discretion under rr 502 and 503, it is relevant to consider the apparent strength of the plaintiff's claim. In the present case no evidence has been put on from:

(a) the plaintiff's mother as to the circumstances of alleged in the amendments to the statement of claim alleging facts relating to the pre-birth period; or

(b) any expert expressing an opinion which supports the contention that the facts alleged would indicate that any of the persons for whom the defendant is vicariously liable breached their duty to the plaintiff.

(a) the facts are largely disclosed by the terms of the medical records in the Exhibit 1; and

(b) the issue of patient autonomy is largely a matter for the Court rather than for the opinion of medical practitioners: cf Montgomery at [83], [115].

55. For the purposes of this application, I treat the plaintiff's proposed additional causes of action as arguable.

56. Unlike Naidu or Smith v ACT [2015] ACTSC 7 (Smith), in this case the necessity for an amendment does not rise out of the actual content of expert opinion obtained during the course of the preparation of the matter for hearing. In Smith the necessity to make the amendment arose because an expert who had been briefed expressed the opinion that although the pleaded grounds for a finding of negligence did not exist, he was of the view that there was indeed negligence for a different reason: Smith at [12]-[19]. In those circumstances, I found that there was a reasonable explanation for the late amendment. In the present case, as I understood the explanation given by Mr Campbell SC, it was that the amendment proposed was made on his advice, that advice being given on the basis of an assessment of the whole of the case including the discovered documents and the expert material that was available to the plaintiff. In my view, the appropriate characterisation of the explanation for the amendment is that it involves a forensic decision as to how to best advance a claim on the part of the plaintiff which, although informed by the totality of the available evidence, was not dependent upon or the result of newly obtained documentary material or expert evidence.

57. The evidence was not such as to indicate that the advice of senior counsel as to this aspect of the pleading could not have been obtained earlier. Further, insofar as the plaintiff relied upon the statements in the decision of the United Kingdom Supreme Court in Montgomery, that was a decision which, in effect, brought the law of the United Kingdom into line with Australian law rather than being a new development of the law which was unable to be earlier pleaded by the plaintiff. The significance of the decision was the abandonment by the Supreme Court of the statement of a doctor's standard of care in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871. In doing so, the members of the Court adopted the approach that had been adopted by the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479: see Montgomery [71]-[73]. While providing a useful articulation of the duty of a doctor to his or her patient (see in particular [81]) and, in the judgment of Lady Hale an articulation of how that relationship applies in the context of decisions about methods of giving birth, the substance of the decision is one which reflects Australian law as articulated since Rogers v Whitaker. The decision is not one which provides an explanation of or justification for the delay in articulating a claim based upon the pre-admission conduct of the defendant.

58. The prejudice to the defendant is identified in the affidavit of Mr Bayliss, dated 23 February 2016, as being the fact that because he was not on notice of allegations relating to the pre-birth period, he did not interview and obtain witness statements from persons relevant to that period immediately after being notified of the claim. His evidence in relation to a complaint lodged by the plaintiff's mother to the Health Services Complaints Commissioner was as follows:

4. In December 2004 the plaintiff's mother lodged a complaint concerning her labour and the delivery of the plaintiff ...

5. I obtained draft statements from some of the staff that were involved in the labour of the mother and the delivery of the plaintiff.

6. I did not investigate the antenatal care provided to the plaintiff's mother as there was no complaint made in that respect.

59. In relation to the situation following service of the Originating Claim on 31 August 2011, Mr Bayliss' evidence was:

11. As a result of the allegations in the Statement of Claim there was no need to investigate any aspect of the care given by the Territory at any date or time earlier than that pleaded in the Originating Claim.

...

15. I have a practice in birth cases. Had there been any allegation of breach of duty occurring during the antenatal care provided to the mother which was said to have caused injury to the plaintiff I would have, at that time, conferred with and interviewed the relevant hospital staff.

16. Had there had been any such allegations concerning the antenatal care provided to the mother, I would have identified the relevant TCH staff, and interviewed them and taken a witness statement from each of them. Had I been served with a PICN in 2007 which included allegations concerning the antenatal care provided to the plaintiff's mother I would have, at that time, identified the relevant TCH staff and interviewed them.

60. The affidavit does not disclose any actual prejudice in the sense of evidence that, having identified those persons involved in the antenatal care, there was no evidence of:

(a) the death or disappearance of any of the persons involved; or

(b) absence of recollection on the part of any such person.

61. There was some debate as to whether or not this fell into the category of presumed prejudice or whether it could be characterised as actual prejudice. I consider it to fall into the category of presumed prejudice, because there is no actual evidence of a loss of recollection as a result of the delay in identifying this aspect of the claim even though there is actual evidence of the loss of the opportunity to obtain statements at an early stage.

62. In my view, the weight to be given to presumed prejudice must be sensitive to the nature of the evidence in the context of the particular allegations made. In the present case there is documentary evidence available that the issue of a Caesarean section or an elective Caesarean section was raised by the plaintiff on a number of occasions prior to her mother's admission to hospital in September 2004. Those include records which indicate that the issue was discussed. Any assessment of whether or not the conduct of the servants of the defendant involved a breach of duty will include a relatively nuanced assessment of those interactions. While there may be a spectrum of contentions about the extent to which a woman has, upon request, an entitlement to an elective Caesarean section, only at the most extreme end of that spectrum, namely a duty to provide on request such a procedure, would the subtleties of the advice given become of less significance. In addition to the actual words spoken, the impression given to the plaintiff's mother, her understanding of what was said and the impression that she gave to the person having the discussion are all likely to be of significance in assessing whether or not there had been a breach of duty. As a consequence, the passage of time is likely to be of greater prejudice to the defendant than in a case where the transactions giving rise to the allegation of negligence were more mechanical or the issues less dependent upon the subtleties of the interaction.

63. In my view, proceeding on the assumption that the new causes of action arise out of substantially the same facts as those originally pleaded, leave to amend the plaintiff's statement of claim so as to include the three additional allegations of negligence should be refused. That is because of the combined effect of the following matters:

(a) the need to make the amendment appears to have arisen out of a forensic assessment of the overall case, rather than some matter arising from the obtaining of additional documentary material or expert opinion during the course of the preparation of the case;

(b) the decision in Montgomery reflects the legal position relating to informed consent that has been in existence in Australia since well before the cause of action in the present case arose and hence does not provide an explanation for the delay;

(c) the presumed prejudice to the defendant arising from the delay in bringing any claim in relation to antenatal management is a matter of significant weight having regard to the length of time that has passed as well as the significance of the subtleties of the discussions and interactions between the plaintiff's mother and the various hospital staff.

64. I recognise that the proposed amendments may be important ones for the plaintiff but, in the light of the factors above, I consider that the defendant should not now be required to fact additional causes of action so long after the causes of action arose.

65. I will therefore not allow the amendment in so far as it seeks to include the pleadings at [2](c), (d) and (e).

66. Even if the amendment so as to permit the new causes of action was refused, the plaintiff sought, and the defendant opposed, the amendment of the claim so as to include the pre-birth facts. The plaintiff submits that the pre-birth facts will be relevant in any event because they put into context the facts relating to the causes of action arising from the conduct of the servants and agents of the defendant on [date redacted] September 2004. The defendant, on the other hand, submits that the amendment should not be permitted because there is no expert evidence that would indicate that the pre-birth facts are significant to any breach of duty alleged on [date redacted] September and the allegations raised the difficulties of obtaining evidence so far as the defendants are concerned.

67. In my view, the amendment to include the pre-birth facts should be permitted. In the light of the refusal to permit the amendments to include the pre-birth causes of action, the significance of the pre-birth facts is substantially reduced. They could only be relied upon so as to put the [date redacted] September facts in context, as opposed to giving rise to separate causes of action. Evidence of those facts would probably be able to have been led in any event as background to the events occurring on [date redacted] September. The effect of pleading those facts is therefore to put the defendant more specifically on notice and to remove any question as to whether or not evidence of those matters can be led. The weight that might ultimately be given to the pre-birth facts, if proven, will no doubt be the subject of submissions at the hearing but, in my view, the contention that they are relevant is sufficiently arguable to permit them to be specifically pleaded. While the necessity to respond to them will give rise to the prejudice presumed as a result of the effluxion of time, that is a prejudice which is likely to have existed in any event by reason of the entitlement of the plaintiff to lead evidence of the background to her claim and, to the extent that they raise matters which could not have been led in any event, the prejudice is reduced by reason of the tangential way in which the facts are to be relied upon having regard to the refusal of leave to include additional causes of action.

1. The plaintiff is granted leave to Amend the Statement of Claim by filing the Statement of Claim annexed to the application in proceeding dated 22 January 2016 except in so far as that Amended Statement of Claim includes paragraphs [2](c), (d), (e);

2. The plaintiff is to pay the defendant's costs of the application and the costs thrown away by reason of the amendment; and

3. The costs ordered to be paid pursuant to order 2 may not be assessed until the proceedings end.

I certify that the preceding sixty-nine [68] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.