Waldron v Joondalup Hospital Pty Ltd - [2018] NSWCA 182 - NSWCA 2018 case summary — Zoe

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Waldron v Joondalup Hospital Pty Ltd

[2018] NSWCA 182

Court of Appeal (NSW)|2018-07-02|Before: Meagher JA, Mr P

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2018-07-02

Before

Meagher JA, Mr P

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Background

In order to explain the issues arising on the appeal it is necessary to set out the background facts and explain the history of the proceedings.

[2]

Dr Vinen's report

The significance of Dr Vinen's final report was a key issue in the proceedings. The report incorporated a detailed record of the applicant's medical history and the treatment she received not just at Joondalup Hospital, but at Sutherland and St George Hospitals. The report was based on the records of the three treating hospitals and of the medical practitioners involved in treating the applicant. The length of the report was partly due to the numerous questions Dr Vinen was asked to answer, which he did in considerable detail.
The section of the report dealing with the conduct of Joondalup Hospital included the following: "1.1. Questions in relation to Joondalup Hospital 1.1.1 Having regard to [the applicant's] presenting symptoms and history, what examinations and investigations, if any, should the staff in the emergency department of Joondalup Hospital have undertaken on 2 July 2011? When Mrs Waldron [the applicant] presented to the ED Joondalup Hospital she was in severe pain of uncertain origin. As there was no history of trauma, a non-traumatic cause of her pain should have been explored. … The possibility of a thrombotic causation of Mrs Waldron's symptoms should have been considered because of her significant VTE [venous thromboembolic disease] risk factors, each of which should have been readily apparent, they were: • Obesity • Recent long flight • On a combined OCP which she recently commenced … 1.1.2. Was it appropriate for Joondalup Hospital to discharge [the applicant] without further investigating her symptoms? If not, what investigations or referrals should have been effected? A D-dimer blood test, ECG [to rule out AF (atrial fibrillation)] and a duplex doppler was indicated in the first instance to rule out AF, AMI and a DVT [deep vein thrombosis]. If these investigations were found to be normal given the severe pain and 'cool' foot with decreased ROM urgent referral to a vascular surgeon or better still an emergency department with a vascular service available was required. 1.1.3. If you are able to say, what would such investigations have revealed? It is very likely the D-dimer would have been positive indicating either VTE or thrombosis The ECG would have been normal as would the duplex doppler. 1.1.4. Should the staff in Joondalup Emergency have enquired as to when [the applicant] planned to fly back to Sydney? If such knowledge was acquired or should have been acquired, was it appropriate for [the applicant] to be discharged in the knowledge that she would be flying back to Sydney 3 days later? This question should always be asked as part of the history to aid decision making by the doctor. The importance of the question is based on [the applicant's] very significant risk factors for VTE. A full history of her risk factors should have been taken this was not done. 1.1.5. Did Joondalup Hospital, by its servants or agents, fall below the standard of care reasonably expected of a specialist emergency department, operation in July 2011? [sic] Yes, by failure to: • Take an adequate history including all risk factors for VTE • Do an adequate physical examination • Consider the possibility of a DVT • Investigate and exclude a DVT • Make a diagnosis that explained the clinical findings • Consider referral for further investigation 1.1.6. Any other comments you wish to make. Prudent medical practice requires all possible diagnoses to be considered to explain a patient's symptoms and where this is not possible to investigate and refer the patient for specialist assessment. It is simply not safe to treat the pain without a satisfactory explanation of the cause. Given the uncertainty as to the cause of [the applicant's] symptoms referral to a larger emergency department for specialist assessment was indicated."

[3]

Course of events

In about November 2011, some few months after her leg was amputated, the applicant retained solicitors (Beilby Poulden Costello) to act on her behalf.
On 18 December 2013, two years after they had been retained, the solicitors wrote to the applicant as follows: "We recently received the report of Dr Vinen, emergency physician in your matter. Dr Vinen has spent a great deal of time preparing his opinion and it is nearly 50 pages long. I have not enclosed it for this reason, but please let me know if you would like a copy. Dr Vinen's report is very supportive of a claim for medical negligence in your matter. … … We think it is best to wait to file your claim until we have at least an opinion from a vascular surgeon or haematologist. This is because these specialties will be able to comment on the aspect of your case known as causation. That is, you are required to prove not only that the hospitals breached their duty of care to you, but that that breach was causative of harm to you. In your case, what we would need to show is that if Joondalup and/or Sutherland [H]ospital had intervened and treated you appropriately earlier than they did, the loss of your lower leg most probably would have been avoided."
On 7 May 2014, the solicitors emailed the applicant as follows: "We now have the final opinion from Dr Vinen, emergency physician, and we are going to approach a vascular surgeon for an opinion now." As has been noted, Dr Vinen's final report was dated 14 April 2014.
The primary Judge recorded that Dr Vinen's report identified three acts of negligence by Joondalup Hospital. However, her Honour also observed that: [9] "In the report, Dr Vinen reiterated several times that … haematological and vascular reports should also be obtained in relation to the plaintiff's surgical management. These reports were sought in relation to the applicant's treatment at Joondalup [H]ospital."
On 19 May 2014, the applicant saw a psychologist. The psychologist's notes included the following comment: "If they'd given her a blood thinner in Perth or Sydney - may have been able to save the leg."
On 12 June 2014 the applicant's solicitor advised her by email as follows: "I am waiting to hear from a vascular surgeon we have asked to provide a report in your matter. The next step is for us to meet with him, and he will then provide a report. Once we have that report, we can file your case in Court."
The applicant saw another psychologist on 18 June 2014. The notes of that consultation record the following: "Legal advice city law firm re surgeon's comment - if hosp gave blood thinner initially, would not have lost leg."
On 23 June 2014, the applicant asked the solicitor "how it's all going" and when the deadline was for filing. The solicitor replied on the same day as follows: "As previously advised, we still need to meet with and get a report from a vascular surgeon before filing your claim in Court. I have asked my secretary to chase the vascular surgeon, as he has been difficult to tie down but we sent him the material to comment on a while ago. The time by which we need to file your claim is 3 years from the date of discoverability. That is, the date that you became aware that you had an actionable right in negligence. We say that date is when you received an expert opinion advising that there had been a breach of the duty of care owed to you. Accordingly, we say this is the date of Dr Vinen's report, which was provided to us on 14 April 2014. So it is not a strict 3 years from when you suffered the injury. Though it would be good to cover our bases and file by that time, it would be unwise in our view to file before we had causation evidence (that is, evidence that the [H]ospital's breach of duty caused you harm) from the vascular surgeon. We need him to say that earlier intervention would have saved your leg. We don't presently have that evidence, and that evidence is crucial to your case. It is hoped that the vascular surgeon will provide this evidence and we will then be in a position to file your claim. When we file your claim in Court, the defendant will ask a series of questions of us, file a defence, and provide their own evidence. We will then have you seen by one or more medical experts to determine what your claim is worth, and then the defendant will do that too. Once each side has exchanged most or all of their evidence, the parties can start discussing settlement and a hearing date can be allocated." (Emphasis added.)
The reference to "discoverability" in the solicitor's reply appears to be to ss 50C and 50D of the Limitation Act 1969 (NSW) (NSW Limitation Act). Section 50C(1) relevantly provides a cause of action relating to the personal injury of a person is not maintainable if brought after the expiration of "the 3 year post discoverability limitation period". Section 50D(1) provides that a cause of action is discoverable on the first date a person knows or ought to know of the following facts: "(a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action." [10] The reference to "discoverability" in the solicitor's reply indicates that she was under the incorrect impression that the limitation period for the applicant's cause of action against Joondalup Hospital was to be determined by the NSW Limitation Act.
As already noted, the limitation period under the WA Limitation Act expired on 26 July 2014.
On 19 August 2014, the applicant attended a conference with her solicitor and a barrister (Mr McGillicuddy). She was told that there were difficulties with her case and that although the barrister had conferred with a surgeon, the surgeon was unable to provide a supportive report on causation. The applicant instructed her solicitor to pursue the matter and obtain further medical reports.
The applicant's solicitor prepared a file note on 20 August 2014 concerning a 50 minute telephone call with the applicant's mother. The file note recorded the following: "This afternoon at 2:00 p.m. I received a call from [the applicant's mother] in relation to the conference that I had yesterday with her, [the applicant's] husband, [the applicant] and Ian McGillicuddy. [The applicant's mother] said that they had had a bit of a think about the matter and the way in which they wished to proceed. She said they wanted to get a radiologist's report to see what sort of mass was visible on the CT angiogram. [The applicant's mother] asked me whether it was possible for me to recommend another barrister to get involved in the case. I said I knew a lot of barristers who are highly regarded in medical negligence and I would recommend them. I pointed out to her that she would need to effectively double up paying a barrister's fees if [the applicant] received a successful outcome in her matter by way of settlement or judgment, because the new barrister would need to read all of the copious material in [the applicant's] matter, which would take some time. … In discussing lan's concern's [sic], I said I thought they were well founded because of the defence that we discussed yesterday, being Section 5O of the Civil Liability Act [2005 (NSW)]. [The applicant's mother] said she would be interested to know the number of cases that have been lost based on Section 5O defence and I said I wasn't aware of that but I was aware of a huge number of medical negligence losses based on a lack of causation evidence, which is the problem with which we are now faced. I said if we were to file [the applicant's] case now, not only would we lose at trial, but we would face the prospect of being struck out for want of evidence/prosecution. [The applicant's mother] said she understood this. … [The applicant's mother] again said that they were concerned that up until now the family had been told that [the applicant] had good prospects of success. I asked her whether she now understood why that had happened and she said she did. I took the opportunity to remind her that litigation is prepared in stages and that until we received the report of Dr Fisher, the case against the [H]ospital did look promising and that we have a supportive opinion."
The reference to s 5O of the Civil Liability Act 2005 (NSW) in the file note is to a provision dealing with the standard of care owed by professionals. [11] There was no evidence as to whether a report was ever obtained from Dr Fisher.
In May 2016, the applicant's solicitors advised her that they were not able to continue to act on her behalf. The solicitors advised that if the applicant engaged new solicitors she should ensure that her statement of claim was filed before 14 April 2017.
The applicant engaged her current solicitors on 18 December 2016. She provided the new solicitors with a copy of Dr Vinen's report.
The primary Judge found that the new solicitors, upon reviewing Dr Vinen's report, formed the view that a case in negligence existed and that further investigations should be made. [12] The solicitors offered to fund the conduct and preparation of the applicant's case.
In January 2017, the new solicitors prepared a draft statement of claim and on 7 February 2017 they briefed counsel. On 15 February 2017 counsel advised that the applicant had a "potential cause of action" against Joondalup Hospital and gave advice as to the limitation issues that needed to be addressed. [13]
The statement of claim alleging causes of action against Joondalup Hospital and the other two defendants was filed on 24 February 2017. The statement of claim incorporated a certificate signed by the applicant's solicitor as follows: [14] "I certify under clause 4 of Schedule 2 of the Legal Profession Uniform Law Application Act 2014 that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success."

[4]

Conduct of the proceedings

The applicant's notice of motion seeking an extension of time for the commencement of proceedings was supported by an affidavit sworn on 3 April 2017 by the applicant's solicitor, Mr Moran. The affidavit makes it clear that until counsel's advice was sought in February 2017, the applicant's solicitors thought that the limitation period for the applicant's action against Joondalup Hospital was governed by the NSW Limitation Act. Mr Moran's affidavit included the following: "In relation to the subject motion, I respectfully submit that the three year period discussed in section 39(4) of the Limitatio[n] Act 2005 (WA) potentially runs from the date of the report of Dr John Vinen, 14 April 2014, being the date this office believes the [applicant] arguably became aware of her cause of action against [Joondalup Hospital]. Prior to 14 April 2014, it is my respectful submission that the [applicant] was not aware that her injury was attributable to the failure of [Joondalup Hospital] to exercise peer professional care in her consultations and subsequent treatment."
It is not clear why Mr Moran thought that this evidence supported the applicant's contention that she satisfied the requirements of s 39(3)(b) of the WA Limitation Act. To do so she had to show that as at 26 July 2014 she was not aware that her injury was attributable to the conduct of Joondalup Hospital. The affidavit suggests that the applicant was aware of this fact by 14 April 2014.
The applicant's motion was listed for hearing on 15 June 2017. Written submissions were filed on the applicant's behalf on or about 2 June 2017. The submissions asserted that the applicant was aware that her injury was attributable to the conduct of Joondalup Hospital when she was informed of the contents of Dr Vinen's report. The submissions also stated that although it was uncertain when the applicant received the report, it must have been after 14 April 2014. It followed, so it was submitted, that pursuant to s 39(4) of the WA Limitation Act the limitation period expired on 14 April 2017: "being 3 years from when the [applicant] became aware of ought reasonably to have become aware of the physical cause of the injury, attributable to the conduct of the Hospital". These submissions implied that the applicant had enough information available to her before the expiration of the limitation period on 26 July 2014 to have been aware of the causal relationship between Joondalup Hospital's negligence and her injury.
It is therefore not surprising that the applicant's submissions did not address the obvious problem that at this point she had not put on any evidence to show that she was not aware, prior to 26 July 2014, that her injury was attributable to the conduct of Joondalup Hospital.
Joondalup Hospital filed written submissions in response on 13 June 2017. Joondalup Hospital pointed out that the limitation period had expired on 26 July 2014 and that the applicant had not even attempted to prove that she was not aware at that time that her injury was attributable to the conduct of Joondalup Hospital. The submissions noted that the applicant's written submissions actually asked the Court to assume that she became aware that her injury was attributable to the conduct of Joondalup Hospital on 14 April 2014.
The hearing scheduled for 15 June 2017 was adjourned on the application of the applicant's representatives. Counsel representing the applicant said that the reason for the adjournment was that the applicant's solicitors had only recently received the file from their predecessors.
On 21 July 2017, the applicant swore an affidavit which included the following: "70. From May 2016, I began to make enquiries in an endeavour to find a solicitor who would take on my case and try to find evidence supporting a causal link between my amputation and breach of duty or negligence. 71. I was not aware that I had a cause of action as of the date of the expiration of the limitation period as my solicitors had no evidence and were unable to find evidence that the actions or failure to act of any individual or hospital, was responsible for the harm that I suffered. 72. I knew we had an opinion from Dr Vinen but needed a vascular surgeon without a vascular surgeon [,] we could not proceed. … 75. I was not in possession, as at 26 July 2014, of any information that proved any of the doctors or hospitals was responsible for any negligence which caused the amputation of my leg. …"
The applicant filed further (undated) written submissions prior to the resumption of the hearing before the primary Judge which contended that she was unaware as at 26 July 2014 that her injury was attributable to Joondalup Hospital's conduct. The submissions relied on the opinion of the applicant's previous solicitors that she did not have a viable cause of action and the insistence by Dr Vinen that the opinion of a vascular surgeon had to be obtained. The submissions made no reference to s 39(4) of the WA Limitation Act (beyond asserting that the plaintiff was a person not aware or ought reasonably to have become aware that the injury was attributable to the conduct of a person). Nor did they explain the apparent inconsistency with the earlier submissions made on behalf of the applicant.
Joondalup Hospital filed its written submissions in response on 4 September 2017. Joondalup Hospital maintained its argument that the applicant had not satisfied s 39(3)(b) of the WA Limitation Act. Joondalup Hospital also submitted that the applicant could not satisfy s 39(4) because she had failed to address when she became aware of the matters identified in that provision. The submissions relied on the decision of the Western Australian Court of Appeal in AME Hospitals Pty Ltd v Dixon [15] (Dixon) for the proposition that the applicant had to prove when she became aware of the matters in s 39(4) in order to gain an extension of the limitation period.
The hearing of the applicant's motion resumed on 23 October 2017. The primary Judge also had before her a motion filed by Joondalup Hospital seeking an order for summary dismissal of the proceedings against it.
After the applicant's cross-examination concluded, the applicant's counsel tendered Dr Flecknoe-Brown's report which he said he had seen for the first time the previous day. The purpose of the tender was not made entirely clear, although the applicant's counsel observed that Dr Flecknoe-Brown found "quite a bit of causation, although not on everything one would have liked". The report was admitted into evidence over the objection of Joondalup Hospital's counsel.
In his final oral submissions the applicant's counsel characterised Dr Vinen's report as "impoverished on the question of causation". Counsel submitted that the absence of a clear medical opinion on the issue of causation justified the primary Judge finding that the applicant was not aware by 26 July 2014 that her injury was attributable to Joondalup Hospital's conduct. This submission was consistent with the applicant's undated further submissions, but was apparently inconsistent with the earlier written submissions of 2 June 2017.
It is not clear that the applicant's counsel advanced any submission as to the operation of s 39(4) of the WA Limitation Act, beyond observing that the applicant's solicitors could not have commenced proceedings without a "proper report" since they had to certify that there were reasonable grounds for believing that the applicant's claims had reasonable prospects of success.

[5]

Dr Flecknoe-Brown's report

Dr Flecknoe-Brown's relatively brief report was dated 14 October 2017. It addressed a series of questions directed to the acts or omissions of all three defendants. The section addressing the actions of Joondalup Hospital is as follows: "Joondalup Health Campus 1. What is the significance of the Plaintiff having palpable DP and PT pulse when examined at Joondalup Hospital in terms of treatment options including nonsurgical, had that Defendant hospital recognised a risk of ischaemia/DVT at the time of examining the Plaintiff on 2 July 2011[?]. In that regard, can there be any question, with regard to the Defendant, that the Plaintiff's leg was salvageable at that time[?]. The Triage Nurse has recorded, under Neurovascular Observations that the right foot was cool to touch, had capillary return of less than 2 seconds and appears to have found a palpable dorsalis pedis pulse ('DP'). This means that, although the history of the pain and the coolness of the skin suggested arterial insufficiency, the arterial and small vessel perfusion of the foot was intact and the limb was salvageable at that point. 2. Should, in your opinion, the Plaintiff's presentation, including recent commencement of the oral [contraceptive] pill, have received a high index of suspicion[?]. If so, why, and what were the aspects of her presentation and recent travel which should have raised a high index of suspicion and what (in detail) should have been the response to that presentation and symptomatology by Joondalup Hospital[?]. Mrs Waldron presented in the small hours of the morning in severe pain. This alone should have caused the medical attendants to take the complaint very seriously. The records of the Joondalup Emergency Department are more notable by their deficiencies [than] in their conclusions. The fact that she was taking an 'OCP' was noted but not apparently taken into account in formulating a differential diagnosis. This, together with the unilateral distribution and severity of the pain, should have raised the possibility of venous thrombosis or arterial insufficiency. There is no documentation of physical examination and no suggestion that the possibility of ischaemia (arterial obstruction to the lower limb) was even taken into account to explain her severe, one-sided leg pain made worse by exertion and the toe discolouration. At the very least, arrangements should have been made for her to be reviewed by the surgeon on call and for her venous and arterial circulation to have been evaluated by Doppler flow studies. The latter are not usually available on weekends in smaller hospitals, but it would have been reasonable to cover her with an anticoagulant such as Clexane until the studies could be performed on the following Monday. Others are better qualified to comment on the peer professional standards in Emergency Departments, but it is my opinion that discharging a patient with severe unilateral lower limb pain without examining her for the possibility of arterial insufficiency is below acceptable standards. There is a consistent, straight line of symptoms between her first presentation at the Joondalup Health Campus Emergency Department and the eventual diagnosis and treatment of arterial thrombosis in the right lower limb. 3. Was there anything about the Plaintiff's history or presentation at Joondalup Hospital which, given the risk factors, would have contraindicated aspirin or Clex[ane] being given to the Plaintiff as a problematic before her return flight to Sydney[?]. Had the possibility of arterial insufficiency or venous thrombosis been considered, there is nothing on the history that would have contraindicated the use of aspirin or Clexane to cover the return trip to Sydney."

[6]

Primary Judgment

The primary Judge referred to the applicant's evidence that she had been told in June 2014 by her then solicitors that they were still pursuing evidence to establish a causal link between the negligence identified by Dr Vinen and the subsequent amputation of the applicant's leg. [16] Her Honour observed that Dr Flecknoe-Brown's report was the first medical report to identify a causal link between Joondalup Hospital's negligent conduct and the amputation of the applicant's leg. [17]
Her Honour identified three issues that had to be addressed: [18] "… firstly, whether the [applicant] was aware of the matters set out in s 39(3)(b) before the expiration of the limitation period; secondly, whether the [applicant] proved the matters set out in s 39(4); and finally whether the knowledge of the legal representatives can be imputed as actual knowledge."
The primary Judge referred to the passages in the applicant's cross-examination addressing the contents of the psychologists' clinical notes. [19] In the course of her cross-examination the applicant agreed that her understanding of the advice she had received from her then solicitors was that they could not run the case unless they could legally prove causation. Her Honour accepted that as at 18 June 2014 (the date of the consultation with the second psychologist), the applicant: [20] "was not aware of any medical opinion that the lack of administering certain tests and seeking a further specialist medical opinions [sic] of Joondalup [H]ospital that [sic] resulted in the amputation of her right lower leg. The [applicant] was only aware that she could not win her case until her solicitors could legally prove causation".
The primary Judge referred to the conference that took place on 19 August 2014 and to the solicitor's file note concerning the conversations with the applicant's mother. [21] Her Honour noted the applicant's affidavit evidence that at the date the limitation period expired, she was unaware that she had a cause of action because the solicitors had been unable to uncover evidence that Joondalup Hospital was responsible for the loss of her leg. Her Honour had previously found that the applicant gave truthful evidence. [22]
The primary Judge concluded that the applicant satisfied s 39(3)(b) of the WA Limitation Act, for the following reasons: [23] "103 On or shortly after 26 July 2011, the [applicant] was aware of her physical injury, the amputation of her lower right leg. However, she was not aware that the injury was attributable to the conduct of a person (s 39(3)(b)). In cross examination, the [applicant's] attention was drawn to two entries in the clinical records, the first dated 19 May 2014 and the second 18 June 2014 … 104 The [applicant] gave evidence during cross examination that she did not recall saying either of those statements … 105 Dr Vinen in his report dated 14 April 2014, expressed the opinion that Joondalup [H]ospital did not carry out a D-dimer blood test nor seek the advice of a specialist vascular surgeon. Importantly, Dr Vinen did not express the opinion that had the [applicant] been initially given a blood thinner at Joondalup [H]ospital she would not have lost her right leg below the knee. Hence, it is my view that even if the [applicant] read Dr Vinen's report before 26 July 2014 she could not have been aware that her injury is attributable to the conduct of Joondalup [H]ospital. In this case … while the [applicant] may have been aware of the opinion of non qualified persons (herself and members of family) as to the physical cause of her injury, it does not satisfy the actual awareness requirement. 106 As at 26 July 2014, the [applicant] was aware of the physical cause of her injury but she was not aware that the injury was attributable to the conduct of Joondalup [H]ospital. Hence, the [applicant] has satisfied the requirements of s 39(3)(b) of the Act."
On the second issue, the primary Judge noted that the applicant had not given evidence that she had read Dr Flecknoe-Brown's report. Her Honour: [24] "would have accepted [the applicant] 'ought reasonably to have become aware' of the matters contained in Dr Flecknoe-Brown's report at such time as she read the report or its contents had been explained to her by her legal practitioners, but there is no evidence from the [applicant] or her legal practitioners on this topic. Hence, the [applicant's] claim for the extension of the limitation period fails unless the knowledge (whatever that is) of her legal representatives can be imputed as the [applicant's] actual knowledge."
On the third issue, the primary Judge observed that on the second day of the hearing (31 October 2017) the applicant's counsel stated in the applicant's presence that there was "quite a bit of causation" in Dr Flecknoe-Brown's report, but not as much as one would like. Nonetheless, her Honour said she was unable to say when the applicant became aware or should have become aware that her injury was attributable to Joondalup Hospital's conduct: [25] "The fact that Dr Flecknoe-Brown's report 'finds quite a bit of causation' does not establish awareness that the [applicant's] injury was attributable to the conduct of Joondalup [H]ospital. That conduct being that Joondalup [H]ospital should have firstly made arrangements for the [applicant] to be reviewed by the surgeon on call; and secondly, to have her venous and arterial circulation evaluated by Doppler flow studies. According to Dr Flecknoe-Brown, these omissions led to her eventual diagnosis and treatment of arterial thrombosis in her right lower leg that resulted in amputation."
The primary Judge concluded as follows: [26] "While the [applicant] has established that she is aware of the threshold issues set out in s 39(4)(a) and (c) she has not, at this stage, established that she was aware or ought to have reasonably become aware that the injury was attributable to the conduct of Joondalup [H]ospital. She has not satisfied the s 39(4)(b) threshold. Thus, the [applicant] has not satisfied all three requirements of s 39(4). She is required to do so. That being so, the [applicant's] claim to extend the limitation period in relation to Joondalup [H]ospital fails."
The primary Judge dismissed the applicant's motion to extend the limitation period and stood over Joondalup Hospital's motion seeking summary judgment.

[8]

Imputed awareness

Mr Kulevski, who appeared with Ms Lindeman for Joondalup Hospital, submitted that the applicant was "aware" of matters for the purposes of s 39(3) of the WA Limitation Act if her solicitors had knowledge of the relevant matters. Mr Kulevski accepted that this Court would follow the construction given to s 39(3) by the Western Australian Court of Appeal in Dixon. However, he contended that the judgments in Dixon left open the question of whether awareness included "imputed" rather than "constructive" knowledge. If this submission was accepted, so Mr Kulevski argued, the solicitor's knowledge of the contents of Dr Vinen's report could be imputed to the applicant in order to determine whether she was aware prior to 26 July 2014 that her injury could be attributed to Joondalup Hospital's conduct. The submission assumed that the contents of Dr Vinen's report indicated that the applicant's injury was attributable to the negligence of Joondalup Hospital.
In Dixon, the parents of a child born in August 2001 learned in 2003 that the child had cerebral palsy. In 2006 the parents sought legal advice about the prospects of suing the hospital where the child had been born. The solicitors obtained an expert medical report which stated that the doctor and nursing staff of the hospital had acted appropriately at the birth. Nothing further of significance occurred before 15 November 2011, the date on which the limitation period for an action against the hospital expired under the WA Limitation Act.
In August 2012 the parents sought further advice and obtained a second medical opinion from an expert, Professor Dekker. His report concluded that the child had suffered hypoxic ischemic encephalopathy caused by intrapartum events. These events included lack of appropriate foetal monitoring during the birth, resulting in the hospital staff's failing to recognise the deterioration of the foetal condition.
In July 2013 the child, by her next friend, applied under s 39 of the WA Limitation Act for an extension of the time to commence proceedings against the hospital. The Master granted the application and the Court of Appeal affirmed the Master's decision. McLure P, with whom Newnes JA agreed, summarised her reasons as follows: [27] "47 … when the limitation period expired the [child's] father was not aware of the physical cause of the [child's] hypoxic ischaemic encephalopathy or cerebral palsy and was not aware that either injury was attributable to the conduct of a person. Accordingly, the court's power to extend time was enlivened. 48 The [child] and her guardian first became aware, and ought reasonably to have become aware, of all the matters in s 39(4) upon receipt of Professor Dekker's report in August 2012." [28]
In the course of her judgment McLure P addressed the meaning of "aware" for the purposes of s 39(3) of the WA Limitation Act: [29] "34 The natural and ordinary meaning of the term 'aware' is cognisant or informed of. That is, awareness can result from information provided by a third party. In the context of s 39(3), actual awareness is required, not constructive awareness: Harris v Commercial Minerals Ltd [1996] HCA 49; (1996) 186 CLR 1 at 9-10. 35 The [hospital does] not contend that awareness includes actual awareness of the relevant person's duly authorised agent (such as the [child's] solicitors). In that circumstance, awareness would be imputed rather than constructive. However, that issue can be put to one side. 36 What constitutes actual awareness will depend on the nature of the fact or matter in issue. In this case, awareness of the physical cause of the [child's] injury is a matter of inference, from primary facts, that requires expert medical knowledge and experience. That the [child's] father may have been aware of some or all of the primary facts and of the opinion of a non-qualified person as to the physical cause of the [child's] injury cannot satisfy the actual awareness requirement. … 41 In my view, a person will be aware of a matter which requires expert knowledge and experience if he is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing the relevant facts (that is, the physical cause of the injury is attributable to the conduct of an identified person). Only Professor Dekker's report satisfies both those requirements." (Emphasis added.)
Mr Kulevski submitted that McLure P left open the possibility that actual awareness of a duly authorised agent such as a solicitor might be sufficient to constitute awareness by the principal (the client). However, all that her Honour did (at [35]) was to note that the hospital had not relied on "imputed" awareness. Her Honour's reasoning gives no support to the proposition that a plaintiff's solicitor's knowledge of matters can be "imputed" to the plaintiff so that he or she can be regarded as "aware" of those matters for the purposes of s 39(3) of the WA Limitation Act.
The lack of support for this proposition can be seen from McLure P's citation of Harris v Commercial Minerals Ltd, [30] a case also cited by Buss JA in his judgment. [31] In that case the High Court construed s 60I(1) of the NSW Limitation Act. Section 60I(1)(a) prevented a court extending the limitation period for a cause of action founded on negligence for personal injury damages unless it was satisfied (relevantly) that the plaintiff, at the expiration of the limitation period: "(i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission". Section 60I(1)(b) required the plaintiff to make the extension application within three years after he or she "became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii)".
The High Court in Harris applied what had been said in an earlier decision about the meaning of the words "first becomes aware of" in a Queensland statute: [32] "[T]he very words 'becomes aware' strongly indicate that the statute is looking to the purchaser's actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions." (Emphasis added.) The judgment observed that further support for a "subjective construction" of s 60I(1)(a) could be found in the statutory language because of the contrast between the words "was unaware" in s 60I(1)(a) of the NSW Limitation Act and the expression "or ought to have become aware" in s 60I(1)(b). [33] Much the same contrast can be drawn between the words "not aware" in s 39(3) of the WA Limitation Act and the expression "became aware, or ought reasonably to have become aware" in s 39(4).
The judgment of Buss JA in Dixon also gives no support to Mr Kulevski's submission. His Honour contrasted the terms "aware" and "not aware" in s 39(3) and (4) of the Limitation Act with the phrase "ought reasonably to have become aware". [34] Having regard to the context, Buss JA said that s 39 was concerned with whether the person had or did not have "actual awareness or knowledge" of the relevant matters. [35] In his Honour's view, the term "aware" did not refer to "reasonable belief" or constructive awareness or knowledge. Rather it meant: [36] "awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process."
For these reasons I do not accept Joondalup Hospital's submission that the applicant's solicitor's awareness of relevant matters can be imputed to the applicant, regardless of her actual or awareness or knowledge of those matters.

[9]

"Attributable to"

The Ipp Committee Report recommended that a cause of action for damages for personal injury should accrue on the date of "discoverability", being the date: "on which the plaintiff knew, or ought to have known, that personal injury …" (a) Had occurred; and (b) Was attributable to negligent conduct of the defendant; and (c) In the case of personal injury, was sufficiently significant to warrant bringing proceedings". [37] As the Ipp Committee Report pointed out, the concept of "discoverability" had been used in the Limitation Act 1935 (WA), s 38A and in other jurisdictions. [38]
Oddly enough, the WA Limitation Act does not adopt the "date of discoverability" as the date a cause of action for personal injury damages accrues. However, the language of s 39(3)(b) of the WA Limitation Act follows, with some adaptation, par (b) of the Ipp Committee Report's proposed definition of the "date of discoverability".
The primary Judge quoted at length McLure P's analysis in Dixon of the phrase "attributed to". McLure P said this: [39] "[31] The phrase 'attributable to' has been the subject of judicial consideration in a number of cases including Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115; Laminex (Australia) Pty Ltd v Coutts [2006] NSWCA 186 and Central Asbestos Co Ltd v Dodd [1973] AC 518, at 533. [32] In Roncevich the High Court considered the meaning of s 70(5) of the Veterans' Entitlement Act 1986 (Cth), which referred to an injury which 'arose out of, or was attributable to' defence service. In the joint judgment, the High Court said (at [27]): 'A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate'. [33] That is, a causal connection in fact (as distinct from causation at law) will satisfy the requirement that the injury be attributable to a person's conduct. Whether a non-causal connection could satisfy the requirement does not arise for determination in this case. However, there is much to be said for the view of the New South Wales Court of Appeal in Commonwealth v Shaw [2006] NSWCA 209; (2006) 66 NSWLR 325 at [25] that the statutory requirement in s 60I of the Limitation Act 1969 (NSW) of a 'connection between the personal injury and the defendant's act or omission' must be understood as involving an element of causal relationship. The case is more compelling when the injury must be 'attributable' to a person's conduct."
The passage from Basten JA's judgment in Commonwealth v Shaw to which McLure P referred is as follows: [40] "… the broader the scope of the term 'connection' the greater the difficulty an applicant will have in demonstrating lack of awareness. Accordingly, construing the language of the statute favourably to the applicant, but giving it a meaning which is consistent both with the statutory purpose and context, 'connection' must be understood as involving an element of causal relationship, of the common sense kind which is relevant in this context, in accordance with the principles explained in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506."

[10]

Joondalup Hospital's submissions

Joondalup Hospital submitted that even if its contentions on "imputed" awareness are rejected, the primary Judge's finding that the applicant satisfied s 39(3)(b) of the WA Limitation Act should be set aside. Mr Kulevski accepted that a plaintiff might be able to prove lack of awareness of a matter at a particular date without necessarily proving the date on which he or she in fact became aware of that matter. But he submitted that on the principles laid down by McLure P in Dixon, the primary Judge should have found that the applicant was actually aware, prior to 26 July 2014, that her injury was attributable to the conduct of Joondalup Hospital.
Mr Kulevski pointed out, correctly, that the submissions filed in support of the applicant's motion in the Common Law proceedings suggested that she was aware prior to the expiration of the limitation period that her injury was attributable to Joondalup Hospital's conduct. He submitted that the applicant's "bare assertion" in her affidavit of 21 July 2017 concerning her lack of knowledge of a causal relationship between Joondalup Hospital's negligence and the amputation of her leg was not enough to discharge the burden of satisfying s 39(3)(b) of the WA Limitation Act. In the circumstances of the present case, the inability of the applicant to identify the time at which she did become aware that her injuries could be attributed to the negligence of Joondalup Hospital counted against her claim of lack of awareness at 26 July 2014.
In his oral submissions Mr Kulevski contended that although the primary Judge did not misstate the test enunciated by McLure P in Dixon, her Honour had not applied the principles correctly. According to Mr Kulevski, the primary Judge equated the (correct) question of whether the applicant was aware that there was a connection between Joondalup Hospital's conduct and her injury with the (incorrect) question of whether the applicant was aware that she had reasonable prospects of succeeding in a claim against Joondalup Hospital.
Mr Kulevski emphasised Dr Vinen's view that if Joondalup Hospital had administered a D-dimer blood test, it is very likely that the test would have indicated either VTE or thrombosis, thus identifying the cause (thrombosis) of the amputation. Dr Vinen had opined that in view of the uncertainty as to the cause of the applicant's symptoms, referral to a larger emergency department for specialised assessment was needed. It was also clear that Dr Vinen's report was the sole basis on which proceedings were ultimately commenced on 24 February 2017.
Early in his oral submissions Mr Kulevski expressly eschewed a submission that receipt of the solicitor's letter of 23 June 2014 [41] was sufficient to establish the applicant's actual awareness that her injury was attributable to the conduct of Joondalup Hospital. Later in his submissions Mr Kulevski seemed to reverse his position and place considerable significance on the letter. He accepted that the letter revealed that the solicitor was labouring under a misapprehension as to the relevant law, but relied on the statement in the letter that the applicant became aware that she had an "actionable right in negligence" on the date she received an expert report stating that there had been a breach of duty.

[12]

Reasoning

It is fair to say that there were a number of significant deficiencies in the way the applicant's case was analysed by her former solicitors and presented in the Supreme Court proceedings. But the issue the primary Judge had to address was whether she was satisfied that the applicant did not have actual knowledge by 26 July 2014 that the amputation of her leg was attributable to the conduct of Joondalup Hospital. Her Honour was not precluded from being so satisfied by any misconceptions entertained by the applicant's previous solicitors as to the applicable limitation legislation or any ill-conceived submissions made on her behalf during the Supreme Court proceedings.
The applicant's solicitor gave evidence in his affidavit of 3 April 2017 that he was unaware of the date that Dr Vinen's report or the information therein was provided to the applicant by her previous solicitor, but that "it was some time after 14 April 2014". The applicant said in her affidavit of 21 July 2017 that she could not recall when she saw Dr Vinen's report or read its contents, but that her previous solicitors did not provide the report to her.
The primary Judge recorded a submission made on behalf of the applicant that she did not receive Dr Vinen's report until after the previous solicitors ceased to act for her. However, her Honour did not make a finding as to when the applicant first saw the report itself, as distinct from being informed of its contents in correspondence from the previous solicitors. Instead, the primary Judge found that even if the applicant read Dr Vinen's report before 26 July 2014, she could not have been aware that her injury was attributable to the conduct of Joondalup Hospital. [42]
The applicant gave evidence as to the state of her understanding at 26 July 2014. In her affidavit she said that she was unaware at that date that she had a cause of action because the "solicitors … were unable to find evidence that the actions or failure to act of any individual or hospital, was responsible for the harm that [she] suffered".
The applicant's oral evidence expanded somewhat on this rather formulaic statement. In her evidence in chief, the applicant's attention was drawn to the contents of the solicitor's letter of 23 June 2014. The following exchanges then took place: "Q. Would you tell us what you understood by his use and explanation of causation and the evidence that might flow from the vascular surgeon, what did you understand it was about? A. I understood that there was nothing yet, that they still had to find evidence, that we couldn't go on yet, it wasn't viable to do so. … Q. At some point in time did this search that you understood was being undertaken for causation evidence lead to Beilby, Poulden & Costello discovering that there was causation evidence? A. No, as far as I am aware they didn't find anything they could go on with."
The applicant was asked questions on cross-examination about the notations in the psychologists' clinical notes but was not pressed about her understanding of the relationship between Joondalup Hospital's negligence (as reported by Dr Vinen) and the amputation of her leg and in particular whether if Joondalup Hospital had acted appropriately her leg would have been saved. The cross-examination concluded as follows: "Q. And your understanding, wasn't it, of the advice you had received from Beilby, Poulden & Costello was that they could not win your case until they could legally prove causation, is that right? A. Yes, yes."
The applicant knew by 26 July 2014 that Dr Vinen had compiled his detailed expert report. She also knew that Dr Vinen had expressed the opinion that Joondalup Hospital breached the duty of care it owed to her. Regardless of whether the applicant had actually read Dr Vinen's report by this time (as to which there is no evidence) the solicitors' letter of 23 June 2014 recorded Dr Vinen's opinion as to the breach of duty quite accurately.
Otherwise the letter was hardly a model of clarity. Its reference to "discoverability" was based on a misconception as to the applicable law. Unsurprisingly the explanation of the term did not accurately reflect the requirements of the relevant legislation. The letter advised that the date of discoverability was the date of receipt of Dr Vinen's report, since that was when the applicant learned that she had an "actionable right of negligence". The letter then contradicted itself by asserting that "causation evidence" was crucial to the applicant's case and would not be available until a vascular surgeon was prepared to opine that earlier intervention would have saved the applicant's leg.
A client without experience in personal injuries litigation would be likely to read this letter as conveying that there was no evidence available to show that there was any causal relationship between Joondalup Hospital's negligence and the need to amputate the applicant's leg. That was precisely the thrust of the applicant's evidence. As far as she was concerned, there was "nothing to go on with … it wasn't viable". The primary Judge interpreted this evidence to mean that the applicant, having read the letter of 23 June 2014, was not aware that her injury was attributable to the negligence of Joondalup Hospital.
The primary Judge expressed her finding in the language of s 39(3)(b) of the WA Limitation Act. There is no basis for concluding that the primary Judge misunderstood the import of the words "attributable to", given that she quoted the relevant paragraphs from the judgment of McLure P in Dixon. Her Honour considered that the applicant's understanding, based on her solicitor's advice, was that the expert opinion was not capable of establishing that there was an "element of a causal relationship" between Joondalup Hospital's negligence and the amputation of the applicant's leg.
Mr Kulevski placed some reliance on the observation of McLure P in Dixon that a person will be aware of a matter requiring expert knowledge and experience if he or she is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing that the physical cause of the injury is attributable to the conduct of an identified person. [43] There are two answers to this contention.
First, the primary Judge found that Dr Vinen's report did not address the relevant "matter" and I am not persuaded that that finding was wrong. Dr Vinen's opinion that the applicant should have been referred to a specialist did not address the critical question of whether that intervention was likely to have changed anything, particularly having regard to Dr Vinen's firm opinion that the conduct of staff at Sutherland Hospital was inexplicable and causative of the trauma suffered by the applicant.
Secondly, I do not understand McLure P to say that a person's awareness of the existence of a report establishes the person's awareness of the contents of that report, regardless of the person's understanding of the contents or any explanation by his or her solicitor of the significance of the report. McLure P's comments were directed to a situation where only one of two expert reports could have provided a basis for the plaintiff's awareness of the relevant matter [44] and where there was no suggestion that the plaintiff had misunderstood anything about the contents of that report.
For these reasons the primary Judge did not err in finding that the applicant was not aware by 26 July 2014 that the amputation of her leg was attributable to the negligence of Joondalup Hospital.

[13]

Applicant's submissions

The applicant's written submissions contended that the primary Judge should have found that the applicant "ought reasonably to have become aware … that [her] injury was attributable to the conduct of [Joondalup Hospital]" for the purposes of s 39(4)(b) of the WA Limitation Act on 22 October 2017. This was the date the applicant's solicitors received Dr Flecknoe-Brown's report. Even in the absence of direct evidence from the applicant, so Mr Beale argued, the inference was clearly available that at that point she ought to have become aware that Dr Flecknoe-Brown had linked the negligence of Joondalup Hospital to the need for her leg to be amputated.
In the alternative Mr Beale submitted that the primary Judge misconstrued s 39(4) of the WA Limitation Act insofar as she held that the applicant could not satisfy the sub-section unless she affirmatively proved when she ought reasonably to have become aware (relevantly) that her injury was attributable to the conduct of Joondalup Hospital. Mr Beale submitted that s 39(4) merely marked out the maximum extension for the commencement of proceedings that a court could order. The effect of s 39(4), so he argued, is that the Court cannot exercise its power to extend time beyond three years from the date the plaintiff became aware or should have become aware of all three matters identified in the sub-section.
Mr Beale accepted that by instituting proceedings within three years of the expiration of the limitation period a plaintiff would not necessarily satisfy s 39(4) of the WA Limitation Act. If, for example, the plaintiff ought reasonably to have become aware of the three matters in s 39(4) at the end of the first year after the injury occurred, s 39(4) prevents an extension of the limitation period beyond the end of the fourth year after the injury occurred (that is, one year after the expiration of the three year limitation period). In the present case, however, the applicant established that she ought not reasonably have become aware that her injury was attributable to the conduct of Joondalup Hospital at any time prior to 24 February 2014, three years before the proceedings were commenced. Dr Vinen's final report had not even been obtained by then and, in any event, the applicant acted reasonably in leaving the matter in the hands of her solicitors.

[14]

Joondalup Hospital's submissions

Joondalup Hospital submitted that it was not open to the applicant to contend that the first date on which she was aware or ought reasonably to have become aware that her injury was attributable to its conduct was after the proceedings had been commenced. Mr Kulevski argued that it would be a "perverse result" if the applicant could say that she was justified in commencing the proceedings, yet claim that she did so at a time when she was not aware and ought not reasonably to have been aware of attributability. Mr Kulevski pointed out that on the applicant's argument she had commenced the proceedings before the three year period specified in s 39(4) of the WA Limitation Act had started to run. The correct construction of s 39(4), so Mr Kulevski contended, was that a plaintiff had to show that he or she became aware or ought reasonably to have become aware of all three specified matters before the proceedings were commenced.
Mr Kulevski submitted that the judgment of McLure P in Dixon authoritatively decides for the purposes of the law of Western Australia that a plaintiff seeking the indulgence of the Court to extend the limitation period must affirmatively prove the date or dates he or she first became aware or ought reasonably to have become aware of all the matters specified in s 39(4) of the WA Limitation Act. It is not enough, so Mr Kulevski argued, for the plaintiff to show that the date on which he or she became aware or ought reasonably to have become aware of the last of the matters had to be a date no earlier than the three years before the commencement of proceedings. The actual dates must be established by evidence.
Mr Kulevski submitted that not only was the judgment of McLure P authoritative on the point, it was clearly correct. He relied on s 79(3) of the WA Limitation Act which imposes the burden of proving that a court should extend the limitation period upon the plaintiff. He also contended that s 39(4)(b) requires the order extending time to specify a date which in terms is less than three years from the date on which the plaintiff became aware or ought reasonably to have become aware of the last of the three matters identified in s 39(4).
Mr Kulevski described the applicant's submission that she ought reasonably to have become aware that her injury was attributable to Joondalup Hospital's negligence only after the proceedings had been instituted as an "Alice in Wonderland" argument. [45] He submitted that on its proper construction, s 39(4) required the applicant had to have the relevant awareness or means of awareness before the proceedings had been instituted. Otherwise the solicitor could not properly have filed the initiating process and the applicant could not have given the necessary instructions to do so.

[15]

The statutory language

Although there was discussion in argument about the circumstances, if any, in which this Court would decline to follow a decision of the Western Australian Court of Appeal construing Western Australian legislation, in the end neither party submitted that Dixon should not be followed. However, before turning to the statements in Dixon relied on by Joondalup Hospital, it is convenient to consider the statutory language uninstructed by authority.
Section 39(1) of the WA Limitation Act permits a plaintiff to apply to a court for leave to commence an action for personal injury damages even though (as in the present case) the limitation period has expired. The extension application may be made in the jurisdiction in which the existing action, if any, has been brought (s 43(1)). Thus the extension application may be made in proceedings that have already been commenced (as occurred in the present case), even after close of pleadings (s 43(5)). Although the defendant bears the burden of proving that the action cannot be commenced because the limitation period has expired (s 79(1)), the plaintiff in an extension application bears the burden of proving that "the court should extend the limitation period" (s 79(3)). When deciding whether to extend time for the commencement of an action, a court is to have regard to specified matters, including the prospects for a fair trial and any prejudice to the defendant (s 44).
As has been seen, s 39(3) of the WA Limitation Act empowers the court to extend the time in which an action can be commenced if the court is satisfied that when the limitation period expired, the plaintiff (relevantly for the present case) was not aware that his or her injury was attributable to the conduct of the defendant. This requires proof by the plaintiff of a negative: the plaintiff's lack of awareness at a particular time of attributability.
Section 39(4) does not grant the court power to extend time; that is the function and purpose of s 39(3). Section 39(4) defines the temporal extent of the power conferred by s 39(3). If the Court is satisfied of the matters in s 39(3), it may extend the time in which the action can be commenced up to three years "from when [the plaintiff] became aware, or ought reasonably to have become aware" of all three matters specified in s 39(4). Section 39(4) does not say that a plaintiff seeking an extension of time must prove the precise date when he or she became aware of each of the three specified matters. The provision requires the Court be satisfied that the extension that is sought does not extend beyond three years from when the plaintiff became aware or ought reasonably to have become aware of all three matters.

[16]

What must a plaintiff prove?

No doubt in the usual case a plaintiff will seek to satisfy the requirements of s 39(4) of the WA Limitation Act by proving the dates on which he or she became aware or ought to have become aware of each of the three specified matters. But this may not be necessary in every case. For example, a plaintiff may not be able to establish precisely when he or she became aware or ought to have become aware of the last of the three matters, but the evidence may make it quite clear that the plaintiff must have become aware of the matter at some time within the three years immediately preceding the commencement of proceedings.
As I understand his argument, Mr Kulevski relied on the "general observations" made by McLure P in Dixon for the proposition that a plaintiff must prove with a degree of precision when he or she became aware or ought to have become aware of the matters specified in s 39(4) of the WA Limitation Act. Her Honour said this: [46] "18 First, to enliven the power to extend time under s 39(3) the applicant has to prove at least one negative, being the lack of awareness of the person to whom the cause of action accrues, at the time when the limitation period expired, of the physical cause of the injury, or that the injury was attributable to the conduct of a person, or the identity of that person. 19 The applicant for an extension must also establish when the person to whom the cause of action accrued first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) (being the physical cause of the injury, that the injury was attributable to the conduct of a person and the identity of that person). 20 In practical terms, the focus of attention in an application under s 39 should be on when the person to whom the cause of action accrues (and guardian if under 18) first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) because the application has to be made within three years from that date. That exercise will inevitably provide the evidentiary basis for determining the matters necessary to enliven the power under s 39(3)."
I do not read McLure P's observations as meaning that it is always necessary for the plaintiff to identify with precision the time at which he or she became aware or ought to have become aware of each of the relevant matters. Her Honour's observations are consistent with a plaintiff establishing that the time for which an extension is sought is not beyond the three year period, without necessarily proving precisely when he or she became aware or ought to have become aware of each of the relevant matters.

[17]

The applicant's case

The primary Judge did not rest her decision on the inability of the applicant to establish precisely when she became aware or ought to have become aware of the three relevant matters. Her Honour effectively found that the applicant had not established that she had ever become aware or ought to have become aware that her injury was attributable to the conduct of Joondalup Hospital, even during the hearing itself. This might be thought to be a surprising finding, given that the applicant's solicitor certified in the statement of claim filed on 24 February 2017 that he believed that the applicant's claim had reasonable prospects of success. Neither the solicitor nor the applicant gave evidence that she had been advised before the filing of the statement of claim that the proceedings had reasonable prospects of success. Nonetheless, her Honour might have been invited to infer that the solicitor believed that the applicant had an arguable case on the available evidence, including on causation, and that the solicitor must have given the applicant that advice prior to filing the statement of claim.
It is clear, however, that no such submission was made to the primary Judge. The applicant's case on s 39(4) of the WA Limitation Act relied squarely on the applicant's awareness or means of awareness of Dr Flecknoe-Brown's report. Indeed her counsel explicitly acknowledged that the proceedings were commenced on the basis of Dr Vinen's report without further evidence of causation. So much appears from the following submission to the primary Judge: "BEALE: No, but what I am saying to your Honour is that the case was commenced on the basis - that this application was commenced on the basis that there was a report from Vinen alleging negligence. At that time there was no evidence of causation but the evidence of causation came into existence but the point is, that my friend is suggesting to your Honour that the plaintiff is not entitled to commence the action without a full suite of cards. That simply is not the law. It is undesirable, there may be reasons not to do it, but that does not mean that, and that's what he suggests, because - and I will take your Honour to the part of his submission where he says that, that in order to succeed in the application there must have been evidence of causation when it was commenced. No authority is suggested for that, with respect, but anyway." (Emphasis added.)
Although there were brief references on the appeal to advice that may have been given to the applicant prior to the filing of the statement of claim, her argument on appeal, as in the Common Law Division, rested on her awareness or means of awareness of Dr Flecknoe-Brown's report. The applicant contended that the primary Judge should have found that the applicant became aware or should have become aware that her injury was attributable to the conduct of Joondalup Hospital on 22 October 2017, the date Dr Flecknoe-Brown's report was received by the solicitors.

[18]

Awareness after proceedings have commenced

This raises the question of whether sub-ss 39(3) and (4) of the WA Limitation Act permits the Court to extend time where the plaintiff becomes aware or ought reasonably to have become aware of the relevant matters for the first time after the proceedings had already been commenced. It will be recalled that Dr Flecknoe-Brown's report was not received until nine months after the applicant commenced proceedings against Joondalup Hospital.
There is some force in Mr Kulevski's submission that the power to extend time conferred by s 39(3) of the WA Limitation Act cannot be exercised if the plaintiff did not become aware or ought not to have become aware of all three matters specified in s 39(4) until after the proceedings were commenced. Each of the three matters has its counterpart in s 39(3). Unless the plaintiff has evidence of all three (the physical cause of the injury, attributability and identity) no claim for personal injury damages can succeed.
As has been seen, an application for an extension of time may be made after proceedings have already been commenced. The maximum extension permitted is "up to 3 years from when [the plaintiff] became aware, or ought reasonably to have become aware" of all three matters. On one view, however, the language can be read as contemplating that the plaintiff's awareness or means of awareness of the relevant matters must precede the commencement of the proceedings.
As Mr Kulevski pointed out, legal practitioners have a responsibility not to commence groundless proceedings or those inevitably doomed to failure. Western Australia, unlike New South Wales, has not imposed a statutory duty on practitioners to certify that they believe proceedings commenced on behalf of clients have reasonable prospects of success. But independently of statute, legal practitioners have obligations to the Court to give consideration to whether there is an arguable basis for the claim before commencing the proceedings. The obligations may be enforced in a variety of ways, for example through the principles governing abuse of process and the powers of courts to impose costs sanctions, or ethical rules. [47] In Western Australia, for example, the Ethical and Practice Guidelines issued by the Law Society of Western Australia make explicit the responsibilities of practitioners: [48] "A practitioner is obliged to advise a client on the prospects of success in a case. That does not preclude the practitioner from acting to prosecute a claim most likely to fail as long as there is a rational basis on which the case might succeed and the client persists in bringing the claim, despite having been fully informed of the prospects."
These considerations perhaps lend support to Mr Kulevski's contention that it would be odd (if not "perverse") to construe s 39(3) and (4) to permit an extension of time to commence litigation already on foot, where the evidence shows that the proceedings must have been commenced when the plaintiff was neither aware nor ought reasonably to have been aware that it was or might be possible to establish each of the elements essential to the success of his or her claim. [49] It is also necessary to bear in mind that practitioners must have proper instructions to commence proceedings. If a client of full age and capacity is unaware or does not have the means of becoming aware that an essential element in his or her cause of action might be established, it is not easy to see how the client can give proper instructions to commence the proceedings.
Despite the force of these considerations, I do not think that s 39(4) should be read in the way Mr Kulevski suggested. As I have noted, the function of s 39(4) is not to grant the Court power to extend time, but to mark out the temporal limits of the extension that can be granted where a plaintiff satisfies the threshold requirements of s 39(3). The power to extend time may be exercised after proceedings have been commenced. If the evidence demonstrates that the plaintiff became aware or should have become aware of the relevant matters only after the proceedings were commenced, an extension of time to the date of commencement is consistent with the language of s 39(4). In this situation the court is not asked to extend time beyond three years from when the plaintiff became aware or ought reasonably to have become aware of the relevant matters. I should add that if Joondalup Hospital's construction of 39(4) is correct, it would mean that a plaintiff who relied on awareness or means of awareness arising after the proceedings commenced would have to discontinue the existing proceedings and start afresh. No good purpose would be served by such a multiplicity of proceedings.
Where proceedings are commenced without the plaintiff becoming aware or having the means of becoming aware of elements essential to the success of his or her claim or without proper instructions from the plaintiff, there might be consequences for the legal representatives who institute the proceedings. But in my opinion a breach of duties owed by legal representatives does not mean that s 39(3) and (4) of the WA Limitation Act should be construed to deny the court power to grant the plaintiff an extension of time to the date the proceedings were commenced.

[19]

Did the Court have power to extend time?

It follows that if the primary Judge had found that the applicant became aware or ought to have become aware on or about 22 October 2017 that her injury was attributable to Joondalup Hospital's negligence, her Honour had power to extend the time for commencement of proceedings until 24 February 2017, being the date that they were commenced. Since the primary Judge declined to make such a finding, the next question is whether the power to extend time was dependent on the applicant proving that she had indeed become aware or ought to have become aware of attributability on or about 22 October 2017.
In the absence of authority, there is something to be said for the proposition that it is not necessary for a plaintiff to prove that she had ever become aware or ought reasonably to have become aware of attributability. It is arguable that the statutory language is satisfied provided the plaintiff proves that she was neither aware nor ought to have become aware of attributability at any time prior to three years before the commencement of proceedings. As a matter of logic, in those circumstances the proceedings could not have been commenced more than three years from when the plaintiff became aware or ought reasonably to have become aware of attributability.
However, the passage in McLure P's judgment in Dixon relied on by Mr Kulevski [50] clearly states that the plaintiff seeking an extension of time must establish when he or she became aware or ought reasonably to have become aware of all three matters in s 39(4), including attributability. Since Mr Beale did not challenge the correctness of Dixon, this Court should follow McLure P's observations as to the construction of s 39(4). Accordingly, unless the primary Judge should have found that the applicant became aware of attributability on or about 22 October 2017 (as she alleged), her Honour lacked power to extend the time for the commencement of the Common Law Proceedings to 24 February 2017. I therefore turn to that question.
It must be said that remarkably little attention was given in the applicant's final submissions to the primary Judge to the significance of Dr Flecknoe-Brown's report. To the extent that the submissions referred to the report it seems to have been assumed that the report addressed the issue of causation without any real attempt to explain how it did so. Despite an eight-day gap between the first day of the hearing (23 October 2017), when Dr Flecknoe-Brown's report was tendered, and the second day (31 October 2017), when the parties made final submissions, the applicant was not recalled to give evidence about her understanding of the significance of Dr Flecknoe-Brown's report.
When the report was tendered the applicant's counsel said that Dr Flecknoe-Brown found "quite a bit of causation, although not on everything one would have liked". This Delphic utterance was presumably a reference to the brief passage in the report where Dr Flecknoe-Brown expressed the view, based on Joondalup Hospital's clinical records, that when the applicant was assessed "the arterial and small vessel perfusion of the foot was intact and the limb was salvageable at that point". The primary Judge accepted that Dr Flecknoe-Brown's report "state[d] that the injury was attributable to the conduct of Joondalup Hospital". [51]
The applicant's counsel did not return to Dr Flecknoe-Brown's report until the close of his submissions to the primary Judge. At that point counsel responded to a submission that there was no real difference between the report of Dr Vinen and Dr Flecknoe-Brown: "Except, you see, that Flecknoe-Brown is qualified, is giving an expert report on causation because he is a haematologist and he states what ought to have been done. [Dr] Vinen qualified his own evidence by saying that, 'You need this', and the reason for that is it has to be evidence of causation, not merely negligence."
Although the evidence is hardly satisfactory, it seems clear enough that the applicant's advisers took the view that Dr Flecknoe-Brown's report was sufficient to constitute evidence that Joondalup Hospital's breach of duty was causally related to the loss of the applicant's leg. Despite the absence of direct evidence, it is scarcely conceivable that the representatives would not have conveyed that assessment to her shortly after Dr Flecknoe-Brown's report was received. If it were necessary to do so, I would infer that the applicant must have been told of the contents of Dr Flecknoe-Brown's report and that it provided evidence of a causal relationship between her injury and the negligence of Joondalup Hospital. Thus, I would infer that the applicant became aware on or shortly after 22 July 2017 that her injury was attributable to the conduct of Joondalup Hospital.
In any event, I would conclude on the basis of receipt of Dr Flecknoe-Brown's report that the applicant ought reasonably to have become aware that the injury was attributable to the negligence of Joondalup Hospital. The primary Judge evidently accepted that the applicant was aware of the existence of Dr Flecknoe-Brown's report. Her Honour's observation that the applicant "may have understood that Dr Flecknoe-Brown 'finds quite a bit of causation'" [52] indicates that the applicant was in court when her counsel tendered the report. If the applicant was not told by her legal representatives of the significance of the report, she had only to ask. It was reasonable to expect the applicant, who had known for years that causation was the critical issue in her case against Joondalup Hospital, to make that simple inquiry. Had she done so she would have been told that although the report was not ideal from her point of view it was evidence that the negligence of Joondalup Hospital was causally related to the amputation of her leg.
The primary Judge's concern as to the lack of direct evidence on these matters is entirely understandable, particularly given that it would have been very easy for the applicant to address. Nonetheless, the evidence is sufficient to conclude that as a consequence of receipt of Dr Flecknoe-Brown's report, the applicant ought reasonably to have become aware that her injury was attributable to the conduct of Joondalup Hospital.

[21]

Endnotes

Waldron v Joondalup Hospital Pty Ltd [2017] NSWSC 1728 (Primary Judgment). Leave to appeal is required because the primary Judge's decision is regarded as interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e).
This follows from ss 5 and 6 of the Choice of Law (Limitation Periods) Act 1993 (NSW) (Choice of Law Act), reproduced at [18] below.
The contents of the report are described at [30]-[35] below.
P Handford, Limitation of Actions: The Laws of Australia (Lawbook Co, 4th ed, 2017), at v.
See the chart in P Handford, note 4 above, at 16-17.
The WA Limitation Act s 55(1) specifies when a cause of action for damages relating to a personal injury accrues.
See at [10] above.
Reproduced at [23] above.
Primary Judgment at [27].
The leading cases construing s 50D of the NSW Limitation Act, in particular in relation to the meaning of "fault" in s 50D(1)(b), are Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 and State of New South Wales v Gillett [2012] NSWCA 83.
There is an equivalent provision in Western Australia: Civil Liability Act 2002 (WA), s 5PB.
Primary Judgment at [57].
Primary Judgment at [59].
The Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2 cl 4(2), imposing the certification requirement, has its origins in the legislation implementing the recommendations of the Review of the Law of Negligence: Final Report (2002) (Ipp Committee Report) in relation to claims for personal injury damages: see N Beaumont, "What are 'Reasonable Prospects of Success'?'" (2004) 78 ALJ 812 at 815. The form of certificate is prescribed by Approved Civil Form 3A, which is made pursuant to r 6.2 of the Uniform Procedure Rules 2005 (NSW) (UCPR).
(2015) 48 WAR 139; [2015] WASCA 63.
Primary Judgment at [48].
Primary Judgment at [68]-[69].
Primary Judgment at [92].
Primary Judgment at [35]-[42]. See at [40], [42] above.
Primary Judgment at [44].
Primary Judgment at [49]-[53]. See at [46]-[47] above.
Primary Judgment at [11]. Her Honour limited the scope of this finding to the application to extend the limitation period.
Primary Judgment at [103]-[106].
Primary Judgment at [111].
Primary Judgment at [119].
Primary Judgment at [120].
Dixon at [47]-[48].
The focus was upon the plaintiff's father's knowledge, rather than the plaintiff's knowledge. Section 39(5) of the WA Limitation Act provides that in the case of a person who is under 18 years of age when the cause of action accrues, "person to whom the cause of action accrues" means either that person or a guardian of that person.
Dixon at [34]-[36], [41].
(1996) 186 CLR 1; [1996] HCA 49.
Dixon at [197].
Harris at 10, quoting Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44 at 151 (Mason, Deane and Dawson JJ).
Harris at 10. See also Commonwealth v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 at [26] (Basten JA, Handley and Ipp JJA agreeing).
Dixon at [195].
Dixon at [197].
Dixon at [200].
Ipp Committee Report at [6.19].
Ipp Committee Report at [6.18 n 4].
Dixon at [31]-[33].
Commonwealth v Shaw at [25].
See at [43] above.
Primary Judgment at [105].
Dixon at [41], reproduced at [82] above.
Through her father.
The language is derived from the judgment of Lord Wilson SCJ in AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [6], who referred to a comment by Smith LJ during the course of argument in the Court of Appeal.
Dixon at [18]-[20].
See, for example, Levick v Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674 at [44] per curiam. See generally P Stewart and M Evers, "The Requirement that Lawyers Certify Reasonable Prospects of Success: Must 21st Century Lawyers Boldly Go Where No Lawyer has Gone Before?" (2010) 13 Legal Ethics 1 at 29-37.
Law Society of Western Australia, Ethical and Practice Guidelines (25 August 2015), guideline 7.15.
Cf AB v Ministry of Defence [2013] 1 AC 78; [2012] UKSC 9 at [6] (Lord Wilson JSC, Lords Brown and Mance JJSC agreeing).
Dixon at [18]-[20], reproduced at [126] above.
Primary Judgment at [110].
Primary Judgment at [119].

Parties

Applicant/Plaintiff:

Waldron

Respondent/Defendant:

Joondalup Hospital Pty Ltd

Legislation Cited (11)

Civil Liability Act 2005(NSW)

Uniform Procedure Rules 2005(NSW)

Limitatio[n] Act 2005(WA)

Veterans' Entitlement Act 1986(Cth)

Limitation Act 2005(WA)

Choice of Law (Limitation Periods) Act 1993(NSW)

Legal Profession Uniform Law Application Act 2014(NSW)

Limitation Act 1969(NSW)

Supreme Court Act 1970(NSW)

Civil Liability Act 2002(WA)

Limitation Act 1935(WA)

Cases Cited (19)

Solicitors: CMC Lawyers (Applicant) Minter Ellison Lawyers (Respondent) File Number(s): 2017/383281 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2017] NSWSC 1728 Date of Decision: 13 December 2017 Before: Harrison AsJ File Number(s): 2017/59616

HEADNOTE [This headnote is not to be read as part of the judgment] On 2 July 2011, the applicant attended Joondalup Hospital in Perth, Western Australia because she was experiencing extreme pain in her right foot. She was allowed to return to Sydney where she consulted a general practitioner and attended Sutherland Hospital. She was subsequently transferred to St George Hospital, where her right leg was amputated on 26 July 2011. On 14 April 2014, the applicant's solicitors received the final version of an expert medical report (the Vinen Report). The applicant's solicitors informed her that they were still pursuing evidence to establish a causal link between the negligence identified by the Vinen Report and the subsequent amputation. On 19 August 2014, the solicitors advised that a vascular surgeon was unable to provide a supportive report on causation. The solicitors terminated their retainer with the plaintiff in May 2016. The applicant engaged new solicitors in December 2016. On 24 February 2017, the applicant commenced proceedings in negligence against Joondalup Hospital, the general practitioner and South Eastern Sydney Local Health District (the entity responsible for Sutherland Hospital). It was common ground that Western Australian law would determine the limitation period applicable to the cause of action against Joondalup Hospital, and that the effect of s 14(1) of Limitation Act 2005 (WA) (WA Limitation Act) was that the limitation period expired on 26 July 2014. The applicant filed a notice of motion pursuant to s 39(3) and (4) of the WA Limitation Act seeking an order extending the time for commencing the proceedings to 14 April 2017 (being three years from the date of the Vinen Report). The notice of motion was heard on 23 and 31 October 2017. On 22 October 2017, the applicant's new solicitors received a further expert report addressing the causal relationship between Joondalup Hospital's alleged negligence and the amputation (the Flecknoe-Brown Report). The primary Judge dismissed the application for an extension of time. Her Honour found that the applicant satisfied s 39(3)(b), as the information made available to her before 26 July 2014 was insufficient to make her aware that the amputation was attributable to the conduct of Joondalup Hospital. However, the primary Judge held that the applicant did not satisfy s 39(4)(b). On her Honour's construction, the applicant needed to establish when she had become aware or ought reasonably to have become aware that her injury was attributable to the Joondalup Hospital. The evidence was insufficient to enable a finding on this issue. On appeal, the issues were whether the primary Judge erred in finding that: (i) the applicant was not aware, as at 26 July 2014, that her injury was attributable to the conduct of Joondalup Hospital (pursuant to Joondalup Hospital's notice of contention); and (ii) the applicant had not satisfied s 39(4)(b) of the WA Limitation Act. Sackville AJA, McColl and Meagher JJA held, granting leave to appeal and allowing the appeal: In relation to (i): (1) AME Hospitals v Dixon does not support the proposition that a plaintiff's solicitor's knowledge of matters can be imputed to the plaintiff, so that he or she can be regarded as aware of those matters for the purpose of s 39(3): [1]; [2]; [83]; [86]; [87]. AME Hospitals Pty Ltd v Dixon (2015) 48 WAR 139; [2015] WASCA 63, considered (2) The primary Judge did not err in finding that the applicant did not have actual awareness of attributability. Dr Vinen's opinion that the applicant should have been referred to a specialist did not address whether that intervention was likely to have changed anything. Further, a person's awareness of the existence of a report does not establish the person's awareness of the contents of that report: [1]; [2]; [111]-[112]. In relation to (ii): (1) In the usual case a plaintiff will seek to satisfy the requirements of s 39(4) by proving the dates on which he or she became aware or ought to have become aware of each of the three specified matters. But this may not be necessary in every case. A plaintiff must establish that the time for which an extension is sought is not beyond the three year period, without necessarily proving precisely when he or she became aware or ought to have become aware of each of the relevant matters: [1]; [2]; [125]; [127]. (2) The primary Judge might have been invited to infer that the solicitor believed that the applicant had an arguable case on the available evidence, including on causation, and that the solicitor must have given the applicant that advice prior to filing the statement of claim. However, no such submission was made below: [1]; [2]; [128]-[129]. (3) The function of s 39(4) is not to grant the Court power to extend time, but to mark out the temporal limits of the extension that can be granted where a plaintiff satisfies the threshold requirements of s 39(3). Thus, the power to extend time may be exercised after proceedings have been commenced if the evidence demonstrates that the plaintiff became aware or should have become aware of the relevant matters only after the proceedings were commenced: [1]; [2]; [130]-[131]; [136]-[137]. (4) Here, the evidence is sufficient to conclude that as a consequence of receipt of Dr Flecknoe-Brown's report, the applicant ought reasonably to have become aware that her injury was attributable to the conduct of Joondalup Hospital. Accordingly, the time for the commencement of the applicant's action should be extended until 24 February 2017: [1]; [2]; [146].

Cited By (3)

Commissioner of Police v DTN

Mullaley v State of Western Australia

Werner v Commonwealth of Australia