AME Hospitals Pty Ltd v Dixon (by her next friend Andrew Nigel Dixon); Clarke v Dixon (by her next friend Andrew Nigel Dixon)

[2015] HCATrans 191

[2015] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P19 of 2015

B e t w e e n -

AME HOSPITALS PTY LTD

Applicant

and

LAYNE CARMEL DIXON (BY HER NEXT FRIEND ANDREW NIGEL DIXON)

Respondent

Office of the Registry
  Perth  No P20 of 2015

B e t w e e n -

SIMON CLARKE

Applicant

and

LAYNE CARMEL DIXON (BY HER NEXT FRIEND ANDREW NIGEL DIXON)

Respondent

Applications for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 14 AUGUST 2015, AT 9.46 AM

Copyright in the High Court of Australia

____________________

MR G.R. DONALDSON, SC:   If your Honours please, I appear with my learned friend, MR J.A. THOMSON, SC, for the applicant in both matters.  (instructed by DLA Piper Australia and Tottle Partners)

MS G.A. ARCHER, SC:   May it please the Court, I appear for the respondents.  (instructed by Ilberys, Lawyers)

FRENCH CJ:   Yes, Mr Donaldson.

MR DONALDSON:   Your Honours, these matters concern the meaning and operation of Western Australian provisions in a Limitation Act which are commonly seen in modern limitation statutes and that is the process or means of extending time to commence proceedings after a ‑ ‑ ‑

FRENCH CJ:   Is there a degree of uniqueness about our section 39?

MR DONALDSON:   It is similar, your Honour, to the New South Wales provision.

FRENCH CJ:   Section 61?

MR DONALDSON:   It is 60I, I think it is.

FRENCH CJ:   Is it?

MR DONALDSON:   Yes.  Your Honour, these sort of extension provisions are all expressed rather differently, or many of them are expressed differently.  Can I make this observation, however, your Honours?  All of them operate upon a necessary integer and that is the awareness or knowledge of a plaintiff of particular matters as at the date of the expiration of the limitation period.  It would assist your Honours – could I ask your Honours to turn the provision up which is at 106 of the application book?

FRENCH CJ:   Can I just ask a question which, I think, was raised in a comment made in passing in the Court of Appeal – why was section 41 not involved in this?

MR DONALDSON:   Not involved?

FRENCH CJ:   Yes.

MR DONALDSON:   It was.

FRENCH CJ:   But the case really concerned section 39, did it not?

MR DONALDSON:   Well, oddly, it started as a case, in fact, concerning section 41.

FRENCH CJ:   Yes, but that seems to have fallen by the wayside a bit.

MR DONALDSON:   Yes, it did.  I was the other side, your Honour, I cannot quite explain that, but it was certainly first put up really as a section 41 case, then it became a 39, your Honour, when 41 fell by the wayside, as it were.

FRENCH CJ:   Well, I think the President made some comment about that in the judgment.

MR DONALDSON:   So, your Honours, you will see that the 39(3) operates – or the integer of awareness is that at the time the limitation expired the plaintiff was not aware of the physical cause or was aware of that but was not aware that the injury was attributable to the conduct of defendants.  So, the integer of awareness is common throughout or occurs throughout this provision. 

Now, the facts of this case, or the circumstances of this case, your Honours, are paradynamic, really, in giving rise to or illustrating a particular issue which has, in our submission, substantial importance in relation to how these provisions work.  To understand the paradigm, your Honours will know that this young girl was born in 2001.  Her cause of action accrued in 2005 when the new legislation came into operation.  She sought an – and the limitation period expired in 2011.  She sought – when I say “she”, her father ‑ she sought expert medical opinion in 2006 and was told or received advice to the effect, looking at 39(3) that her injuries were not attributable to the conduct of the identified defendants, that is, the doctor or the hospital. 

Having been told that – or receiving advice that, no, your injuries are not attributable to these defendants, what the Court of Appeal has determined in this matter is, well, if you received that advice that does not mean that you are not aware that the injury was attributable.  You have been told it is not but it does not mean that you are aware that it is.  Now, that gives an extremely unusual and, as I will explain with the greatest respect, astonishing consequence to the operation of a provision such as this, and that operation or that consequence is this, that the limitation period never expires.  That is because in circumstances such as this the plaintiff can seek and receive medical advice ‑ this being a matter which requires expert opinion or advice ‑ can receive medical advice that there has been no negligence.  That advice can be – and proceedings are not commenced.  The plaintiff can receive that advice constantly for ‑ ‑ ‑

FRENCH CJ:   Well, it is not right to say the limitation period never expires, it is a question of the circumstances under which it may be extended. 

MR DONALDSON:   I was using a shorthand expression, your Honour, that is that those circumstances continue on indefinitely.  That, your Honour, is, in our submission ‑ or to give that provision 39(3), and it occurs in relation to (a) and (b), that meaning, your Honours, is, in our submission, simply contrary to the entire purpose of a limitation statute and for provisions such as this.

KEANE J:   Why is that so?  Why would one not naturally read these provisions as making an extension available to people who do not have actual knowledge of the circumstances in (a), (b) and (c).

MR DONALDSON:   Because what that means, your Honour, in the way the Court of Appeal has described it is you will never have actual knowledge until you receive an expert report which supports you and that can be – what follows from that is you can receive any number of expert reports that are against you for any period of time.  Keep fishing for an expert report that supports you and it is only when you ‑ ‑ ‑

KEANE J:   Or just the development, the evolution of knowledge.

MR DONALDSON:   That is a circumstance, your Honour, but ‑ ‑ ‑

KEANE J:   They know more now than they knew 10 years ago.  It seems to me to be precisely the sort of case that this statute is concerned with.  Given that as a matter of ordinary language the idea of being aware of something does mean actual knowledge.  This Court ‑ I mean, contexts differ, of course.

MR DONALDSON:   Quite so.

KEANE J:   But in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151 this Court held, in the context of that particular statute, that the phrase “becomes aware of” required actual knowledge.

MR DONALDSON:   Your Honour, there are other – as your Honour said context is everything.

KEANE J:   I am not saying it is decisive, I am just saying it is an illustration of the ordinary use of the language.  It seems to me, with respect, that you need to read this provision in a way that does some violence to the actual language.

MR DONALDSON:   Well, the language, your Honour, is – of course, the term “awareness” is used, not “knowledge”.  Sometimes “knowledge” is seen.  So, it is “awareness” of a circumstance.

KEANE J:   But it is actual awareness.  It is not constructive knowledge or constructive awareness.

MR DONALDSON:   Quite so.  I am not saying there is any element of a constructive understanding of matters in this particular statutory context, your Honour.  But it is awareness of a circumstance, and in the way that the provision has been construed in the Court of Appeal, that awareness can only arise once.  You get the answer that you want which could be at any time into the indefinite future, as it were.  Your Honour, that is in our ‑ ‑ ‑

KEANE J:   You are saying the answer that you want, it is putting it slightly pejoratively – until you get the answer that suggests that you could responsibly make a claim.

MR DONALDSON:   Yes, having in a scenario ‑ and this is an example of it ‑ received advice during the limitation period that there was no simply negligence on the part of the identified defendants, there being nothing and no evidence to suggest that the further application after the – sorry, the further soliciting of a report after the expiration of the limitation period was as a result of any sort of change in medical understanding or the like.

So, your Honours, that is the point that we seek to agitate, the point of principle that we seek to agitate in relation to section 39(3).  It is, in our respectful submission, an important issue in relation to the understanding and operation of provisions such as this where the critical integer is the awareness of a lay person in relation to matters that require expert attention, or expert evidence or advice.  Your Honours, can I deal with two factual matters that are said to be put in our way?

FRENCH CJ:   Sorry, can I just ask what, if any, significance does one attach to the observation in the judgment of Justice Buss at 239, page 71 that the solicitors’ letters to Professor Michael did not request him to:

advise on what may have caused the respondent’s cerebral palsy, and Professor Michael did not express a view about it.

MR DONALDSON:   Yes, that is the issue I was going to address, your Honour.  The way in which the Court of Appeal ‑ and it is clear in Justice McLure’s judgment at paragraph 8, your Honours, but it is the same issue ‑ the way in which the Court of Appeal construed the evidence in relation to that or came to findings in relation to the evidence is that, in fact, there was no request of advice in relation to (3)(a), only in relation to (3)(b).

So, in relation to (3)(a) the plaintiff was never aware of the physical cause of it because the plaintiff never asked.  That gives rise, in our submission, to an additional issue that where in a circumstance such as this a plaintiff asks a question, asks the (b) question ‑ assuming that is, in fact, what happened – asks the (b) question, gets told “no”, therefore he is said to be not aware of attribution in terms of (b), then does nothing in relation to the (a) question and is then found to be not aware of the circumstance of (a) because (a) did not ask for it during the limitation period.  That, as the Chief Justice has indicated, really operates in relation to the exercise of the discretion under (4).

Again, we would say, that there is an important point of principle that arises in relation to (a) as well.  If it can be said that a person is not aware of a particular matter because they do not ask – a matter that requires expert opinion because they do not ask or seek that expert opinion during the limitation period when they have sought expert opinion in relation to a cognate matter, that is the (b) matter, it is erroneous to conclude that a person was not aware of that or, if it can be found that they were not aware of that, then that does not agitate or excite the exercise of the discretion under (4), in our submission.  They are the issues, in our submission, that should be agitated on this particular matter, your Honours.

FRENCH CJ:   Yes, thank you very much.  Yes, Ms Archer.

MS ARCHER:   Can I start firstly with our proposition that the factual issues that arise in this case do not fit with the special leave questions posed by the respondent – sorry, the applicants?  The first is that the first special leave question requires two things, that Mr Dixon knew all facts relevant to whether the injury was attributable to the conduct of a person and, secondly, that he actually suspected that the injury was attributable to a person.  So, let me deal firstly with all facts relevant.

Would a fact relevant to the question of whether the injury was attributable to the conduct of a person be what the physical cause of the injury was and, we say, the answer to that question is obviously yes.  If, for example, a person was to have abdominal surgery, three weeks later have a nerve impingement, before they could be properly said to be aware that the nerve impingement had been caused by some conduct of the surgeon, you would need to know what had caused the nerve impingement and when.  If it turned out that two weeks before the surgery they had had a motor vehicle accident and that had caused the nerve impingement, then there would be no cause of action against the surgeon.

So, we say, that one of the facts relevant to attribution is knowing the physical cause of the injury or, at least, when it occurred.  There is no evidence that Mr Dixon knew that the cerebral palsy had been caused by intrapartum events.  The sequence, as your Honours will be familiar, was there was apparently something went wrong in the intrapartum second stage, that caused an interruption to the blood flow, that caused HIE and subsequently later that caused the cerebral palsy.  So, if you did not even know when the thing had happened that led to the cerebral palsy, how could he be said to know all facts relevant to whether the injury was attributable to the conduct of a person?

Now, in the applicant’s summary of argument at paragraph 30, the applicants contend he must have “known or suspected” the physical cause.  So, that is a concession that he may not have known.  Then, in the applicant’s reply at 3(b) the applicants contend that he actually suspected the physical cause or ought to have been aware of it even if he did not actually suspect it.  So, that is a concession that he may not even have suspected it and his evidence was that he was just asking questions.

KEANE J:   If the facts showed casualness in relation to these issues on the part of the plaintiff or her parents and possibly that there was prejudice to the other side as a result of the delay, that would be a good case for exercising the residual discretion against granting the extension.

MS ARCHER:   That is correct, your Honour.

KEANE J:   So, you do not need to import some doctrine of constructive notice or constructive awareness into subsection (3) in order to meet that sort of case.

MS ARCHER:   That is right, and it is not only the discretion, your Honour, it is also section 39(4) which basically makes people take action within three years after they ought reasonably to have been aware.  So, if somebody sits on their hands and does nothing and they are not aware, after three years, too bad.

So, that is what we say is the first facts relevant that Mr Dixon did not know.  The second thing is if the conduct was an omission, for example, a failure to provide a safe system of work, would a fact relevant to the question of whether a person had contributed to the injury be knowledge that there was a safer system.  This Court has said in Dedousis that the answer to that question is yes, and for the transcript, Dedousis is Dedousis v Water Board 181 CLR 171. So, if that is right, again, Mr Dixon did not know all facts relevant. He did not know that anything had been omitted, for example, he did not even know that a foetal scalp electrode should have been attached or could have been attached.

In the applicant’s summary of argument at 32, a slightly different construction is offered to the one in the special leave and this one is that the plaintiff must have been actually aware of a reasonably arguable factual basis for the injury being attributable to a person and actually suspecting it.  We say, how was Mr Dixon actually aware of a reasonably arguable factual basis?  He knew his daughter had some problems after she was born.  He was told she was fine.  He knew that she was developmentally delayed.  He repeatedly asked questions and he was told nobody knew why that was and there was initially some idea that it was to do with a hip splinting or her mother’s slow delay.  He later knew she had cerebral palsy.  What did he know about anything that the staff did or did not do that could be connected to the problems that she had after birth or the cerebral palsy?  So, that is all facts relevant.  Can I now turn to “actually suspects”?

The fact that Mr Dixon decided to ask questions is not the same as proof that he actually suspected.  His evidence was that he did not know and he felt he should ask.  We set out in our submissions at paragraph 11 his evidence about that which was to the effect that he:

believed that, if Dr Clarke or the nursing staff had done anything wrong, one of the many medical practitioners he had seen –

would have told him ‑

He consulted solicitors [he said] because “as a parent, I didn’t want to leave the question unanswered . . . At least ask the question, because we didn’t know the answers”.

There is no evidence that his state of mind is anything greater than wondering whether or not something might be so.  It is unclear whether the applicant is saying that that is enough to be actual suspicion and if it is we need to read down the word “aware” in section 39 to “no idea”.  If the applicant is not saying that actual suspicion means simply “no idea” then this is not a suitable vehicle for this special leave question because Mr Dixon is simply wondering.

In relation to the factual issues in the second leave question, it is put against us that the Court of Appeal said because he had asked and been given a negative it was found he had taken all reasonable steps and criticism was made of that conclusion.  With respect, that is not what the Court did.  I invite your Honours to go to the decision of President McLure at page 33 of the appeal book, paragraph 45, and about four lines down on the page your Honours will see the sentence:

On balance, it was reasonable –

that sentence and the next sentence.

FRENCH CJ:   What do you say about Mr Donaldson’s spectre of the infinite regress of extension possibilities?

MS ARCHER:   With respect, the applicant’s construction does not achieve certainty either.  Either way, the test is going to be when somebody has something in their heads.  Either when they are aware of something or, on the applicant’s construction, when they actually suspect something.  Either way, you are looking at what is in somebody’s head.  The possibility of extensions occurring after a long period of time is no reason to do violence to the language of the legislation.

The New South Wales legislation has been cited by the applicants as being similar, section 60I; that is in a subdivision that deals specifically with extension of time for latent injuries.  There is another provision in that Act that sets an ultimate bar of 30 years from the final date at which a limitation period expires but that does not apply to cases in the subdivision in which section 60I is.  So, the idea that a legislation might contemplate long periods of time is not foreign.  What the legislation has chosen to do is to allow the courts to have the discretion to decide what is fair.  So, they could have ‑ ‑ ‑

KEANE J:   Because of a delay, a fair trial cannot be had then Brisbane South v Taylor says you do not grant the extension. 

MS ARCHER:   Yes, your Honour.

KEANE J:   So, the problem of having a fair trial is dealt with as a matter of discretion.

MS ARCHER:   Yes, your Honour and the legislation could have chosen to.  It could have said you have three years from the date at which you suffer an injury, but it has deliberately rejected that and instead said you have this period of time but once you ought to have been aware of things we will limit you to another three years just to make sure you do not have people sitting on their hands.  But even then we are going to give to the courts the power to control these things.  That allows for the infinite possibilities that arise to be catered for.  A piece of legislation could not do that and so instead the Parliament has said to the courts we are trusting the courts to achieve fairness here.  If the level is set too low, that would encourage actions of a speculative nature which is also not something that is desirable.

Those were the submissions that I wish to make about the factual issues and consequences.  The only other comment I will make is in relation to section 41 which your Honour the Chief Justice raised.  That was part of the grounds upon which an application was made before the Master.  I, obviously, was not counsel at that time, although Mr Donaldson was.  The argument was focused solely on section 39 and because the Master granted an extension under 39 it was not necessary.

FRENCH CJ:   It just did not come into play.

MS ARCHER:   It did not come into play, but in a hypothetical situation if leave was to be granted it would obviously be a notice of contention point.

FRENCH CJ:   Yes, thank you.  Yes, Mr Donaldson.

MR DONALDSON:   Your Honours, can I deal with the two questions really that came from Justice Keane that are raised in my friend’s submissions.  Your Honours, we would say that this is a circumstance where this plaintiff did, in fact, sit on his hands, to use your Honours’ expression.  In 2006, he sought an expert report, or expert opinion, in relation to certain matters.  Nothing was then done until 2012.  He sat on his hands for six years after getting that first negative ‑ ‑ ‑

FRENCH CJ:   The second was the result of some internal review by the firm of solicitors, was it not, of a particular class of case?

MR DONALDSON:   I think that is right, your Honour, that is so.

FRENCH CJ:   They had contacted all the clients.

MR DONALDSON:   Yes.  It is not a question of whether the solicitors sat on their hands, it was whether the plaintiff sat on his hands.

FRENCH CJ:   No, but the way it happened – the way the second inquiry was made was as a result of an internal review of this class of case.

MR DONALDSON:   Yes.  It was almost archetypically sitting on your hands.

KEANE J:   It is hard to say he sat on his hands.  He accepted the advice he was given.

MR DONALDSON:   Yes, and then did nothing.  Got the advice, was aware of the advice, was aware of the issue and then did nothing else about it for six further years.  We would characterise that as sitting on your hands, your Honour.  He did not do anything.  If doing nothing is not sitting on your hands, I am not sure what sitting on your hands ‑ ‑ ‑

FRENCH CJ:   I am not sure the metaphor is apposite.  It gives a pejorative approach which is really unnecessary.

MR DONALDSON:   Yes, quite so.  I was not seeking to be impolite, I was just dealing with the issue really which your Honour raised in the way that your Honour raised it.  Could I make one other final observation, your Honours, in relation to the question or the operation of these provisions having regard to the issue of prejudice of the defendant which, again, is an issue which your Honour Justice Keane raised?  That is undoubtedly a discretionary issue brought into this scheme by use of the word “may” in subsection (4) but before one gets to the exercise of that discretion, of course, one has to properly construe and apply the provisions.

KEANE J:   Of course.

MR DONALDSON:   It is those questions of principled application of the substantive provisions which are those which we are seeking to excite the Court with.  If your Honours please.

FRENCH CJ:   Thank you, Mr Donaldson. 

In our opinion the applications of sections 39(3) and 39(4), adopted by the Court of Appeal, were reasonably open.  They do not disclose any question of principle warranting the grant of special leave.  In each case special leave will be refused with costs.

AT 10.14 AM THE MATTERS WERE CONCLUDED