| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ASHER-RELF by his next friend DOUGLAS BEAN -v- MINISTER OF HEALTH & ORS [2009] WADC 202 CORAM : STEVENSON DCJ HEARD : 4 SEPTEMBER & 16 DECEMBER 2009 DELIVERED : 23 DECEMBER 2009 FILE NO/S : CIV 149 of 2009 BETWEEN : PATRICK ASHER-RELF by his next friend DOUGLAS BEAN Plaintiff
AND
MINISTER OF HEALTH
First Defendant
GLEN LEWIS
Second Defendant
JOHN LOVE
Third Defendant
Catchwords: Limitation of actions - Public authority defendants - Limitation Act 1935, s 47A - Extension of limitation period - Limitation Act 2005, s 7 and s 41 - Extension of time to commence action - Plaintiff's claim time barred under earlier legislation - Whether power to consider application to extend time - Should
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Court exercise discretion if power exists - Statutory construction - Principles for extension of time Legislation: Limitation Act 1935, s 38(1), s 47A
Limitation Act 2005, s 4, s 5, s 7, s 41, s 44
Limitation Legislation Amendment and Repeal Act 2005 Result: Plaintiff's application for leave to commence proceedings dismissed Representation: Counsel:
Plaintiff : Mr D Graham
First Defendant : Mr D R Clyne
Second Defendant : Mr D R Clyne
Third Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Julian Johnson Lawyers
First Defendant : Minter Ellison
Second Defendant : Minter Ellison
Third Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Alcoa of Australia Ltd v State Energy Commission (WA) (1997) 17 WAR 112
Amaca Pty Ltd v Cremer (2006) 66 NSWLR 400
Australian National Airlines Commission v Newman (1987) 162 CLR 466
Conray v Scotts Refrigerated Freightways Pty Ltd (2008) Aust Torts Reports 81-944; [2008] NSWCA 60
Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207
Maxwell v Murphy (1957) 96 CLR 261
Smith v Australian National Line Ltd (1998) 20 WAR 219
State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 17 WAR 131
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Introduction 1 The plaintiff seeks leave to commence this action against the defendants pursuant to s 41(1) of the Limitation Act 2005 (WA) ("the 2005 Act"). 2 The plaintiff seeks an extension of time until 21 January 2009 to commence these proceedings. An extension of time is necessary because the limitation period which applies to the plaintiff's cause of action has expired and the defendants rely upon this fact as a complete defence to the claim. 3 The plaintiff was born on 2 November 1996 at King Edward Memorial Hospital with cerebral palsy. By his next friend (his grandfather) he contends that his cerebral palsy was caused by a lack of oxygen and blood flow to his brain in the time immediately prior to his birth. 4 The plaintiff claims that the defendants were negligent in the time immediately before he was born because, according to him, the existing circumstances (in particular the condition of his mother and the result of a cardiotocographic trace (CTG) of his foetal heart) demanded that he be born by caesarean section immediately or at least sooner than occurred. 5 The plaintiff's case is that if he had been born earlier it would have minimised the risk of, or the degree of, the injury he suffered. If the plaintiff is able to establish a relevant breach of a duty of care by the defendants, it will still be necessary in order for his claim to succeed, to prove that the breach of duty caused or materially contributed to the injury he suffered. 6 The plaintiff contends that the proper construction of s 7 and s 41 of the 2005 Act confers statutory power on this court to grant the plaintiff leave to commence these proceedings, even though the limitation period has expired under the Limitation Act 1935 (subject to the Court's discretion in this regard being conditioned by the requirements of s 41(3) and s 44). 7 The defendants deny liability and oppose the plaintiff's application for an extension of time on the basis that the Court does not have jurisdiction and therefore the power to extend time. Alternatively, the defendants say if they are wrong and the Court does have power, then the (Page 4)
pre-conditions to the exercise of the power are not present in the circumstances of this case and further, and in any event, the Court should not exercise its discretion to extend time.
Can the Court extend time?
8 The plaintiff accepts that the limitation period under the Limitation Act 1935 (WA) ("the 1935 Act") has expired. This concession is properly made for the following reasons. 9 Pursuant to s 40 and s 38(1) of the 1935 Act, a person who is under 18 years of age when a cause of action accrues may commence an action at any time up until he or she turns 24 years of age (age of majority = 18 years + limitation period = 6 years). It is common ground that the plaintiff's cause of action accrued for the purpose of calculating the relevant limitation period at the time he was born. Therefore, prima facie, the plaintiff is entitled to commence legal action at any time until he turns 24 - in 11 years' time, in 2020. The irony in this case is that, if the plaintiff had been born in a private hospital, he would have had until 2020 to bring his action, subject to operation of the 2005 Act. 10 However s 40 and s 38(1) of the 1935 Act are subject to the special notice and limitation requirements of s 47A, which were added in 1954 to provide protection to public authorities, the Crown, local government authorities and their employees in each instance. In such cases, the plaintiff must ordinarily bring the action within one year of the cause of action accruing although, with the consent of the defendant or leave of the court, the action may be brought within six years. There is also a notice requirement. 11 This special protection by reason of the shortened limitation period for public authorities was the outcome of the balancing exercise by the legislature in 1954 of the rights of the individual to seek compensation for perceived wrongs by those involved in the performance of public duties, and the right of public authorities to know whether they were facing claims from plaintiffs in a timely fashion. The intention was to limit the allocation of resources necessary to meet such claims and to minimise the impact of claims on the provision of the public services being provided by the authority. 12 This privileged position of public authorities with respect to potential legal claims existed in stark contrast to that of ordinary defendants. It (Page 5)
caused the Law Reform Commission of Western Australia, in its 1997 report on Limitation and Notice of Actions to comment that "Most other jurisdictions once had similar provisions, but they have now been abolished practically everywhere except in Western Australia" (par 10.3). 13 The plaintiff accepts that each of the defendants is entitled to rely on the protection of s 47A of the 1935 Act, on the basis that King Edward Memorial Hospital is a public statutory authority (s 47A(4)(a)). See Parker J in Alcoa of Australia Ltd v State Energy Commission (WA) (1997) 17 WAR 112 at 129; State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 17 WAR 131; Smith v Australian National Line Ltd (1998) 20 WAR 219; Australian National Airlines Commission v Newman (1987) 162 CLR 466 at 471 and 472. 14 A written notice within 12 months of the plaintiff's cause of action accruing as required by s 47A(1) was not given to the defendants. Notice of the claim was only given by the plaintiff on 31 August 2000. Also, no application for leave to bring an action within six years of the date on which the cause of action accrued was made pursuant to s 47A(3)(a). In every respect the plaintiff is out of time. 15 There is no power in the 1935 Act for the Court to extend the time within which the plaintiff can commence these proceedings. In this regard it must be understood that the plaintiff's cause of action is not "extinguished" by the operation of these provisions, but rather that the plaintiff cannot proceed with his action if the defendants rely on the expiry of the limitation period as a defence to the claim, which is of course their legal right.
The Limitation Act 2005 16 The Limitation Act 2005 came into operation on 15 November 2005. The "commencement day" for the purpose of the Act is also 15 November 2005: s 3(1). 17 Section 4(1) provides that the limitation periods provided for under the 2005 Act apply only to causes of action that accrue "on or after commencement day", i.e. 15 November 2005. It is common ground that the plaintiff's cause of action accrued on 2 November 1996, that is before the commencement day of the 2005 Act. But s 4(1) is expressly subject to s 7 and s 8: s 4(2). 18 Section 7 contains "special provisions" for certain personal injury actions relating to childbirth. It is common ground, subject to the (Page 6)
construction arguments, that the plaintiff's claim would constitute an action on a cause of action (childbirth) as that term is defined. 19 Section 7 provides: "7. Special provisions for certain personal injury actions relating to childbirth (1) In this section — cause of action (childbirth) means a cause of action for damages relating to a personal injury to a person that was incurred — (a) in the course of the person’s mother giving birth to the person; or (b) immediately after, and arising from, the person's mother giving birth to the person, whether the birth was by way of natural childbirth or a medical procedure. (2) An action on a cause of action (childbirth) cannot be commenced if the cause of action accrued before commencement day and — (3) This section has effect subject to Part 3 but — (4) For the purposes of the provisions of Part 3 that apply under subsection (3), a cause of action (childbirth) is to be taken as having accrued on commencement day." (Page 7)
The plaintiff's submissions on s 7 of the 2005 Act 20 The plaintiff contends that his claim falls within the provisions of s 7(2)(b), because "the limitation period that would have applied but for this section has expired". The plaintiff says that the reference to "the limitation period" in s 7(2)(b) is speaking generally and is a reference to the limitation period that applied under the 1935 Act. The plaintiff's position is "rolled up" in his written submissions when he says: "The plaintiff's cause of action accrued before the commencement day of the 2005 Act (15 November 2005) and is, therefore according to s 7(2)(b), governed by the limitation period applicable under the former Act." 21 At the heart of the construction issue between the parties is the meaning of the phrase "the limitation period" in s 7(2)(b) and also what is meant by the phrase "but for this section has expired". The plaintiff's contention is that his claim is a claim which falls within the meaning of s 7(2)(b). 22 The plaintiff submits that s 7 contemplates two types of "old" childbirth causes of action. First, those in which the limitation period has not yet expired under the 1935 Act which, according to the plaintiff, are given a finite period of six years for commencement of an action (s 7(2)(a) claims). 23 Secondly, those in which the limitation period has already expired under the 1935 Act as at commencement day which, according to the plaintiff, remain "statute barred" because they were already statute barred (s 7(2)(b) claims). However, in respect of these statute barred claims, the plaintiff says because s 7(3) says that "this section has effect subject to Part 3", it follows that both the first type of "old" claims and the second type of "old" claims may be the subject of a s 41 application for an extension of time to commence an action. 24 The plaintiff contends that the Court has the jurisdiction and power under s 41(1) of the 2005 Act to consider an application for leave to commence the action "even though the limitation period provided for under this Act has expired". The plaintiff relies on the fact that the operation of s 41 is limited in actions on a cause of action (childbirth) by s 7(3)(b) which provides that it does not apply if the plaintiff was 15 on 15 November 2005 (commencement day). It is a fact that the plaintiff was under the age of 15 years at commencement day. (Page 8)
25 Section 41(2) contains a further limitation which requires the plaintiff to make the application to the Court, in effect, before the plaintiff turns 21 because the Court is only empowered to extend time until the plaintiff reaches 21 years of age. But it must be remembered when considering these restrictions that s 41 deals with plaintiffs who are under the age of 18 when their cause of action accrued and does not by its express terms deal with "childbirth claims". 26 Section 41 provides: "41. Court may extend time to commence action by person under 18 when cause of action accrues, with guardian (1) A plaintiff who was under 18 years of age when a cause of action accrued to that person may apply to a court for leave to commence an action even though the limitation period provided for under this Act has expired. (2) Subject to subsection (3), on an application a court may extend the time in which the action can be commenced up to when the plaintiff reaches 21 years of age. (3) A court is not to extend time on an application unless the court is satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action. (4) This section does not apply to an action relating to the publication of defamatory matter." 27 In order to determine the proper construction of the "special provisions" in s 7 of the 2005 Act, it is necessary to understand the context in which they operate in the Act, the circumstances in which they were proclaimed, and the legal position as it stood under the 1935 Act. These matters may assist to inform the legal position following the commencement of the 2005 Act, and to determine if the 2005 Act has caused any change in the law and, if so, what change.
The Limitation Legislation Amendment and Repeal Act 2005 28 Section 4 of the Limitation Legislation Amendment and Repeal Act 2005 came into effect on 15 November 2005 and provides: (Page 9)
"4. Limitation Act 1935 repealed and savings provisions (1) The Limitation Act 1935 is repealed. (2) The Limitation Act 1935 continues to apply, despite its repeal and the enactment of the Limitation Act 2005, to causes of action that accrued before commencement day. (3) Subsection (2) is subject to the Limitation Act 2005 sections 6 and 7. (4) The Limitation Act 1935 applies, despite its repeal and the enactment of the Limitation Act 2005 (the 'new Act'), to a post-commencement action, as defined in section 8(2) of the new Act, to which section 15 of the new Act does not apply because of section 8(2) of the new Act. (5) A reference in a written law to the Limitation Act 2005 may, where the context so requires, be read as if it were a reference to the Limitation Act 1935 in relation to a cause of action — 29 The position provided for by this law is consistent with s 9 of the 2005 Act, which provides that the 2005 Act does not affect the operation of a limitation provision in another written law or anything done under such a provision. 30 As can be seen, the effect of the Limitation Legislation Amendment and Repeal Act 2005 is that the 1935 Act continues to apply to causes of action that accrued before 15 November 2005 except for the effect of s 6 and s 7 of the 2005 Act. So what is the effect of s 7 of the 2005 Act? 31 Section 5 of the 2005 Act makes it plain that, except for personal injury actions which are dealt with by s 6, an action cannot be commenced on or after commencement day if the action could not have been commenced immediately before commencement day because of the operation of the 1935 Act. (Page 10)
32 Section 6 of the 2005 Act is concerned with personal injury actions and deems that the accrual time of such a claim is governed by s 55 which specifies how to ascertain when a cause of action relating to a personal injury accrues. Section 6(2) provides that the applicable limitation period "is that which would have applied before commencement day, whether or not that period has expired" if, under s 55, the cause of action accrued before commencement day. 33 In summary, the limitation period for personal injury claims is determined by reference to when the cause of action accrued. If the plaintiff's cause of action accrued before 15 November 2005 the relevant limitation period is to be found in the 1935 Act, and if after that date, the relevant limitation period is to be found in the 2005 Act. In this way, there is no retrospective operation of the 2005 Act subject to the clarification by s 55 as to when a cause of action for damages for a personal injury accrues. 34 In this context and against this background it is necessary to consider, as a matter of construction, the operation of the "special provisions" for the class of personal injury actions relating to childbirth. What did parliament intend the legal position to be for legal claims arising out of childbirth by enacting s 7 of the 2005 Act? Is the legal position with respect to such claims under the 1935 Act changed? If so, in what way? 35 The plaintiff's starting point is s 4(1) of the 2005 Act which provides that the limitation period provided under the Act applies only to causes of action that accrue on or after commencement day except for, relevantly, the special provisions for personal injury actions relating to childbirth found in s 7. The plaintiff says that s 7(2)(b) operates to incorporate into the 2005 Act the relevant limitation period under the 1935 Act. On this basis, the plaintiff says that the limitation period under s 47A of the 1935 Act is thereby deemed to be a "limitation period provided for under [the 2005] Act". 36 Using this reasoning the plaintiff says the legislature therefore created a "special category of case" for which the limitation periods under the 2005 Act were to apply – "childbirth causes of action accruing prior to the commencement of the 2005 Act". The plaintiff relies upon the fact that s 4(1) does not provide an exemption just for s 7(2)(a) causes of action; it explicitly refers to s 7 which includes (obviously) s 7(2)(b) situations. The plaintiff asserts that the reason why parliament created the special provisions for this category or class of plaintiff is "to prevent an (Page 11)
injustice". The plaintiff calls in aid, extrinsic material to assist in arriving at its interpretation of the legislation. 37 It is accepted that the Court must take a purposive approach to the construction of a statute: s 18 Interpretation Act 1984 (WA). The limitation in s 18 is that the construction to be preferred is one that "… would promote the purpose or action underlying the written law (whether that purpose or object is expressly stated in the written law or not)" over a construction that would not promote the purpose or object. This obviously begs the question in the present case because, in the end, the legislature is balancing the competing rights and interests of its constituents. Whichever interpretation is preferred, it will advantage one party and disadvantage the other party, unless the status quo is maintained. The plaintiff relies upon the heading of s 7 as a "special provision" to infer that there should be some benefit or advantage accruing to this class of plaintiffs arising out of the legislation and the changes enacted. 38 The plaintiff also relies upon s 19 of the Interpretation Act to call in aid, in particular the Second Reading Speech in parliament on the basis that it is capable of assisting in ascertaining of the meaning of the provisions in question; to either confirm the meaning argued for or to determine the meaning because the provisions are ambiguous or obscure. For this purpose, I have had regard to s 19(3) of the Act. 39 However, it is not the plaintiff's submission that the construction of s 7 is ambiguous or obscure or that a construction of its text, taking into account its context and purpose, leads to a manifestly absurd or unreasonable result. As mentioned, the plaintiff relies upon the heading to s 7 to indicate that parliament intended to create a special exception to s 4(1) which excluded the provision of the 2005 Act from childbirth causes of action that accrued before the commencement day, so as to include those where the limitation period had expired. In this sense, the plaintiff says that s 7 is "remedial or beneficial" in nature. 40 The plaintiff relies upon the summary by McColl J in Amaca Pty Ltd v Cremer (2006) 66 NSWLR 400 at 50 – 51 wherein he referred to the High Court authorities outlining the principles to be used when construing beneficial or remedial provisions: "[50]Section 12B is, therefore, properly to be regarded as of a beneficial or remedial nature (see State of Queensland v Stephenson & Anor [2006] HCA 20 at [52]–[53] per (Page 12)
Kirby J) and, if ambiguous, to be construed 'so as to give the most complete remedy which is consistent 'with the actual language employed' and to which its words 'are fairly open': Khoury v Government Insurance Office of New South Wales [1984] HCA 55; (1984) 165 CLR 622 (at 638) per Mason, Brennan, Deane and Dawson JJ; Holmes v Permanent Trustee Co of New South Wales Ltd [1932] HCA 1; (1932) 47 CLR 113 at (119) per Rich J. [51] It is essential to recall, that in Bull v Attorney-General [1913] HCA 60; (1913) 17 CLR 370, the classic judgment on interpreting remedial statutes, Isaacs J said (at 384) that the beneficial approach did not mean 'that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow'. Thus, identifying s 12B as remedial should not obscure the question of determining the meaning of the relevant words: Victims Compensation Fund Corporation v Brown[2003] HCA 54; (2003) 77 ALJR 1797 at [33] per Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed). Further, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural: IW v City of Perth(People Living with AIDScase) [1997] HCA 30; (1997) 191 CLR 1 (at 11 - 12) per Brennan CJ and McHugh J." 41 The plaintiff says that its construction is consistent with this approach and that the narrow construction relied upon by the defendants is inconsistent with both the ordinary language of the text and also the clear intention of parliament to create a special category of cases to benefit from the extension provisions under the 2005 Act. The plaintiff argues that the defendants' construction is contrary to the ordinary meaning of the text and "fails to explain the work s 7(2)(b) has to do, and leads to an absurd or unreasonable result". To the extent that the defendants rely on parts of the Second Reading Speech and the endnotes to the 2005 Act, the plaintiff says those references are to s 7(2)(a) childbirth claims and that they cannot possibly refer to s 7(2)(b) proceedings because the limitation period had already expired for such claims. Notwithstanding this, the plaintiff seeks to rely upon those parts of the Second Reading Speech which support its construction, for example, the statement: (Page 13)
"The limitation period may be extended in certain circumstances under Part 3 of the bill. This is an important safety net to ensure that children with legitimate claims are not disadvantaged." (emphasis added by the plaintiff) 42 I accept, and it is not in issue, that the effect of the 1935 Act is not to extinguish the plaintiff's claim but merely to enable a defendant to rely upon s 47A to prevent a plaintiff from commencing or maintaining proceedings if the notice and limitation provisions are not complied with. In practical terms s 47A denies the remedy, but it does not destroy the plaintiff's rights. 43 Counsel for the plaintiff in his supplementary submissions also referred to the hoary old chestnut of the "floodgates" being opened (the issue having been raised by me at the first hearing). In my view the 2005 Act either does or does not permit the plaintiff to apply for leave to commence these proceedings. In any event, as noted already, there is a "break" on the potential number of plaintiffs because s 41(2) of the 2005 Act means in practice that the cause of action cannot be commenced after the plaintiff has turned 21 years of age; there is a further limitation under s 7(3)(b) which excludes the operation of s 41 (the extension of time provision) if the plaintiff was 15 at the commencement day; and finally, if the Court has power to entertain the application, it has an overarching discretion in accordance with the provisions of the Act as to whether or not to extend time to allow a plaintiff to bring an action. This is intended to balance the interests of justice in accordance with the particular circumstances in question. It provides some "safeguard" for defendants against plaintiffs bringing extension of time applications for unmeritorious claims, or where it would be unjust. In respect of all these matters, I agree with the submissions made by counsel for the plaintiff.
The defendants' submissions on s 7 of the 2005 Act 44 The defendants' position is that the proper construction of the provisions of the 2005 Act does not permit the plaintiff to seek an extension of time under s 41 to bring his claim. 45 The defendants say in their written submissions that s 7 has a retrospective element in its operation because it refers to "causes of action that have accrued before the commencement day", that is before the Act came into operation. However, the defendants assert that the intention of the section is to limit "childbirth claims current as at the date of commencement to a maximum further six years, irrespective of the limitation provision that applied before commencement. It was not (Page 14)
designed to revive expired claims. The 2005 Act has no application to the plaintiff's claim, which is statute barred pursuant to s 47A of the 1935 Act". 46 The defendants emphasise and rely upon the words "but for this section has expired" in s 7(2)(b) to limit the operation and effect of s 7 to those childbirth claims referred to in s 7(2)(a), namely those where the cause of action "accrued before commencement day and six years have elapsed since commencement day". In this way, the defendants say the words "but for this section has expired" have work to do and which thereby limit the reach of the section in a way that does not include those claims which have expired under the 1935 Act. 47 In support of its construction the defendants rely in particular upon the following portion of Second Reading Speech by the Attorney General, the Hon Mr J A McGinty: "The situation will now be that if a person has suffered a personal injury in the course of being born or immediately after and arising from the birth, and has not begun an action before the commencement day of the new act, provided the limitation period has not already expired, the action must be commenced within six years of the commencement day or before the date on which the person turns 24, whichever is the earlier. The limitation period may be extended in certain circumstances under Part 3 of the bill. This is an important safety net to ensure that children with legitimate claims are not disadvantaged. However, in general terms the effect will be that the limitation clock, so to speak, of babies who are injured during birth before the Bill comes into effect, will start ticking from the date the Bill becomes law." (emphasis added by the defendants) 48 The defendants also rely upon s 4, s 6 and s 9 of the 2005 Act (referred to above) to assist them in their construction that s 7 of the 2005 Act does not assist the plaintiff. The defendant say s 7 is not retrospective in a manner that would assist the plaintiff in this case because the plaintiff's limitation period has expired. The defendants maintain that s 7(2)(b) is concerned with the limitation period about which "the section" (i.e. s 7) is concerned, not cases where the limitation period has expired under the 1935 Act. (Page 15)
49 The parties' contentions raise questions whether s 7(2)(a) and s 7(2)(b) should be construed separately to refer to different claims at some specified point in time, or whether s 7(2)(b) when it speaks of "the limitation period" is referring to the limitation period that would have applied but for the operation of the section, including the effect and operation of s 7(2)(a).
Second Reading Speech on s 7 of the 2005 Act 50 In my view, it is appropriate to consider the Second Reading Speech and the parliamentary debates to ascertain whether they assist to clarify the issue. Relevant portions of the Second Reading Speech of the Attorney General, the Hon Mr J A McGinty, in the Legislative Assembly on 7 April 2005 include: "The purpose of the Limitation Bill 2005 is to update and modernise Western Australia's law in relation to time limits for commencing civil legal proceedings and arbitrations. Currently, the most significant statute in this State related to limitation periods is the Limitation Act 1935, a statute that largely reflects, in language and substance, English limitation statutes dating back to the sixteenth century. The act is antiquated. … Most importantly, its provisions are unfair and represent the harshest provisions in Australia. It is therefore proposed to overhaul the act and associated legislation that contain limitation or notice of action provisions. The objective is to achieve a modern limitations regime that is fairer and more flexible than our current law and that delivers a large measure of certainty. … The current limitations regime in Western Australia is a scheme of fixed limitation periods for identified causes of action, and the relevant period runs in each case from the time of the action's accrual; that is, from when all the elements of the cause of action have come into existence. For matters involving personal injury, there is presently a limitation period of six years, which runs from the date of the injury or damage. The only exceptions are in respect of asbestos-related diseases, for which the limitation period of six years accrues not on the date the disease was suffered but on the date when knowledge of the key facts was acquired - and in respect of children, persons with mental illness and defendants outside Australia at the time of accrual. There is no provision for extensions. (Page 16)
… This bill proposes to amend our legislation to fall more into line with our counterparts. A scheme of fixed time periods running from the date of accrual of causes of action is to be retained, although with provision – most significantly in the context of claims for personal injury - for extension by a court of that period. The limitation period for the commencement of proceedings is to be six years unless otherwise specified. The initial limitation period for the commencement of proceedings for personal injury will be three years, not the current six years. The court will be empowered to extend time for the commencement of proceedings for three years from when the victim knew, or ought to have known, that the physical cause of his or her injury was attributable to the conduct of a person, whether a defendant or not, and the identity of that person. … … In relation to children, the law currently provides that the six-year period is suspended while they are minors and runs from the time they turn 18 years of age or from the date of accrual of the cause of action, whichever is later, except in the case of actions against the state or public authorities falling within section 47A of the Limitation Act 1935, when the six years runs from the date of accrual only. Again, the situation in other jurisdictions is largely comparable. In both Victoria and New South Wales, for example, the limitation period is suspended while the person is under age 18 unless that person is in the custody of a capable parent or guardian. However, the limitation period for a potential defendant in a close relationship with a victim runs from when the victim turns 25 years old. There is also provision for an extension when the parent's or guardian's failure to bring an action is irrational. Under the bill, the limitation period will similarly be suspended for a child who is not in the custody of a parent or guardian. For a child who is in the custody of a parent or guardian, time is to run in the ordinary way, but the courts will again have a discretion to extend time until age 21 if the parent's or guardian's failure to commence proceedings was in the (Page 17)
circumstances unreasonable. A six-year limitation period will apply to a child under 15 years, and a child aged 15 to 17 will have until age 21 to sue. When a potential defendant was the parent or guardian of a child, or otherwise in a close relationship with the child in the sense that the relationship reduced the prospect of tortious conduct being disclosed or of a dispassionate consideration by the parent or guardian of the appropriateness of proceedings, the child has until age 25 to bring proceedings. The situation in relation to obstetrics is of particular significance. Under our current law an obstetrician can be sued by a person up to 24 years after his or her birth. This has resulted in increased insurance premiums for obstetricians and led to a shortage of obstetricians in the private sector. I met last year, prior to the introduction of this bill's 2004 predecessor, with Dr Louise Farrell, Chairman of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Dr Farrell subsequently wrote to me, and I quote from her letter dated 15 October 2004 – 'This Bill will make a substantial difference to my colleagues in The Royal Australian and New Zealand College of Obstetricians and Gynaecologists. It will remove one of the major obstacles to retaining and recruiting Obstetricians. Medico-legal concerns were cited as one of the principal reasons for current Obstetricians leaving private Obstetric practice. The reforms will therefore help in addressing current difficulties and facilitate improving access to high quality care. This will assist in maintaining and improving outcomes for mothers and babies'. It is the very long 'tail' for obstetrics that concerns many obstetricians. It pushes up already high indemnity costs, as insurance organisations find it difficult to estimate future liability and cannot remove potential liabilities from their books for up to 24 years. The long period of time available for obstetric claims makes it extremely difficult for the doctor to have any personal memory of the event when defending the claim. It also makes it very difficult to ensure that the case is judged by contemporaneous standards. (Page 18)
The situation will now be that if a person has suffered a personal injury in the course of being born or immediately after and arising from the birth, and has not begun an action before the commencement day of the new act, provided the limitation period has not already expired, the action must be commenced within six years of the commencement day or before the date on which the person turns 24, whichever is the earlier. The limitation period may be extended in certain circumstances under Part 3 of the Bill. This is an important safety net to ensure that children with legitimate claims are not disadvantaged. However, in general terms, the effect will be that the limitation clock, so to speak, of babies who are injured during birth before the Bill comes into effect will start ticking from the date the Bill becomes law. … I now briefly outline some of the other fundamental changes being made by the Bill. First, the specific notice of action and limitation provisions of section 6 of the Crown Suits Act 1947 and section 47A of the Limitation Act, as well as the related provisions in the Fatal Accidents Act 1959, are to be dispensed with. … Fourth, while on extension applications, the courts have a broad discretion as to whether to grant or refuse leave once the necessary criteria are met. The Bill specifically requires the courts to have regard to the prospects of a fair trail and to whether the grant of leave would significantly prejudice the defendant. … Ninth, the proposed limitation regime is not to be retrospective, with the exceptions outlined earlier in relation to causes of action accruing from when a latent disease or injury first manifested itself and in respect of obstetrics. … … This Bill will give Western Australia a fairer and more flexible limitations regime and will deliver a greater degree of (Page 19)
certainty for both defendants and victims. I am therefore pleased to commend the Limitation Bill to the house." 51 The Hon Mr J A McGinty in the Legislative Assembly during debates on 19 May 2005 made the following comments. At p 1 he referred to cl 7 as the "obstetrics clause". He also explained: "… As the drafting proceeded, amendments in relation to obstetrics were made in the late stages of the drafting ... Clauses 4 to 7 together now have the same effect as clause 4 in the bill from last year. This has simply been done for the ease of expression. … Clause 7, which last year was part of clause 4, shortened the limitation period that was otherwise applicable to causes of action in relation to childbirth, which accrued before the bill came into force. It has been marginally simplified by deleting the requirement 'that the action was not commenced before commencement day'. This requirement was not seen to add to the other requirements of the clause. It has not been a significant change; it is a wording change that I am advised will not have any effect different from that of the bill that was before the house last year. It was one of the last amendments that came about, if my memory serves me correctly, as a result of discussion with the Australian Medical Association about the obstetrics issues. … The general scheme here is that clause 4, which states in essence that the limitation period provided for under this legislation applies only to causes of action that accrued on or after the commencement day, is subject to clause 7, which is the obstetrics clause. Clause 4 is subject to clause 7 because obstetrics is one area that is made retrospective. There are two such exceptions. One was in the area of latent injuries, which are covered by a special provision that, providing the limitation period has not expired, the operation of this legislation can give a cause of action. A new test will be applied to when the cause of action for latent injuries accrues. The other exception is obstetrics, as provided in clause 7. There is a transitional provision to cover births prior to the commencement date of this (Page 20)
legislation. That is the reason the obstetrics provision needs to override the general provisions of the Bill, to make sure the required end result is achieved, in terms of the scheme outlined in clause 7. … As the member for Roe rightly pointed out, clauses 29, 30, 31 and 32 spell out that there is the ability for an extension to be granted to plaintiffs and victims who were under the age of 18 when the cause of action accrued. To those clauses, clause 40 needs to be added, which provides an additional power for the court to extend time to commence an action for a person under the age of 18 when a guardian is involved. In essence, if the child has a parent or a guardian, the normal six-year period will apply, with some power to extend. I refer the member to clause 40(3), in particular, which states - 'A court is not to extend time on an application unless the court is satisfied that in the circumstances it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action'. [Now s 41(3) of the Act.] Not all parents are good parents. A child might have a negligent parent. The child should not be prejudiced by the failure or the negligence of the parent or guardian to take legal action on the child's behalf. We are not seeking to deny people the ability to take legal action, but we want to harvest them a lot earlier. I think the obstetricians want that also; they want to know whether legal action is coming. That is why we have reduced the 24 years to six years, in the general scheme of things. One of the exceptions is that when a parent or a guardian behaves unconscionably or negligently, the bill will still leave alive the ability of the child to take legal action until the time he or she turns 21. Therefore, there is still an ability to overcome the negligence of the guardian. That is designed as a protection. It will still mean that, in some very rare cases, obstetricians could still be exposed beyond the six years, which is the general rule. However, we think that those cases will be very small in number, and we will have succeeded in our general objective of not denying people the chance to take legal action, but of requiring them to take it a lot earlier. We believe (Page 21)
this will bring almost all actions within the six-year period, but not in such a way as to exclude from taking legal action, and therefore getting damages, a child who has been the victim of negligence - perhaps double negligence: first by the medical practitioner and then by his or her guardian who failed to take reasonable steps on his or her behalf. … ... Let me talk specifically about obstetricians. The greatest problem confronting them is that if the first notice of claim comes 24 years after the event, which it can and which currently happens, the keeping of records, a recollection of what occurred and all those sorts of issues can evaporate. It was not our intention to deny the ability to take action to any patient who has been on the receiving end of negligent treatment by a doctor. One of the issues we were concerned about, in limiting the limitation period, was those young people who have irresponsible parents or guardians who are not acting in the best interests of the child. We wanted to make sure that there was still a capacity, when the parent acted negligently, to be able to bring that legal action later than would otherwise be the case. It is an added complication to the otherwise simplicity of the scheme for taking action within six years, with some capacity to extend in the case of obstetrics matters; that is, it will allow a child whose guardian or parents have been irresponsible in the way in which they have handled the matter, to bring an action up to the age of 21 years. It is thought that this will be very much an exception to the rule, but is a necessary safeguard to protect the rights of people who have been on the receiving end of negligent medical treatment. It is part of a trade-off to try to harvest as early as possible those legal actions, so that they can be factored into the insurance premiums and the way in which a doctor keeps records, in the event that legal action might well be taken. This is again an additional safeguard to the child plaintiff who has been negligently treated and whose parents have acted irresponsibly or negligently. The wording used in the legislation was 'acted unreasonably', but it effectively adds up to the same thing in a very practical sense. It would be the height of foolishness or negligence for parents to refuse to take legal action and then rely on clause 43 to bring the action, because it is discretionary. (Page 22)
It is up to the court to be satisfied that the behaviour of the parents was unreasonable. Anyone would be running an enormous risk in delaying taking legal action and hoping to rely on the clause. If it were known that they were aware of it and were hoping to rely on it, it would be highly unlikely that the court would grant leave to bring an action or to extend the time within which the action could be brought. It is there as a necessary safeguard and one that I hope will be used sparingly. … If we are talking about children, it will be six years. Generally, time limits for personal injuries that include medical negligence, other than through obstetrics, will be three years, but it will be six years in relation to children. … Clause 7(3) is a transitional provision that relates only to births that occur prior to the act coming into operation. If we put to one side the transitional provisions contained in clause 7(3), clause 38(3) provides for an extension of time to be granted to a patient basically when there is a lack of knowledge about either the physical cause of the injury or the identity of the defendant. In addition, clause 40 relates to a minor or a child and provides a capacity to extend time when the action of the parent or guardian is unreasonable, all of which is then subject to clause 43. Even if the court is mindful to grant the extension, if from the defendant's point of view certain circumstances occur that mean there may not be a fair trial, the court can refuse to grant the extension even if the parent acted unreasonably or the knowledge was not there - in other words, clauses 38 and 40. The court could use clause 43 to not grant an extension because it would be unfair in the circumstances and prejudicial to the defendant to do so. That is the scheme of things. I do not know whether that answers the member's questions. … … Part 3 is the part of the bill that allows for an extension of time. It then reads 'other' than clauses 29 and 30. Clause 29 deals with people under 15 years of age and it simply provides not for an extension but for a period of time to apply for a making of a claim. Essentially, if a person is under 15 years, an (Page 23)
action cannot be taken if six years have elapsed. That is essentially what it states. It is no different. That is why it has been excluded from the general limitation period of six years. It was unnecessary and was excluded for the sake of clarity. Similarly, a different time frame is allowed for people aged 16, 17 or 18 years. People can take action up to the age of 21 years if they are already at that age when the cause of action accrued. It is excluded in respect of obstetrics in favour of the general provision applying six years. Essentially, the obstetrics provision overrides the general provision. The other provisions excluded are clauses 31 and 40, which will not apply if a person has already reached the age of 15 years. … Yes. It states in respect of obstetrics that if a person is already 15 years of age, clause 31 will not apply. The provision limits the operation of clause 31 in respect of obstetrics to people who are under the age of 15 years in order to grant the three-year extension. It is an attempt to limit the capacity to bring action. Clause 40 limits the ability to take action to someone at the age of 21 years. It cannot be brought later under the general provisions. I return to the earlier point. The special provisions for certain personal injury actions relating to childbirth, the obstetrics provisions, under subclause (2) limit it to childbirth that occurred prior to the coming into operation of this statute. It seeks to limit the retrospective application of the new obstetrics provisions. I conclude that there will be some grounds on which an extension could apply to these situations. For instance, it may be that provided for in clause 32, when a close relationship is involved: if a person were delivering one's own child, that person would be responsible for mounting negligence action against himself or herself. It is a conflict of interest situation that is preserved - others are not." (emphasis added) 52 While this extract from parts of the second reading speech and associated debates is long it is included because in my view it assists to explain the legislature's intentions in enacting the 2005 Act and what was intended by the provisions in question. I have also included relevant (Page 24)
extracts that inform the second issue of the Court's exercise of discretion (if it has power to entertain the application for leave to extend time). 53 From the above extrinsic materials it can be seen that s 7 needs to be understood in the context of the limitation periods under the 1935 Act being reduced in time for ordinary defendants, not increased. The reality of course is that, for public authorities and the State as potential defendants, the limitation period as of right is increased from the one year provided under s 47A of the 1935 Act.
The proper interpretation of s 7(2) of the 2005 Act 54 The issue of construction raised by the parties is not an easy one. It is not immediately obvious from a consideration of s 7(2) what the legislature had in mind. There is no express distinction between the limitation periods which applied under the 1935 Act between ordinary defendants (24 years) and those defendants who are public authorities (one year or six years with leave). This suggests that the 2005 Act approaches the issue as if the matter is to be determined on the basis of whether the relevant limitation period had expired, irrespective of the type of prospective defendant and the actual limitation period in question. 55 It is a fundamental principle of statutory interpretation that parties' rights will not be affected retrospectively unless the legislation is plain and unambiguous in its operation. Limitation statutes were traditionally regarded as procedural but, if the Act is correctly characterised as altering substantive rights, the presumption against retrospective legislation operates and the statute only applies to proceedings in which the cause of action accrued after the date on which the legislation came into operation. 56 A limitation statute is characterised as substantive if it enlarges the period of time in which proceedings may be brought in cases where the proceeding had already been rendered time barred, so as to allow the action to be brought within a new time: Maxwell v Murphy (1957) 96 CLR 261. It is beyond doubt that s 7 of the 2005 Act is a limitation act and it is therefore necessary to consider what its effect is. In this regard whatever the proper construction of s 7, it is not a limitation on an existing right or cause of action, because the limitation period for the plaintiff's cause of action has expired by the effluxion of time. 57 The plaintiff's construction, if right, would permit a class of plaintiffs to obtain a legal right to apply for an extension of time under s 41 of the 2005 Act which did not exist under the 1935 Act. In respect of those actions, subject to s 47A of the 1935 Act, the plaintiff's proposed (Page 25)
construction of s 7(2) of the 2005 Act would "reopen" a class of plaintiffs who for nine years prior to the commencement of the 2005 Act were unable to commence or maintain an action because the limitation period had expired. 58 On the other hand, the defendants' construction, if right, permits s 7 to operate on and in respect of those plaintiffs whose cause of action was not time barred under the 1935 Act. This would include plaintiffs with the full 24 year time period against private defendants and those plaintiffs born within six years of the commencement day of the 2005 Act. In either case, the limitation period for the plaintiff's claim would not have expired. If the plaintiff's contention is right, removal of the bar would necessarily affect the defendants' substantive legal rights. As Williams J said in Maxwell v Murphy (supra) at p 283, the defendants "… would find [themselves] exposed to an action to which [they] had previously a complete defence". 59 The limitation period under the 1935 Act in respect of the plaintiff's claim expired on 2 November 1997, subject to a right to apply for an extension of time up until 2 November 2002 to commence proceedings. 60 The plaintiff's construction, if right, would permit any plaintiff born 15 years prior to 15 November 2005 to bring an application under s 41 for an extension of time to commence an action subject to the plaintiff not having reached 21 years at the time of the application. So, the class of potential plaintiffs on the plaintiff's construction are all those persons born after 2 November 1990 provided they make the extension application by 15 November 2011. Within this class, some of the plaintiffs' claims may have been expired under the 1935 Act since 2 November 1991, a period of 14 years or a period of nine years if one accepts that they had a six-year period within which to seek leave to commence an action under the 1935 Act. As mentioned, it is not a question of "the floodgates" being opened – either the court has power to consider the application or it does not. 61 In my view, the intention of the legislature in enacting s 7, and in particular s 7(2), was to provide a prospective limit for the commencement of actions for childbirth causes of action in circumstance where, and only where, the claim had not expired. This takes into account the fact that the special protections provided by s 47A of the 1935 Act no longer apply to public authorities. At the same time it does not retrospectively take away the substantive legal rights of those defendants where the limitation period had already expired. (Page 26)
62 In my opinion, s 4, s 5 and s 6 make it plain that the 2005 Act does not change the limitation period that applied under the 1935 Act for any cause of action that accrued before commencement day under the 2005 Act, namely 15 November 2005. In this context the "special provisions" contained in s 7 relating to childbirth causes of action are intended to refer to the shortened limitation period under the new Act where parties' substantive legal rights had not accrued. 63 Section 7(2) purports to deal with childbirth causes of action which accrued before 15 November 2005. Section 7(2)(a) specifies the limitation period for such claims as expiring on 15 November 2011. Section 7(2) must be read having regard to s 4(1). In my opinion, this informs the intention and meaning of s 7(2)(b) such that, if the limitation period set by s 7(2)(a) expired, then the limitation period is to be ascertained in accordance with s 4(1). 64 It is not necessary in this case to determine the legal position pertaining to a plaintiff's claim arising out of child birth where the plaintiff's limitation period under the 1935 Act has not expired at the time of commencement of the 2005 Act. 65 The clause notes in respect of the Limitation Bill 2005 for cl 7 state as follows: "Clause 7 applies to actions in respect of personal injuries incurred in the course of childbirth or immediately after, and arising from, the childbirth, which accrued before the commencement day and where the limitation period had not expired before the commencement day. Clause 7 provides that the limitation period for these actions is the earlier of six years from the commencement day or until 24 years of age. However, that limitation period may be extended in certain circumstances under Part 3 of the Bill." 66 In my view, Parliament's intention was that cl 7 was not intended to apply or to have any operation if the limitation period had expired under the 1935 Act before "commencement day". 67 Notwithstanding the difficulty in arriving at this conclusion, in my view if parliament had intended to "revive" childbirth causes of action which had expired under the 1935 Act then this would have been an easy matter for parliament to have drafted and enacted in plain and unambiguous language. (Page 27)
Should time be extended?
Section 41 of the 2005 Act 68 The reasons which follow address the issues which would arise if the Court had power to consider the plaintiff's application pursuant to s 41 of the 2005 Act. Section 41 is set out above. 69 Section 41(3) provides that the Court is not to extend time unless the Court is satisfied that in the circumstances "it was unreasonable for a guardian of the plaintiff not to commence the action within the limitation period for the action". 70 The plaintiff contends that when due regard is had to all "the circumstances" it was reasonable for proceedings not to be commenced on behalf of the plaintiff within the limitation period based on the expert opinion and legal advice available to his mother at the relevant time. 71 The defendants submit that the power under s 41 is not enlivened because they say it was reasonable at the relevant time for the plaintiff's mother not to commence an action based on the advice and legal opinion provided to her. The defendant says that s 41(3) is intended to operate where the rights of the child have been prejudiced by neglectful conduct of a guardian who has failed to use their best endeavours to protect that child's interests. Therefore, the defendants say the plaintiff cannot satisfy the requirements of s 41(3). These different positions arise because of the different interpretations by the parties of the requirement in s 41(3). 72 There is a relevant factual dilemma in this case because the defendants did not disclose certain CTG traces until 2008 (at which time the plaintiff's limitation period had expired) to the plaintiff's advisers notwithstanding earlier requests (par 49 plaintiff's written submissions dated 26 August 2009). Accordingly, to the extent that the plaintiff's claim is based on an allegation that the CTG traces suggest that action should have been taken earlier than it was, it was not possible for the plaintiff to obtain expert opinion and legal advice in this regard. I accept it would have been unreasonable for the plaintiff's mother to have commenced proceedings on his behalf within the limitation period based on the expert opinion and legal advice she had been provided with before the expiry of the one or six-year limitation periods under the 1935 Act. However, in circumstances where she had acted reasonably and done everything within her power to investigate the plaintiff's claim and to obtain legal advice, it is incongruous that [to the extent the plaintiff's application for leave is based on "new evidence" (i.e. the CTG traces) (Page 28)
which was at all material times in the hands of the defendants that] this should prevent or defeat the application. 73 To the extent that there is a difference between the parties as to the proper operation of s 41(3), in my view, it is of course only one requirement that conditions the power to grant leave extending time. The court is entitled to, and should, consider all relevant matters that are normally taken into account when considering whether to grant a party an indulgence to permit a departure from a rule or requirement. These considerations include regard to all relevant factors including an examination of the conduct of the party seeking the relief; the explanation proffered for the actual non-compliance in question; the degree and nature of the delay; the effect on other parties if the non-compliance is permitted to be overcome by the grant of an extension of time and, in particular, the prejudice they might suffer in responding to the change in position; and the extent that orders can be made minimising the impact on the defendant if leave is granted. 74 When considering the proper construction of s 41(3) it must be remembered that the purpose of the s 41 is to allow a person who was under 18 years of age when the cause of action accrued to seek an extension of time even though the limitation period has expired. The actual limitation period which applies is found elsewhere in the Act e.g. s 30 and s 31. However, as already noted, the practical effect of s 41(2) is that the application must be made before the child turns 21. The power is not open-ended in a temporal sense. 75 In my view, s 41(3) properly construed, provides that the Court may extend time unless the potential defendant satisfies the Court by reason of some fact that it was unreasonable for the plaintiff's guardian not to have commenced the action within the limitation period; for example, if the guardian deliberately allows the limitation period to expire, or delays for a further inordinate period of time, or offers no adequate explanation for the conduct (see generally Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207; Conray v Scotts Refrigerated Freightways Pty Ltd (2008) Aust Torts Reports 81-944; [2008] NSWCA 60). The power so construed will only be excised if the justice of the case in question so requires. 76 In determining the application as to whether the Court should extend time to enable the plaintiff to maintain his action the Court must also have regard to s 44 of the 2005 Act which provides: (Page 29)
"44. Further matters for court's consideration on extension applications When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to — 77 The requirements of s 44 require the Court to weigh up having regard to the particular circumstances of the case in the usual way, whether the delay (irrespective of the cause of the delay) will affect the prospect of a fair trial of the action, or whether the defendants will be visited with "significant prejudice" which may affect their ability to defend the plaintiff's action. 78 The matters relied upon by the plaintiff are primarily contained in the affidavits of his mother, Ms Teresa Asher-Relf, sworn 12 May 2009 and 25 August 2009; and affidavits sworn by his solicitor on 19 May 2009, 27 August 2009, 3 September 2009 and 4 September 2009 (who uses the first name, Libby and/or Elizabeth). 79 The background and relevant circumstances are in summary as follows. I do not propose to set out all matters for present purposes because they are contained in the affidavit material and supporting documents. 80 Mrs Asher-Relf moved to Western Australia from New Zealand with her husband and three children in July 1996. At the time she was 17 weeks pregnant with the plaintiff. The plaintiff was born at King Edward Memorial Hospital on 2 November 1996 and has been diagnosed as suffering from spastic quadriplegic cerebral palsy. 81 On 16 December 1996, Mrs Asher-Relf returned to New Zealand with her family and the plaintiff. (Page 30)
82 On 3 February 1997 Mrs Asher-Relf caused a claim to be lodged against King Edward Memorial Hospital with the Accident Rehabilitation and Compensation Insurance Corporation in New Zealand ("the NZ Corporation") for medical misadventure in respect of the delay in delivery of the plaintiff. It is fair to say that at all material times, as the plaintiff's mother, she has felt that something was wrong with the care which she and the plaintiff received at the time of his birth. 83 On 6 October 1997 the relevant committee of the NZ Corporation conducted its first meeting to consider the claim and decided that there was a failure of a duty of care on the part of the hospital. This decision was not final and the committee deferred making a final recommendation until further evidence was obtained. 84 On 16 June 1998 the committee conducted a second meeting and confirmed its initial decision that there was medical error and there was a failure to observe a reasonable standard of care and skill. However, Mrs Asher-Relf was unable to pursue the committee's findings further for jurisdictional reasons. As a result of the committee's positive finding, Mrs Asher-Relf received a financial allowance for the care and treatment of the plaintiff. At this time and thereafter Mrs Asher-Relf was struggling to raise her three other children as well as meet the special needs of the plaintiff. 85 The plaintiff's written submissions note that: "As a result of the committee's findings, Mrs Asher-Relf ought to have known that KEMH may have breached its duty of care by failing to institute continuous CTG monitoring at the time she was transferred to the labour ward at 23:00 hours on 1 November 1996. She had no evidence about causation because the committee expressed the tentative view that such monitoring might have resulted in a materially different outcome. As a plaintiff must prove breach of duty of care and causation, she had no reason to believe that there was a viable cause of action at the time. Further, she had no evidence that there was any breach of duty on the part of KEMH for failing to proceed to immediate caesarean section delivery after she suffered the first APH at 22:15 hours on 1 November 1996." 86 In about June 1998 Mrs Asher-Relf approached solicitors in Victoria for legal advice and they obtained relevant medical records from the defendants in relation to the plaintiff's birth. She received preliminary (Page 31)
legal advice and was advised on 14 August 1998 that the limitation period in Western Australia for the claim for an infant under a disability was six years (which is not an accurate way to state the legal position under the 1935 Act). 87 Mrs Asher-Relf was examined by a psychotherapist in March 2000 who provided a report to the plaintiff's solicitors to the effect that she was "weepy, exhausted, overcommitted, anxious, irritable, experiencing difficulty in socialising, sleep disturbances, flashbacks, perverse feelings of pessimism, guilt, hopelessness and a sense of being overwhelmed by all that had happened, combined with a sense of futility". The diagnosis at that time was that Mrs Asher-Relf was suffering from post-traumatic stress disorder and she was treated on this basis. 88 In about August 2000 Mrs Asher-Relf's solicitors notified the first defendant of the plaintiff's claim by letter dated 31 August 2000. Mrs Asher-Relf relied upon expert opinion obtained by her lawyers which was received in about September 2000. 89 In January 2001 Mrs Asher-Relf decided to instruct another law firm in New Zealand because she was not satisfied with the actions of her Australian lawyers and did not feel the matter was being progressed. She instructed the New Zealand firm, and in about April 2001, they sought further expert opinion on liability and causation in relation to the plaintiff's claim from a paediatrician. However, the opinion of the paediatrician was that the plaintiff was unlikely to establish causation on the basis that his outcome would not have been altered if he had been delivered five minutes earlier due to another matter. 90 On 11 October 2001 Mrs Asher-Relf and her family moved to England. In September 2002, she separated from her husband who, among other things, was unable to cope with the plaintiff's medical problems. The separation and breakdown of the marriage made it more difficult for Mrs Asher-Relf to investigate or prosecute the plaintiff's claim. She had difficult personal circumstances and struggled to meet financial demands of raising her family including the plaintiff and did not pursue his claim further at that point in time. 91 In about November 2005 Mrs Asher-Relf again felt compelled to seek justice for the plaintiff's injuries and compensation to improve his quality of life, and sought legal advice from the plaintiff's current solicitors. They were instructed by the plaintiff's former solicitors in about January 2006. (Page 32)
92 Mrs Asher-Relf understood at one stage that the plaintiff had no reasonable prospects of success because he could not prove causation. She also had no evidence about a claim for failing to proceed immediately to a caesarean section after the APH at 22:15 hours on 1 November 1996. In these circumstances the plaintiff says that Mrs Asher-Relf could not be criticised for not instituting proceedings up until that time because the expert evidence did not support a claim. If proceedings had been commenced at that time on behalf of the plaintiff they could not have succeeded. 93 The plaintiff says that Mrs Asher-Relf did not know the full nature and extent of the plaintiff's injuries until she returned to England. Even then, she gained this knowledge only relatively recently. 94 The medical advice received by Mrs Asher-Relf in the early stage was to the effect that it was not possible to predict how the plaintiff would turn out and that she would have to wait and see. She was initially given a guarded and optimistic prognosis. It is only now that she is discovering the full extent of his injuries and problems. Out of hope in the earlier days and based on medical advice, she had assumed that he would eventually get to the same level as her other children, both intellectually and physically, but that it would just take more time. 95 The extent of the plaintiff's cerebral palsy has been made known to Mrs Asher-Relf only in the last year or so by his treating practitioners. This was described as a "hard hitting and realistic assessment of prognosis". Given the nature of the injury, it is understandable that the full extent of the injury and disabilities is something which will emerge only over time. It seems that time has now allowed a proper and realistic prognosis for the future to be given to the plaintiff. 96 The plaintiff's written submissions deal with the connection between the plaintiff's injury and the alleged fault of the defendants. The plaintiff says that the real basis of his claim did not begin to crystallise until 30 April 2007 and 2 February 2009 when reports were received from obstetricians, Professor Norman Beischer and Mr Roger Clements; paediatric neuro-radiologist, Dr Brian Kendall; neonatologist, Dr Kei Lui; and paediatric neurologist, Dr Michael Harbord. 97 The plaintiff claims that the injury suffered was hypoxic-ischaemic brain damage. It is said that this results in a hypoxic-ischaemic encephalopathy and subsequent cerebral palsy. The plaintiff accepts that, in order to maintain his claim, he must prove hypoxic-ischaemic brain (Page 33)
damage and says this can only be established through analysis of various clinical indicators. These include cord blood gases, clinical condition at birth, haematology and biochemical markers and, most importantly, interpretation of a magnetic resonance imaging (MRI) scan of the brain. The plaintiff is advised that it is only possible to prosecute his claim by obtaining opinions from obstetricians in relation to breach of duty, opinions on damage from a paediatric neuro-radiologist, a neonatologist and a paediatric neurologist, and opinions on causation from a combination of these specialists. This evidence was only obtained on behalf of the plaintiff in early 2009. 98 On this basis, Mrs Asher-Relf says she did not know there was an alternative case available for the plaintiff (different to the one discussed by the committee and Mr Jarvis). It was only upon receipt of these reports that she first became aware that a claim could be brought for failing to proceed to a caesarean section after the initial APH at 22:15 hours on 1 November 1996. She says that once she received these reports these legal proceedings were commenced expeditiously. 99 The plaintiff also maintains that the defendants' conduct contributed to the delay in bringing the proceedings for three reasons. First, and most importantly, the defendants did not include the CTG traces for 1 November 1996 in the medical records for Mrs Asher-Relf and her son. 100 In this regard the evidence is that Mrs Asher-Relf's initial Australian lawyers had access to medical records in June 1998 but Mr Jarvis (her expert) was not supplied with the CTG traces. Her lawyers noted in advice to her on 9 October 2007 that there was an "absence of CTG tracings to show us exactly what was happening with the foetal heart rate". On this basis, the plaintiff says the first defendant failed to include the CTG traces for 1 November 1996 in the medical records provided to Mrs Asher-Relf and the plaintiff at that time. The plaintiff says this was a serious omission and that the CTG traces are critical to the plaintiff's case. 101 On receipt of instructions, the plaintiff's current solicitors also noted that the CTG traces performed on 27 October, 29 October and 1 November 1996 were missing from the medical records. Accordingly, on 10 October 2006, a further request for the complete copy of the relevant records was made to the hospital. The plaintiff says on 2 January 2007, for the first time, the hospital produced the CTG traces for 1 November 1996. According to the opinion of Mr Clements, review of the CTG traces was critical to the plaintiff's case and without seeing those (Page 34)
records, in his opinion, "it would not have been possible to come to a view about the quality of care afforded to Teresa and Patrick Asher-Relf". 102 It is not necessary to record the detail of the way in which the evidence provided by the CTG traces is said by the plaintiff to be crucial to his claim for the purpose of determining this application. In my view this application must be determined on the basis that the plaintiff's expert opinions in this regard, and the advice based on those opinions, should be accepted. I note the plaintiff asserts that the first defendant "secreted the CTG traces in a medico-legal file which it had placed in a separate location to the medical records". I make no comment in this regard and am not prepared to do so without a trial of the issue, except to accept the fact of the alleged delay. 103 The circumstances and timing of the location of the CTG traces by the defendants is explained in an affidavit sworn by Ms Bowen on 4 September 2009. She does not say expressly when the evidence was located except to record that the CTG traces taken on 1 November 1996 were copied and forwarded to the plaintiff's solicitors. There is an explanation for the reason why the CTG traces were not provided when FOI requests were received. It is noteworthy that there are still missing antenatal CTG traces (not the same traces as the 1 November 1996 traces). 104 The plaintiff asserts that the defendants should not have the benefit of a limitation period when by their own conduct they have omitted to provide the plaintiff with crucial items of evidence which was in their possession and may still be in that there are still missing records. 105 The second aspect of the defendants' conduct relied upon by the plaintiff relates to the alleged failure of the first defendants employees to record the presence of pain at the time of the first APH at 22:15 hours on 1 November 1996. The effect, according to the plaintiff, was to provide a misleading view of the symptoms and signs at the time of the initial APH. This is a matter which the plaintiff says would have caused a line of inquiry and concern by the NZ Committee when considering the matter, particularly when assessing Dr Roberman's summary on behalf of the defendants. 106 Thirdly, the plaintiff says that the first defendant was asked to respond to the committee's initial response on numerous occasions from the initial decision of 6 October 1997. Delay was caused until an eventual response was received in September 1998. (Page 35)
107 The plaintiff, in support of his application for an extension of time, also submits that there is no actual demonstrable material or discernible prejudice that the defendants can point to if the application is granted. This submission is based on the premise that the second and third defendants allegedly informed the first defendant's responsible person that they had no recollection of the plaintiff or Mrs Asher-Relf. Of course it may that the second and third defendant's memories might be refreshed if they reviewed the medical records. In any event, it is not unusual for cases of this nature to be determined primarily having regard to the contemporaneous medical records made at the time as opposed to the independent recollection of events by those involved. Written records are maintained precisely for this purpose. That is to record contemporaneously important matters of detail so the evidence is preserved. 108 There is, in my view, always prejudice as a result of any delay. The precise extent and nature of such prejudice will depend on the particular circumstances of the case. These are matters to which the Court must give regard when considering the matters set out in s 44 of the 2005 Act for the purpose of determining the application. 109 The defendants have not persuaded me that there is any real or actual discernible prejudice present in the circumstances of this matter as a result of delay in the plaintiff commencing an action. I am not persuaded that there is a risk that the delay would unacceptably diminish the prospects of a fair trial of the action (irrespective of who bears the evidentiary onus in this regard). 110 I am also not persuaded that if the application is granted to extend time to commence the action the defendants would suffer any relevant or material significant prejudice in the conduct of their defence of the plaintiff's claim. 111 I also find that a substantial cause of the delay is because the defendants did not provide the plaintiff and his advisers with material evidence in their possession at an earlier time, namely the CTG traces. I have deliberately refrained from making any findings about the adequacy of the first defendant's conduct in this regard because, in my view, it is not necessary for the purpose of determining this application. |