Charlton v The WA Country Health Service - [2017] WASC 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHARLTON -v- THE WA COUNTRY HEALTH SERVICE [2017] WASC 223

CORAM: MASTER SANDERSON

HEARD: 2 MARCH & 4 MAY 2017

DELIVERED : 19 MAY 2017

PUBLISHED : 8 AUGUST 2017

FILE NO/S: CIV 1969 of 2016

BETWEEN: BONNY-SUE CHARLTON
Plaintiff
AND
THE WA COUNTRY HEALTH SERVICE
Defendant

Catchwords:

Limitation Act 2005 (WA) - Application for extension of time to bring proceedings - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
Freedom of Information Act 1992 (WA)
Health and Disability Services (Complaints) Act 1995 (WA)
Limitation Act 2005 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr G P Bourhill
Defendant: Ms S G Harrison

Solicitors:

Plaintiff: Gilbert + Tobin
Defendant: HWL Ebsworth Lawyers

Case(s) referred to in judgment(s):

Nil

MASTER SANDERSON: This was the plaintiff's application for an extension of time within which to commence proceedings. The application was brought pursuant to s 38 and s 39 of the Limitation Act 2005 (WA) (the Act). The matter took some time to reach a hearing and then was adjourned part‑heard. On 4 May 2017 I heard final arguments and reserved my decision. On 19 May 2017 I advised the parties I would dismiss the plaintiff's application. I said I would publish reasons for that decision. These are those reasons.
The application was supported by an affidavit of the plaintiff sworn 30 September 2016. The plaintiff is an Indigenous Australian and as at the date of swearing her affidavit was 26 years of age. She was 19 years of age when the relevant incident occurred. There is no dispute between the parties as to the relevant facts which, for the purposes of this application, can be assumed led to a cause of action. They can be summarised as follows.
On 20 May 2010 the plaintiff attended the Emergency Department at Geraldton Regional Hospital. She had been experiencing severe abdominal pain for several days. She was approximately six weeks pregnant at the time. An ultrasound was conducted which revealed one intrauterine pregnancy. There was a small amount of free floating fluid in the plaintiff's pelvis. She was advised that she had a normal pregnancy and was sent home with a prescription for Panadeine Forte.
The plaintiff's abdominal pain persisted and she attended her general practitioner, Dr Edward Pedlow, on or about 27 May 2010. Dr Pedlow contacted the Geraldton Regional Hospital and requested a copy of the ultrasound which had been conducted on 20 May 2010. Dr Pedlow confirmed the normal pregnancy and advised the plaintiff that her abdominal pain may be caused by constipation for she was prescribed laxatives.
On 12 June 2010 the plaintiff was admitted to the Emergency Department at Geraldton Regional Hospital after experiencing severe chest and abdominal pain. At the time she was approximately nine weeks pregnant. The plaintiff was placed under observation for approximately six hours. The treating doctor did not conduct a pelvic examination or an ultrasound. She was diagnosed with indigestion and was treated accordingly on two occasions. This treatment failed to provide any relief. She was later given morphine. Eventually the plaintiff was examined by Dr Alistair Ware who was by chance attending the patient next door. Dr Ware is not an employee of the defendant. He advised medical staff to urgently conduct an ultrasound. This was done and it revealed the plaintiff had an ectopic pregnancy. The ectopic pregnancy had ruptured the plaintiff's left fallopian tube causing significant internal bleeding.
The plaintiff was taken to theatre and a section of the ruptured fallopian tube was removed. The plaintiff made a full recovery and went on to deliver a live baby at the hospital on 21 December 2010.
It was conceded by the defendant for the purpose of this application had an ultrasound been conducted when the plaintiff first presented at the hospital on 12 June 2010 she would have been spared some six hours pain and suffering. It is important to note however that by the time she did present at hospital the fallopian tube had already ruptured. It can be assumed the plaintiff had a cause of action there is no need to attempt any quantification of the claim.
It seems clear the plaintiff's cause of action accrued as at 12 June 2010. (It may be the cause of action accrued sometime after her first presentation at the hospital on 20 May 2010 and before her second presentation on 12 June 2010. But for present purposes the later of those two dates should be assumed.)
Pursuant to s 14 of the Act the time for bringing an action for personal injuries is three years. However, time can be extended under the provisions of s 38 or s 39 of the Act. Those sections are in the following terms:
38.Court may extend time to commence actions in cases of fraud or improper conduct
(1)A plaintiff may apply to a court for leave to commence an action on a cause of action even though the limitation period provided for under this Act has expired.
(2)On an application a court may extend the time in which the action can be commenced up to 3 years from when the action ought reasonably to have been commenced if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant or a person for whom the defendant is vicariously liable.
(3)Nothing in section 39, 41 or 42 prevents a court from extending, under this section, the time in which a plaintiff can commence an action.
(4)This section does not apply to an action relating to the publication of defamatory matter.
39.Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
(2)A plaintiff may apply to a court for leave to commence an action under the Fatal Accidents Act 1959 for damages relating to the death of a person even though the limitation period provided for under this Act has expired.
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues -
(a)was not aware of the physical cause of the death or injury;
(b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
(4)On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware -
(a)of the physical cause of the death or injury;
(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
(5)In this section -
person to whom the cause of action accrues -
(a)in the case of a person who is under 18 years of age when the cause of action accrues, means either that person or a guardian of that person;
(b)in the case of a person with a mental disability, means either that person or a guardian of that person;
(c)in the case of an action under the Fatal Accidents Act 1959 to be brought by a personal representative of a deceased person, means the personal representative;
(d)in the case of an action under the Fatal Accidents Act 1959 to be brought by a person under section 9(1) of that Act, means that person;
(e)in the case of an action of a kind to which the Law Reform (Miscellaneous Provisions) Act 1941 section 4 applies, means either the deceased person or a personal representative of that person.
So far as s 38(2) is concerned there are two circumstances in which time can be extended. First, if there is 'fraudulent conduct'. There is no suggestion of that in this case. Second, time can be extended if there is 'other improper conduct'. It is not entirely clear what work the word 'other' has to do in the section. Fraudulent conduct must mean conduct undertaken with an actual intent the claimant should not take action and where there is actual moral turpitude. On the other hand 'conduct' can be improper without there being some form of subjective intent on the part of the person whose conduct is impugned. But the use of the word 'other' does tend to suggest dishonesty. In any event that is not the way the parties to this action approached the phrase 'improper conduct'. They were content to apply an objective standard. That is the basis upon which I have approached the matter. But I would not like it to be thought this question is settled.
What happened after the plaintiff's cause of action arose is central to this application. A number of affidavits have been filed by the parties. It is appropriate if I deal with each of these affidavits in turn beginning with the affidavit of the plaintiff to which I have already referred. It is relevant to note that Ms Annette Pepper is the plaintiff's mother and she has been intimately involved in assisting the plaintiff with her complaint.

Affidavit of Bonny‑Sue Charlton sworn 30 September 2016

The plaintiff says the day after her admission to the Geraldton Regional Hospital she and her mother made an oral complaint to the defendant. She says that she did not receive a response. She also says that on some unspecified date her mother called the defendant and was informed there was no record of any complaint being made and consequently no action had been taken. The plaintiff and her mother made a follow‑up complaint in September 2010.
Subsequent to that complaint the plaintiff and her mother were visited by Justine Randall who was a customer liaison officer for the defendant. A copy of Ms Randall's report appears as attachment BC 1 to the plaintiff's affidavit. The plaintiff says there was some email correspondence between Ms Randall and Ms Pepper and the plaintiff says she has 'no idea why the complaint did not progress until early 2013'.
In January 2013 the plaintiff met with the newly appointed Regional Medical Director of the defendant Dr Andrew Jamieson. The plaintiff says Dr Jamieson said to her words to the following effect, 'This matter has been handled very poorly'.
The plaintiff says her complaint then progressed and a conciliation meeting was arranged for 20 August 2013. She says at this stage she had not spoken to a lawyer and she was not aware there was a limitation period for personal injury claims. The conciliation meeting did not take place on 20 August 2013 but was rescheduled and took place on 3 September 2013. At that meeting a number of outcomes were agreed upon and documented in a confidential conciliation report. At the meeting the plaintiff made a request for $30,000 compensation being for the pain and suffering she had experienced in hospital on 12 June 2010 and the subsequent unprofessional and untimely handling of her complaint.
Sometime in October 2013 the plaintiff and her mother had a conversation with Dr Jamieson. She says Dr Jamieson suggested she reduce her claim for payment to under $10,000 as such a claim would have a better prospect of success. Following that advice the plaintiff amended her claim to $9,750. That claim was forwarded by the defendant to their insurer RiskCover for consideration. In late October 2013 RiskCover wrote to the plaintiff advising her the claim had been rejected. RiskCover said the rejection was on two grounds. First, the three year limitation period had passed. Second, the claim was under the required threshold of $19,000 as set out in s 9 of the Civil Liability Act 2002 (WA).
The plaintiff says she took no further legal action because based on the letter from RiskCover she thought she had no legal rights as the limitation period had passed. She points out she was not legally represented at the conciliation meeting and in fact she had never spoken to a lawyer about her complaint. She does say that her mother told her sometime in 2012 that she (Ms Pepper) had spoken to a lawyer but had been advised 'there as nothing we could really do about it'. The first time the plaintiff spoke to a lawyer was on 7 June 2016. She was advised to commence proceedings immediately.
By par 32 of her affidavit the plaintiff says that she made a freedom of information request for her medical records. She refers to attachment BC 6. That letter is directed to the Director of Medical Services at the Geraldton Regional Hospital. No reference is made to any legislation and whether it could be said to be a request under the Freedom of Information Act 1992 (WA) is open to question. Either way the letter is dated 30 August 2011. The plaintiff's affidavit goes on to say after she discussed the matter with a lawyer all relevant material was sent to an expert Professor John Raftos. Professor Raftos provided a report dated 6 September 2016. The plaintiff says that was the first time she became aware the treatment she had received was not in keeping with standard medical practice.
Throughout her affidavit the plaintiff complains she feels she was discriminated against because she is Indigenous. It is not entirely clear what precisely the plaintiff says was the conduct which might be described as discriminatory. But I have approached this matter on the basis that when looking at what might amount to improper conduct the plaintiff is of the view she was treated poorly because she is Indigenous.

Affidavit of Annette Pepper sworn 30 September 2016

Ms Pepper confirms the attendance of the plaintiff at the Geraldton Regional Hospital on two occasions and confirms the plaintiff's version of events. She says on 13 June 2010 she made a verbal complaint to the then director of nursing Ms Chris Cream and the then Acting Medical Director Dr Bill Beresford. She does not detail precisely what was said and does not indicate a written note was made by either of the two persons concerned. Ms Pepper does note she was concerned that the medical staff may have had an 'unconscious reaction' to her daughter on the basis she is an Indigenous Australian.
Not having received a response to the oral complaint Ms Pepper called the hospital 'a few months later'. That was about September 2010. She made the complaint again this time to Ms Randall. Ms Randall visited Ms Pepper's house and in the presence of the plaintiff compiled a written complaint. That note or complaint appears as attachment AP 1 to Ms Pepper's affidavit and is dated September 2010.
Ms Pepper says that she and her daughter then spent nearly a year applying for the plaintiff's patient records, test images and ultrasound records. She says the hospital took months to process the applications and it was necessary to make a separate application for the ultrasound tests. It would seem then between September 2010 and January 2013 requests were being made for medical records and the like but no other steps were taken.
In January 2013 Ms Pepper was contacted by Dr Jamieson. Dr Jamieson asked Ms Pepper if she would like to put a complaint in writing. That she did. A copy of the detailed four page letter dated 11 January 2013 is attachment AP 2 to Ms Pepper's affidavit. What the letter does demonstrate is that Ms Pepper was aware of the treatment her daughter had received and was of the view it was inappropriate. The letter also makes it clear Ms Pepper believed the pain and suffering occasioned to her daughter could have been avoided.
Ms Pepper then details the conciliation meeting referred to by the plaintiff. She also confirms the discussion with Dr Jamieson suggesting a reduction of the claim below $10,000. Ms Pepper confirms the plaintiff was not legally represented at the conciliation meeting.
In par 28 of her affidavit Ms Pepper does say that she did speak to a solicitor recommended by the Health Consumers Council about her daughter's case. She says the discussion lasted about 15 minutes and probably took place in December 2012. She says she was advised that her daughter did not have a claim. It was not until she spoke to a lawyer with the National Justice Project in June 2016 she became aware her daughter might have a claim.
It would also seem that at some stage a complaint was made to the Australian Health Practitioner Registration Agency (AHPRA). On 29 November 2013 AHPRA advised Ms Pepper that no further action would be taken. One of the doctors involved in the matter was found to have acted properly. A second doctor was no longer practicing or resident in Australia.

Affidavit of Cameron Hubert Justin Ross sworn 25 October 2016

Mr Ross is the regional manager Health Information for the WA County Health Service Midwest. It is his responsibility to supervise the management of freedom of information applications for the defendant. Mr Ross says a freedom of information application was received from the plaintiff on 30 September 2010. Mr Ross then details the process which is followed in dealing with the request. Mr Ross says the defendant responded to the request under cover of a letter of 5 November 2010.
A second request was made by the plaintiff on 30 August 2011. This request was directed particularly at obtaining a copy of the ultrasound performed on 20 May 2010. Mr Ross says some time after February 2012 the documents were sent to an address provided by the plaintiff. The documents were returned marked 'not at this address'. The plaintiff later advised she had not received the documents and had changed address. The documents were sent to her under cover of a letter of 21 November 2012.
A third freedom of information application was made on the plaintiff's behalf in October 2016. As at the date of Mr Ross swearing his affidavit no response had been provided to that request.

Affidavit of Amy Lauren Veronica Salapak sworn 26 October 2016

Ms Salapak is a solicitor employed by the Department of Health within the Legal and Legislative Services Division. She says a clinical incident notification form was completed by Dr Alison Maclean on 5 October 2011. This notification triggered Ms Salapak becoming involved. She has been dealing with the plaintiff's complaint since October 2013.
Ms Salapak says she is aware that the plaintiff made a complaint to the Health and Disability Services Complaint's Office (HaDSCO). HaDSCO is established under s 6 of the Health and Disability Services (Complaints) Act 1995 (WA). It is an independent statutory authority that provides an impartial resolution service for complaints to health or disability services provided in Western Australia. The defendant and HaDSCO are entirely separate legal entities.
Ms Salapak has reviewed the Geraldton Regional Hospital Emergency Department notes. She notes that the doctor who initially treated the plaintiff was Dr Rudiger De Mulder. Dr De Mulder left the Geraldton Regional Hospital on 6 June 2011 when he returned to live overseas. Despite her best efforts Ms Salapak has been unable to contact him. She says that not having Dr De Mulder available may prejudice the defendant in the conduct of any action brought by the plaintiff.

Affidavit of Andrew Jamieson affirmed 1 November 2016

Dr Jamieson is a very experienced medical practitioner who was from June 2012 until February 2016 the Regional Medical Director for the defendant in the Midwest region. Dr Jamieson confirmed the plaintiff's attendance at the Geraldton Regional Hospital on 20 May 2010 and 12 June 2010. In essence he confirms the medical records are consistent with the history given by the plaintiff. He does say that there is no record of any verbal complaint being made by the plaintiff or Ms Pepper to Ms Chris Cream or Dr Bill Beresford on 13 or 14 June 2010.

Dr Jamieson notes from the records the meeting between the plaintiff, Ms Pepper and Ms Randall in September 2010. He also confirms the freedom of information requests and the notification to RiskCover of the plaintiff's claim for compensation. All of these events took place before Dr Jamieson's appointment.
Sometime between July 2012 and October 2012 Dr Jamieson was contacted by Professor Sandra Thompson from the Combined University Centre for Rural Health. Professor Thompson said she was an 'advocate for the plaintiff'. She met with Dr Jamieson. Dr Jamieson is unsure whether the plaintiff was with her not. Thereafter what is known as an 'open disclosure process' commenced. Dr Jamieson says there were three open disclosure meetings with the plaintiff, her mother and Professor Thompson between October 2012 and January 2013. There is no documentary record of these meetings. The three meetings were necessary because at the first meeting the plaintiff became upset and could not continue. The third meeting was then held to formulate a way forward.
Dr Jamieson details what was discussed at these meetings. Essentially all of the participants were looking at improving communication between Indigenous people and the hospital. But Dr Jamieson is at pains to point out he advised the plaintiff and her mother he was not a lawyer and that if the plaintiff wished to take proceedings she would need to obtain legal advice. He says he did not at any time give the impression, let alone say that he was of the view, the plaintiff did not have an entitlement to commence legal proceedings. He did alert the plaintiff and her mother of the possibility of making a complaint to HaDSCO.
On 11 January 2013 Ms Pepper wrote to Dr Jamieson to initiate the HaDSCO proceedings. Eventually this led to a conciliation conference on 3 September 2013. Pursuant to s 42 of the Health and Disability (Complaints) Act Dr Jamieson is unable to say what took place at that conciliation meeting.
On 10 October 2013 Dr Jamieson met with Ms Pepper to discuss the request for compensation. It is his recollection the plaintiff was not keen to institute legal proceedings but rather seek compensation by negotiation. Dr Jamieson suggested Ms Pepper write to him seeking compensation and he would pass that letter on to the hospital's insurers. He does recollect saying that he expected the lower the sum claimed the more likely it was the plaintiff might receive some compensation. After the 10 October 2013 meeting, an undated letter from the plaintiff was duly received and passed on to RiskCover. A copy of RiskCover's response came to Dr Jamieson's attention on 21 October 2013. Dr Jamieson did consider the possibility of an ex gratia payment to the plaintiff but this idea was rejected by the then Minister for Health.

Affidavit of George Newhouse sworn 11 November 2016

Mr Newhouse is the principal solicitor for the Natural Justice Project. Attached to Mr Newhouse's affidavit are a series of documents Mr Newhouse believes are relevant to the plaintiff's claim. The first two documents relate to a decision on a freedom of information request. The next four documents were copies of documents produced consequent upon that request. They comprise a clinical incident notification form dated 5 October 2011, a letter from the Department of Health to RiskCover, a medical treatment liability notification form and a letter to the plaintiff from the WA County Health Service dated 10 October 2013.
The remaining four documents comprise emails passing between Ms Salapak and RiskCover. They do not add anything to the case other than to confirm that RiskCover declined liability for the claim made by the plaintiff.

Affidavit of Justine Margerat Randall sworn 10 February 2017

Ms Randall confirms she is the customer liaison officer for Geraldton Regional Hospital. She commenced that role in July 2008. The role involves her liaising with customers to assist them in collecting information regarding their feedback. Her approach differs from case to case. But it could, and in this case did, involve meeting with a customer to discuss their feedback. Once a complaint is lodged it is then handled by the regional clinical risk management coordinator of the hospital. Ms Randall is not part of that team and is not informed when an investigation is undertaken or the outcome of any investigation.
Ms Randall recalls being approached by Ms Pepper on 15 June 2010. Ms Pepper inquired about how to make a complaint. Ms Randall gave Ms Pepper a form described as 'Have Your Say' Consumer Feedback Form. Ms Randall also told Ms Pepper if she was not comfortable dealing with the complaint process herself she could contact the Aboriginal Consumer Participation Program co‑ordinator at the Health Consumers Council WA (HCC). That body would assist in writing up and lodging the complaint. Ms Randall gave to Ms Pepper a HCC pamphlet. Ms Randall goes on to say that once the complaint was received by the customer returning the appropriate form it would be logged on a database. A generic letter would then be sent to the person who had made the complaint to confirm the complaint had been received. An investigation would then take place. A final letter would then be sent to the person who made the complaint requesting a face‑to‑face meeting.
Ms Randall says after her initial contact with Ms Pepper she understood Ms Pepper wanted a face‑to‑face meeting with a representative of Geraldton Regional Hospital to discuss the matter further. That was the last contact Ms Randall had with Ms Pepper until September 2010.
In September 2010 a Ms Laura Elkin, the Aboriginal Consumer Participation Program Co‑ordinator from HCC, contacted Ms Randall. This was followed by an email dated 15 September 2010 in which Ms Elkin said she was hoping to arrange a time in the following week to meet with a representative of Geraldton Regional Hospital to discuss certain matters. The email did not identify the plaintiff or Ms Pepper. On 16 September 2010 Ms Randall received a further email from Ms Elkin asking if Ms Randall was available the following Tuesday afternoon to meet at Ms Pepper's house. It would appear that meeting never took place. However, Ms Randall did advise Ms Margaret Denton, acting operations manager, she had been contacted by Ms Elkin and it was important the meeting took place. Records of the discussion between Ms Denton and Ms Randall appear as an attachment to Ms Randall's affidavit.
A meeting took place at Ms Pepper's house on 21 September 2010. The meeting was attended by Ms Randall, Ms Pepper, the plaintiff, Ms Elkin and a family friend. It commenced around 1.30 pm. Ms Elkin did not arrive until about 2.00 pm. The meeting ended at 7.00 pm. Most of the talking appears to have been done by Ms Pepper. The upshot of the meeting was that Ms Randall was to go away and compile a 'complaint note'. That document was to be sent to Ms Pepper and Ms Pepper and the plaintiff were to approve and confirm that it was an accurate reflection of the meeting and expressed the concerns of the plaintiff and her mother. It would then be logged on to the system and investigated by Clinical Governance.
Importantly Ms Randall says at the conclusion of the meeting she was sure she had made it clear to Ms Pepper, the plaintiff and Ms Elkin that they needed to come back to Ms Randall to approve the draft of the complaint. Until that was done the complaint would not be lodged and the matter would not be investigated by Clinical Governance.
On 29 September 2010 Ms Randall emailed Ms Pepper advising she needed to ask Ms Pepper and the plaintiff a couple of questions to finish compiling the complaint note. A meeting was set for 30 September 2010. Ms Randall attended that meeting as did Ms Pepper and the plaintiff. The purpose of the meeting was to go through the complaint and to make sure Ms Pepper and the plaintiff were satisfied it properly represented their concerns. Ms Randall says she again went through the complaints process and again advised Ms Pepper and the plaintiff that no complaint would be lodged for an investigation until they advised the summary of the complaint could be submitted.
Ms Randall emailed an updated complaint report to Ms Pepper on 30 September 2010. That email advised Ms Pepper that she and the plaintiff could make any changes to the complaint form they wished. On 8 October 2010 Ms Randall again spoke to Ms Pepper to see how she and the plaintiff were going with approving the written complaint. Ms Pepper advised Ms Randall that she and the plaintiff were still working on it and would return it once completed. Ms Randall says she never received an amended summary of complaint nor did she have any further contact with Ms Pepper or the plaintiff. She says she is not aware as to whether Ms Pepper and the plaintiff chose to lodge the complaint directly with the Regional Clinical Risk Management co‑ordinator using the summary she had prepared. So far as she can recall Ms Randall says she did not lodge the complaint herself.
By pars 27 ‑ 32 of her affidavit Ms Randall details her participation in a freedom of information application. These paragraphs add nothing to the relevant factual matrix in this case.

Affidavit of Andrew Jamieson affirmed 16 February 2017

This second affidavit of Dr Jamieson has only one operative paragraph. Rather than summarise its effect I will quote it in full. It reads as follows:
During the course of my role as the Regional Medical Director, MidWest Region, I received an email from Dr Sandra Thompson on 21 December 2012 following up from a telephone call with her about the plaintiff's treatment. Her email annexed a number of documents including a transcript of her meeting with the plaintiff and her mother, Annette Pepper. I note that transcript is dated 13 January 2010, but it is apparent from its content that the meeting must actually have taken place on 13 January 2011. To my knowledge Dr Sandra Thompson is a qualified medical practitioner. Attached hereto and marked 'AJ1' is a copy of Sandra Thompson's email to me of 21 December 2012 and an annexure entitled Case Study Interview 13/01/2010 (par 2).
The email sent by Dr Thompson to Dr Jamieson highlights what Dr Thompson saw as failures in the clinical management of the plaintiff. The point of the email seems to be to direct Dr Jamieson's attention to the alleged failures in the treatment received by the plaintiff and to see whether a meeting could be organised to address those complaints.
The transcript confirms the events that led to the plaintiff's complaint. There was then some discussion about how the complaint had been handled. At one point Dr Thompson says (attachment AR1, page 26 of Dr Jamieson's affidavit):
[T]he question is if you are very unhappy with how the hospital has handled this to now, you could cut out the hospital and go straight to a lawyer. All they will do is go straight back through all of this at least the story is very clear for them to have a look at.
That comment appears not to have been taken up by Ms Pepper or the plaintiff. There is some further discussion and another reference to a lawyer later in the transcript. That seems to be Ms Pepper assuming that if the complaints process was pursued it would wind up in the hands of a lawyer for the Health Department. Neither that comment nor the earlier reference to lawyers seem to amount to advice that the plaintiff should consult a solicitor.

Affidavit of the plaintiff sworn 1 March 2017

The plaintiff's second affidavit is directed to her contact with Ms Randall. She confirms the discussion between Ms Randall, Ms Pepper, Ms Elkin and a support person she identifies as Marika Stuart. It seems the plaintiff felt Ms Randall, for one reason or another, had upset her and forced the plaintiff to leave the room. That aside the plaintiff says that Ms Randall did not advise her that she (the plaintiff) needed to approve the complaint. The plaintiff says she left her mother to deal with Ms Randall.

Affidavit of Annette Pepper sworn 1 March 2017

The second affidavit of Ms Pepper deals in more detail with the complaints she says she made to the Geraldton Regional Hospital in relation to her daughter's treatment. Under the subheading 'The first complaint' at pars 4 ‑ 16 of her affidavit Ms Pepper deals with the complaint she says she made on 14 June 2010 to Ms Chris Cream and Dr Bill Beresford. During her discussions with these two persons she says she was accompanied by Ms Marika Stuart and Ms Sandy Davies, Chairperson for the Geraldton Region Aboriginal Medical Service. Without going into detail Ms Pepper makes it plain she does not believe that either Ms Cream or Dr Beresford treated her complaints seriously. She confirms that sometime after her discussion with these two persons she telephoned the hospital only to be informed there was no record of the complaint that she had made.
Under the subheading 'The second complaint' pars 17 ‑ 45 of Ms Pepper's affidavit deal with the initial contact Ms Pepper had with Ms Randall and then the meeting which took place at Ms Pepper's residence. What Ms Pepper says is that neither she nor the plaintiff were advised by Ms Randall at any time that the complaint note drafted by Ms Randall had to be approved by the plaintiff and Ms Pepper before it was lodged. It seems Ms Pepper was of the view that Ms Randall was a 'go‑between'. Ms Pepper believed that Ms Randall was merely following up a complaint that had already been made to Ms Cream and Dr Beresford. Like her daughter Ms Pepper appears to have taken the view Ms Randall was not treating the plaintiff's complaint with the seriousness it deserved.
The remainder of Ms Pepper's affidavit deals with the interview Ms Pepper and the plaintiff had with Dr Thompson and the complaints management policy represented by WA Policy Directive: Western Australian Health Complaint Management Policy 2009. The thrust of Ms Pepper's affidavit is to complain first that her complaints were not dealt with as she anticipated and second that the procedure followed did not comply with the Complaint Management Policy.

Affidavit of Christine Elizabeth Kellett sworn 28 April 2017

Ms Kellett was the regional nurse director of the Midwest at Geraldton Regional Hospital when the plaintiff attended on 12 June 2010. At that stage she was known as Chris Cream. Ms Kellett says she first met with the plaintiff and her mother following the plaintiff's surgery on Saturday 12 June 2010. She says she had been advised Ms Pepper was being rude to hospital staff and so she attended the high dependency unit to try and placate the situation. She says this attendance must have been on 14 June 2010 because she does not work on weekends.
Ms Kellett says that she had a meeting with Ms Pepper, Ms Sandy Davies and Ms Marika Stuart in her office sometime after 12 June 2010. Ms Kellett says it was clear Ms Pepper was very distressed about what had occurred. She says she was never aggressive towards Ms Pepper and was sympathetic to the plaintiff's situation.
During the course of the meeting Dr Beresford arrived. Dr Beresford explained the circumstances of the plaintiff's condition were most unusual and it would appear some discussion ensued. Ms Kellett says that she has no recollection of Ms Pepper saying to her or Dr Beresford that she wanted the meeting to be regarded as a formal complaint. Ms Kellett denies ever advising Ms Pepper there would be some follow up. Ms Kellett did not regard there as being anything to follow up.

Affidavit of Justine Margerat Randall sworn 27 April 2017

In the main Ms Randall's second affidavit takes issue with the version of events in relation to the meeting of 21 September 2010 offered by the plaintiff and Ms Pepper. Importantly Ms Randall says she made it plain to both Ms Pepper and the plaintiff that she needed to go back to the hospital and type up notes so that a complaint could be lodged.

Affidavit of Associate Professor John Raftos sworn 14 October 2016

Professor Raftos is a specialist in emergency medicine. He has an impeccable curriculum vitae which is attached to his affidavit. At par 7 of the affidavit he give a summary of his clinical conclusions. That paragraph reads as follows:
7.A summary of my opinion is as follows:
First presentation
a.Ms. Charlton presented to the Emergency Department of the Geraldton Regional Hospital on 20 May, 2010 with abdominal pain in the first trimester of pregnancy. The appropriate management of a presentation with abdominal pain in the first trimester of pregnancy with an ultrasound showing a normal intrauterine pregnancy, would have been to advise her that there was a small risk that she may have an additional ectopic pregnancy and that, consequently, she would have further ultrasound scans at weekly intervals if her pain persisted.
b.Ms. Charlton's pain did persist and so ultrasound scans should have been performed on about 27 May, 2010 and 3 June, 2010. There is a reasonable likelihood that ultrasound scans performed on 27 May 2010 and 3 June 2010 would have shown diagnostic features of her tubal ectopic pregnancy before it ruptured. It would then have been amenable to salpingostomy, a tube‑sparing procedure.
Second presentation
c.Ms. Charlton's subsequent presentation on 12 June, 2010, to the Emergency Department of the Geraldton Regional Hospital, with abdominal pain and hypotension in the first trimester of pregnancy, is strongly suggestive of a ruptured ectopic gestation. The only appropriate Emergency Department medical response to a woman presenting with abdominal pain and hypotension in the first trimester of pregnancy would be to suspect ruptured ectopic gestation and to perform an urgent pelvic ultrasound to confirm or exclude its presence. In Ms. Charlton's case, an urgent ultrasound scan should have been performed by 1000 hours on 12 June 2010, and she should have been taken to the operating theatre for treatment of the ruptured ectopic gestation as soon as it was seen on ultrasound scan. As it was, ultrasound scan was not performed until about 1400 hours, causing an unnecessary delay of some four hours in the diagnosis and appropriate treatment of the ruptured ectopic pregnancy.

Section 38 of the Act

What must be determined in dealing with this section is what if any conduct on the part of the defendant, it servants or agents was 'improper'. In my view the evidence makes it plain there was nothing in the conduct of any person involved in this unfortunate incident which could be described as improper. It was not for any of the defendant's servants or agents to give the plaintiff or Ms Pepper legal advice. If they had purported to do so - perhaps by advising that they understood there was a six year limitation period - that may well be regarded as improper. It is for lawyers to give legal advice.
It may well be that the complaints procedure was not well handled by the Geraldton Regional Hospital. There is a conflict on the evidence as to whether that was the case. But even if some fault could be found with the way Ms Randall, Dr Beresford or someone else handled the complaints (and I do not for a moment suggest that to be the case) there was no 'improper' conduct which misled the plaintiff as to the applicable time limit.
If there was any fault it perhaps rested with the unnamed solicitor whom Ms Pepper spoke with sometime in 2012. It was surely incumbent upon whomsoever was consulted to alert Ms Pepper and, through her, the plaintiff, as to the time limit applicable in personal injury cases. But whatever the advice given by that solicitor it was not the responsibility of the defendant.
There was simply no basis upon which time could be extended under s 38(2) of the Act.

Section 39 of the Act

The operative section here must be s 39(3)(b). At all times the plaintiff was aware of the physical cause of her injury - she was advised of that on 12 June 2010. That excludes s 39(3)(a). There was no doubt she was aware of who was responsible for that injury - it was the Geraldton Regional Hospital. That excludes s 39(3)(c). Nor is s 39(3)(4) relevant. In this case the plaintiff was well aware that the injury was attributable to the staff of the Geraldton Regional Hospital. She could have been in no doubt about that. It is not to the point that she pursued a complaints procedure which may not have been properly handled. The subsection is in quite specific terms. There are no facts which could bring the plaintiff within the terms of that subsection.

Conclusion

For these reasons I was satisfied the grounds did not exist for the extension of time to bring this claim. Accordingly the plaintiff's application will be dismissed. I will hear the parties as to costs. Each party should file written submissions within seven days.