Dixon v Clarke - [2013] WASC 471

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DIXON -v- CLARKE [2013] WASC 471

CORAM: MASTER SANDERSON

HEARD: 21 NOVEMBER 2013

DELIVERED : 23 DECEMBER 2013

FILE NO/S: CIV 2152 of 2013

BETWEEN: LAYNE CARMEL DIXON by her next friend ANDREW NIGEL DIXON
Plaintiff
AND
SIMON CLARKE
First Defendant
AME HOSPITALS PTY LTD
Second Defendant

Catchwords:

Limitation Act 2005 (WA) - Application for extension of time to bring proceedings - Test to be applied - Meaning of 'injury' and 'physical cause' in s 39(3)(a) and (b) of the Limitation Act

Legislation:

Limitation Act 2005 (WA)

Result:

Leave granted

Category: A

Representation:

Counsel:

Plaintiff:     Mr G Droppert
First Defendant             :     Mr G R Donaldson SC
Second Defendant         :     Mr M Williams

Solicitors:

Plaintiff:     Ilberys Lawyers
First Defendant             :     Tottle Partners
Second Defendant         :     DLA Piper Australia

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

Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31
Dobbie v Medway Health Authority [1994] 1 WLR 1234

MASTER SANDERSON: By originating summons dated 24 July 2013 the plaintiff sought relevantly the following order:
Pursuant to section 39 and/or 41 and/or 42 of the Limitation Act 2005, the Plaintiff have leave to commence an action against the Defendants for breach of contract and/or negligence, arising out of the delivery and birth of the Plaintiff at Attadale Private Hospital, Attadale in the State of Western Australia on or about 7 August 2001.
The application was supported by an affidavit of Andrew Nigel Dixon affirmed 27 September 2013. Mr Dixon is the father of Layne and is her duly appointed next friend. Mr Dixon and his wife Amanda were married in December 1999. After the couple found Amanda was pregnant they consulted the first defendant an obstetrician. The pregnancy appears to have been relatively uneventful. Mrs Dixon attended all prenatal appointments with the first defendant. She discussed with the first defendant the possibility of delivery be caesarean section. The first defendant indicated a natural birth was preferable and there was no reason why a caesarean would be necessary. Mr Dixon says prior to Layne's birth both he and his wife were assured both mother and baby were healthy and there were no complications. The first defendant operated from Attadale Private Hospital. That hospital is operated by the second defendant. It was at Attadale Private Hospital Mr and Mrs Dixon chose for the birth.
Mrs Dixon was admitted to Attadale Private Hospital on the morning of 7 August 2001 and labour was induced. Layne was born at 11.30 that evening. Mr Dixon says at one point during the labour both he and his wife noticed that the CTG machine did not appear to be working properly. Mr Dixon mentioned this to the hospital staff who were unconcerned. The hospital staff also advised the first defendant of the failure of the machine but no remedial action was taken.
When Layne was born she was floppy and not breathing. The medical staff worked for 10 minutes on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASC 471
Decision Date: 23 DECEMBER 2013

CaseChat Overview and Summary

The parties involved in the case are Dixon and Clarke, and the dispute involves an application for an extension of time to bring proceedings under the Limitation Act 2005 (WA). The case was heard in the Supreme Court of Western Australia. The primary legal issue that the court needed to decide was the interpretation of the terms 'injury' and 'physical cause' as they are used in sections 39(3)(a) and (b) of the Limitation Act 2005 (WA). Specifically, the court had to determine whether the applicant's claim of psychiatric injury was sufficiently linked to a physical cause to satisfy the statutory requirements for an extension of time.

The court examined the legislative intent behind the Limitation Act and the relevant case law to interpret the statutory provisions. The court found that the term 'injury' should be interpreted broadly to include psychiatric injuries, aligning with contemporary understandings of harm. Regarding the term 'physical cause', the court concluded that it was not necessary for the physical cause to be the sole cause of the injury but rather that it must have contributed to the injury in some way. The court held that the applicant's psychiatric injury was sufficiently linked to a physical cause, as the physical cause had contributed to the overall harm experienced. Consequently, the court granted the application for an extension of time, finding that the statutory criteria had been met.

The final orders of the court included an extension of time for the applicant to bring proceedings, allowing the matter to proceed on its merits. The court's decision clarified the application of the Limitation Act 2005 (WA) in cases involving psychiatric injuries and provided guidance on the interpretation of key statutory terms.

Orders