Johnson v South Metropolitan Health Service - [2023] WADC 125

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   JOHNSON -v- SOUTH METROPOLITAN HEALTH SERVICE [2023] WADC 125
CORAM:   GETHING DCJ
HEARD:   17 OCTOBER 2023
DELIVERED          :   24 OCTOBER 2023
FILE NO/S:   CIVO 120 of 2023
BETWEEN:   SUSAN JOHNSON
Applicant
AND
SOUTH METROPOLITAN HEALTH SERVICE
Respondent

Catchwords:

Tort - Personal injury - Medical negligence - Limitation period - Application to extend time to bring proceedings - Turns on own facts

Legislation:

Limitation Act 2005 (WA), s 39, s 55

Result:

Limitation period extended

Representation:

Counsel:

Applicant	:	Mr K S Pratt
Respondent	:	Ms D M Templeman

Solicitors:

Applicant	:	Bradley Bayly Legal
Respondent	:	Gilchrist Connell

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

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Clarke v Natalwala [2022] WASC 261
Mullaley v The State of Western Australia [2020] FCA 13

GETHING DCJ:

Introduction

By application filed 2 August 2023 (Application), Susan Johnson (Applicant), seeks leave to commence an action for damages against the South Metropolitan Health Service (Respondent). The action is for damages for personal injuries the Applicant says she suffered as a result of negligent medical treatment by the Respondent from 14 January 2018. The extension is sought until 21 November 2023.
The application is made pursuant to Limitation Act 2005 (WA) s 39.[1]
[1] Unless otherwise noted, all statutory references are to provisions of the Limitation Act 2005 (WA).
In support of the Application, the Applicant swore an affidavit dated 27 July 2023 (Applicant's Affidavit). She also relies on an affidavit sworn on 4 October 2023 by Kaivan Nathanial Jafari, a solicitor employed by her lawyers.
The Respondent has entered an appearance and opposes the Application. It relies on an affidavit sworn on 7 September 2023 by Janet Barron, a solicitor employed by the Respondent's lawyers (Barron Affidavit).
Both parties filed written submissions.
For the reasons which follow, the Application should be granted in the terms sought.

Factual background

On 29 December 2017, the Applicant fractured her left femur whilst on a cruise ship near Taiwan. She underwent surgical fixation of her left femur at a hospital in Taiwan on or about 2 January 2018. She arrived back in Perth on or around 14 January 2018.
On 14 January 2018, the Applicant attended the emergency department at Rockingham General Hospital (RGH) due to pain and swelling in her left leg.
On 18 January 2018 she was taken by ambulance to Fiona Stanley Hospital (FSH) due to rectal bleeding and was admitted. During this stay she underwent revision surgery on her left femur on 23 January 2018. She was discharged on 2 February 2018.
On 24 February 2018, the Applicant was readmitted to FSH. On 25 February, she underwent surgical debridement of her left femoral wound. Swabs taken during the surgery grew enterococcus faecalis, and she was subsequently administered antibiotics.
Between 11 March 2018 and 12 February 2020 the Applicant attended RGH amd FSH numerous times. She underwent six further surgeries in relation to her infected, fractured femur. She was administered ongoing antibiotic therapy. By February 2020, her fractured femur had still not united.
In March 2020, the Applicant attended RGH outpatient clinic and was prescribed the antibiotic Linezolid.
Between March 2020 and 24 November 2020, she attended RGH for ongoing treatment. She continued to be administered Linezolid. By the end of this period, her femur fracture had still not healed.
In or around December 2020, she suffered visual and hearing loss.
On 18 January 2021, the Applicant and (it appears) her partner spoke to a Patient and Family Liaison Officer at FSH regarding the Applicant's care at FSH. The Patient and Family Liaison Officer sent an email to the Applicant and her partner on 22 January 2021, attaching what is described as a 'draft' of the discussion. As counsel for the Respondent placed some weight on the contents of this draft, it is appropriate that I quote it in full:[2]
Susan has been receiving care since 2018 by the Orthopaedic and Infectious Diseases teams following surgery in Taiwan for a femur fracture and subsequent infection. Susan states she was prescribed Linezolid by the Infectious Diseases team and was having regular blood tests to monitor her infection levels, and that the last time she was advised of her infection levels was May 2020. On 12 December 2020 Susan lost 65% of vision in her right eye and total vision in her left eye, in addition to significant hearing loss in her left ear and total hearing loss in her right ear. Susan states she has been advised that this is a direct result of the Linezolid medication and is irreversible. Susan states at no point were the side effects of Linezolid explained to her and believes the Orthopaedic and Infectious Diseases teams should have worked more closely together to ensure her infection was improving and her leg appropriately managed. Susan has recently been advised that her leg may require amputation. Susan states that with the hearing and vision loss, in addition to the disability with her leg, recurrent urinary tract infections and Osteomyelitis, she must rely on her husband to be her full time carer, which has put strain on their relationship and significantly impacted her quality of life. Susan believes her care has been mismanaged, misdiagnosed, negligent, and her medical professionals have failed in their duty of care. Susan has indicated that she may seek compensation from the hospital and requests the following explanations:
•Why she was not advised of the severe side effects of the Linezolid medication?
•Why was the infection levels not monitored more closely?
•Why did the Orthopaedic and Infectious Diseases team not coordinate their care to manage her case more appropriately?
•Why, if her case was as complex as described to her by the Orthopaedics Registrar, was she not reviewed by the most experienced Orthopaedic Consultant at all times?
•Should her infection and fracture have been managed differently, and if so, what would have been the outcome?
[2] Barron Affidavit, page 4.
Although this document was tendered by the Respondent, the Applicant did not challenge the accuracy of its contents. So, subject to it being a draft, I treat it as evidence of the state of mind of the Applicant as at 18 January 2021.
The Applicant and her partner responded to the Patient and Family Liaison Officer by email dated 31 January 2021, attaching a letter of that date. Again, given the significance of this letter to the Respondent's position, it is necessary to quote it in detail:[3]
[3] Barron Affidavit, pages 6 - 9.
31 January 2020
For the attention of the Patient Liaison Team
Dear Sir or Madam,
Susan has been receiving care since 2018 by the Orthopaedic and Infectious Diseases Teams following surgery in Taiwan for a femur fracture and subsequent infection. Susan has undergone numerous surgical procedures by the Orthopaedic Team and has been prescribed a range of antibiotics to combat osteomyelitis by the Infectious Diseases Team. These have been delivered intravenously, through a PIC line, orally by tablet and by suspension. She has been admitted on several occasions to FSH and Rockingham Hospital with vomiting, diarrhoea and dehydration thought to be associated with the antibiotics.
On 12 December 2020 Susan suddenly lost significant vision in both eyes. She attended a local Optometrist to have an immediate assessment of her condition and currently prescribed glasses. After a series of tests the Optometrist advised Susan to immediately attend Accident & Emergency at Sir Charles Gardiner [sic] Hospital. An extensive range of tests was carried out and the doctor advised Susan and her partner Dave that the nerve at the back of her left eye had died and sight would not be recovered in this eye. Sight is also significantly impaired in her right eye.
The doctor arranged an urgent referral to the Eye Clinic at Fremantle Hospital. After another range of tests which included CT scans, an MRI, a brain scan, chest X‑rays, a carotid artery scan, blood tests and a lumbar puncture, received both as an In- and Outpatient, Susan and Dave have still not been provided with a diagnosis.
On 15 December 2020, Susan awoke to sudden significant hearing loss in both ears, resulting in her being unable to effectively communicate in a normal fashion. A GP arranged an audiology appointment and a referral to an ENT Consultant. Another hearing test was undertaken and Susan and Dave were advised that Susan would require Hearing Aids. Once again, no diagnosis was provided explaining the reasons for the sudden hearing loss.
To date the opinions that were provided have included:
•Stroke.
•Brain Tumour.
•Small blood clots firing behind the eye and hearing centres.
•Significant toxic reaction to antibiotics.
Stroke, brain tumour and clots were ruled by blood tests and x-rays and the lack of other associated symptoms.
Amongst other antibiotics, Susan was prescribed Linezolid which was being taken in suspension form. Susan was on Linezolid for many months and at no time was she or Dave advised of any potential side effects of this medication. She had a full range of blood tests during this period to monitor infection markers amongst other things. Susan was last advised of her infection levels in May 2020 and at no time was she advised of any negative impact from Linezolid.
The first time Susan and Dave were advised that Linezolid can cause significant sight and hearing loss was through a Registrar at FSH A & E a long time after the onset of symptoms.
Other than a telephone appointment with Infectious Diseases in November 2020 and a brief visit by Dr Hui whilst Susan was an inpatient at Rockingham Hospital, receiving treatment for a UTI, care from the Infectious Diseases team has been conspicuous by its absence. Even in the face of significant hearing and sight loss the first appointment with Infectious Diseases after the above episodes is set for 3 February 2021.
In a telephone call to Dave on 18 January 2021, Dr Hui discussed Susan's sudden loss of sight and hearing and confirmed that Linezolid was the probable cause and that Susan should stop taking it (Susan had already stopped taking Linezolid following advice received at FSH A&E (see above)). Dr Hui apologised for her condition.
Dr Hui also confirmed that Susan's Linezolid levels were last checked in May 2020, which is why we were able to specify that date above.
With side effects as significant as those experienced by Susan, it would seem extremely disturbing that levels were not monitored on a regular basis.
In terms of her treatment by the Orthopaedic team at FSH, whilst being told that Susan's case was highly complex, she often had to ask to see the latest x‑rays. On several occasions doctors were not familiar with the case background and as such she and Dave were required to recount the long and complex case history, adding greatly to the significant emotional trauma they were both already dealing with. In terms of the Orthopaedic Team, Susan and Dave were seen by a different doctor each time they attended a clinic appointment. On Monday 18 January 2021, Susan had to insist on seeing Mr Prosser, the Consultant in charge of Susan's orthopaedic treatment: He proposed three surgical alternatives and confirmed that surgery would take place within two weeks. Mr Prosser also apologised for Susan's sight and hearing loss.
Mr Prosser advised that he would discuss Susan's case at Grand Rounds on the Thursday prior to admission.
On Thursday 28 January, Dave received a phone call from a member of the Orthopaedic Team which confirmed that Susan's case had not been discussed at Grand Rounds and that surgery would be put back by another two weeks.
…
Areas of Concern and Conclusion
•At no time were Susan and Dave advised of the potential negative impact of the continued use of Linezolid on sight and hearing. Susan has had numerous blood tests since May 2020 but was not advised what the blood tests were for and had no knowledge that Linezolid levels had not been checked since May 2020.
•The fact that Linezolid levels were not checked between May 2020 and the present is highly alarming.
•In light of the complexity of Susan's condition, it would seem remiss that she has been "shuffled' through a range of doctors unfamiliar with her condition. These doctors displayed a negative understanding of care, compassion and empathy.
•It would seem unnecessary that a patient should have to undergo the trauma that she had to insist to see the specialist in charge of her treatment.
•It is now 31 January 2021 and to date Susan and Dave have not received a diagnosis relating to her sight and hearing loss. While many blood tests have been taken, we have not been advised of the outcome of these other than 'we are treating the really bad stuff with steroids'.
•Susan and Dave have received conflicting opinions by medical staff as to whether Susan's sight and hearing will improve. or deteriorate.
•The lack of care, compassion and empathy has been reflected by both Orthopaedic and Infectious Diseases Teams.
This document was also tendered by the Respondent. Again, the Applicant did not challenge the accuracy of its contents. So I treat it as evidence of the state of mind of the Applicant as at 31 January 2021.
On July 2021, the Applicant met with two lawyers from Bradley Bayly Legal (BBL) about a possible claim in relation to her hearing and visual loss. The Applicant deposes:[4]
At the time of the meeting, my concern was my hearing and visual loss. At that time I thought that, whilst the management of my femur fracture was not optimal, I had no inkling of any negligence by the respondent in its treatment of my femur fracture.
[4] Applicant Affidavit, par 21.
On 17 August 2021, the Applicant retained BBL as her lawyers to investigate a potential damages claim for her hearing and visual loss.
On 13 May 2022, BBL wrote to a Dr Clay Golledge, an infectious disease specialist, requesting a medical report. Dr Golledge wrote a report dated 15 June 2022, which BBL received on 22 July 2022. For present purposes the salient parts of Dr Golledge's report are:[5]
My main difficulty with this case rests on the fact that this patient suffered terribly with multiple operations that were not successful in eradicating her infection and that the presence of Enterococcus faecalis, an organism with known persistence and difficulty in eradicating in the face of retention of foreign material, would have led me to argue strongly with the surgeons to try and remove as much artificial material as possible and allow the infection to settle with non-weight bearing before trying to refix and bone graft the fracture. This is a classic case of acute osteomyelitis transitioning into chronic osteomyelitis with biofilm formation and non-eradication of an organism despite years of appropriate intravenous and oral antibiotics. In my opinion I would have demanded a much more aggressive approach in terms of minimising the prosthetic material in the affected area.
…
Best practice in this difficult situation would be to have tried to remove as much of the metalwork as possible and consultation with an expert Orthopaedic surgeon as to trying to bypass the infected area with something like external fixation remote from the areas of infection should have been trialled very early on in the piece when it became clear that the infection was not being cured or adequately suppressed. It seemed that Ms Johnson went through the hands of multiple Surgeons and Infectious Disease Physicians and there appears to be a significant lack of continuity of care, and I feel she was let go far too long with chronic non-suppressed infection over a period of nearly three years.
[5] Applicant's Affidavit, pages 18, 20.
I infer that the Applicant first became aware of Dr Golledge's report on, or shortly after 22 July 2022. The Applicant deposes that on reading Dr Golledge's report, she 'understood that Dr Golledge believed that the surgical and microbiological management of her femur fracture and associated infections was suboptimal'.[6]
[6] Applicant Affidavit, par 25.
Given Dr Golledge's findings, the Applicant then instructed BBL to obtain a report from an orthopaedic surgeon, given Dr Golledge's findings. On 1 September 2022, BBL wrote to Associate Professor Gerard Hardisty, an orthopaedic surgeon, requesting a report. Associate Professor Hardisty wrote a report dated 9 September 2022, which was received by BBL on 14 October 2022. The salient parts of this report are:
I concur with Dr Golledge that a more aggressive management of her infected non-union left femur should have been taken. The basic tenets of managing infected non-union are to remove the metalwork, particularly in the case of Enterococcus faecalis which is well known to be difficult to eradicate when metalwork is involved. Two, a debridement procedure should have been carried out removing extensively infected or avascular bone and an external fixation device should have been used and some intravenous antibiotics to eradicate the infection. It is competent professional orthopaedic practice in the presence of a non-union that is infected that a staging procedure is carried out with the removal of all metal work as suggested above.
…
I consider that by the third operation some six months after her initial surgery where it was noted there was non-union and it was noted there was still ongoing infection here that she should have been metal removal and external fixation carried out in 2018.
…
It is my opinion the orthopaedic management was reasonable based on the circumstances and infectious disease advice at the time up until the third operation. After this the aggressive debridement procedure should have been carried out with external fixation. It was not and I believe this professional advice was below par.
As stated, Enterococcus faecalis is difficult to eradicate in the presence of metalwork. It is hard for me to comment on the infection disease advice, but it has been documented and they suggested that metalwork removal would occur once the fracture has united. Unfortunately, it was never united and there may have been some miscommunication here. The Orthopaedic Team continued with further operations. Obviously when a patient has metal work in and has a fall it can cause disruption of the metalwork or further periprosthetic fracturing. This did happen to Ms Johnson but as I state above, this was after the critical juncture of the third operation where decision should have been made for radical debridement and external fixation.
I infer that the Applicant first became aware of the contents of the report by Associate Professor Hardisty on, or shortly after 14 October 2022.
The Applicant then deposes:[7]
When the report of Associate Professor Hardisty was read to me, it confirmed that the treatment of my fractured femur and associate infections was, arguably, negligent and I suffered injuries as a result of that treatment.
At all material times before I received the reports of Dr Golledge and Associate Professor Hardisty, I believed that the treatment of my femur fracture, whilst suboptimal, was not negligent.
Until I was read the reports of Dr Golledge and Associate Professor Hardisty and the contents of those reports were explained to me by Bradley Bayly Legal, I was not aware of the physical cause of my ongoing femur fracture and associated infections and was not aware that such injuries were attributable to the conduct of a person.
[7] Applicant Affidavit, pars 28 - 30.

Proposed action

The Applicant attaches to her affidavit a proposed statement of claim (PSC) which would be filed in any proceedings brought by her. To the extent that the PSC pleads facts, she verifies those facts to be true.
There are two broad allegations made in the PSC. It is convenient to deal with the second allegation first. The second allegation is that the Respondent breached the duty of care it owed to her in relation to the management of her treatment with Linezolid. She says that her total loss of vision and hearing was caused by this negligence.[8]
[8] PSC, pars 12, 13 and 14 (Applicant's Affidavit, pages 54 - 56).
I pause here to note that there is no suggestion that the second allegation is statute barred. The relevant symptoms are said to have commenced on 26 November 2020, so the limitation period expires on 25 November 2023. The extension sought in the Application is to 21 November 2023 in order to allow both allegations to be included in the same action.
It is the first broad allegation to which the Application relates. This is, had the Respondent exercised due care, in or around July 2018:
(a)an x-ray would have been undertaken, which would have shown the non-union of the fracture;
(b)all internal metalwork would have been removed;
(c)there would have been extensive debridement of the infected and/or avascular bone;
(d)an external fixation device would have been implemented; and
(e)intravenous antibiotics administered.
Had this occurred, the fracture would likely have united and the enterococcus faecalis would have been eradicated. This in turn would have obviated the need for the Applicant to have been treated using Linezolid, the mismanagement of which she says caused her total loss of vision and hearing.[9]
[9] PSC, pars 9 and 10 (Applicant's Affidavit, pages 45 - 46).
The first broad allegation has implications for the damages claimed, as it provides the basis for damages for the symptoms and sequalae of her fractured right femur, including in the period prior to her developing blindness and deafness.

Legal principles

By s 14, an 'action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued'. In s 55(1), specific rules are set out as to when a cause of action for damages relating to a personal injury accrues:
(1)A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs -
(a)the person becomes aware that he or she has sustained a not insignificant personal injury;
(b)the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.
The term 'personal injury' is defined in s 3(1) to include 'a disease, impairment of a person's physical condition, and mental disability'.
The court has a number of powers to extend the limitation period. The power relied on by the Applicant is that contained in CLA s 39, which, so far as is relevant, provides:
(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.
…
(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).
…

The plaintiff in an extension application has the burden of proving that the court should extend the relevant limitation period.[10]
[10] Section 79(3).
The principles governing an application pursuant to s 39 were considered in detail by the Court of Appeal in AME Hospitals Pty Ltd v Dixon.[11] In that case, the respondent child was born floppy and not breathing at the appellant hospital. She had hypoxic ischaemic encephalopathy at birth.[12] Over the following two or so years she experienced a global delay in development and was diagnosed with cerebral palsy with quadriparesis. Around 5 years after the child was born, her parents sought legal advice. The lawyers sought an expert opinion from a Professor Michael. Among other things, he opined that the obstetrician who delivered the child and the hospital had acted appropriately. Around 10 years after the child was born, on the initiative and advice of her lawyers, her parents obtained a second medical opinion relating to the management of the delivery of the child, by a Professor Dekker. Professor Dekker's report identified deficiencies in the birth process by the hospital which caused the hypoxic ischaemic encephalopathy.
[11] AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 (AME).
[12] Explained in AME [4] (McLure P, with whom Newnes JA agreed); [59] (Buss JA).
It was not in issue that the relevant limitation period expired around 12 months prior to the receipt of Professor Dekker's report.[13]
[13] AME [11]; [121].
The child, through her father as next friend, sought an extension of the limitation period relevantly relying on s 39. Her father filed an affidavit in support and was cross-examined at the first instance hearing. The father's evidence was to the effect that he only became aware after receiving a copy of Professor Dekker's report, and his lawyer's explanation of it, that:
(a)the child had suffered an injury during birth;
(b)her condition was caused by the injury she sustained during birth; and
(c)her injury and condition were attributable to the conduct of the obstetrician, further or alternatively, the nursing staff.
At first instance Master Sanderson granted leave under s 39 to extend the time in which the child's action against the hospital and the obstetrician could be commenced. The Court of Appeal dismissed the appeal, with Newnes JA agreeing with McLure P, and Buss JA delivering separate reasons, with one main point of difference in the principles to be applied.
McLure P made two general observations about the statutory scheme in s 39:[14]
First, to enliven the power to extend time under s 39(3) the applicant has to prove at least one negative, being the lack of awareness of the person to whom the cause of action accrues, at the time when the limitation period expired, of the physical cause of the injury, or that the injury was attributable to the conduct of a person, or the identity of that person.
The applicant for an extension must also establish when the person to whom the cause of action accrued first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) (being the physical cause of the injury, that the injury was attributable to the conduct of a person and the identity of that person).
In practical terms, the focus of attention in an application under s 39 should be on when the person to whom the cause of action accrues (and guardian if under 18) first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) because the application has to be made within three years from that date. That exercise will inevitably provide the evidentiary basis for determining the matters necessary to enliven the power under s 39(3).
Second, the matters listed in s 39(3) do not correspond with the material elements of a cause of action for damages for personal injury. In particular, no attention is required to the legal issue of whether there is a duty of care, the factual issue of whether the standard of care has been breached or issues going to the legal aspect of causation and remoteness of damage.
[14] AME [18] - [21].
There is a large measure of consensus between McLure P and Buss JA as to how s 39 is to be applied, which may be relevantly summarised as follows:
(a)the natural and ordinary meaning of the term 'aware' is 'cognisant or informed of' or 'knowledge of facts or circumstances';[15]
[15] AME [34]; [194].
(b)actual awareness is required, not constructive awareness, so the focus is on the actual knowledge of the applicant, what he or she was, or was not, actually aware of, and not what he or she 'should have' been aware of;[16]
[16] AME [34]; [197] - [198].
(c)actual awareness or knowledge can be derived from information (for example, that provided from a third party) and depends upon understanding;[17]
(d)the term 'injury' in s 39(3) and s 39(4) means the personal injury the subject of the application for leave under s 39(1), which is outside the limitation period in s 55(1);[18]
(e)the term 'injury', in s 39(3) and s 39(4), is concerned with the actual injury itself, and not with the symptoms, clinical signs or other manifestations of the injury';[19]
(f)the 'physical cause' of an injury focusses on 'what' caused the injury, not 'whom';[20]
(g)there may be multiple successive (or concurrent) physical causes of a single injury;[21]
(h)the phrase 'attributable to' in s 39(3)(b) requires there to be a causal connection in fact (as distinct from causation at law) between the injury and the conduct of the relevant person;[22]
(i)conduct means an act or omission of a person;[23]
(j)the relevant conduct of the person is to be ascertained from the proposed particulars of negligence relied on by the applicant (proposed plaintiff) and the evidence adduced at the hearing of the extension application;[24]
(k)as to s 39(4), the phrase 'ought reasonably to have become aware' imports the notion that the person, acting reasonably, should have taken steps to acquire knowledge of relevant facts or circumstances;[25] and
(l)the objective test of reasonableness is assessed having regard to the characteristics, attributes and circumstances of the particular person to whom the cause of action accrued.[26]
[17] AME [34]; [199].
[18] AME [23]; [179] - [180].
[19] AME [181].
[20] AME [28].
[21] AME [29]; [190].
[22] AME [31] - [33]; [187] - [188], [209].
[23] AME [39]; [213].
[24] AME [213].
[25] AME [202].
[26] AME [42]; [205].
The point of difference between McLure P and Buss JA concerned the degree of certainty and detail required by s 39 so as to constitute the awareness required. It is convenient to deal with Buss JA's reasoning first, which was in the following terms:[27]
In my opinion, the degree of certainty and detail required by s 39 must be determined in the context of the subject matter and purpose of s 39; namely the granting of an extension of time, in certain circumstances, to commence an action for damages, after the limitation period has expired, in respect of personal injury. The 'actual awareness or knowledge' with which s 39 is concerned does not require knowledge of the relevant fact or facts with complete certainty as to its or their existence and beyond the possibility of error, or in complete detail. Rather, 'actual awareness or knowledge', within s 39(3) and s 39(4), means awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process. This construction is consistent with the statutory text, and the subject matter and purpose, of s 39.
[27] AME [200].
And:[28]
… the term 'attributable to', in s 39(3) and s 39(4), requires that the person to whom the cause of action accrues was aware, or ought reasonably to have become aware, of a connection between the death or injury, on the one hand, and the conduct of a person, on the other, with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process.
[28] AME [211].
Buss JA concluded that the child's father first became aware of the information sufficient to enliven s 39(3), and satisfy s 39(4), upon receipt of Professor Dekker's report.[29]
[29] AME [241] - [247].
By contrast, McLure P adopted a lower threshold of awareness, which was also satisfied on the facts of the application:[30]
What constitutes actual awareness will depend on the nature of the fact or matter in issue. In this case, awareness of the physical cause of the respondent's injury is a matter of inference, from primary facts, that requires expert medical knowledge and experience. That the respondent's father may have been aware of some or all of the primary facts and of the opinion of a non‑qualified person as to the physical cause of the respondent's injury cannot satisfy the actual awareness requirement.
There is no conflicting expert evidence as to the physical cause of the respondent's injury. In those circumstances it is proper for the purpose of the extension application to find that the respondent's father first became aware of the physical cause of the respondent's injury on receipt of Professor Dekker's opinion in August 2012. Accordingly, the discretion in s 39(3) is enlivened.
Even if that is wrong, the next question is when did the respondent's father become aware that the respondent's injury was attributable to the conduct of the appellants.
Conduct means an act or omission of a person. Whether or not the injury was attributable to the conduct of the appellants is also a matter that requires expert medical knowledge and experience. On this subject, there is a conflict of expert opinion in the reports of Professor Michael and Professor Dekker.
I am not persuaded of the applicability or suitability of the test of awareness (and attributability) applied in the English and other cases to which Buss JA refers (awareness of relevant facts with sufficient confidence reasonably to justify the commencement of proceedings against the proposed defendants in the relevant causes of action). As previously noted, the matters in s 39(3) and (4) do not equate with all the material facts of a cause of action for damages for personal injuries. Moreover, awareness (actual or constructive) of the matters in s 39(4) triggers a further three years in which to commence proceedings.
In my view, a person will be aware of a matter which requires expert knowledge and experience if he is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing the relevant facts (that is, the physical cause of the injury is attributable to the conduct of an identified person). Only Professor Dekker's report satisfies both those requirements.
[30] AME [36] - [41].
So, in the end result, the different approaches did not result in a different outcome. However, as the third member of the court, Newnes JA, agreed with McLure P, it is the President's reasoning which is biding upon me.
The decision in AME was applied by Master Sanderson in Clarke v Natalwala.[31]In that case, the plaintiff applied for an extension of time to commence proceedings for breach of contract and/or negligence arising out of treatment she received for what might broadly be termed urinary incontinence. Both the first and second defendants were specialist obstetricians and gynaecologists. In late 2010 the plaintiff consulted the first defendant as a private patient for urinary incontinence. The first defendant provided to the plaintiff certain advice as to the treatment she should undergo. That treatment included surgery. In May 2011 she consulted the second defendant also as a private patient for the same complaint. Essentially, he provided the same advice including the advice she should have surgery. In June 2011 she underwent the surgery which was performed by the second defendant at the premises of the third defendant at which the plaintiff had been admitted as a public patient. The surgery involved repair with mesh. After the surgery, the urinary incontinence which the plaintiff had experienced prior to the surgery had become worse, and she developed a variety of other symptoms.
[31] Clarke v Natalwala [2022] WASC 261 (Clarke).
The plaintiff asserted three causes of action in the draft statement of claim before the court. The first was a 'failure to warn' case. The plaintiff alleged she was not told about the insertion of mesh during the surgical procedure and she did not give her informed consent to its use. Second, she says the treatment she received was unnecessary. Based upon expert medical opinion, she says she could have and should have been treated conservatively without surgery. She alleges the surgery and its effects were unnecessary. Thirdly, she says when the surgery was undertaken, it was undertaken negligently. The last of these three allegations was made only against the second defendant. So far as the third defendant was concerned, if it is liable, it would be liable vicariously.
The Master concluded that at the time the limitation period expired, the plaintiff did not appreciate her ongoing symptoms were attributable to either the first or the second defendant. Accordingly, the discretion provided in s 39(3) was enlivened.[32] The defendants' case was that the plaintiff actually became aware that her injury was attributable to the conduct of the first and second defendants in 2017, or at least ought reasonably to have become aware by this time. The plaintiff gave evidence that in December 2017 she became aware through a chance conversation that mesh might have been used in her surgery, and that the mesh may have been causing her ongoing problems. In February 2018 she commenced treatment at a 'mesh clinic' at King Edward Memorial Hospital, and was subsequently treated at that clinic.
[32] Clarke [16].
It was the plaintiff's position she did not actually become aware her problems resulted from the surgery until the provision of an expert report in December 2020. The Master accepted the plaintiff's position, and granted the extension sought. It is instructive to quote part of his Honour's reasoning:[33]
It is relevant at this point to ask what a reasonable person in the plaintiff's position would have concluded about who, if anyone, was responsible for her condition. She was aware she had surgery. It also seems clear her condition had deteriorated after the surgery. That said, her condition deteriorated between 2005 and 2010. That was why she consulted the first and second defendants. No medical practitioner had told her as at 2017 her condition was a consequence of the surgery. Perhaps from time to time she speculated about the consequences of the surgery. But there is no evidence to that effect, and even if it were the case, it was nothing more than speculation. Counsel for the first and second defendants focused particularly on the date the plaintiff attended the mesh clinic. Effectively, she equated attendance at the mesh clinic with a reasonable person concluding the operation which inserted the mesh was responsible for the plaintiff's condition. In my view, that connection is not made out.
The position can be looked at in this way. When the plaintiff attended the mesh clinic and when she was being treated throughout 2018, she might reasonably have asked herself whether it was the operation in 2010 which caused the problem. I am not satisfied that a reasonable person, on the evidence available to the plaintiff, would have concluded the surgery was the root cause of the problem. There could have been a gradual deterioration in her condition occasioned by past problems. She might well have concluded that the process of aging, coupled with pre-existing problems, was contributing to her pain. I am not satisfied a reasonable person would have concluded the problem lay with the surgery and in particular the use of mesh.
[33] Clarke [22] - [23].

There is a third recent and relevant decision, one on which counsel for the Respondent placed significant weight. This is the decision of Colvin J in Mullaley v The State of Western Australia.[34] In that case, Mr Mullaley and his daughter Ms Mullaley sought an extension of time in which to advance a claim for personal injuries suffered by reason of the alleged negligence of certain police officers. The claim was sought to be advanced against the State of Western Australia, who was said to be liable for the conduct of the police officers. In the proceedings in the Federal Court, the applicants brought claims of unlawful racial discrimination concerning the conduct of the police officers and claims for breach of a duty of care to avoid mental harm to them. The application to extend time was not concerned with the discrimination claim.
[34] Mullaley v The State of Western Australia [2020] FCA 13 (Mullaley).
The tragic circumstances in which the claim arose are succinctly summarised by Colvin J:[35]
In outline, the Claim alleges that the second applicant (Ms Mullaley) was violently assaulted by Mr Mervyn Bell on 19 March 2013 in a street in Broome. The police were called by a person who witnessed the assault. After the assault, Ms Mullaley was naked and injured. When the police arrived Ms Mullaley was covered in only a bloodied sheet. She had blood on her face. Ms Mullaley's father, the first applicant (Mr Mullaley) arrived at the scene. He told the attending police officers that Mr Bell had assaulted Ms Mullaley. Two other people arrived who had been caring for Ms Mullaley's infant son. They brought the baby with them. The baby was passed to Mr Mullaley, but then given back to the two people who had been looking after the baby. There was a confrontation between the attending police officers and the applicants. Ms Mullaley swore at the officers and spat at one of them. Other police officers arrived and then Ms Mullaley was arrested. The police officers then focussed their inquiries on obtaining statements concerning the conduct of Ms Mullaley. They did not pursue inquiries concerning the assault on Ms Mullaley by Mr Bell nor as to his whereabouts. Later that night, the police were told a number of times that Mr Bell had taken the baby and had made threats to kill the baby. The police did not then take any action until 9.00 am the following day when a missing person inquiry was commenced. Later that day, Mr Bell was found at a roadhouse trying to resuscitate the baby. He was subsequently convicted of the murder and sexual assault of the baby.
[35] Mullaley [4].
Like Master Sanderson, Colvin J followed the decision in AME. His Honour identified three questions. The first was: when did the cause of action accrue? This turned upon the timing of the applicants' actual awareness of having sustained a not insignificant personal injury or upon the objective manifestation of such an injury. The answer was complicated by the fact that the applicants experienced grief on the death of the baby, giving rise to anxiety, depression and mental health issues. Colvin J held that the cause of action did not accrue for the purposes of s 55 until each applicant had been diagnosed with the respective mental injuries that form the basis of their claim. His Honour observed that on 'the evidence, it was at that point that there was a diagnosis consistent with injury rather than their grief at the loss of the baby'.[36]
[36] Mullaley [83].
The second question was 'whether as at the date of accrual the applicant was consciously aware of the three specified matters, namely (a) the physical cause of the injury; (b) that the injury was attributable to the conduct of a person; and (c) after reasonable inquiry the identity of that person'.[37] His Honour held that the applicants had not proven that they were not aware of these matters. Among other evidence, his Honour placed weight on a complaint letter which ALS had sent on behalf of the applicants in May 2013. Specifically, Colvin J concluded:[38]
On the evidence as a whole, the proper inference is that by the time the limitation period expired, namely 17 December 2018 in the case of Mr Mullaley and 7 February 2017 in the case of Ms Mullaley, they each remained of the view that the police officers were responsible for the death of the baby and they were aware that they had suffered significant mental health injuries by reason of those events. Given the force with which views about the responsibilities of the police officers had been expressed by each of them and the actual awareness of their mental health injuries arising from those events that arose when they were diagnosed, in the absence of some explanation from the applicants, the necessary inference was that they were consciously aware that their injuries were attributable to the conduct of a person, namely the police officers.
On an application for an extension of time, the applicants had an obligation to prove the negative proposition that they were not aware that their mental health injuries were attributable to the conduct of the police officers by the expiry of the limitation period. On the evidence, that negative proposition has not been established and therefore there is no discretion to extend time.
Evidence as to paras (a) and (c) of s 39(3)
The evidence as to what was actually known to Mr Mullaley and Ms Mullaley at the expiry of the limitation period was to the effect that they did not know who the police officers were who were involved in the events of 19 and 20 March 2013. However, it is not enough to show a lack of actual knowledge. What must be shown is that the person was unable to establish the identity of the person to whom the prospective claimant was aware the injury was attributable. If it was the case that the applicants were aware that their mental health injuries were attributable to conduct of the police officers (rather than grief because of the death of the baby) then reasonable inquiry would have revealed their identity. So much is demonstrated by the affidavit of Mr Smith which deposed to the fact that if he had been asked to identify the officers involved he would have done so. It was accepted for the applicants that they were aware of the physical cause of their injury. That is to say, they knew in general terms of the conduct of the police officers. This is made evident by the terms of the letter of complaint sent by ALS.
[37] Mullaley [61].
[38] Mullaley [109] - [111].
The third question was 'what was the date when the applicant was aware or ought reasonably to have become aware of all of the three specified matters'.[39] His Honour concluded that 'from the time of their diagnosis, each of Mr Mullaley and Ms Mullaley ought to have been aware that, for the purposes of their claims, their mental health conditions were attributable to the police officers involved'.[40] The Federal Court proceedings had, however, been commenced more than three years after their diagnoses. This meant that, even if s 39(3) was met when the limitation period expired, the time within which there was a discretion to extend time had itself expired by the time the applicants' claims were commenced.[41]
[39] Mullaley [62].
[40] Mullaley [117].
[41] Mullaley [118].

Applicant's submissions

Counsel for the Applicant submits that the 'physical cause' of the Applicant's injuries is the omission to remove the internal metalwork in the Applicant's left femur, and undertake the other treatment set out at [29].
Counsel submitted that, based on the report of Associate Professor Hardisty, had the internal metalwork in the Applicant's left femur been removed when it ought to have been (July 2018), and other treatment undertaken, her femur would have been healed, and the infection gone, by around 6 months later (say, December 2018).
The relevant 'injury' is the continuation of symptoms relating to her fractured left femur after this date, and the sequalae of that fracture, including the loss of vision and hearing. This means that the limitation period would have expired at some point between July 2021 and December 2021. This date range is arrived at by a convoluted application of s 55, which, in the particular circumstances of the present case, would set the limitation period as commencing when the Applicant's symptoms would, based on the hypothetical treatment, have ceased to be 'not insignificant'. The relevant injury is the 'not insignificant' symptoms experienced after that date.
The Applicant relies on both s 39(3)(a) and s 39(3)(b).
Counsel submitted that, in this case, like AME, the facts in both s 39(3)(a) and s 39(3)(b) are matters requiring expert knowledge and experience. So, in relation to both paragraphs, the Applicant did not in fact become aware of:
(a)the physical cause of her injuries; or
(b)the fact that her injuries were attributable to the conduct of the Respondent,
until after she had received the reports of Dr Golledge (on or shortly after 22 July 2022) and Associate Professor Hardisty (on or shortly after 14 October 2022).
Hence the discretion in s 39(3) is enlivened.
For the purposes of s 39(4), this is also the time at which she ought reasonably to have become aware of these facts.
Although the limitation period could be extended up to three years from 14 October 2022, or perhaps 22 July 2022, it is sufficient to extend it to 21 November 2023 to align it with the limitation period for the other cause of action set out at [27].

Respondent's submissions

Counsel for the Respondent submits that the relevant injury is the continuation of the non-union and infection in the left femur. For the purposes of s 39(3)(a), the 'physical cause' of these injuries is the ongoing infection and failure of union of the left femur. It follows that there is a compelling inference that the Applicant was in fact aware of the physical cause of her injuries.
The Respondent's position is that the central issue in the Application is that in s 39(3)(b), being whether the Applicant was aware that her injury was attributable to the conduct of the Respondent at the time the limitation period expired.
In this regard, counsel places weight on three statements demonstrating the Applicant's knowledge.
The first is in the Applicant's Affidavit where she says that:[42]
I thought that … the management of my femur fracture was not optimal.
[42] Applicant's Affidavit, par 21.
The second is in the draft file note prepared by the Patient and Family Liaison Officer at FSH regarding the Applicant's care at FSH (quoted in full at [15]):[43]
… the Orthopaedic and Infectious Diseases teams should have worked more closely together to ensure her infection was improving and her leg appropriately managed … Susan believes her care has been mismanaged, misdiagnosed, negligent and her medical professionals have failed in their duty of care.
[43] Barron Affidavit, page 4.
The third is in the letter dated 31 January 2021 (quoted in full at [17]):[44]
The ongoing pain and trauma associated with the femur fracture and many following surgeries is immeasurable and Susan feels that this has been given limited consideration or care by the Orthopaedic Team' … Susan has lost all trust in both the Orthopaedic and Infectious Diseases Teams in terms of their care.
[44] Barron Affidavit, pages 6 - 9.
Counsel for the Respondent submits that the statements made by the Applicant in January 2021 demonstrate her belief at that time that her fracture non-union and persistent infection were attributable to her treatment by the Respondent. She expressed her view that there had been breaches of the duties of care and asked what the difference in outcome would have been with better care.
On the Respondent's position, this constitutes awareness of the physical cause of her 'injury' and that it was 'attributable to the conduct of a person'. It follows that as at January 2021 the Applicant is demonstrated to have had awareness of the matters in s 39(3).
Moreover, this awareness subsisted through the instruction of BBL in July 2021. In a letter from BBL to the Applicant recording her instructions, it stated:
we discussed your potential medical negligence claim arising out of treatment you received through Fiona Staley Hospital … femur injury has still not healed and there have been discussions on undertaking an above knee amputation.
Counsel submitted that the present case is distinguishable from the situation in AME.In that case the court found that an expert opinion was required to establish that the injury was attributable to the conduct of an identified person. However, the court was dealing with a claim based on peri-natal events and whether those events caused hypoxic injury leading to the infant plaintiff's cerebral palsy. In that instance understanding of causation required technical medical knowledge. In the present case, the Applicant knew that she had been under the care of the Respondent for her orthopaedic and infectious diseases needs. She believed that the care was negligent. She also believed that her outcome of the known failure to unite and the known infection would have been better if the care had been in line with the standard of care. No expert opinion or knowledge was required for the applicant to have the relevant awareness under s 39(3).
Rather, the present case is said to be similar to that in Mullaley. In that case, as mentioned, the Mullaleys had expressed themselves in complaint correspondence written by ALS on their behalf. From this, and other evidence, the court inferred that the applicants were consciously aware that their injuries were attributable to the conduct of a person. Reliance was placed on the following passage from the decision of Colvin J:[45]
In determining whether an injury is known to be attributable, the inquiry concerns the point in time at which the injury was in fact seen by the prospective claimant as one that might be placed at the feet of a person rather than an unfortunate turn of events. … whether, by the end of the limitation period, the prospective claimant was consciously aware of the injury, that a person was responsible for their injury and who that person was … If so, no further time can be allowed to commence the personal injury claim.
[45] Mullaley [61].

Determination

The starting point is to determine the relevant injury. As set out at [40], the term 'injury' in s 39(3) and s 39(4) means the personal injury the subject of the application for leave under s 39(1).
The Applicant is not seeking leave in relation to all the symptoms and sequalae of her broken left femur. Rather, as the PSC makes clear, she is only seeking leave in relation to the injuries which she says she suffered as a result of the Respondent's failure to remove the internal metalwork in the Applicant's left femur and undertake the other treatment set out at [29]. I will refer to this as the 'Respondent's Failure'. Her case is that, had the internal metalwork in her left femur been removed when it ought to have been (July 2018), and other treatment undertaken, her femur would have been healed, and the infection gone, by around 6 months later (say, December 2018). In other words, had the Respondent's Failure not occurred, her femur would have been healed, and the infection gone, by December 2018.
The relevant 'injury' for the purposes of s 39 is the continuation of the non‑union of, and infection in, her left femur after December 2018. I will refer to this as the 'Actionable Injury'.
The issue then arises as to whether an omission can be a 'physical cause' for the purposes of s 39(3)(a). McLure P makes two points in AME which lead me to conclude that it does. The first is that the 'notion of physical cause applies to the whole range of compensable personal injuries'.[46] The second is that the physical cause of the injury may be attributable to conduct of person which is an act or an omission.[47]
[46] AME [28].
[47] AME [39], a point which Buss JA agreed [192].
There is medical evidence in the form of the report of Associate Professor Hardisty that the Respondent's Failure factually caused the Actionable Injury.
So the issue is when the Applicant first became aware that the Respondent's Failure caused the Actionable Injury. So framed, it is clear that in her communications with FSH in January 2021, the Applicant had no 'awareness' of this fact. She was speculating that if her infection and fracture had been managed differently, there may have been a different outcome, but no more. As was the case in Clarke, speculation falls short of awareness (see the quote at [49]).
I accept that McLure P observed in AME that what 'constitutes actual awareness will depend on the nature of the fact or matter in issue'.[48]
[48] AME [36].
In my view, the present case is different to Mullaley. In that case, the physical cause of the injuries was claimed to be the actions of the police officers on 19 and 20 March 2013. This was not something requiring expert knowledge or opinion. On the other hand, what did require expert knowledge and opinion, was when a particular manifestation was consistent with psychiatric injury rather than the normative grief and stress reaction.
Rather, the present case is on all fours with the decisions in AME and Clarke. The issue of what was the 'physical cause' of the Actionable Injury, and whether it was attributable to the conduct of the Respondent, are matters requiring expert knowledge and experience. The complexity of the analysis in the reports of both Dr Golledge and Associate Professor Hardisty make this conclusion readily apparent.
On the evidence before the court, the Applicant was not aware of the possibility that there was an alternate treatment pathway which could have led to her femur being healed and infection subsiding by the end of 2018 until she became aware of the report of Dr Golledge on or shortly after 22 July 2022. She was not aware that there was an alternate treatment pathway which probably would have led to her femur being healed and infection subsiding by the end of 2018 until she became aware of Associate Professor Hardisty's report on or shortly after 14 October 2022.
On this analysis, for the purposes of s39(4)(a), the Applicant has satisfied me that she first became aware of the physical cause (the Respondent's Failure) of her injury (the Actionable Injury) on or shortly after 14 October 2022.
The Applicant has also satisfied me that, for the purposes of s 39(4)(b), she first became aware that her injury (the Actionable Injury) was attributable to the conduct of the Respondent (again, the omission which is the Respondent's Failure) on or shortly after 14 October 2022.
There is no basis for a finding that the Applicant ought reasonably to have become aware of these facts prior to when she did.
It follows from the conclusions in [84] and [85] that I am also satisfied that, for the purposes of s 39(3)(a) and s 39(3)(b), the Applicant was not aware of these facts when the limitation period expired at some point between July and December 2021. For these reasons, the jurisdiction to extend the limitation period in s 39(3) is enlivened.
Counsel for the Respondent did not argue that the discretion, once enlivened, ought not be exercised in favour of the Applicant.[49] In this case, the facts which enliven the discretion provide a compelling basis for its exercise. There is no reason to the contrary. The Applicant has discharged the burden on her to prove that the court should extend the relevant limitation period. The discretion in s 39 should be exercised to extend the limitation period to 21 November 2023 as requested.
[49] For example, by reference to the factors in s 44. As to this, see AME [216].
I will hear from counsel as to costs. My preliminary view is that the costs of the Application should be costs in the cause in the proposed proceedings.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

LL
Associate
24 OCTOBER 2023