| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PHILLIPS by her next friend CHAD PHILLIPS -v- MINISTER FOR HEALTH [2012] WADC 83 CORAM : SCHOOMBEE DCJ HEARD : 27 APRIL 2012 DELIVERED : 13 JUNE 2012 FILE NO/S : CIV 3068 of 2011 BETWEEN : LOLA PHILLIPS by her next friend CHAD PHILLIPS Plaintiff
AND
MINISTER FOR HEALTH
Defendant
Catchwords: Practice and procedure - Limitation period applicable to personal injury action where negligent act occurred prior to the commencement of the Limitation Act 2005, but the plaintiff only became aware of injury after the commencement date - Interpretation of s 6 of the Limitation Act 2005 Legislation: Limitation Act 2005 s 4, s 5, s 6, s 55 Result: Application for summary judgment dismissed
(Page 2)
Representation: Counsel:
Plaintiff : Mr J R Johnson
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Julian Johnson Lawyers
Defendant : Downings Legal
Case(s) referred to in judgment(s):
Asher-Relf by his next friend Douglas Bean v Minister of Health [2009] WADC 202
Cartledge v E Jopling & Sons Ltd [1963] AC 758
Hammond Worthington v Da Silva [2006] WASCA 180
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Maxwell v Murphy (1957) 96 CLR 261
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
(Page 3)
1 SCHOOMBEE DCJ: This is an application for summary judgment by the defendant, the Minister for Health, pursuant to O 16 of the Rules of the Supreme Court 1971. The defendant alleges that the plaintiff's action is statute barred.
2 The plaintiff is Lola Phillips who is represented by her next friend, her father, Chad Phillips. The plaintiff is currently aged 10. On 19 March 2002, when the plaintiff was 10 days old, a child health nurse employed by the defendant conducted a health assessment of the plaintiff and made a note that the plaintiff's hips were stiff and 'clicky'. She did not raise any concerns with the plaintiff's parents and did not refer the plaintiff for specialist medical advice. 3 The plaintiff alleges that the child health nurse's failure to refer the plaintiff to a medical practitioner so that an ultrasound could be undertaken of the plaintiff's hips was a breach of her duty of care to the plaintiff. The plaintiff pleads that the defendant is vicariously liable for the negligence of the child health nurse and also breached its own non-delegable duty of care to the plaintiff. 4 The plaintiff says in her statement of claim that she suffers from bilateral hip dysplasia which was only diagnosed at age 4, when it was too late to correct this condition with conservative treatment. She underwent an operation to try and correct the condition, but this was not successful. As a result of this condition the plaintiff suffers from various residual disabilities and has undergone pain and suffering and loss of amenities of life. 5 The defendant denies any negligence by the child health nurse and relies on the affidavits by two orthopaedic surgeons who respectively say that conservative treatment of the plaintiff's developmental dysplasia of the hip would only have been possible until she reached 12 or 18 months of age. The defendant therefore says the plaintiff had suffered damages at the latest towards the end of 2003, when she was aged 18 months, and this is the date at which the plaintiff's cause of action accrued. 6 The defendant maintains that because the plaintiff's cause of action accrued before the end of 2003, and the writ of summons was only issued on 22 September 2011, the action is now statute barred.
Which Limitation Act applies? 7 The defendant relies on s 38(1)(c)(vi) of the Limitation Act 1935 which provides that an action founded on tort has to be commenced (Page 4)
within six years after the cause of action arose. Prior to the promulgation of the Limitation Act 2005 it was accepted that a cause of action in tort accrued as soon as the plaintiff had suffered actual damage that was measurable: Cartledge v E Jopling & Sons Ltd [1963] AC 758 and Hammond Worthington v Da Silva [2006] WASCA 180 [102]. On this basis the plaintiff's action would have become statute barred at the latest at the end of 2009. 8 The defendant also relies on s 47A of the Limitation Act 1935 which requires any action against a public authority to be commenced within a period of one year after the action accrued. Such period may be extended by leave of the court, but only to the extent that the action can still be brought within a period of six years after the accrual date. 9 The plaintiff, on the other hand, relies on the Limitation Act 2005 which provides in s 55(1) that a cause of action for damages relating to a personal injury to a person only accrues when the person becomes aware that he or she has sustained a not insignificant personal injury or when the first symptom, clinical sign or other manifestation of such injury arises. 10 The plaintiff further relies on s 6 of the Limitation Act 2005 which provides as follows: 6(1) Section 55 or 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues. (2) If, under the relevant section, the cause of action accrues before commencement day, the applicable limitation period in that case is that which would have applied before commencement day, whether or not that period has expired. 11 Counsel for the plaintiff submitted that s 6(1) meant that after the commencement of the LimitationAct 2005 (which was on 15 November 2005) every personal injuries claim was subject to s 55 and that a cause of action in respect of such a claim could only arise once the plaintiff had become aware of the injury or a first symptom, clinical sign or other manifestation of that injury had occurred. If, on the basis of this determination of the accrual date, the action accrued on or after the commencement date of the LimitationAct 2005, the limitation period provided under that Act applied. 12 Counsel for the plaintiff further submitted that if, on the other hand, an assessment under s 55 led to the conclusion that the cause of action had accrued before the commencement day, then s 6(2) came into play and the (Page 5)
applicable limitation period was the one which applied before the commencement day. In the plaintiff's case that limitation period would be the one year period pursuant to s 47A of the Limitation Act 1935. 13 The plaintiff argued that this interpretation of s 6 of the LimitationAct 2005 was supported by s 5 and particularly its heading. This section provides as follows: 5. Actions other than personal injury actions do not revive 14 Counsel for the plaintiff also relied on the explanatory memorandum which accompanied the 'Limitation Bill 2005'. This memorandum relevantly stated: The tests for the accrual of a cause of action for personal injuries which are set out in clauses 54 and 55 (now sections 55 and 56 of the Limitation Act 2005), are to apply even though the time for commencing the action had expired before the commencement day. This means that past causes of action for latent injury will accrue not from when the injury occurred but from when the injury first manifested itself in a not insignificant form (clause 54) even though, on the previous test, the limitation period might have expired before the commencement date. 15 Counsel for the plaintiff further relied on s 4 of the Limitation Legislation Amendment and Repeal Act 2005, which repealed the Limitation Act 1935, but contained some savings provisions. Section 4 relevantly provides as follows: 4 (1) The Limitation Act 1935 is repealed. (2) The Limitation Act 1935 continues to apply, despite its repeal and the enactment of the Limitation Act 2005, to causes of action that accrued before commencement day. (3) Subsection (2) is subject to the Limitation Act 2005 sections 6 and 7. … (Page 6)
16 This section makes it clear that the Limitation Act 1935 continues to apply to causes of action that accrued before the commencement day of the Limitation Act 2005. Section 3 of the Limitation Legislation Amendment and Repeal Act 2005 defines the 'commencement date' as the day on which the Limitation Act 2005 comes into operation. 17 Counsel for the defendant, on the other hand, submitted that the limitation period of one year provided for in s 47A of the Limitation Act 1935 had applied to the plaintiff's claim prior to the commencement of the Limitation Act 2005. The action was therefore statute barred within a year after the end of 2003 and could not be revived by the provisions of the Limitation Act 2005. No application had been made by the plaintiff under s 47A(3) of the Limitation Act 1935 for leave to bring the action within six years from the date on which the cause of action accrued. In any event, six years from the date on which the action accrued had already expired by the time that the writ was issued in September 2011. Counsel for the defendant therefore submitted that the plaintiff's action was well and truly statute barred. 18 Counsel for the defendant argued that the Limitation Act 2005 was not intended to revive an action which was statute barred pursuant to the Limitation Act 1935. Counsel for the defendant submitted that this was clear by reason of s 4(1) of the Limitation Act 2005 which provides as follows: 19 Counsel for the defendant submitted that the plaintiff's cause of action had already accrued by the end of 2003 pursuant to the law that applied prior to the commencement of the Limitation Act 2005 and that this meant that the Limitation Act 2005 could not be applicable to the plaintiff's action. 20 However, the essential question is what is meant by the word 'accrue' as it appears in s 4(1). Section 55 of the Limitation Act 2005 sheds further light on this. This section relevantly provides as follows: 55(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 – (Page 7)
21 Section 55 makes it clear that where a cause of action for damages relates to personal injury, it only accrues when the plaintiff either becomes aware that he or she has sustained a not insignificant personal injury, or the first symptom, clinical sign or other manifestation of such personal injury occurs. 22 Counsel for the defendant submitted that s 55 was not relevant to causes of action for personal injury which had already accrued under the law as it stood before the commencement of the Limitation Act 2005. However, s 6 of the Limitation Act 2005 makes is clear that this is not the case. Section 6(1) provides that s 55 applies to ascertain when a cause of action relating to a personal injury to a person accrues. This section does not say that s 55 only applies to actions which have not as yet become statute barred under the Limitation Act 1935. 23 In fact, s 6(2) specifies that it is only in respect of causes of action which accrued, on the basis of the test in s 55, before the commencement day of the Limitation Act 2005 that the limitation periods under the Limitation Act 1935 apply. Section 6(2) does not say that causes of action which accrued after the commencement day pursuant to s 55 are also subject to the limitation periods that applied prior to the commencement day of the Limitation Act 2005. 24 This means that where a cause of action accrued after the commencement day under the test proposed in s 55, the action simply falls to be decided under the Limitation Act 2005, as it is an action in respect of which the cause of action has accrued on or after the commencement day, as provided for in s 4(1) of the Limitation Act 2005. 25 Counsel advised that there had as yet not been any decision on the effect of s 6 of the Limitation Act 2005 other than the obiter remarks made by Stevenson DCJ in Asher-Relf by his next friend Douglas Bean v Minister of Health [2009] WADC 202. That case was concerned with the interpretation of s 7 of the Limitation Act 2005. However, in the course of his judgment, Stevenson DCJ referred to s 6 and also came to the conclusion at [33] that where a cause of action in respect of a personal (Page 8)
injury claim had, pursuant to s 55, accrued after the commencement of the Limitation Act 2005, the applicable limitation period was to be found in the 2005 Act. 26 Section 6 of the Limitation Act 2005 does, of course, only apply to actions relating to personal injuries. It is only in respect of such actions that the date of accrual is to be determined under s 55 and it is only to such actions that the limitation periods provided for under the 2005 Act apply, if the cause of action accrued after the commencement day. 27 Section 5 of the Limitation Act 2005 serves to reinforce this interpretation of s 6. Section 5 provides that if an action had been statute barred prior to the commencement day of the 2005 Act, it cannot be commenced after the commencement day, but this is subject to the provisions of s 6. Section 5 makes it clear that there is a distinction between personal injury actions which, under certain circumstances, are subject to the limitation periods provided for under the 2005 Act, and other actions to which the limitation periods under the Limitation Act 1935 continue to apply. 28 Counsel for the plaintiff also relied on the heading of s 5, which states: 'Actions other than personal injury actions do not revive'. However, pursuant to s 32(2) of the Interpretation Act 1984 a heading to a section of a written law shall not be taken to be part of the written law. It is not necessary to rely on the heading, as the position summarised in the heading follows from reading s 5(2) which makes s 5(1) subject to s 6. 29 If s 4, s 5, s 6 and s 55 of the Limitation Act 2005 are read together, there is in my view no ambiguity or uncertainty about the intention of the legislature. However, if I am wrong, and there is an ambiguity in the sections which could be interpreted in favour of the defendant, s 19 of the Interpretation Act 1984 (WA) allows reference to extrinsic material. I have quoted the relevant wording of the explanatory memorandum above. This makes it clear that the test for the accrual of a cause of action for personal injury is to be that set out in s 55, even though the time for commencing the action had expired pursuant to the Limitation Act 1935 and the law regarding accrual that applied prior to the commencement of the Limitation Act 2005. 30 Section 4 of the Limitation Legislation Amendment and Repeal Act 2005 also reinforces this interpretation. It essentially repeats what is said in s 5 of the Limitation Act 2005, namely, that the Limitation Act 1935 continues to apply to causes of action that accrued before the (Page 9)
commencement day, but that this is subject to the special provisions concerning personal injury actions in s 6 of the Limitation Act 2005. 31 Counsel for the defendant submitted that if s 5 and s 6 of the Limitation Act 2005 could be said to revive an action which would have been statute barred under the Limitation Act 1935, this could only apply to the six year limitation period and not to the provisions of s 47A. Counsel for the defendant relied on Matheson v Commissioner of Main Roads (2001) 25 WAR 269 [26] where a bench of five justices of the Full Court considered s 47A and the question whether it was only the application for leave to extend the one year limitation period which had to be brought within the six year period after the cause of action arose, or whether the application for leave had to be brought in time and decided so that the writ could be instituted within six years after accrual of the action. The Full Court held that the latter position applied. 32 Counsel for the defence submitted that Murray J, with whom the other four justices agreed, had held at [26] that a cause of action was substantially extinguished after the expiration of the limitation period under s 47A. Counsel submitted that this meant that the expiration of the limitation period under s 47A had a different effect to the expiration of the limitation period under s 38. The passage relied upon by counsel is the following: [26] So far as this Court is concerned, the earliest case to which we were taken in which this issue arose was Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 at 234 per Burt CJ, with whom Jones and Smith JJ agreed. The case concerned the proper interpretation of s 7(2)(c) of the Fatal Accidents Act 1959 (WA), the terms of which are materially identical with s 47A(3)(a). The case is, in my view, not distinguishable from this simply because it deals with the Fatal Accidents Act, s 7, the proper interpretation of which was held to be that the cause of action provided by the Act was substantively extinguished by the expiration of the limitation period, because the incapacity to bring an action under the statute for a cause of action created by the statute must have that effect. As I have said, the provisions of the two statutes in respect of the grant of leave are the same. 33 The reference to the action being substantially extinguished has to be read in context. In that passage Murray J dealt with similar provisions in the Fatal Accidents Act 1959 (WA) which allow for leave by the court to bring an action outside the one year limitation period, but before the expiration of six years from the date of the death of the deceased. Murray J referred to Stevens v Motor Vehicle Insurance Trust [1978] WAR 232, (Page 10)
234 where Burt CJ held that the provisions of the Fatal Accident Act dealing with the limitation period were substantial and not procedural in character, because the cause of action itself had been created by the Fatal Accidents Act and unless the action was commenced within the prescribed time, there was no cause of action at all. In Stevens Burt CJ relied on Maxwell v Murphy (1957) 96 CLR 261, 274, another decision dealing with the Fatal Accidents Act, where Williams J held that after expiry of the limitation period the cause of action in fatal accidents cases was not merely statute barred, but was extinguished. 34 However, the cause of action by the plaintiff is a claim in tort and is not created by statute. It does not seem to me that Murray J intended to say that after the expiration of the limitation period under s 47A an action for personal injury in tort was substantially extinguished. In the passage relied upon by counsel for the defence, Murray J held that the situation of a plaintiff wishing to obtain leave to extend the one year limitation period under s 47A of the Limitation Act 1935 so that he or she could still institute an action within six years from the accrual of the cause of action was no different to that of a plaintiff wishing to have leave to extend the one year limitation period under the Fatal Accidents Act and to institute an action within six years from the death of the deceased. Murray J then referred to the fact that under the Fatal Accidents Act a cause of action was substantially extinguished once the six year limitation period since the death had expired and added that Stevens v Motor Vehicle Insurance Trust was not distinguishable from Matheson. 35 It does not seem to me that Murray J intended to say that s 47A of the Limitation Act 1935 was a substantial provision and not a procedural provision as s 38 of the Limitation Act 1935 has been held to be. It is clear from what Murray J said prior to the reference to Stevens v Motor Vehicle Insurance Trust that His Honour did not intend to draw a distinction between s 47A and s 38 regarding their procedural effect. Murray J held the following at [24]: Such arguments have been put to this Court before and they have not been accepted. Section 47A imposes a special limitation of action. In common with all other provisions of the Limitation Act, including particularly the general provisions of s 38, the crucial act which must be performed within the limitation period is the commencement of proceedings in pursuit of an accrued cause of action. So it is that s 47A(1) provides simply that 'no action shall be brought ... ' unless within the terms of the section. In common with the other provisions of the Limitation Act, a failure to bring the action within the period allowed effectively extinguishes the cause of action, not substantively, but by an absolute procedural bar. (Page 11)
The potential harshness of that consequence upon a dilatory plaintiff is alleviated to an extent by the capacity to grant leave, subject to the action being brought within the further period which may be allowed. 36 There is accordingly no merit in the submission by counsel for the defendant that s 47A should be treated differently to s 38 of the Limitation Act 1935 and that the provisions of the Limitation Act 2005 could not apply to a cause of action affected by s 47A, as the cause of action would then have been extinguished once and for all.
Conclusion in respect of the plaintiff's action 37 The parties accepted for purposes of this hearing that the plaintiff only became aware that she had sustained a not insignificant personal injury in 2006, which was after the commencement of the Limitation Act 2005. Pursuant to the test in s 55, her cause of action only arose in 2006. This was after the commencement of the Limitation Act 2005, and the plaintiff's action is therefore not subject to s 6(2) of that act, but governed by the limitation periods provided for under the Limitation Act 2005. 38 The usual limitation period for an action relating to personal injury under s 14 of the Limitation Act 2005 is three years. However, because the plaintiff was under 15 years of age when the cause of action accrued in 2006, she was not required under s 30(1) of the Limitation Act 2005 to commence an action until six years had elapsed since the cause of action accrued. 39 This means that the plaintiff's action instituted in September 2011 is not statute barred. 40 The defendant's summary judgment application must accordingly fail. 41 I also note that the defendant's application for summary judgment was not brought within the period of 21 days after an appearance had been filed as required by O 16 r 1(1) of the Rules of the Supreme Court. The application for summary judgment was filed on 21 February 2012 even though the notice of appearance had already been filed on 3 October 2011. The defendant applied in its chamber summons for summary judgment for leave to extend the time, but no affidavit was filed to explain the delay. However, it is unnecessary to deal with the issue of delay by reason of the findings made on the merits of this application.
|