Waldron v Joondalup Hospital Pty Ltd

[2017] NSWSC 1728

Supreme Court

New South Wales

Medium Neutral Citation:

Waldron v Joondalup Hospital Pty Ltd [2017] NSWSC 1728

Hearing dates:

23 & 31 October 2017

Date of orders:

13 December 2017

Decision date:

13 December 2017

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The plaintiff’s application to extend the limitation period is dismissed.

 

(2) The plaintiff is to serve written submissions as to why, having failed to be granted an extension of the limitation period, she should not have these proceedings dismissed on or before 7 February 2018.

 

(3) The first defendant’s notice of motion filed 25 May 2017 seeking summary judgment is stood over for directions before the Registrar at 9.00 am on 14 February 2018.

 (4) Costs of the summons and the first defendant’s notice of motion are reserved.

Catchwords:

LIMITATION OF ACTIONS – application for extension of time under Limitation Act 2005 (WA) – whether the plaintiff was unaware of the matters in s 39(3)(b) of the Act before the expiration of the limitation period - whether the plaintiff has satisfied s 39(4) of the Act - whether the knowledge of the plaintiff’s legal representatives can be imputed as her actual knowledge
PRACTICE AND PROCEDURE- summary judgment- whether reasonable cause of action is disclosed

Legislation Cited:

Federal Court Act 1976 (Cth)
Limitation Act 2005 (WA)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Baker-Morrison v State of NSW [2009] NSWCA 35
NIML v Man Financial Australia Ltd [2006] VSCA 128
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Rolland v Hart (1871) LR 6 Ch App 678
Smits v Roach (2006) 227 CLR 423
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Category:

Procedural and other rulings

Parties:

Leanne Louise Waldron (Plaintiff)
Joondalup Pty Ltd (First Defendant)
Ali Ebrahimi (Second Defendant)
South Eastern Sydney Local Health District (Third Defendant)

Representation:

Counsel:
P Beale with E Chrysostomou (Plaintiff)
P Kulevski (First Defendant)
SM Kettle (Second Defendant)
L Boyd (Third Defendant)

  Solicitors:
CMC Lawyers (Plaintiff)
Minter Ellison (First Defendant)
Avant Law (Second Defendant)
Crown Solicitor’s Office (Third Defendant)

File Number(s):

2017/59616

Publication restriction:

Nil

Judgment

1. HER HONOUR: There are two matters before this Court.

2. The first is a notice of motion filed on 25 May 2017, in which the first defendant seeks an order pursuant to 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or, in the alternative, the inherent jurisdiction of the Court, that the whole of the proceedings against it be dismissed. The first defendant also seeks an order that the plaintiff pay its costs of the proceedings and the notice of motion. There were no submissions made in relation to this motion and it may need to be dealt with following the outcome of the summons.

3. The second is a summons filed 5 April 2017, where the plaintiff seeks an extension of time to file proceedings in this Court as against the first defendant pursuant to s 39(3) and/or s 39(4) of the Limitation Act 2005 (WA).

4. The plaintiff is Leanne Louise Waldron. The first defendant is Joondalup Hospital Pty Ltd (“Joondalup hospital”). The second defendant is Ali Ebrahimi (“Dr Ebrahimi”). The third defendant is South Eastern Sydney Local Health District (“Sutherland hospital”).

5. The plaintiff relied upon her affidavit dated 21 July 2017 and the affidavit of her solicitor, Brendan Moran, dated 3 April 2017. Joondalup hospital did not rely upon any affidavit evidence save as to costs.

6. On 13 June 2017, this matter was referred to me for hearing by the list judge pursuant to Schedule D, Part 3, para 4 of the Supreme Court Rules 1970 (NSW).

The pleadings

7. By amended statement of claim (ASC) filed on 11 May 2017, the plaintiff seeks damages for negligence. The plaintiff pleads that the defendants failed to adequately treat her and that she suffered serious injuries as a result, including the amputation of her right leg below the knee, pain and suffering and psychiatric injury.

8. The plaintiff alleges that there was a foreseeable risk of harm to her; the risk was not insignificant; a reasonable person in the defendants’ position would have taken precautions against the risk of harm; and the risk of harm was very serious and there was a probability that the harm would occur if the defendants’ did not exercise reasonable care. (ASC, [42]).

9. The plaintiff alleges that she suffered injury, loss and damage due to negligence on the part of the defendants’ either jointly or severally. (ASC [43]).

10. The particulars of negligence as against the Joondalup hospital are (ASC, [44]):

1. Failure to treat the plaintiff’s condition in a competent and professional manner;

2. Failure to adequately and comprehensively assess the plaintiff’s condition;

3. Failure to identify and resolve the plaintiff’s condition;

4. Failure to take a full history from the plaintiff, including her risk factors for venous thromboembolism;

5. Failure to properly heed the plaintiff’s history as given, in particular the recent commencement of a third generation oral contraceptive pill, the long flight from Sydney and that there had been no trauma to the foot;

6. Failure to perform an adequate physical examination;

7. Failure to consider differential diagnoses, including deep venous thrombosis;

8. Failure to investigate and exclude differential diagnoses, including deep venous thrombosis;

9. Failure to give proper weight to all the symptoms of the Plaintiff’s condition;

10. Failure to document and note that the plaintiff’s foot was “cool”;

11. Failure to document and note that the plaintiff had recently taken a long flight to get to Joondalup;

12. Failure to document and note that the plaintiff had recently commenced the oral contraceptive pill;

13. Failure to enquire about the plaintiff’s venous thromboembolism risk factors or make an assessment of that possible diagnosis;

14. Failure to perform a D-dimer test and an electrocardiogram test to rule out atrial fibrillation and acute myocardial infarction and a duplex doppler to rule out deep venous thrombosis;

15. Failure to make a diagnosis that explained the clinical findings;

16. Failure to consider referral for investigation and/or specialist assessment.

Background

11. The plaintiff relied upon her affidavit dated 21 July 2017 and she was briefly cross examined. I accept her evidence as being truthful. For the purpose of this application only, I have taken the plaintiff’s evidence at its highest.

12. On 21 June 2011, the plaintiff commenced taking an oral contraceptive pill known as Marvelon, which had been prescribed by her general practitioner in NSW, Dr Ebrahimi (the second defendant). (Aff, Leanne Waldron, [16]).

13. On 2 July 2011, the plaintiff caught a plane to Perth to meet up with some friends. During the flight, she followed the recommended inflight exercises and wore pressure stockings on both legs. The plaintiff said she had always done this as a precaution as she travelled a lot on business when she was living in Perth and thought this was a good habit. (Aff, Leanne Waldron, [17]).

14. After arriving in Perth, she and her friend decided to go to the Crown Perth Casino at around 2.30 pm. They played the poker machines and remained there for about three hours. The plaintiff had approximately two drinks. After leaving the casino, the plaintiff and her friend went to Hillary’s Boat Harbour restaurant for dinner. They did not consume any alcohol, only soft drink. After dinner, the plaintiff dropped her friend home and returned to her hotel at about 9.00 pm. (Aff, Leanne Waldron, [18]).

15. When the plaintiff went to her room, she took her boots off and immediately noticed pain in her right big toe and little toe. She thought this was due to standing and walking around the casino. She took some panadol and went to bed. (Aff, Leanne Waldron, [19]).

16. At around 12.00 am that night, the plaintiff woke up to extreme pain in her right foot. She skyped her husband who was in China at the time on a work assignment. She told him of the pain in her foot. He advised her to go to the emergency department of the hospital. The plaintiff was not aware of a hospital near her hotel so she drove 30 minutes to Joondalup hospital near where she used to live. Upon her arrival at the hospital, she was given panadeine forte by the nurse at the front desk and asked to take a seat. (Aff, Leanne Waldron, [20]).

17. When the plaintiff was seen by the doctor, he asked her whether she had been drinking. She replied that she had only had one or two drinks. The doctor asked her if she had kicked her foot while drinking. The plaintiff said that she had not kicked her toe at any stage, nor had she fallen over throughout the night. (Aff, Leanne Waldron, [21]). The doctor enquired as to what medication she was taking and she advised him that she was on Marvelon and Nexium (which is a treatment for gastro-oesophageal reflux disease). The plaintiff also informed the doctor that she had flown from Sydney. The doctor examined the plaintiff’s right foot and then left without saying anything. (Aff, Leanne Waldron, [22]-[23]).

18. A short time later on 3 July 2011, the plaintiff was discharged from Joondalup hospital and told to rest with her feet up. She was also given an over the counter analgesia and instructed to follow up with her general practitioner upon her return to Sydney in a few days’ time. During the drive back to her hotel, the plaintiff experienced such extreme pain that she had to pull her car over onto the side of the road. At about 3.00 am, she telephoned her mother to tell her what had happened. (Aff, Leanne Waldron, [24]-[25]).

19. On 6 July 2011, the plaintiff returned to Sydney from Perth by plane. When she arrived in Sydney, she went home and went straight to bed. She woke up the next day and looked at her foot. It was extremely sore and numb and she was experiencing pins and needles in her right foot. (Aff, Leanne Waldron, [27] and [28]).

20. At around 6 pm on 12 July 2011, the plaintiff was admitted to St George hospital.

21. On 25 July 2011, while the plaintiff was in the High Dependence Unit of St George hospital, she was suffering from increasing pain from ongoing “Ischemia” in her right foot. She was then told by the doctor that she would have to have her right foot amputated. She was devastated and scared. (Aff, Leanne Waldron, [50]).

22. On 26 July 2011, the plaintiff’s right leg was amputated below the knee. (Aff, Leanne Waldron, [51]).

23. In about November 2011, the plaintiff engaged Beilby Poulden Costello solicitors (the solicitors) to act for her. (Aff, Leanne Waldron, [53]).

24. On 18 December 2013, the plaintiff’s solicitors wrote to the plaintiff in the following terms (Ex D1/3):

“We recently received the report of Dr Vinen, emergency physician in your matter. Dr Vinen has spent a great deal of time preparing his opinion and it is nearly 50 pages long. I have not enclosed it for this reason, but please let me know if you would like a copy.

Dr Vinen’s report is very supportive of a claim for medical negligence in your matter.

…

… We think it is best to wait to file your claim until we have at least an opinion from a vascular surgeon or haematologist. This is because these specialities will be able to comment on the aspect of your case known as causation. That is, you are required to prove not only that the hospitals breached their duty of care to you, but that that breach was causative of harm to you. In your case, what we would need to show is that if Joondalup and/or Sutherland hospital had intervened and treated you appropriately earlier than they did, the loss of your lower leg most probably would have been avoided.”

25. On 7 May 2014, the plaintiff’s solicitors emailed the plaintiff. (Aff, Leanne Waldron, Annexure A). It reads:

“We now have the final opinion from Dr Vinen, emergency physician, and we are going to approach a vascular surgeon for an opinion now.”

The report of Dr John Vinen

26. Dr Vinen’s report is dated 14 April 2014 and was filed on 24 February 2017.

27. In the report, Dr Vinen reiterated several times that a report of a haematological opinion needed to be obtained in relation to the cessation of heparin infusion, and that haematological and vascular reports should also be obtained in relation to the plaintiff’s surgical management. These reports were sought in relation to the plaintiff’s treatment at Joondalup hospital. A haematologist report by Dr Steve Flecknoe-Brown dated 22 October 2017 was obtained which I will set out later in this judgment. (Ex B).

28. Dr Vinen considered that Dr Low’s (who saw the plaintiff at Joondalup hospital) assessment was brief and incomplete. (Dr Vinen’s Report, 26). He also commented:

“The possibility of a thrombotic causation of Mrs Waldron’s symptoms should have been entertained because of her significant VTE [venous thromboembolism] risk factors, each of which should have been readily apparent, there were:

• Obesity

• Recent long Flight

• On a combined OCP [oral contraceptive pill].”

29. Dr Vinen answered the following questions in relation to Joondalup hospital as follows (Dr Vinen’s Report, 34-35):

“1.1.2. Was it appropriate for Joondalup Hospital to discharge Leanne without further investigating her symptoms? If not, what investigations or referrals should have been effected?

A D-dimer blood test, ECG [to rule out AF (atrial fibrillation)] and a duplex doppler was indicated in the first instance to rule out AF, AMI [arterial micro infraction] and a DVT [Deep Vein Thrombosis].

If these investigations were found to be normal given the severe pain and “cool” foot with decreased ROM urgent referral to a vascular surgeon or better still an emergency department with a vascular service available was required.

1.1.3. If you are able to say, what would such investigations have revealed?

It is very likely that the D-dimer would have been positive indicating either VTE or thrombosis.

The ECG would have been normal as would the duplex doppler.

1.1.4. Should the staff in Joondalup emergency have enquired as to when Leanne planned to fly back to Sydney? If such knowledge was acquired or should have been acquired, was it appropriate for Leanne to be discharged in the knowledge that she would be flying back to Sydney 3 days later?

This question should always be asked as part of the history to aid decision making by the doctor.

The importance of the question is based on Leanne’s very significant risk factors for VTE.

A full history of her risk factor should have been taken. This was not done.

1.1.5. Did Joondalup Hospital, by its servants or agents, fall below the standard of care reasonably expected of a specialist emergency department, operation in July 2011?

Yes, by failure :

• Take an adequate history including all risk factors for VTE

• Do an adequate physical examination

• Consider the possibility of DVT

• Make a diagnosis that explained the clinical findings

• Consider referral for further investigation

1.1.6. Any other comments you wish to make

Prudent medical practice requires all possible diagnoses to be considered to explain a patient’s symptoms and where this is not possible to investigate and refer the patient for specialist assessment.

It is simply not safe to treat the pain without a satisfactory explanation of the cause.

…”

30. Dr Vinen also referred to the treatment the plaintiff received at St George hospital in his report. He opined that (Dr Vinen’s report, 31):

“The heparin infusion was also ceased without taking into consideration the risks of doing so and importantly in the circumstances prior to the result of the investigation as to whether the plaintiff had a genetic disposition to thrombosis.”

31. While counsel for the plaintiff accepted that Dr Vinen’s report detailed Joondalup hospital’s negligence, he submitted that it did not address the issue of causation. (T 27.36). Dr Vinen identified 3 alleged acts of negligence by the staff and Joondalup hospital, but nowhere in his report did he say that these alleged negligent acts and treatment caused or materially contributed to the plaintiff ultimately having her lower right leg amputated. Nor did Dr Vinen express an opinion that, had the plaintiff been given a blood thinner at Joondalup hospital, she would not have had her right lower leg amputated.

32. The plaintiff’s evidence is that now she cannot recall when she saw the report of Dr Vinen and read its contents. (Aff, Leanne Waldron, [54]). Around the time of Dr Vinen’s report (14 April 2014), the plaintiff gave evidence that she does not remember being told by her solicitor that if she had been given a blood thinner earlier she would not have lost her leg. Nor did anyone else actually say that had she been given the blood thinner her leg would have been saved, although her family had discussed it amongst themselves. (T49.25-48). Her evidence is that she had not been told by a medical person or solicitor. (T50 16-19).

33. After much debate, mainly from the plaintiff’s counsel, the entire former solicitor’s file was provided to the defendant’s solicitors and the plaintiff’s claim for legal professional privilege was waived.

34. Counsel for Joondalup hospital cross examined the plaintiff on entries contained in the treatment or clinical notes on 19 May 2014 and 18 June 2014 in relation to the plaintiff.

35. On 19 May 2014, the first progress/clinical notes of the plaintiff’s psychology assessment/pain clinic notes written by a psychologist, Ms Veage, reads (Ex D1/1, 2):

“If they’d given her a blood thinner in Perth or Sydney – may have been able to save the leg.”

36. The plaintiff’s evidence about this entry is as follows (T52.21-30):

“Q. So is your evidence that you don’t remember telling that to a psychologist?

A. No, I don't recall, no.

Q. But you don't deny that you may have said that?

A. I may have said that but that doesn’t say that somebody said that. If that is my opinion she is writing down obviously what I am telling her happened if you know what I mean.

Q. I understand, I understand but you don't recall Ms Veage at all?

A. No, no. “

37. The plaintiff agreed that she may have said this and that “if that is my opinion she is writing down obviously what I am telling her what happened. (T52.25-28).

38. The 18 June 2014, the Client Information & Treatment Formulation notes of Stephanie Allen from Life and Mind (Ex D1/2, 1) records:

“5 op’s in 8 days – doesn’t remember any of it. No neuropsych testing

Prev 43 kg then I ballooned – tried to lose weight for 1- years

Legal advice city law firm re surgeon’s comment – if hosp gave blood thinner initially, would not have lost leg.”

39. In cross examination, the plaintiff was taken to the first and last entries above.

40. The plaintiff gave evidence in relation to the first entry and provided that she did not recall having five operations in eight days. However, the plaintiff stated that she knew she had undergone these operations because everyone told her she did. (T54.5-9).

41. In relation to the third line of the entry, “Legal advice, city law firm re surgeon’s comment: If the hospital had given blood thinner initially would not have lost leg”, the plaintiff gave the following evidence (T54.29-38):

“Q. Do you remember telling her [the psychologist Ms Allen] that?

A. I remember - well, I know that, as I said, as a family we discussed that and that is me projecting my thoughts of what went on to my psychologist.

Q. And does that now refresh your memory about receiving the legal advice from the city law firm that if you had received--

A. No.

Q. The blood thinner earlier?

A. No, no.”

42. The following exchange then took place (T54.40-50; T55.1-7):

“Q. But given you had told Ms Allen that you don't deny that you may have said that?

A. Well, that is what we as a family thought that would have happened because I do remember that going to that doctor in the beginning at the hospital, you know, in the very, very beginning and her telling me she wanted to have one and so I remember that as, well, if she had of given me that in the beginning maybe I wouldn't be going through this now.

Q. But you told Ms Allen, didn’t you, that you had received legal advice from a city law firm that that is what had been said to you?

A. Well, I don't recall saying that to her but I would have told her I was with a law firm so that is I mean, she has written it like that but, as I said, I can't recall but as a family we do speak like that.

Q. And your understanding, wasn’t it, of the advice you had received from Beilby, Poulden & Costello was that they could not win your case until they could legally prove causation, is that right?

A. Yes, yes.”

43. It is odd that it is recorded “Legal advice, city law firm re surgeon’s comment: if the hospital gave blood thinner initially she would not lost a leg”. Even if the plaintiff had read Dr Vinen’s report, the reference to heparin infusions relates to St George hospital not the initial admission at Joondalup hospital.

44. Hence, I accept that as at 18 June 2014, prior to the expiration of the limitation period, the plaintiff was not aware of any medical opinion that the lack of administering certain tests and seeking a further specialist medical opinions of Joondalup hospital that resulted in the amputation of her right lower leg. The plaintiff was only aware that she could not win her case until her solicitors could legally prove causation.

45. On 12 June 2014, the plaintiff’s solicitor advised the plaintiff that (Aff, Leanne Waldron, Annexure B):

“I am waiting to hear from the vascular surgeon we have asked to provide a report in your matter. The next step is for us to meet with him, and he will then provide a report. Once we have that report, we can file your case in Court.”

46. On 23 June 2014, the plaintiff emailed her solicitor. (Aff, Leanne Waldron, Annexure D). The email reads:

“Hi. Just wanting to find out what date is our deadline to file in court and how it’s all going and what happens when you file.”

47. Later on the same day (23 June 2014), the plaintiff received a reply email from her solicitors. (Aff, Leanne Waldron, Annexure E). Her solicitors reiterated that they still needed to get a report from a vascular surgeon and that they were chasing it up. The letter continued:

“The time by which we need to file your claim is 3 years from the date of discoverability. That is, the date that you became aware that you had an actionable right in negligence. We say that date is when you received an expert opinion advising that there had been a breach of the duty of care owed to you. Accordingly, we say this is the date of Dr Vinen’s report, which was provided to us on 14 April 2014. So it is not a strict 3 years from when you suffered the injury. Though it would be good to cover our bases and file by that time, it would be unwise in our view to file before we had causation evidence (that is, evidence that the hospital’s breach of duty caused you harm) from the vascular surgeon. We need him to say that earlier intervention would have saved your leg. We don’t presently have that evidence, and that evidence is crucial to your case. It is hoped that the vascular surgeon will provide this evidence and we will then be in a position to file your claim.”

48. This corresponds with the plaintiff’s recollection of being told sometime in June 2014 by her solicitor that they were still pursuing evidence to support a case of causation based on what Dr Vinen said should have happened. The plaintiff says that she was told at that time that the relevant evidence did not exist and that her solicitors would continue to seek such evidence. (Aff, Leanne Waldron, [61]). The plaintiff understood that the above paragraph in the letter referred to causation. (T47.46-48).

Conference on 19 August 2014

49. On 19 August 2014, the plaintiff attended a conference with her solicitor and barrister, Mr McGillicuddy. She was accompanied by her husband and her mother.

50. At the conference she was told that there were difficulties with her case. There was also some discussion about a radiologist report. The plaintiff indicated that she wanted her solicitors to pursue the matter and insisted they obtain further reports, including a radiologist report. (Aff, Leanne Waldron, [64]).

51. While the plaintiff was aware that there was the opinion from Dr Vinen, she knew that she needed a report from a vascular surgeon for her claim to succeed. The plaintiff was told that although Mr McGillicuddy had conferred with a surgeon, the surgeon was not in a position to provide a supportive report on causation. (Aff, Leanne Waldron, [70]-[73]).

52. At the time of the conference, the plaintiff was unsure who her solicitor was planning to make the defendants to her action. She did understand, however, that there were a number of potential defendants, including Dr Ebrahimi. (Aff, Leanne Waldron, [66]). Later during the conference, the plaintiff’s solicitor informed her that he was unable to find any evidence of causation which suggested that one of the potential defendants was responsible for the loss of her leg. He also said that because her claim could not succeed, he was unable to continue acting for her. The plaintiff was satisfied that her then solicitor and barrister had concluded that the obtained evidence did not support a cause of action against any person and that the amputation of her leg was not attributable to any individual or hospital. (Aff, Leanne Waldron, [66]-[69]).

53. On 20 August 2014, the plaintiff’s solicitor wrote a file note concerning a 50 minute telephone call with the plaintiff’s mother. (Ex D1/4). The file note relevantly records:

“This afternoon at 2:00 p.m. I received a call from Merryl, in relation to the conference that I had yesterday with her, Leanne’s husband, Leanne and Ian McGillicuddy.

Merryl said that they had had a bit of a think about the matter and the way in which they wished to proceed. She said they wanted to get a radiologist’s report to see what sort of mass was visible on the CT angiogram. Merryl asked me whether it was possible for me to recommend another barrister to get involved in the case. I said I knew a lot of barristers who are highly regarded in medical negligence and I would recommend them. I pointed out to her that she would need to effectively double up paying a barrister’s fees if Leanne received a successful outcome in her matter by way of settlement or judgment, because the new barrister would need to read all of the copious material in Leanne’s matter, which would take some time.

…

In discussing Ian’s concern’s, I said I thought they were well founded because of the defence that we discussed yesterday, being Section 5O of the Civil Liability Act. Merryl said she would be interested to know the number of cases that have been lost based on Section 5O defence and I said I wasn’t aware of that but I was aware of a huge number of medical negligence losses based on a lack of causation evidence, which is the problem with which we are now faced. I said if we were to file Leanne’s case now, not only would we lose at trial, but we would face the prospect of being struck out for want of evidence/prosecution. Merryl said she understood this.

…

Merryl again said that they were concerned that up until now the family had been told that Leanne had good prospects of success. I asked her whether she now understood why that had happened and she said she did. I took the opportunity to remind her that litigation is prepared in stages and that until we received the report of Dr Fisher, the case against the hospital did look promising and that we did have a supportive opinion.

…”

54. As at 26 July 2014, the plaintiff says that she was not in possession of any information that proved any of the doctors or hospitals were responsible for any negligence which caused the amputation of her leg. (Aff, Leanne Waldron, [75]).

55. Up until May 2016, the plaintiff’s solicitors continued to act on her behalf by pursuing a claim in respect of medical negligence. In May 2016, she was told by her solicitors that they were not in a position to continue acting for her. She was also told that she could seek out new solicitors and that if she did find a new solicitor, she should have a statement of claim filed before 14 April 2017. (Aff, Leanne Waldron, [65] and [74]).

56. From May 2016, the plaintiff began making enquiries to find a new solicitor to take on her case, as well as evidence in support of a causal link between her amputation and a negligent act or omission. The plaintiff stated that at the date upon which the limitation period expired, she was unaware that she had a cause of action as her solicitor had been unable to uncover evidence that any of the potential defendants were responsible for the loss of her leg. (Aff, Leanne Waldron, [70]-[71]). It is my view that at this stage the plaintiff was under the misapprehension that the limitation period in relation to Joondalup hospital expired on 14 April 2017.

57. On 18 December 2016, the plaintiff instructed her current solicitors CMC Lawyers (“current solicitors”) to act on her behalf in relation to these proceedings. The plaintiff provided her current solicitors with a copy of the report of Dr Vinen. Upon reviewing the report, her current solicitors believed that a case in negligence existed and that further investigations should be made. Her current solicitors were prepared to fund the conduct and preparation of her case. The plaintiff’s current solicitor, Mr Moran, deposed that he was not aware of the date upon which the plaintiff’s previous solicitors provided her with either Dr Vinen’s report or any of the information it contained other than that it was sometime after 14 April 2014. It appears that the former solicitors’ file does not contain any information to indicate when that report was provided to the plaintiff. (Aff, Brendan Moran 3 April 2017, [6]-[7] and [11]).

58. In January 2017, the plaintiff’s current solicitors prepared a draft statement of claim and statement of particulars. (Aff, Brendan Moran 3 April 2017, [12]).

59. On 7 February 2017, Mr Beale was briefed as counsel on this matter. On 15 February 2017, Mr Beale advised the plaintiff’s current solicitors of the plaintiff’s potential cause of action against Joondalup hospital and the issues relating to the associated limitation period which needed to be addressed. (Aff, Brendan Moran 3 April 2017, [13]-[15]).

60. On 24 February 2017, the solicitors acting on Mr Beale’s advice filed a statement of claim in order to protect the plaintiff’s rights with respect to Dr Ebrahimi and Sutherland hospital. Mr Beale also advised that a notice of motion should be filed seeking to extend the time in which to commence these proceedings pursuant to ss 39(3) and/or 39(4) of the Limitations Act 2005 (WA) against Joondalup hospital. (Aff, Brendan Moran 3 April 2017, [16]).

61. On 28 February 2017, the plaintiff’s solicitors filed a statement of claim against the Joondalup hospital, Dr Ebrahimi and Sutherland hospital. (Aff, Brendan Moran 3 April 2017, [17]).

62. On 17 March 2017, Minter Ellison filed an appearance on behalf of Joondalup hospital.

63. On 5 April 2017, the plaintiff’s summons seeking an order to extend the time for commencing proceedings in this Court until 14 April 2017 pursuant to ss 39(3) and/or 39(4) of the Limitation Act 2005 (WA).

64. On 19 April 2017, the plaintiff’s current solicitors received the former solicitor’s file. (Aff, Brendan Moran 3 August 2017, [5]). Mr Moran, the plaintiff’s current solicitor, deposed that he had been advised by counsel and honestly believed that from their review of the former solicitor’s file that there exists no evidence of correspondence which indicates the plaintiff was provided with a copy of Dr Vinen’s report. (Aff, Brendan Moran 3 August 2017, [7]).

65. On 11 May 2017, the plaintiff filed an amended statement of claim.

66. On 22 October 2017, the plaintiff’s current solicitors obtained a report from Dr Steve Flecknoe-Brown a consultant haematologist. (Ex B). In relation to Joondalup hospital, Dr Flecknoe-Brown expressed the opinion that the history of the pain and the coolness of the skin suggested arterial insufficiency, the arterial and small vessel perfusion of the foot was intact and the limb was salvageable at that point. (Flecknoe-Brown report, 9). At 10 he was asked:

“2 Should, in your opinion, the Plaintiff’s presentation, including recent commencement of the oral contract [contraceptive] pill, have received a high index of suspicion. If so, why, and what were the aspects of her presentation and recent travel which should have raised a high index of suspicion and what (in detail) should have been the response to that presentation and symptomatology by Joondalup Hospital.”

67. Dr Flecknoe-Brown relevantly answered (Flecknoe-Brown report, 10):

“…The fact that she (the plaintiff) was taking an “OCP” was noted but not apparently taken into account in formulating a differential diagnosis. This, together with the unilateral distribution and severity of the pain, should have raised the possibility of venous thrombosis or arterial insufficiency.

…

There is no documentation of physical examination and no suggestion that the possibility of ischaemia (arterial obstruction to the lower limb) was even taken into account to explain her severe, one-sided leg pain made worse by exertion and the toe discolouration. At the very least, arrangements should have been made for the plaintiff to be reviewed by the surgeon on call and for her venous and arterial circulation to have been evaluated by Doppler flow studies. The latter are not usually available on weekends in smaller hospitals, but it would have been reasonable to cover her with an anticoagulant such as Clexane until the studies could be performed on the following Monday.

Others are better qualified to comment on the peer professional standards in Emergency Departments, but it is my opinion that discharging a patient with severe unilateral lower limb pain without examining her for the possibility of arterial insufficiency is below acceptable peer professional standards as at 2011. There is a consistent, straight line of symptoms between her first presentation at the Joondalup Health Campus emergency Department and the eventual diagnosis and treatment of arterial thrombosis in the right lower limb.” (My emphasis added).

68. This is the first expert medical report that attributes the lack of proper treatment provided at Joondalup hospital to the diagnosis of arterial thrombosis in the right lower limb that resulted in the amputation of the plaintiff’s right lower leg. Dr Flecknoe-Brown’s opinion is that, at the very least, Joondalup hospital should have made firstly, arrangements for the plaintiff to be reviewed by the surgeon on call; and secondly, to have her venous and arterial circulation evaluated by Doppler flow studies.

69. According to Dr Flecknoe-Brown, because these things were not done at Joondalup hospital, there is a straight line of symptoms between the treatment at Joondalup hospital and the eventual diagnosis and treatment of arterial thrombosis in the plaintiff’s right lower limb. While it was Dr Vinen’s opinion that a D-dimer blood test and a duplex dopler was indicated in the first instance (at Joondalup hospital) to rule out arterial fibrillation, acute micro infarction and deep vein thrombosis, Dr Flecknoe-Brown expressed the opinion that the failure to conduct these tests caused the plaintiff to lose her right lower leg. (Flecknoe-Brown report, 10).

Limitation Act 2005 (WA) (“WA Act”) – relevant statutory framework

70. It is necessary to briefly set out relevant statutory framework for the purposes of an application for an extension under the WA Act. They are as follows.

71. Section 3(1) is entitled “Interpretation”. “Action” means:

“(a) any civil proceeding in a court, whether the claim that is the subject of the proceeding or relief sought is under a written law, at common law, in equity or otherwise:

…”

72. An “extension application” means an application under ss 38, 39, 40, 41 or 42. “Personal injury” includes a disease, impairment of a person’s physical condition, and mental disability. The terms “disease” and “physical condition” are not defined in s 3(1) or elsewhere in the WA Act.

73. Section 4(1) of the WA Act reads that the limitation periods provided for under the WA Act apply only to causes of action that accrue on or after commencement day, namely 15 November 2005. Section 4(2) states that s 4 is subject to ss 7 and 8.

74. Section 6 relates to personal injury actions. It provides that s 55 or s 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues.

75. Section 14(1) provides that an action for damages relating to a personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued. Section 11(1) provides in effect that s 14(1) is subject to Part 3.

76. It is agreed that the plaintiff’s cause of action accrued on 26 July 2011, the day that the amputation of her lower right leg occurred. It is also agreed that the limitation period expired on 26 July 2014.

77. Part 3 of the WA Act is headed “Extension or shortening of limitation period” and comprises s 30 to s 54. The relevant section is s 39 of the Act.

78. Section 39 relevantly reads:

“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.

…

(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) …

(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) …

(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).

…”

79. Section 43 specifies the jurisdiction and procedure applicable to an extension application.

80. Section 44 sets out certain matters to which a court must have regard when deciding, on an extension application, whether to extend the time for the commencement of an action. It provides:

“When deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to –

(a) whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and

(b) whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).”

81. Part 4 is headed “Accrual of particular causes of action” and comprises s 55 to s 73.

82. Section 55 reads:

“(1) A cause of action for damages relating to a personal injury to a person accrue 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.”

83. Finally, pursuant to s 79(3), the plaintiff in an extension application has the burden of proving that a court should extend the relevant limitation period.

Consideration of AME Hospitals Pty Ltd v Dixon [2015] WASCA 63. (“Dixon”)

84. Both parties referred to Dixon. In Dixon, the appellants relied on five grounds of appeal. The critical issue on appeal (and in these proceedings) is the proper construction of s 39(3) and (4) of the WA Act.

84. In Dixon, the brief facts are that on 7 August 2001 the respondent was born floppy and not breathing. The respondent was born under the care of Dr Clarke at Attadale Private hospital which is operated by AME hospitals. The respondent was revived and diagnosed with “hypoxic ischaemic encephalopathy”, a disease of the brain resulting from lack of oxygen. The respondent's parents were not initially informed of this diagnosis, though they appear to have been sent a review report from Princess Margaret hospital in August 2002, which referred to the diagnosis.

85. In 2006, the respondent’s parents sought legal advice from her lawyers. Her lawyers obtained an expert report dated 23 October 2006 from Professor Michael. Professor Michael's report stated that Dr Clarke and the nursing staff had acted appropriately. The report did not state the cause of the hypoxic ischaemic encephalopathy or the cerebral palsy.

86. In 2012, the respondent’s parents obtained a second medical opinion, on the advice of her lawyers. In his report dated 15 August 2012, Professor Dekker concluded that the respondent's hypoxic ischemic encephalopathy was caused by intrapartum events, and that a “lack of appropriate electronic fetal monitoring during a major part of the prolonged 2nd stage resulted in not recognising the deterioration in the fetal condition”.

87. In July 2013, the respondent (by her next friend, her father) applied for an extension of time to commence proceedings against Dr Clarke and AME hospital. On 23 December 2013, the master granted the respondent an extension of time under s 39 of the WA Act to commence proceedings against the appellants for breach of contract, and further or alternatively, for negligence. This appeal was dismissed.

88. In Dixon, McLure P (with Newnes JA agreeing and Buss JA agreeing in part) stated at [17] to [22], [27] and [28], [31] to [41]:

“Attributable to

17 In order to apply s 39(3) and (4) to the facts of this case it is necessary to construe the meaning of the statutory terms: “injury”, “the physical cause of the … injury”, “attributable”, “aware” and “ought reasonably to have become aware”. Before going to the detail, some general observations provide context.

18 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.

19 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).

20 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).

21 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.

22 Third, s 39 (unlike s 56) does not separately require awareness of the injury. …

…

27 The notion of causation as an element of a cause of action for damages for personal injuries is directed at the causal connection between the defendant's negligent act or omission and the personal injury the subject of the claim.

28 The “physical” cause of a personal injury is the different and logical first question of “what” caused the injury, not “whom”. …

…

31 The phrase “attributable to” has been the subject of judicial consideration in a number of cases including Roncevich v Repatriation Commission (2005) 222 CLR 115, Laminex (Australia) Pty Ltd v Coutts [2006] NSWCA 186 and Central Asbestos Co Ltd v Dodd [1973] AC 518, 533.

32 In Roncevich the High Court considered the meaning of s 70(5) of the Veterans’ Entitlement Act 1986 (Cth), which referred to an injury which “arose out of, or was attributable to” defence service. In the joint judgment, the High Court said:

“A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate [27].”

33 That is, a causal connection in fact (as distinct from causation at law) will satisfy the requirement that the injury be attributable to a person's conduct. Whether a non-causal connection could satisfy the requirement does not arise for determination in this case. However, there is much to be said for the view of the New South Wales Court of Appeal in Commonwealth of Australia v Shaw (2006) 66 NSWLR 325 [25] that the statutory requirement in s 60I of the Limitation Act 1969 (NSW) of a “connection between the personal injury and the defendant's act or omission” must be understood as involving an element of causal relationship. The case is more compelling when the injury must be “attributable” to a person's conduct.

Aware

34 The natural and ordinary meaning of the term “aware” is cognisant or informed of. That is, awareness can result from information provided by a third party. In the context of s 39(3), actual awareness is required, not constructive awareness: Harris v Commercial Minerals Ltd (1996) 186 CLR 1, 9 - 10.

35 The appellants do not contend that awareness includes actual awareness of the relevant person's duly authorised agent (such as the respondent's solicitors). In that circumstance, awareness would be imputed rather than constructive. However, that issue can be put to one side.

36 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.

37 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.

38 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.

39 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.

40 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.

41 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.”

90. Counsel for the plaintiff referred to two passages in Dixon, paras [202] and [211] where Buss JA was in the minority (McLure and Newnes JJA disagreeing) stated:

“202 As I have mentioned, “ought reasonably to have become aware”, in s 39(4), imports the notion that the person, acting reasonably, should have taken steps to acquire knowledge of relevant facts or circumstances (emphasis added).

…

211 In my opinion, it is apparent from the language and focus of s 39, read in the context of:

“(a) the ordinary and natural meaning of the word ‘attribute’;

(b) the meaning of ‘aware’ in s 39(3) and s 39(4);

(c) the meaning of ‘ought reasonably to have become aware’ in s 39(4); and

(d) 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),”

that 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. See and compare, in differing legislative contexts, the approaches adopted in Wilkinson (1362, 1364 - 1366); Halford (433 - 434, 438, 443); Nash (796); Dobbie (1240); Spargo (P242); Haward [8] - [11].”

91. On 14 August 2015, the High Court refused special leave.

Consideration

92. There are three issues to be addressed, firstly, whether the plaintiff was aware of the matters set out in s 39(3)(b) before the expiration of the limitation period; secondly, whether the plaintiff proved the matters set out in s 39(4); and finally whether the knowledge of the legal representatives can be imputed as actual knowledge: see Dixon at [34].

93. The plaintiff has the burden of proving that the Court should extend the limitation period. In this application, as the very first step, the plaintiff is obliged to prove a negative on the balance of probabilities that, as at 26 July 2014 when the limitation period expired, she was not aware that her injury was attributable to the conduct of Joondalup hospital. Only then, if satisfied of that threshold issue, can this Court move on to consider the extension of the period pursuant to subs 39(4).

94. It is agreed between the parties that firstly, the plaintiff’s injury is the amputation of the lower part of the plaintiff right leg; secondly, the amputation occurred on 26 July 2011; and thirdly the limitation period expired on 26 July 2014.

(i)   Whether the plaintiff was unaware of the matters in s 39(3)(b) of the WA Act before the expiration of the limitation period

95. Counsel for the plaintiff submitted that when the limitation period expired on 26 July 2014, the plaintiff was only aware of the physical cause of her injury, being the amputation of her lower right leg, and that she was unaware that her injury was attributable to the conduct of Joondalup hospital.

96. Initially counsel for the plaintiff submitted that she was aware that the injury was attributable to the conduct of Joondalup hospital when she was informed of the contents of the liability report of Dr Vinen dated 14 April 2014. However, that is a date prior to the expiration of the limitation period so if that submission is correct, the plaintiff does not satisfy the test in s 39(3) and her application accordingly fails. Later, counsel for the plaintiff submitted that when the plaintiff actually received the report is uncertain but, as stated in the affidavit of her solicitor Mr Moran (3 April 2017, 6), it must have been at a time after 14 April 2014.

97. Finally, counsel for the plaintiff submitted in his further submissions that while he still relied on his earlier submissions, the plaintiff was not aware that the injury was attributable to the conduct of Joondalup hospital on the basis that the material served in the plaintiff’s application established:

1. that in his report dated 14 April 2014, Dr Vinen stated that a haematological and vascular surgeon’s opinion should be obtained, he not being qualified in these fields;

2. Dr Vinen’s report was not provided to the plaintiff;

3. based on the report of Dr Vinen, the previous solicitor sought the opinion of a vascular surgeon;

4. from April to June 2014, the previous solicitors continued to pursue evidence in support of the plaintiff’s case on causation based on what Dr Vinen said should have happened but was not successful in that regard;

5. in early June 2014, a conference with a vascular surgeon was arranged but his opinion did not support the plaintiff’s case on the physical cause of the injury or causation;

6. the proceedings could not be commenced in NSW unless and until a vascular surgeon supported the plaintiff’s case;

7. on 19 August 2014, at a conference the plaintiff was advised of the difficulties;

8. the plaintiff’s previous solicitors were unable to obtain an opinion from a vascular surgeon in support of the plaintiff’s claim on causation;

9. as such the plaintiff’s previous solicitors ceased acting for the plaintiff in May 2016; and

10. the plaintiff was not aware she had a cause of action at the expiration of the limitation period as the solicitors had no evidence and were unable to find evidence that the actions or failure to act of any individual or hospital was responsible for the harm suffered.

98. Counsel for the plaintiff submitted firstly, there was clearly an absence of sufficient confidence on the part of the previous solicitors to commence proceedings and that it was reasonable for the plaintiff to rely on the view expressed by her solicitors; secondly, the opinion of Dr Vinen is not capable of establishing that the physical cause of the plaintiff’s injury is attributable to the conduct of an identified person “with sufficient confidence reasonably to justify the commencement of proceedings against the proposed first defendant”; and thirdly, Dr Vinen expressly defers to the opinion of a vascular surgeon and haematologist and there is little difference between the tests suggested by McLure P or Buss JA in Dixon or the NSW Court of Appeal in Baker-Morrison v State of NSW [2009] NSWCA 35 for all practical purposes. According to counsel for the plaintiff, they all share precisely the same crucial element, namely that it is the plaintiff who must be aware of the information.

99. It should be noted that submissions 1 and 2 apply the wrong test, being that of Buss JA who was in the minority in Dixon on that topic.

Joondalup hospital’s submissions

100. Counsel for Joondalup hospital submitted the plaintiff has not proved, for the purposes of s 39(3) that, before that time, she was not aware that her injury was attributable to the conduct of Joondalup hospital. She has not even attempted to prove that matter by any evidence and, in fact, asks this Court in her written submissions to assume that 14 April 2014 is the date that she became so aware. He says that the Court, therefore, has no power to permit the plaintiff to commence her action against Joondalup hospital.

101. According to Joondalup hospital, the plaintiff firstly, has led no evidence whatsoever of when her awareness materialised (see Dixon at [47]); secondly, that it is unlikely that the plaintiff was not informed of the contents of the report until after 26 July 2014; and finally, it is unsurprising that the forensic decision has been made to not lead evidence from the only person that can give it (the plaintiff). In fact, it appears tolerably plain from the subpoenaed material that the plaintiff was, with her psychologists, discussing at least on 19 May 2014 and 18 June 2014, a central tenet of Dr Vinen’s report, namely that if she had received a blood thinner in Perth or at an earlier time in Sydney, that she would not have lost the leg, and that her lawyers had conveyed to her the “surgeon’s” opinion.

102. According to Joondalup hospital in order for this Court to have power to extend the time in which the action can be commenced, the plaintiff must prove that she was not, before 26 July 2014, aware that her injury was attributable to the conduct of Joondalup hospital: ss 39(1) and 39(3) of the WA Act and Dixon at [18]. The plaintiff has not attempted to prove a threshold jurisdictional matter which it was incumbent on her to prove in order to enliven the jurisdiction of this Court to permit her to commence her case against Joondalup hospital.

Conclusion

103. On or shortly after 26 July 2011, the plaintiff was aware of her physical injury, the amputation of her lower right leg. However, she was not aware that the injury was attributable to the conduct of a person. (s 39(3)(b)). In cross examination, the plaintiff’s attention was drawn to two entries in the clinical records, the first dated 19 May 2014 and the second 18 June 2014 being dates after Dr Vinen’s report was prepared. The first entry is that “if they’d given her a blood thinner in Perth or Sydney – may have been able to save leg.” The second refers to “Legal advice city law firm re surgeon’s comment – if hospital gave blood thinner initially, would not have lost leg.”

104. The plaintiff gave evidence during cross examination that she did not recall saying either of those statements. She does recall that she had discussed with her family that if she had been given a blood thinner initially, she would not have lost her leg. She remembers a doctor in the beginning telling her that she wanted her to have one (blood thinner) so maybe if she had given her one at the beginning “she would not be going through this now.”

105. Dr Vinen in his report dated 14 April 2014, expressed the opinion that Joondalup hospital did not carry out a D-dimer blood test nor seek the advice of a specialist vascular surgeon. Importantly, Dr Vinen did not express the opinion that had the plaintiff been initially given a blood thinner at Joondalup hospital she would not have lost her right leg below the knee. Hence, it is my view that even if the plaintiff read Dr Vinen’s report before 26 July 2014 she could not have been aware that her injury is attributable to the conduct of Joondalup hospital. In this case (as in Dixon), while the plaintiff may have been aware of the opinion of non qualified persons (herself and members of family) as to the physical cause of her injury, it does not satisfy the actual awareness requirement.

106. As at 26 July 2014, the plaintiff was aware of the physical cause of her injury but she was not aware that the injury was attributable to the conduct of Joondalup hospital. Hence, the plaintiff has satisfied the requirements of s 39(3)(b) of the Act. As this threshold issue has been satisfied, I will move on to consider whether the requirements of s 39(4) of the WA Act have been satisfied. This is a more difficult issue.

(ii)   Whether the plaintiff has satisfied s 39(4) of the Act

107. In his earlier submissions, counsel for the plaintiff submitted that pursuant to s 39(4) of the WA Act, the limitation period expired on 14 April 2014 being three years from when the plaintiff became aware, or ought reasonably to have become aware of the physical cause of the injury attributable to the conduct of the first defendant. As previously stated, the date of the expiry of the limitation period is in fact the 26 July 2014.

107. A court may extend the time in which the action can be commenced up to three years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware that the plaintiff’s injury was attributable to the conduct of Joondalup hospital: s 39(4)(b).

108. I accept that it was stated in Dixon at [33] that a causal connection in fact satisfies the requirement that the injury be attributable to a person’s conduct. However, what causes awareness will depend on the nature of the fact in issue. (Dixon, [36]). In this case, like in Dixon, awareness of the physical cause of the plaintiff’s injury (the amputation of her lower right leg) is a matter of inference from the primary facts that require expert medical knowledge and experience.

109. It is the medico legal report of Dr Flecknoe-Brown dated 22 October 2017 that states that the injury was attributable to the conduct of Joondalup hospital. Dr Flecknoe-Brown expressed the opinion that the omissions being firstly, arrangements were not made for the plaintiff to be reviewed by the surgeon on call and secondly, failure to have her venous and arterial circulation evaluated by doppler flow studies at Joondalup hospital and the eventual diagnosis and treatment of arterial thrombosis in the plaintiff’s right lower limb, that being the physical cause of the amputation of her right lower leg.

110. However, there is no direct evidence from the plaintiff regarding if or when she read Dr Flecknoe-Brown’s report dated 22 October 2017. Nor is there any direct evidence from her as to whether her legal representatives advised her of the contents of Dr Flecknoe-Brown’s report, or alternatively, when they advised her of the contents of that report. Finally, if they had advised her of the contents of that report and/or if she read its contents, there is no evidence as to, after reading this report, what her state of actual awareness was. I accept that the plaintiff has sought and relied upon the advice of her legal representatives. By relying on this advice she has acted reasonably. Therefore, I would have accepted she “ought reasonably to have become aware” of the matters contained in Dr Flecknoe-Brown’s report at such time as she read the report or its contents had been explained to her by her legal practitioners, but there is no evidence from the plaintiff or her legal practitioners on this topic. Hence, the plaintiff’s claim for the extension of the limitation period fails unless the knowledge (whatever that is) of her legal representatives can be imputed as the plaintiff’s actual knowledge.

(iii)   Whether the knowledge of her legal representatives can be imputed as actual knowledge

112. In Dixon, the appellants did not contend that awareness included actual awareness of the relevant person’s duly authorised agent, such as the respondent’s solicitors. The majority in Dixon commented at [35] that in the above circumstances, awareness would be imputed rather than constructive but as this did not arise, it could be put to one side.

Submissions

113. Counsel for the plaintiff submitted that it is the plaintiff’s awareness that is relevant not the solicitors. If this is correct, the plaintiff’s claim fails for the reasons outlined above.

114. Counsel for Joondalup hospital submitted that precedent, policy and the present facts overwhelmingly favour the notion that imputed knowledge is enough and that acceptance of this proposition is consistent with the comments of the High Court in Rolland v Hart (1871) LR 6 Ch App 678 at 681-682 (“Rolland”) and Smits v Roach (2006) 227 CLR 423 at [47] (“Smits”) concerning an agent’s authority to receive communications and NIML v Man Financial Australia Ltd [2006] VSCA 128 (“Man Financial”). According to counsel for Joondalup Hospital, “it would seem trite to suggest that a personal injury solicitor acting for a plaintiff is charged with the conduct of the litigation for her benefit, and is to, as an expert, absorb the material that comes to him or her and act on it in the plaintiff’s interests.”

115. In Rolland, Lord Hatherley LC stated at 681-682:

“Then the only question is, what is actual notice? It has been held over and over again that notice to a solicitor of a transaction, and about a matter as to which it is part of his duty to inform himself, is actual notice to the client. Mankind would not be safe if it were held that, under such circumstances, a man has not notice of that which his agent has actual notice of.

…

It cannot be left to the possibility or the impossibility of the man who seeks to affect you with notice being able to prove that your solicitor did his duty in communicating to you that which, according to the terms of your employment of him, was the very thing which you employed him to ascertain.”

116. In Smits at [47], Gleeson CJ, Heydon and Crennan JJ (in a joint judgment) stated:

“The considerations according to which a principal is affected by an agent’s knowledge, and the relevance of the circumstances in which the agent acquired the knowledge, depend upon the context in which the problem arises. Having regard to counsel’s role in the conduct of litigation, when a characterisation of the legal nature and quality of counsel’s acts and omissions depends upon knowledge of some fact or circumstance, then counsel’s clients are affected by that knowledge. In this context, there is no reason in principle to distinguish between the knowledge of Mr Lindsay and that of his clients, or between knowledge that Mr Lindsay acquired as counsel for the appellants and knowledge that he acquired in some other capacity. To adopt language used by Handley JA, and quoted with approval by Gummow and Hayne JJ, in a somewhat different context, there is no basis for ignoring any part of Mr Lindsay’s knowledge, present to his mind, when conducting the litigation.” (Citiations omitted).

117. Finally, in Man Financial the Victorian Court of Appeal (per Buchannan, Nettle JJA and Bongiorno AJA) stated at 38-40:

“[38] …We are concerned here with the law of agency, and whatever may be the law relating to notice in cases of liability for knowing receipt of trust property and knowing involvement in breach of trust, the law of agency, as it is stated in Bowstead, is that:

1) A notification given to an agent is effective as such if the agent receives it within the scope of his actual or apparent authority, whether or not it is subsequently transmitted to the principal, unless the person seeking to charge the principal with notice knew that the agent intended to conceal his knowledge from the principal.

…

[40] …The juridical basis of the first rule is the subject of debate. The better view may be that it exists to prevent the “monstrous injustice” that a principal should have the advantage of what his agent knows without also the disadvantage of it. But however that may be, it is in effect a corollary of the idea that once a principal constitutes an agent as agent for the purposes of receiving notice, the agent becomes the principal’s alter ego for that purpose...” (Citations omitted).

Consideration

118. As counsel for Joondalup hospital points out, what is necessary in s 39(4) is to know when the actual, or in this case, imputed knowledge arose because the temporal nexus is three years from that point. The plaintiff gave evidence that in June 2014, she understood from her then solicitors that evidence did not exist in relation to what she understood as causation. During the final day of the hearing of this motion on 31 October 2017, while the plaintiff was present in court, her counsel made a statement “that in Dr Flecknoe-Brown’s report (Ex B) he (counsel) finds quite a bit of causation, although not on everything one would have liked.” (T65.40-41).

119. While the plaintiff may have understood that Dr Flecknoe-Brown “finds quite a bit of causation” and even accepting, as counsel for Joondalup hospital suggests “it would seem trite to suggest that a personal injury solicitor acting for a plaintiff is charged with the conduct of the litigation for her benefit, and is to, as an expert, absorb the material that comes to him or her and act on it in the plaintiff’s interests”, I am unable to say when the plaintiff “became aware” or “ought reasonably to have become aware” that the injury was attributable to the conduct of Joondalup hospital. The fact that Dr Flecknoe-Brown’s report “finds quite a bit of causation” does not establish awareness that the plaintiff’s injury was attributable to the conduct of Joondalup hospital. That conduct being that Joondalup hospital should have firstly made arrangements for the plaintiff to be reviewed by the surgeon on call; and secondly, to have her venous and arterial circulation evaluated by Doppler flow studies. According to Dr Flecknoe-Brown, these omissions led to her eventual diagnosis and treatment of arterial thrombosis in her right lower leg that resulted in amputation.

120. While the plaintiff has established that she is aware of the threshold issues set out in s 39(4)(a) and (c) she has not, at this stage, established that she was aware or ought to have reasonably become aware that the injury was attributable to the conduct of Joondalup hospital. She has not satisfied the s 39(4)(b) threshold. Thus, the plaintiff has not satisfied all three requirements of s 39(4). She is required to do so. That being so, the plaintiff’s claim to extend the limitation period in relation to Joondalup hospital fails.

121. Finally, for completeness I should add that no submissions were made by either party in relation to s 44 of the Act. Section 44 sets out discretionary matters which the Court must have regard to in deciding whether to extend the limitation period that include delay, prejudice and the prospects of a fair trial.

Summary judgment

122. The first defendant seeks an order pursuant to UCPR 13.4(1)(b) or alternatively, under the inherent jurisdiction of the Court that the whole of the proceedings against it be dismissed.

123. According to counsel for Joondalup hospital, the plaintiff has embraced a contention fatal to her case, that she became aware on 14 April 2014 or shortly thereafter. Therefore, Joondalup hospital contends that it is impossible for the Court to be “satisfied”, for the purposes of sub-s 39(3) of the WA Act, that the conditions therein have been satisfied. There is no ambiguity – the lex causae that this Court is obliged to apply renders the plaintiff’s application doomed. The first defendant is entitled to have the proceedings against it dismissed pursuant to 13.4(1)(b) of the UCPR.

124. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court.

125. In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 (“O’Brien”), the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (“Spencer”). In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles are of general application:

1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (Spencer, [23]).

2. The critical question can be expressed as whether there is more than a “fanciful” prospect of success (Spencer, [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.

126. The plaintiff has not made any submissions in relation to summary judgment. In light of the passage I set out in O’Brien, and before I exercise this power, the plaintiff should be given an opportunity to make short submissions on why, having failed to be granted an extension of the limitation period, she should not have these proceedings dismissed. This notice of motion should be stood over to allow the plaintiff the opportunity to make short submissions.

127. Costs are reserved.

The Court orders that:

1. The plaintiff’s application to extend the limitation period is dismissed.

2. The plaintiff is to serve written submissions as to why, having failed to be granted an extension of the limitation period, she should not have these proceedings dismissed on or before 7 February 2018.

3. The first defendant’s notice of motion filed 25 May 2017 seeking summary judgment is stood over for directions before the Registrar at 9.00 am on 14 February 2018.

4. Costs of the summons and the first defendant’s notice of motion are reserved.

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Decision last updated: 13 December 2017