In this decision delivered by Judge Stevenson of the District Court on 23 December 2009, Judge Stevenson concluded that he had no power to extend the time for commencement of a claim under the 2005 Limitation Act, in relation to a child born prior to such Act's commencement.
The case, in which I am involved on behalf of the child Patrick, relates to alleged negligence on the part of King Edward Memorial Hospital in Patrick's mother's obstetric care in November 1996. Patrick suffers from cerebral palsy which it is alleged arose because of the shortcomings in care. The allegations of shortcomings of care and that this caused Patrick's cerebral palsy are supported by compelling expert opinions from independent obstetricians, neonatologists, paediatric neurologists and otherwise. Uncontested medical evidence put before the court spelt out Patrick's significant disability as a consequence of his cerebral palsy.
Prior to November 2005 the law in Western Australia provided that any medical negligence claim against a public hospital alleging negligent care causing birth injury had to be commenced, at the very latest (and this time limit required either the hospital's consent or permission from the court) by the time the child turned six years of age (section 47A Limitation Act 1935). Such time-limit self evidently could result in gross unfairness and injustice, and for a substantial period of time has been the subject of criticism by judges, law reform bodies and others. No equivalent applied to private hospitals or private patients in public hospitals (at least in so far as claim was brought against the private obstetrician), against whom the time limit was generally the child's 24th birthday.
In this case it was argued on behalf of Patrick that changes to the limitation laws which came into effect in November 2005 should permit the court a discretion to allow claim to be brought outside the six-year time limit, if warranted as a matter of justice.
As stated at the outset, Judge Stevenson, whilst expressing obvious disappointment at such conclusion, determined that this was not the case and in effect, the changes to the limitation period laws in 2005 were only of prospective effect and did not remedy the injustice arising for children born prior to November 2005 (when such laws came into effect).
An appeal has been commenced to seek the Court of Appeal's decision in relation to this important issue.
The situation specifically with regard to Patrick's case is complicated further by the fact that the failure to begin a claim within the six-year time limit required was caused by the hospital's failure prior to this deadline, to disclose a critical piece of evidence in relation to Patrick's delivery and his mother's obstetric care (the CTG trace relating to such labour). As Judge Stevenson mentions in passing in his decision, apart from further accentuating the injustice of the six-year time limit, this potentially gives rise to complex legal issues in terms of the hospital's capacity to rely upon such six-year time limit as a defence to the claim.
What is assured is that Judge Stevenson's decision is by no means the end of this matter.