Western Australia’s Court of Appeal in its decision AME Hospitals PTY, Limited v. Dixon  WASCA 63, delivered on 27 March 2015, confirmed, particularly relevantly in the medical negligence claims area, significant scope for persons to bring claim outside the basic 3-year time limit for such claims arising since November 2005 and the introduction of the Limitation Act 2005.
To be permitted to bring claim beyond the 3-year time limit, Section 39(3) the Limitation Act 2005 provided that the person wishing to bring claim must establish that when the 3-year time limit expired they were not aware of one or more of the following:
- The physical cause of the death or injury;
- That such death or injury was attributable to the conduct of the person against whom claim is sought to be brought; or
- The identity of the person against whom the claim should be brought, despite reasonable inquiry.
In the Dixon decision all three members of the Court confirmed that for ‘awareness‘ of the above facts to arise, there, in effect, had to be a solid foundation/justification for belief. It was not sufficient for a suspicion or even, it would seem, an ungrounded belief to be held.
President McLure (with whom Newnes J.A. agreed) confirmed that where the “awareness” relates to a matter for expert knowledge or experience this will arise only when an expert opinion, reasonably capable of being accepted by a Court and capable of establishing the relevant facts exists and is known by the person .
In practice therefore, in a medical negligence claim, to have awareness that an injury was “attributable to the conduct of a person” (the 2nd test above) will, in my view at least, almost inevitably require that an expert medical witness has expressed such a view and this has been made known to the claimant. This is also likely to often be the case for full awareness as to the physical cause (an odd phrase) of an injury (the first aspect of awareness that may be lacking to qualify for a possible extension).
Buss JA in a separate judgment suggested that the necessary “awareness” must mean knowledge or belief “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 otherwise.” In a professional negligence context, such as a medical negligence claim against a doctor or hospital, it is hard to envision this point being reached before the claimant has been advised to do so by their legal advisors/representatives. In our case at least, this will almost always require that a respectable independent medical expert has confirmed shortcomings in the relevant care and that this was a cause of harm to the patient.
In practice, this means that there will often be good prospects in medical negligence claims, other than the most straightforward, for seeking an extension of time to bring claim outside the 3-year time limit, where a client (the patient) delays seeking legal advice or investigation of the claim until outside this 3-year timeframe from their initial injury, or where provision of the expert opinion does not occur until this 3-year time limit has expired. This is very generous indeed and good news for our clients.
Two factors do however still need to be borne in mind in this context, before we get too carried away (!), being:
- There remains a 3-year outer limit for any extension from when awareness of the relevant matters ought to have arisen. In other words, there needs to be some reasonable explanation put forward for substantial delay in looking into a claim and obtaining appropriate expert advice, etc;
- Further, capacity to seek an extension of time does not guarantee that it will be granted. In particular, in the event that the doctor, hospital or other health professional can show prejudice because of the delay in a claim being brought, the Court remains perfectly able to refuse to grant an extension despite the discretion arising.
Somewhat disappointingly, the Court of Appeal did not provide any clear guidance in relation to a remaining difficulty with claims and figuring out time limits. This is the uncertainty as to when the 3 year time limit begins. This remains unclear because the meaning of Section 55(1)(b) of the legislation and what is meant by when the “first symptom, clinical sign or manifestation of personal injury, consistent with a person having sustained a not insignificant personal injury.” This determines when the initial 3-year period begins to run. As can be gathered, the meaning of these words is far from obvious…
As I have observed previously, it is important to appreciate that the lack of such awareness at the 3-year limitation, expired point is mandatory. Bizarrely, if such awareness arises the day preceding this deadline, no power to grant an extension arises.