Western Australia’s Court of Appeal in its decision AME Hospitals PTY, Limited v. Dixon [2015] 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:

  1. The physical cause of the death or injury;
  2. That such death or injury was attributable to the conduct of the person against whom claim is sought to be brought; or
  3. 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 [41].

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:

  1. 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;
  2. 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.

On 10 September 2014 the Court of Appeal, by a majority of 2 to 1, upheld appeal against a decision by Judge Bowden in the District Court rejecting the applicant’s request for an extension of time in which to bring claim under Section 41 of the Limitation Act 2005.

As I have commented previously, such section on its face [bizarrely] only permits an extension of claim for a child, outside the six-year time limit now set, if the Court is satisfied that the child’s guardian acted unreasonably in failing to bring claim within this 6 year time period.

In other words, if there is a good reason why claim was not brought earlier, no extension can be given – go figure!

In Barr’s case, the guardian’s failure to bring claim within the 6 years was because their [negligent] solicitor had advised them it was not necessary to do so and there was plenty of time.  They had expert medical evidence that the child’s care had been negligent, but were told there was no need to rush, as there remained plenty of time for the action to be brought.  This was due to a failure to appreciate that since Nov 2005, birth injury cases (even those relating to births prior to such time) had a ‘new’ 6 year time limit, rather than the old period for claim, which had been generally 6 years from when the child reached 18.

Judge Bowden’s decision seemed to follow the terms of such provision, finding that because the guardian had relied upon legal advice, they had not acted unreasonably and so no extension could be granted [they being presumably left to pursue claim against their negligent lawyer for wrongly advising them concerning the timeframe for claim].

Though unquestionably the right end result, the Court of Appeal’s decision required some ‘reasoning gymnastics.’

Justice Pullin concluded that the inquiry as to whether a guardian had acted reasonably or not was an objective question.  He concluded that the legal advice provided by the lawyer was not part of such objective circumstances that needed to be considered.  Rather the objective circumstances were the fact that severe injury had occurred and medical opinion had been obtained suggesting that the obstetric care was negligent and had caused such injury.  In these circumstances, Justice Pullin concluded that a reasonable guardian would have commenced proceedings and so the court’s discretion arose.

As Justice Murphy put it at [66] the circumstances upon which the decision whether a failure to initiate proceedings was unreasonable include “The nature and strength of the claim, the damages which were expected to be recoverable and any cost considerations which might reasonably bear upon a decision to sue in the particular circumstances of the case.  Medical reports which had been obtained by the plaintiff’s actual guardian would be admissible as relevant to, but not necessarily determinative of, the question of whether, objectively, it was unreasonable for a guardian of the plaintiff not to commence proceedings within time.”  He further stated at [67] “If, in the circumstances, it was unreasonable for a guardian responsible for the plaintiff’s welfare etc. and practicably capable of suing not to have sued within time, the minor is taken to have lost a valuable priority right in a situation where he or she was incapable of preserving the right for himself or herself.  In that event the discretion to extend time may be exercised.”

Interestingly such reasoning does not directly deal with the availability of an extension in the more common scenario where no expert opinion has yet been obtained within the six years (for instance because the parents have been too busy caring for their disabled child to give litigation priority prior to this timeframe expiring, or it is only then they are informed of a poor long term outlook for their child and then consider litigation).  I anticipate allegations in such scenario that the parent/guardian has acted unreasonably in not more promptly investigating a medical negligence claim before the six-year period expires.  Bizarrely, it will be in the guardian’s best interest to accept that they have acted unreasonably in not investigating earlier.

It is important to appreciate the unusual circumstances in Barr.  Expert opinion had already been obtained critical of the care provided and supportive of the fact that this had caused injury.  Nonetheless, in my view the decision encourages a view that the scope of the extension provision is broader than perhaps previously envisaged and there is an arguable prospect for extensions to be granted, where no expert opinion has been sought by the guardian within time or, though this is more controversial, where initial advice may not have supported criticism

 As a post-script to my post a couple of weeks ago, I confirm that Judge Schoombee has handed down her decision in Lola Phillips’ case.

This confirms that whether or not negligent care was before or after the Law change in November 2005, the date from which time to make claim starts to run is now determined by the 2005 legislation. This means that patients suffering a latent injury before 2005 can bring claim if they are able to show that it is within 3 years of their latent injury becoming evident/manifesting. Further, if such manifestation occurred after November 2005 they can potentially seek an extension of time to bring claim if they can meet the other requirements necessary for this….

On such topic, a case to be argued later this week will hopefully shed further light on the Court’s approach to such extension applications and the extend of the Court’s discretion to do so.

An update on 24 June 12, to confirm that the defendant has given notice it will appeal this decision, so the matter will proceed to be considered by the Court of Appeal

 Just a short note that argument has taken place before Judge Schoombee in relation to this question, in the matter of Lola Phillips v Min for Health. As expected Judge Schoombee reserved her decision..

The key facts in the case are:

1) Lola was born in March 2002, and was born with congenitally dislocated hips.

2) Lola’s case alleges negligent child health care by a community nurse, in failing to act on a finding of ‘clicky hips’ at a review 10 days after her birth.

3) it is alleged that it was not until Lola began kindly in 2006 that the problem with her hips was noticed. By this time it was too late for effective treatment and despite surgery Lola has significant long term disability. Had treatment been arranged in 2002, it is likely such disability would have been avoided, with simple conservative treatment.

If the 2005 changes to the law apply to Lola’s claim, the time when her time for claim began to run is 2006, when the problem with her hips became apparent (and her case is brought within time).

There is no question that before such changes in the Law in Nov 05, Lola’s claim would be taken to have accrued and so time was running even before identification of the problem. The injustice of this was a well recognized reason for the law’s reform in 2005.

The question in issue is whether the changes in 2005 retrospectively benefit claimants like Lola. In my view, perhaps predictably, the 2005 changes are retrospective and Lola may rely upon them. Only time will tell whether Judge Schoombee agrees….

 The Limitation Act 2005 came into effect in Nov 2005.  Surprisingly, for non-lawyers anyway, there remains a fair amount of uncertainty as to such new scheme’s effect in several important respects, particularly:

  • in terms of the time for claims alleging medical negligence.  This uncertainty is not as to the overall time (which in most case is 3 years), but as to when time starts to run from…
  • in terms of in what circumstances an extension beyond such initial time limit will be granted.

A recent decision by Keen DCJ, Abreu v Peacock [2012] WADC 31sheds some light on the first of these.  

Section 55 of the Limitation Act 2005, which deals with when a claim (or ’cause of action’) arises, so that time starts to run for a claim, states:

55. Personal injury — general

(1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs —

(a) the person becomes aware that he or she has sustained a not insignificant personal injury;

(b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

In Abreu, Judge Keen confirmed that the key phrase, ‘a not insignificant personal injury‘ was not a high threshold and was something very different from ‘a significant injury.’  He therefore concluded that although the claimant in such case alleged, as quite often occurs, that initially he had not suspected his work injury was serious, nonetheless, section 55 was met very shortly after his accident and so his time for claim began to run.

It appears Judge Keen’s decision is the subject of appeal, so it will be interesting to see what the Court of Appeal make of the issue.

As most lawyers practising in med neg in Perth will know, a specific provision was inserted in the 2005 Limitation Act, setting new time limits for child-birth injury claims in Western Australia.

Apart form setting a new scheme for children born after 2005, the then labour government did medical insurers a very great favour, by effectively retrospectively shortening, in some cases, enormously, the time for claims for many children born before Nov 05.

Apart from claims against public hospitals, for whom special time limits were set before the 2005 legislation, generally children (and their parents/guardians) prior to the Nov 2005 changes to the Law, had a period of 24 years (period to age 18 + 6 years from then) within which to make claim. This was the timeframe for a claim against a private obstetrician, midwife or hospital.

By section 7(2) of the Limitation Act 2005, for children born before November 2005, this period was shortened to a maximum of 6 years from Nov 2005 (so to Nov 2011). Theoretically, a child born in October 2005 therefore had only 6 years + 1 month to bring claim within time. How many 6 year olds do you know who can initiate and manage complex medical negligence litigation!

There is some scope for extensions of time (no doubt a fertile area of litigation in the near future) + potential for arguments whether this shortening of time applies to cases alleging negligence in antenatal care prior to delivery (see the odd definition of ’cause of action (childbirth)’) and when a cause of action is now taken to accrue (and so time start), but as a general rule, if you have an interest in a possible medical claim relating to a child born before Nov 05, you now have only 11 months to investigate + initiate claim…better get cracking!