Waldron v Joondalup Hospital Pty Ltd

1. [1]

   HER HONOUR: There are two matters before this Court.

2. [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. [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. [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. [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. [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

1. [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.

2. [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]).

3. [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]).

4. [10]

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

Background

1. [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.

2. [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]).

3. [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]).

4. [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]).

5. [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]).

6. [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]).

7. [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]).

8. [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]).

9. [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]).

10. [20]

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

11. [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]).

12. [22]

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

13. [23]

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

14. [24]

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

15. [25]

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

The report of Dr John Vinen

1. [26]

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

2. [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).

3. [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:

4. [29]

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

5. [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):

6. [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.

7. [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).

8. [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.

9. [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.

10. [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):

11. [36]

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

12. [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).

13. [38]

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

14. [39]

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

15. [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).

16. [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):

17. [42]

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

18. [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.

19. [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.

20. [45]

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

21. [46]

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

22. [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:

23. [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

1. [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.

2. [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]).

3. [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]).

4. [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]).

5. [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:

6. [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]).

7. [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]).

8. [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.

9. [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]).

10. [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]).

11. [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]).

12. [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]).

13. [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]).

14. [62]

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

15. [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).

16. [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]).

17. [65]

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

18. [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:

19. [67]

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

20. [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.

21. [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

1. [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.

2. [71]

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

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [78]

   Section 39 relevantly reads:

10. [79]

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

11. [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:

12. [81]

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

13. [82]

    Section 55 reads:

14. [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”)

1. [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.

2. [85]

   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.

3. [86]

   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.

4. [87]

   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”.

5. [88]

   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.

6. [89]

   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]:

7. [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:

8. [91]

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

Consideration

1. [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].

2. [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).

3. [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

1. [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.

2. [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.

3. [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. (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. (2)

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

   3. (3)

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

   4. (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. (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. (6)

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

   7. (7)

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

   8. (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. (9)

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

   10. (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.

4. [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.

5. [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

1. [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.

2. [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.

3. [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

1. [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.”

2. [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.”

3. [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.

4. [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

1. [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.

2. [108]

   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).

3. [109]

   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.

4. [110]

   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.

5. [111]

   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

1. [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

1. [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.

2. [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.”

3. [115]

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

4. [116]

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

5. [117]

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

Consideration

1. [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).

2. [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.

3. [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.

4. [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

1. [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.

2. [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.

3. [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.

4. [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:

5. [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.

6. [127]

   Costs are reserved.

   1. (1)

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

   2. (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. (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. (4)

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