Extending Limitation Periods in Western Australia: Key Principles

Limitation periods remain a critical threshold issue in personal injury litigation. While courts retain a discretion to extend time, that discretion is neither broad nor indulgent. The courts discretion is structed by statute, guided by well-established principles, and applied with close attention to the evidence.

Understanding when an extension may be granted is essential for both plaintiff and defendant practitioners.

Statutory framework

Limitation Period

Section 14 (1) of the Limitation Act 2005 (WA) (Limitation Act) provides that an action for damages relating to personal injury to person cannot be commenced if 3 years have elapsed since the cause of the action accrued.

Section 55 of the Limitation Act addresses the accrual of a cause of action for personal injury and states that: 

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 –
2. the person becomes aware that he or she has sustained a not insignificant personal injury; 
3. the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

Application for Extension 

Section 39 of the Limitation Act provides a statutory mechanism by which a plaintiff may seek leave to commence proceedings out of time.

Section 39 (3) of the Limitation Act provides that: 

• 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 –
• was not aware of the physical cause of the death or injury; 
• 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
• was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person’s identity.

If these conditions are satisfied, section 39(4) of the Limitation Act provides that the court may extend the limitation period for up to 3 years from when the plaintiff became aware, or ought reasonable to have become aware –

• of the physical cause of the death or injury;
• that the death or injury was attributable to the conduct of a person (whether a defendant or not); and 
• of the identity of the person mentioned in paragraph (b).

Finally, section 44 of the Limitation Act, governs the exercise of the discretion that the court is to have regard to: 

• whether the delay in commencing the main action would unacceptably diminish the prospects of a fair trial of the action; and 
• whether an extension would significantly prejudice the defendant (other than by reason only of the commencement of the action).

General principles

In an application to extend time under section 39 of the Limitation Act in a personal injury case, the court will consider the following issues: 

1. When did the limitation period expire in respect of the cause of action that the applicant wishes to pursue?
2. Has the plaintiff satisfied any of the three limbs contained in section 39(3) of the Limitation Act?
3. If the plaintiff has satisfied a relevant limb of section 39(3) of the Limitation Act, is an extension of time available to the plaintiff under section 39(4) that will be sufficient to cover the time period in which the action was (or will be) brought? 
4. If a sufficient extension of time is available under section 39(4) of the Limitation Act, and having regard to any relevant considerations in section 44 of the Limitation Act, what extension of time should be granted?

The plaintiff has the burden of proving that a court should extend the relevant limitation period under section 79 of the Limitation Act.

Section 39(3) of the Limitation Act

To meet the requirements of section 39 (3), when the limitation period expired, the plaintiff must either be: 

• not aware of the physical cause of the death or injury (section 39 (3) (a));
• aware of the physical cause (as above) but not aware that the injury was attributable to the conduct of a person (section 39 (3) (b)); or 
• aware of the physical cause and that it was attributable to the conduct of a person but after a reasonable enquiry, had been unable to establish that person’s identity (section 39 (3) (c)). 

Section 39 (3) focuses will be on the plaintiff’s awareness (or lack thereof) at the time the limitation period expired. 

The assessment of what specific subject matter(s) the plaintiff was “aware” (or not aware) about, at the time of the expiry of the limitation period, will depend on which subsection the plaintiff intends to rely upon (i.e. section 39(3)(a), section 39(3)(b) or section 39(3)(c)).

‘Awareness’ refers to the actual awareness of the plaintiff. It is awareness of the plaintiff that is relevant, not that of their legal representatives. The plaintiff’s awareness of the must go beyond speculation or mere suspicion. 

Under section 39(3)(a), ‘physical cause’ refers to the mechanism or circumstances that produced the injury rather than who caused the injury. An omission may be a physical cause and there may be multiple physical causes of a single injury. 

Under section 39(3)(b), ‘conduct’ includes both acts and omissions. The relevant conduct may manifest in an act that directly produces an injury or be indirect, tied with systems of accountability or authority over which the person has control. 

An injury will be ‘attributable to the conduct of the person’ where there is a connection between the conduct of a person and the harm of the injury – such that the harm is capable of being related as having produced or authored by that person. 

The plaintiff will be ‘aware’ that an injury is attributable to the conduct of a person where the plaintiff considers that the injury lays at the feet of a particular person (leaving aside the separate question of whether the identity of that person is known).

Under section 39(3)(c), even where a plaintiff is aware of both the cause of their injury and that it is attributable to a person, they may still fall within section 39(3) if they were unable, despite reasonable enquiry, to identify that person.

What constitutes “reasonable enquiry” will depend on the circumstances, including the plaintiff’s resources, knowledge, and access to information.

Section 39(4) of the Limitation Act

If the plaintiff satisfies one of the three limbs in s 39(3) of the Limitation Act, the court will examine when the plaintiff was aware (or ought reasonably have become aware) of the factors in section 39(4) to determine what extension of time should be granted. 

The extension of the time period to commence proceedings available under s 39(4) commences from the date that the plaintiff becomes aware (or ought reasonably to have become aware) of all of the relevant matters specified in s 39(4), notfrom the date the limitation period expired.

Section 39(4) of the Limitation Act imports both subjective and objective tests of awareness. The words 'ought reasonably to have become aware', “treats the prospective claimant as being aware of matters that would have been revealed had steps been taken to acquire knowledge that were reasonable steps for that person to have taken in all the circumstances”: Mullaley v State of Western Australia [2020] FCA 13 [31].

Case examples

Ultimately, applications to extend limitation periods in Western Australia are highly fact dependent. However, the courts have granted extensions to the limitation period in the following examples:

• The plaintiff suffered nerve damage due to poor surgical technique. The court was satisfied that the plaintiff could access section 39(3)(a) in circumstances where there was no suggestion that the plaintiff was aware, at the time the limitation period expired, of the poor surgical technique.
• The plaintiff commenced an application against a labour hire company as he was injured due to the actions of one of its employees. The court found that there was 'conduct' that met the criteria of s 39(3)(b) of the Limitation Act because the labour hire company took certain actions creating a factual connection between the employee’s presence at the workplace (i.e. positive acts of employing and directing him to work at that time and place).
• The plaintiff suffered an injury caused by a failure to remove metalwork. The plaintiff was not aware of the physical cause of her injury until an expert medical report was produced which identified that cause. The court found that expert medical knowledge was required to make the connection between treatment and injury. Before the expert report, the plaintiff had merely speculated that the manner in which she had been treated was the cause of her injury which was not enough to amount to a relevant awareness.

Conclusion

Sections 39(3) and 39(4) of the Limitation Act require careful examination of the plaintiff’s awareness at critical points in time.

From a defendant’s perspective, the focus will often be on closely scrutinising the plaintiff’s asserted awareness. This includes careful examination of medical records, contemporaneous documents, and any steps (or lack thereof) taken by the plaintiff to investigate the cause of their injury. 

A defendant may also demonstrate forensic prejudice arising from the delay. The court will give weight to whether the passage of time has compromised the ability to fairly defend the claim particularly where evidence has been lost, memories have faded, or key witnesses are no longer available.

In any event, defendants should always remember that the onus is on the plaintiff to prove that a court should extend the relevant imitation period. 

For specific legal advice, please contact Fiona Dempster, Partner Insurance.

1. ^

   Section 55 does not apply to a personal injury attributable to the inhalation of asbestos or silica dust.

2. ^

   LTP v Natalwala [2023] WASC 414.

3. ^

   Ghiassi v Industrial People Pty Ltd [2012] WADC 23.

4. ^

   Johnson v South Metropolitan Health Service [2023] WADC 125.