Under s 39 of the Limitation Act 2005 (WA), 'aware' means actual awareness or knowledge with sufficient confidence reasonably to justify the commencement of proceedings, not constructive awareness, reasonable belief or suspicion. The 'injury' in s 39(3) and (4) refers to the actual underlying disease or impairment (e.g., HIE), not consequential conditions (e.g., cerebral palsy). The 'physical cause' refers to causation in fact — the bodily mechanism by which the injury was brought about — not causation at law. The objective test of 'ought reasonably to have become aware' is assessed by reference to the actual characteristics and circumstances of the particular person, not a hypothetical reasonable person. Where awareness of the physical cause and attributability requires expert medical knowledge, a lay person's awareness of primary facts alone is insufficient.
The full text is available to signed-in members, including the 25 later cases that cite this judgment.
1 of the 25 citing cases carry a classified treatment. How each court treated it is available to signed-in members.