Know your limits - awareness of a significant personal injury

19 July 2022

A successful appeal against the principal registrar’s dismissal of an application under s 39 of the Limitation Act 2005 (WA) for an extension of time to commence proceedings for damages following vaginal mesh implant surgeries.

The background

The Appellant commenced proceedings in the Federal Court of Australia on 29 May 2019 against the Respondent, a specialist obstetrician and gynaecologist, claiming damages for personal injuries alleged to have been caused by vaginal mesh implant surgeries performed by the Respondent on 15 June 2012 (the first implant surgery) and 7 November 2013 (the second implant surgery).

The Respondent denied the allegations and pleaded in his defence (filed 8 November 2021) that the claims were statute barred. By chamber summons filed on 29 September 2020, the Appellant applied (relevantly to this appeal) to extend the time to commence her action against the Respondent pursuant to s 39 of the Limitation Act 2005 (WA). That application was dismissed by the principal registrar and informs the appeal.

The issues on appeal

The key issues for determination in the appeal were:

  1. Whether the Appellant’s action for damages for personal injury was commenced within the limitation period;
  2. If not, whether the Court's discretion is enlivened under s 39 of the Limitation Act 2005 (WA) to extend the time within which the Appellant’s action for damages for personal injury could be commenced; and
  3. If so, whether the Court should exercise its discretion to extend the time within which the action be commenced, and for how long?

The Decision on appeal

The Court reaffirmed that the relevant date for accrual of the cause of action for personal injury is not when the injury was sustained (ie the first or second implant surgery) but when the person (in this case the Appellant) becomes aware of that injury. The action must be commenced within three years of such awareness or manifestation.

After a careful consideration of the Appellant’s consultations with the Respondent (and other healthcare practitioners), the Court concluded that it was not until she was referred to a further specialist on or about 6 September 2017 that the prospect that her ongoing symptoms may have been caused by the first and/or second implant surgery (and therefore the Respondent) arose.

The Appellant’s evidence (which was accepted by the Court) was that this was the first time a medical practitioner explained to her that the pain in and around her pelvis and abdomen and her bladder and bowel problems could be related to the implant surgeries. The specialist suggested that the Appellant seek legal advice. The Appellant instructed solicitors in or around 11 October 2017, who obtained an expert report supporting the allegations dated 7 November 2018.

The Court determined that it was not until the Appellant was informed by the expert report dated 7 November 2018 that she was actually aware of what her injury was and that her symptoms and clinical signs were consistent with that injury. Therefore, because the Appellant’s proceedings were issued on 29 May 2019 – within three years of both 6 September 2017 and 7 November 2018 – the action for damages for personal injury was issued within the limitation period and no extension of time was required.

Her Honour went on to find that even if she was wrong and the action had not been issued within time, she would exercise the discretion under section 39 of the Limitation Act 2005 (WA) to extend the limitation period to 7 November 2021. That is, 3 years from the date the Appellant was informed her injuries were attributable to the surgeries performed by the Respondent.

Implications for you

The Court noted that given the sheer volume of medical consultations, procedures and surgeries undergone by the Appellant, it was difficult to see what more she could possibly have done to inform herself as to the cause of her injuries and that they were, in fact, attributable to the conduct of the Respondent.

The matter is now under appeal before the Western Australian Court of Appeal and we will report the outcome once published.

Tompkins v Natalwala [No 2] [2022] WADC 50

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