Know your limits – awareness of significant personal injury

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A successful appeal against the Principal Registrar’s rejection of an application under Section 39 of the Limitation Act 2005 (WA) for an extension of time to sue for damages following vaginal mesh implantation surgeries.

The background

On May 29, 2019, the Appellant commenced proceedings in the Federal Court of Australia against the Respondent, a specialist obstetrician and gynecologist, claiming damages for bodily injury allegedly caused by vaginal implantation surgeries mesh performed by the Respondent on June 15, 2012 (the first implant surgery) and November 7, 2013 (the second implant surgery).

The respondent denied the allegations and argued in his defense (filed November 8, 2021) that the claims were statute-barred. By subpoena filed on September 29, 2020, the Appellant requested (in connection with this appeal) an extension of the time limit to bring its action against the Respondent in accordance with Article 39 of the Limitation Act 2005 (WASHINGTON). This request was denied by the Principal Registrar and informs the appeal.

The issues on appeal

The main issues to be decided on the appeal were:

  1. If the appellant’s action for damages for bodily injury was brought within the limitation period;
  2. If not, is the discretionary power of the Court reinforced under Article 39 of the Limitation Act 2005 (WA) to extend the time within which the Appellant’s action for damages for personal injury could be brought; and
  3. If so, should the Court exercise its discretion to extend the time within which the action must be brought, and for how long?

The decision on appeal

The Court reaffirmed that the relevant date for the accrual of the cause of action for personal injury is not when the injury was suffered (i.e. the first or second implant surgery ), but the moment when the person (in this case the appellant) becomes aware of this harm. The action must be brought within three years of this awareness or manifestation.

After careful consideration of the Appellant’s consultations with the Respondent (and other medical professionals), the Court found that it was not until she was referred to another specialist on September 6, 2017 or around that date the possibility that his persistent 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 doctor explained to her that the pain in and around her pelvis and abdomen and her bladder and stomach problems intestine could be related to implantation surgeries. The specialist suggested that the appellant consult a lawyer. Around October 11, 2017, the Appellant appointed lawyers, who obtained an expert report in support of the allegations dated November 7, 2018.

The Court determined that it was only when the Appellant was informed by the expert report dated November 7, 2018 that she was indeed aware of the nature of her injury and that her symptoms and clinical signs were compatible with this injury. wound. Therefore, the Appellant’s legal action having been initiated on May 29, 2019, i.e. within three years of both September 6, 2017 and November 7, 2018, the action for damages for bodily injury was incurred within the statute of limitations and no extension of time was requested.

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

Consequences for you

The Court noted that given the sheer volume of medical consultations, procedures and operations the Appellant underwent, it was difficult to see what more she could have done to find out the cause of her his injuries and that they were, in fact, attributable to the Respondent’s conduct.

The case is now on appeal to the Western Australia Court of Appeal and we will publish the outcome once published.

Tompkins vs. Natalwala [No 2] [2022] CMAD 50

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