District Court of WA|2021-04-15

For the reasons given below I am not satisfied that when the limitation period expired for the first surgery and the second surgery the plaintiff was not aware that she had suffered an injury, not satisfied she was not aware of the physical cause of the injury, and not satisfied she was not aware the physical cause of the injury was attributable to the conduct of the defendant.
In respect of the first surgery it seems much more likely than not the plaintiff was aware that she had suffered a not insignificant personal injury, being an impairment of her physical condition (that being the statutory definition of injury in the Act), at about the time of the surgery. Further, the evidence shows that prior to the first surgery her complaints were limited to difficulties in urinating and defecating with no complaint of pain. Immediately following the surgery the plaintiff experienced pain in the right side of the abdomen, pelvis and back with difficulty standing and walking. She had also been informed by the defendant five days later that she should not still be in that much pain.
Given the immediate or near immediate onset of symptoms it is my view that the plaintiff must have attributed her post surgery condition to the surgery. Further, she knew who did the surgery, namely the defendant. The fact that the plaintiff did not have detailed knowledge of the cause, such as the detailed surgical procedures of the operation and that it involved using tacks to fix the anterior mesh to the sacrospinous ligaments, that the traction associated with this causes traction on nerve roots that supply the gluteal, sciatic and femoral nerves[18] and the use of an allegedly inappropriate 'InterPro mesh implant' does not mean she was unaware of the physical cause of her injury or that she was unaware that the physical cause of the injury was attributable to the defendant. Whilst the plaintiff may have needed expert medical evidence to become aware that the surgery and use of the implant was allegedly negligent, she did not need that expert evidence to know the physical cause of the injury and to whom it was attributable. Knowledge that the defendant was negligent, assuming that to be the case, is not a matter listed in of the Act.

Limitation period for the Australian Consumer Law claim.

Whilst the plaintiff by her summons sought an order extending the limitation period pursuant to the provisions of the Competition and Consumer Act s 87E and s 87F, it is my view those provisions do not apply. Those provisions are found in Part VIB of the Competition and Consumer Act which applies to proceedings taken under Parts 2-2, 3-3, 3-4, 3-4 and div 2 of Part 5-4 of the Australian Consumer Law.
They do not apply to Part 3-2 of the Australian Consumer Law, being the Part in which s 60 and s 61, being the sections the plaintiff pleads the defendant as having breached, are found. The limitation provision applicable to s 60 and s 61 is found in s 236 of the Australian Consumer Law and provides for a limitation period of six years from the date the cause of action accrues. It does not provide for an extension of the limitation period.
Accordingly the plaintiff's chamber summons insofar as it seeks an extension of time pursuant to s 87E and s 87F should also be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[2] AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 [158] (Buss JA).

[4] AME Hospitals Pty Ltd v Dixon [23] - [24].

[5] AME Hospitals Pty Ltd v Dixon [28].

[6] AME Hospitals Pty Ltd v Dixon [29] - [30].

[7] AME Hospitals Pty Ltd v Dixon [31] - [33].

[8] AME Hospitals Pty Ltd v Dixon [34].

[9] AME Hospitals Pty Ltd v Dixon [36].

[10] Defence filed 24 November 2020, par 2.

[11] Defence filed 24 November 2020, pars 14 and 22.

[12] Plaintiff's affidavit affirmed 29 September 2020, pars 42 - 47.

[14] Plaintiff's affidavit affirmed 29 September 2020, par 58.

[16] Plaintiff's affidavit affirmed 29 September 2020, pars 60 - 63.

[19] AME Hospitals Pty Ltd v Dixon [21].

[20] Gill v Ethican Sarl (No 5) [2019] FCA 1905 [4823].

[21] Mullaley v State of Western Australia [2020] FCA 13 [61].

[22] AME Hospitals Pty Ltd v Dixon [28].

TOMPKINS -v- NATALWALA [2021] WADC 33 (15 April 2021)

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63

Gill v Ethican Sarl (No 5) [2019] FCA 1905

Mullaley v State of Western Australia [2020] FCA 13

AME Hospitals Pty Ltd v Dixon

At a glance

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Judgment (20 paragraphs)

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Legislation Cited (1)

Cases Cited (4)

TOMPKINS -v- NATALWALA [2021] WADC 33 (15 April 2021)