Brook v Yoong - [2023] WADC 34

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BROOK -v- YOONG [2023] WADC 34
CORAM:   REGISTRAR NUNN
HEARD:   3 MARCH 2023
DELIVERED          :   31 MARCH 2023
FILE NO/S:   CIV 132 of 2021
BETWEEN:   DEBRA GAI BROOK
Plaintiff
AND
ANN YOONG
Defendant

Catchwords:

Limitation Act 2005 (WA) - Extension - Personal injury - Awareness

Legislation:

Limitation Act 2005 (WA), s 39, s 44, s 55

Result:

Time to commence this action be extended to three years from 26 October 2020
Costs of the application to extend the time to commence this action be in the cause

Representation:

Counsel:

Plaintiff	:	Ms V E Long-Droppert
Defendant	:	Ms C A Elphick

Solicitors:

Plaintiff	:	AJB Stevens Lawyers
Defendant	:	Dominion Legal

Case(s) referred to in decision(s):

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Clarke v Natalwala [2022] WASC 261
Tompkins v Natalwala [No 2] [2022] WADC 50

REGISTRAR NUNN:

Introduction

Debra Brook was treated for gynaecological problems by Dr Ann Yoong, including surgeries in February and November of 2013.
Both surgeries involved the use of artificial mesh to treat prolapses of her vaginal wall.
Among other things, Mrs Brook experienced pain after both surgeries.
Mrs Brook now brings an action in negligence, breach of contract and breach of statutory duty for the injuries suffered as a result of these two surgeries.
The writ for this action was lodged on 15 January 2021, more than three years after the 2013 surgeries and in excess of the three year limitation period allowed for an action for personal injury provided for by the Limitation Act 2005 (WA).
Given this, Mrs Brook seeks either:
(a)a declaration under s 55 of the Limitation Act that her cause of action did not accrue (and therefore time start to run under the limitation period) until 26 October 2020; or, alternatively,
(b)that leave be granted to extend the time within which to commence the action pursuant to s 39 of the Limitation Act being three years from 26 October 2020.
Mrs Brook contends that she was not aware that she had a significant injury or the cause of that injury until she had received Dr Korda's expert medical report in October 2020.
Dr Yoong contends that Mrs Brook's applications cannot succeed as she knew she had suffered a significant injury, the physical cause of that injury and to whom that was attributable by at least October 2016. Accordingly, if the conditions for an extension of time (under either s 55 or s 39 of the Limitation Act) are met the writ was nevertheless brought out of time.
For the reasons that follow I agree with Dr Yoong as to the s 55 application and consider that Mrs Brook was aware that she had a not insignificant personal injury by at least October 2016.
However, I am persuaded that until Mrs Brook received Dr Korda's report in September 2020 that she was unaware of the actual cause of that injury or that this was attributable to the actions of Dr Yoong in implanting the mesh in the 2013 surgeries.
Accordingly, I am satisfied that Mrs Brook meets the criteria set out in s 39(3) and ought be granted an extension of time in which to bring her action and, pursuant to the matters to be satisfied under s 39(4), that time ought commence from the date Mrs Brook received Dr Korda's report, being 26 October 2020.

Background

Both parties relied on the unchallenged affidavit evidence of Mrs Brook (and the attachments to it).
Although it is not axiomatic that uncontroverted evidence will be accepted, this was received without objection and forms the only evidence before me for the purposes of this application. I see no reason why it should not be accepted or afforded weight on that basis.
It is not necessary to repeat the entirety of Mrs Brook's medical history although relevant to these proceedings is the fact that she had an existing gastric sleeve procedure.
It is not in dispute that Dr Yoong performed the relevant surgeries in February and November 2013 nor is it in dispute that this proceeding was commenced more than three years after the dates of these surgeries and on that basis, would appear to be prima facie out of time.
The following evidence is relevant to this application:[1]
[1] I have adopted the explanations of medical terms provided in Dr Korda's report (attached to Mrs Brook's affidavit) or where terms have not been referenced in Dr Korda's report have relied on Mosby's Dictionary of Medicine, Nursing, & Health Professionals (3^rd ed, 2013, Esleveir Australia).
(a)In 2011 Mrs Brook experienced bladder problems and was diagnosed with a cystocele (a prolapse of the front wall of the vagina). She had a hysterectomy performed by Dr Yoong. This improved her urinary problems. No complaint is made regarding this procedure.
(b)In February 2012 she saw Dr Yoong again. Mrs Brook was then experiencing a recurrence of difficulty in emptying her bladder and urine leakage. Dr Yoong diagnosed a vaginal vault prolapse (collapse of the top of the vagina downwards). Mrs Brook states that Dr Yoong told her this was a rare post‑hysterectomy complication saying something akin to her being one of the 'unlucky 5% who had this complication'.
(c)Dr Yoong recommended sacrocolpopexy surgery (where the top of the vagina is suspended by sutures to part of the spine). This was performed in March 2012. Dr Yoong gave Mrs Brook some literature about this procedure which outlined the risks of the procedure as including bladder injury, bleeding, urine infection and bowel obstruction.
(d)This procedure appears to have involved the use of an artificial mesh (Gynamesh). Mrs Brook does not expressly state this in her affidavit however the literature she was provided references the use of mesh and Mrs Brook later references the mesh used in her 2012 surgery. Dr Korda's report is based on (among other things) Dr Yoong's clinical notes. Dr Korda states that Gynamesh was used. Furthermore, Mrs Brook pleads this to be a Johnson & Johnson product. As the sacrocolpopexy was the only surgery of 2012 I infer that mesh of this kind was used.
(e)Post-surgery Mrs Brook experienced some bowel problems and some bulging in her vagina which became worse.
(f)In January 2013 Dr Yoong again diagnosed Mrs Brook with a further cystocele. Mrs Brook was offered the conservative treatment option of a wearing a pessary (a manual device worn internally to arrest the effect of a prolapse) or having surgery. Mrs Brook stated that she opted to have surgery.[2]
[2] I note for completeness that Mrs Brook attests to having been given this option however the statement of claim states that this did not occur.
(g)Mrs Brook states that Dr Yoong gave her some literature about this procedure (being surgical repair of the cystocele with the use of mesh) which outlined the risks of the procedure as including long term pain in the buttocks, groin and vagina, constipation and mesh erosion. This perhaps paraphrases the literature which specifically states in relation to the use of synthetic mesh implantations that:
it is not uncommon to have some pain in the buttock for the first few weeks after surgery. This will get better by itself … it is also quite common to get some stabbing or burning rectal pain that settles within a short period of time. If the pain is severe or not improving you should contact your surgeon … this can cause short term pain along the inner thighs/groin area. Rarely, this can become a longer term problem …
…
Some women may develop chronic pain or discomfort in the vagina.
I note that nothing in this literature provided by Dr Yoong specifically references abdominal pain although such parts of the 'abdomen' (at least as I comprehend that term generally) as groin, buttock and vagina are referenced.
(h)Dr Yoong performed this procedure in February 2013. Mrs Brook does not state in her affidavit what kind of mesh was used although her statement of claim asserts this was a Boston Scientific product. This is also referenced in Dr Korda's report and I infer this to be the case.
(i)Post-surgery Mrs Brook experienced a worsening of her occasional constipation and had discomfort in the perineal area however, on the basis of the literature given to her by Dr Yoong, Mrs Brook understood these to be expected post‑surgical complications. She also reported pain in her abdomen, groin and vagina and was unable to sit normally. She states that Dr Yoong advised her this was normal post‑operative pain. Between Dr Yoong's advice and the literature provided Mrs Brook accepted this as being normal and within expectation.
(j)However, by November 2013 the pain continued and became worse such that Mrs Brook could not drive.
(k)In November 2013 Dr Yoong diagnosed Mrs Brook with a rectocele (a prolapse of the rear wall of the vagina) which required repair. Again, Mrs Brook recalls Dr Yoong describing her as being 'one of the unlucky ones'.
(l)Mrs Brook does not state what information she was given about the further procedure or the risks associated with that only stating that Dr Yoong advised her that she did not find anything particularly wrong with the mesh that had been implanted in February 2013 but that she could snip the arm of the mesh to release some of the tension and that she could do this whilst she repaired the rectocele. There is no information before me as to how Dr Yoong may have formed the view that there was nothing wrong with the first mesh implanted.
(m)Dr Yoong performed that surgery in November 2013. Mrs Brook does not indicate that the November 2013 surgery involved the use of mesh however it is not denied that mesh was used in this surgery. Mrs Brook's statement of claim asserts that a Boston Scientific product was used. This is also referenced in Dr Korda's report and I infer this to be the case.
(n)Following that surgery Mrs Brook felt left sided abdominal pain, vaginal bleeding and pain and generally felt unwell. However, coincidentally it seems, Mrs Brook was identified as having splenic lesions (littoral cell angioma) and she states that she attributed her abdominal pain to this condition.
(o)Mrs Brook was subsequently diagnosed with a blood infection which was identified as most likely being a result of the surgery, although, based on the literature provided to her from the February 2013 surgery (there being no evidence that she was provided any literature regarding the November 2013 surgery) Mrs Brook believed this to be a 'normal' post‑operative complication.
(p)Mrs Brook continued to have treatments and investigations for her splenic lesions and her abdominal pain continued (although she reports it improved for a period but then returned). This occurred throughout 2014 and 2015.
(q)Ultimately in July 2015 Mrs Brook had a splenectomy (removal of the spleen) related to her splenic lesions following which her abdominal pain persisted. Her splenic lesions were identified as benign and it was suggested that she consult with the physician who had performed her gastric sleeve.
(r)In February 2016 Mrs Brook was referred to gastroenterologists who formed the view that her abdominal pain may be due to an inflamed gall bladder or bile duct. Mrs Brook had acholecystecotomy (removal of the gall bladder) in May 2016 which improved her upper abdominal pain but not her lower abdominal pain. Around this time Mrs Brook also experienced worsening vaginal pain and bowel issues.
(s)In late 2016 Mrs Brook was made aware of the possibility of mesh complications leading to symptoms similar to her own and the legal action being taken against Johnson & Johnson, manufacturers of mesh products, and specifically, the manufacturer of the Gynamesh product used in the 2012 surgery.
(t)Mrs Brook recognised the similarity between this and her own symptoms and in December 2016 signed up to a class action being taken against Johnson & Johnson, 'the manufacturer of the mesh implant used in my 2012 surgery' (Mrs Brook affidavit at par 67).
(u)Mrs Brook states that she suspected that her ongoing pain may be related to her littoral cell angioma, which in turn, may have been caused by the mesh implant of 2012.
(v)Mrs Brook continued to have ongoing lower abdominal pain and consulted various physicians about this. In early 2017 she was diagnosed with suffering from a further cystocele and also expressed concerns that her littoral cell angioma was related to the mesh implant.
(w)Mrs Brook was advised by Dr Jeffrey that it was not known what caused littoral cell angioma but that her current cystocele would be repaired with a further mesh implant and the existing implants would be removed. Dr Jeffrey advised her that he would use the safe type of mesh, not the problematic ones. Mrs Brook obtained a second opinion from Dr Tsokos who confirmed that the proposed procedure was appropriate. Mrs Brook had the procedure proposed by Dr Jeffrey and experienced an improvement in her vaginal and abdominal pain but was told that it might take a year for her abdominal pain to settle.
(x)Due to her ongoing abdominal pain Mrs Brook saw Dr Angus who was treating women with mesh-related problems. Mrs Brook obtained a referral to Dr Angus and on 2 September 2018 had an initial consultation with him. Dr Angus explained how a mesh implant may cause pelvic pain.
(y)In late 2018 Mrs Brook's treating neurologist noted her diagnosis of littoral cell angioma and referred her to an immunologist for examination. In early 2019 the immunologist explained that littoral cell angioma was a rare disease and could not make any definitive comments about its relationship with autoimmune diseases.
(z)In early 2019 Mrs Brook instructed her solicitors to investigate whether she had a claim in relation her littoral cell angioma in relation to the material used in the mesh product.
(aa)Mrs Brook's solicitors obtained a report from Dr Angus and also a report from Dr Korda identifying the November 2013 surgery as problematic. Mrs Brook did not receive this report until 26 October 2020.
(bb)Dr Korda's report attributes Mrs Brook's pain to the 2013 surgeries performed by Dr Yoong. Dr Korda also considers that Dr Yoong's use of mesh in the rectocele repair of November 2013 was not justified. Dr Korda expresses no view as to Mrs Brook's littoral cell angioma or its relationship to the use of mesh products.
(cc)Mrs Brook states that until she had received Dr Korda's report she was not aware that the 2013 surgeries were the likely cause of her chronic pain.

Determination

Both parties rely on the same authorities and there is little dispute as to the principles to be applied, only their application to the facts of this case.
I also note that the issues of the use of mesh in gynaecological procedures and the application of s 39 and s 55 of the Limitation Act (as well as many of the authorities advanced by the parties) were recently considered by this court in Tompkins v Natalwala [No 2] [2022] WADC 50.
I can do no better than Judge Russell's synopsis of those authorities in Tompkinsv Natalwala [No 2] and to that end, without repeating it here, rely on and adopt what her Honour said in that decision at [12] - [28].
I also note that s 39 of the Limitation Act was considered in Clarke v Natalwala [2022] WASC 261 and have had regard to that authority.
In my view, the issue of whether Mrs Brook had sustained a 'personal injury' (inexhaustively defined by s 3 of the Limitation Act as a 'disease, impairment of a person's physical condition, and mental disability') is common to both applications.
Mrs Brook contends that in essence, although broadly framed, the relevant personal injury is her ongoing chronic abdominal pain she has suffered. In the context of Mrs Brook's evidence I accept this to be so.
To be a personal injury it is not necessary to identify with precision the anatomical or pathological issue. It is sufficient to identify that there is an impairment of a person's physical condition.
Prior to the 2013 surgeries Mrs Brook had some abdominal symptoms however none of these she described as 'pain'. In my view, the chronic abdominal pain Mrs Brook describes after the 2013 surgeries constitutes a personal injury for the purposes of the Limitation Act definition.

Section 55 of the Limitation Act

The effect of s 55 is that time will only start to run under the Limitation Act when the earlier of two alternatives occur:
(a)Mrs Brook became aware that she had sustained a not insignificant personal injury; or
(b)the first symptom, clinical sign or manifestation of personal injury consistent with Mrs Brook having sustained a not insignificant personal injury.
Mrs Brook's evidence was that after the 2013 surgeries she continued to experience chronic abdominal pain. Although some pain was expected post-surgery this was so significant that she continued to have investigations for the source of this pain throughout 2014 and 2015 and into 2016.
In December 2016, when she signed up for the class action related to the use of mesh products, being three years after the 2013 surgeries performed by Dr Yoong, she was continuing to experience abdominal pain.
Section 55 does not require any aspect of causation. It is sufficient that Mrs Brook was aware that she had a 'not insignificant personal injury'.
As addressed by both parties the state of awareness required is for Mrs Brook to have been actually and subjectively aware.
I find that Mrs Brook's actions in seeking ongoing treatment (even having further surgery) for her abdominal pain establishes that she was aware that she had sustained a not insignificant personal injury at least as late as December 2016 when she signed up for the mesh product related class action.
If so, then the latest date by which Mrs Brook would have accrued any cause of action was December 2016, the three year limitation period for which would have expired by the time Mrs Brook lodged her writ in January 2021.
For these reasons Mrs Brook's application for a declaration under s 55 can succeed.

Section 39 of the Limitation Act

Section 39 of the Limitation Act also requires consideration of Mrs Brook's awareness, whether she sustained a personal injury but also requires consideration of the causal connection between the personal injury and the surgeries of 2013.
In order to obtain an extension under s 39 both subsection (3) and (4) must be satisfied.
Section 39(3) provides that:
(3)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 -
(a)was not aware of the physical cause of the death or injury;
(b)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
(c)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.
Section 39(3) is addressed in the negative and requires a lack of actual awareness. Mere suspicion will not suffice. It is adjudged as at the time that limitation period expired.
If these conditions are satisfied s 39(4) provides that the court may extend the limitation period for up to three years from when Mrs Brook:
became aware, or ought to reasonably to have become aware
(a)of the physical cause of the death or injury;
(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).

To enliven the power to extend time under s 39(3) Mrs Brook must prove at least one of the negatives provided for. However, to then determine the point from which any extension of the limitation period should run Mrs Brook must then prove all of the matters in s 39(4). See AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 at [18] - [19].

Dr Yoong's position

Dr Yoong contends that even if it is accepted that by November 2016 (when the limitation period for the second surgery of 2013 expired) the conditions required by s 39(3) of the Limitation Act are satisfied (being that Mrs Brook was not aware of the physical cause of her injury or whether this was attributable to Dr Yoong) then Mrs Brook had that awareness (or ought to have reasonably had that awareness) by December 2016.
Dr Yoong notes that Mrs Brook:
(a)was aware that she had a personal injury, being her chronic abdominal pain. She had sought ongoing treatment for this throughout 2014 and 2015;
(b)had actively associated her symptoms with the mesh products implanted, as evidenced by her taking steps to join the class action in December 2016 and so had an actual awareness of the physical cause of her personal injury; and,
(c)could have been under no confusion as to how any of the mesh products implanted had come to be there or who was responsible for putting them there given that only Dr Yoong had performed the relevant implant surgeries.
Accordingly, Dr Yoong contends that even if Mrs Brook is entitled to an extension of the limitation period then pursuant to s 39(4) this extension could only run from the date that Mrs Brook joined the class action, the effect of which would be that the time Mrs Brook had to bring this action would run until sometime in December 2019.
This would leave the writ lodged out of time.
However, having close regard to the evidence before me I am not persuaded that Dr Yoong's argument can be accepted based on the following facts which I find to be established:
(a)Whilst Mrs Brook had some post-surgical abdominal pain she considered this 'normal' and any ongoing abdominal pain she experienced she attributed to her diagnosis of splenic lesions/littoral cell angioma.
(b)The ongoing investigations in 2014 and 2015 were in relation to this condition, not the use of mesh in the 2013 procedures.
(c)In 2016 the investigations centred on the possibility that her abdominal pain was due to an inflamed gall bladder, not the use of mesh in the 2013 procedures.
(d)Dr Yoong's argument hinges on Mrs Brook's association of her symptoms with the use of mesh implants in her surgeries:
(i)However, Mrs Brook's evidence at par 67 of her affidavit was, 'I registered with Shine lawyers as a group member in a class action against the manufacturer of the mesh implant used in my 2012 surgery, Johnson & Johnson'.
(ii)Read in context I do not understand this to be a statement that Mrs Brook had a concern generally with the use of mesh (at least not at that stage) or that she had an actual subjective awareness of the correlation between mesh and her symptoms.
(iii)Furthermore, although Mrs Brook does not expressly state that her concerns were confined to any particular type of mesh the reference to a Johnson & Johnson product being used in her 2012 surgery suggests that her concerns at that stage were only with the 2012 surgery and the Johnson & Johnson product implanted at that time as opposed to the Boston Scientific products used in the 2013 surgeries.
(e)At this point whilst there is clearly an awareness that Mrs Brook suffered from a personal injury (being her chronic abdominal pain) there is no evidence that Mrs Brook had any actual awareness of the cause of that, despite her suspicions that it may be attributable to the use of mesh, and even then, not the mesh used in the 2013 surgeries performed by Dr Yoong.
(f)It is apparent that even after registering for the class action Mrs Brook remained suspicious that her littoral cell angioma was the cause of much her pain. See, for example, her comments made to Dr Jeffrey in 2017.
For these reasons I do not accept Dr Yoong's argument that Mrs Brook had an actual awareness (or ought to have reasonably been aware) of the cause of her chronic abdominal pain by (at the latest) December 2016.

Mrs Brook's position

Mrs Brook's position is that until she received Dr Korda's report she was not aware that the 2013 surgeries were the likely cause of her chronic pain, not because of the use of any particular brand or type of mesh used but rather due to the use of mesh at all, particularly in the rectocele repair of November 2013.
Mrs Brook contends that at all times prior to this she suspected her chronic pain was caused by littoral cell angioma or, as evidenced by the battery of other procedures she had, other comorbidities. Mrs Brook does not reference having any concerns about the 2013 surgeries until the receipt of Dr Korda's report.
However, it is arguable that Mrs Brook became aware (or ought reasonably to have become aware) of the facts relevant to the criteria under s 39(4) at some earlier point, that being when she consulted Dr Angus in late 2018.
I arrive at the following findings:
(a)By late 2016 Mrs Brook had a general suspicion or concern that her symptoms (including her chronic abdominal pain) may be related to the use of mesh in her 2012 surgery. Although the evidence does not support a conclusion that she attributed her symptoms to the specific surgeries or mesh of 2013 there was at least a general awareness of the correlation between (at least some) mesh products and her condition.
(b)Mrs Brook was concerned that her littoral cell angioma had been caused by the use of mesh. She consulted various physicians in early 2017 about this, including Professor Carey‑Smith who (on 8 March 2017) advised Mrs Brook that she had 'no systemic problems'. It is not clear what that means although whatever it means I infer it does not mean that Professor Carey‑Smith concluded that Mrs Brook's littoral cell angioma was related the use of mesh.
(c)Mrs Brook continued to have abdominal pain and in fact developed a further cystocele.
(d)On 16 March 2017 Mrs Brook saw Dr Jeffrey and again conveyed her concern about a correlation between littoral cell angioma and mesh. Dr Jeffrey did not confirm this correlation rather stating that it was not certain what caused littoral cell angioma.
(e)Dr Jeffrey 'organised surgery to remove existing mesh implants and to implant a different mesh implant'. I infer from this that all previous mesh implants were removed (being those inserted by Dr Yoong in 2012 and 2013). Dr Jeffrey told Mrs Brook that he would use mesh to treat her further cystocele but would use 'the safe type of mesh not the problematic ones'.
(f)Mrs Brook obtained a second opinion from Dr Tsokos who approved of using a different type of mesh to repair the cystocele. In August 2017 Dr Jeffrey removed the previous implants and repaired the cystocele using a new mesh implant.
(g)By this stage Mrs Brook must have been aware that there were different types of mesh.
(h)Mrs Brook had 'some' improvement of her abdominal pain however, by mid-2018 she was continuing to experience abdominal pain and she obtained a referral from her general practitioner to see Dr Angus who she states 'was treating women with mesh related problems'.
(i)Mrs Brook does not detail whether she was concerned with any particular type of mesh at this stage but rather generally references that Dr Angus was treating women with 'mesh related problems'. I further note that at that stage:
(i)the only mesh implant she had was that put there by Dr Jeffrey, all others having been removed;
(ii)Mrs Brook was aware that there were different types of mesh implants; and
(iii)that (although specifically in relation to the Gynamesh used in the 2012 procedure, now removed from her) she was at least conscious of a possible a correlation between her symptoms (such as 'lower abdominal pain') and the use of such a product;
(iv)Mrs Brook had especially sought a referral to Dr Angus 'as I had ongoing abdominal pain'; and
(v)despite investigations and the opinion of Dr Jeffrey no correlation between mesh and littoral cell angioma had been confirmed or even suggested by a physician.
(j)On 2 September 2018 Mrs Brook states that Dr Angus 'explained to me the mechanism of how mesh implant may cause pelvic pain'.
Mrs Brook's statement of claim pleads that she suffers from 'abdominal pain, pelvic pain and buttock pain'. However, during argument it was accepted that no specific injury per se was pleaded and that the relevant personal injury could be described as 'chronic abdominal pain'.
I note that Dr Korda's report references a history of abdominal and pelvic pain however, he too, rather than suggest any specific injury references that Mrs Brook as suffering from 'chronic mesh related pain syndrome'.
Mrs Brook saw Dr Angus for ongoing abdominal pain. Although Mrs Brook states Dr Angus described how mesh could cause 'pelvic' pain I infer generally that such pain is within the range of symptoms experienced by Mrs Brook, notwithstanding that she references the abdomen.
Accordingly, set against this background it seems that at that point Mrs Brook had a specialist medical explanation as to the cause of her pain and that Mrs Brook either was aware or ought reasonably to have been aware of the cause of her personal injury.
However, such a conclusion, despite being open on the evidence, satisfies only one of the criteria of s 39(4). In order to crystalise the date from which any extension may commence all of those criteria must be satisfied.
Mrs Brook was not called to give evidence and was not cross‑examined. The evidence is confined to her affidavit. It was not challenged.
There is no evidence that at that stage Mrs Brook was aware that her injury was attributable to the conduct of any particular person. Although it seems that if Mrs Brook was aware (or ought to have reasonably been aware) of the cause of her injury (the use of mesh) there is no evidence that she attributed this to either Dr Yoong or Dr Jeffrey, being the only two physicians that had used mesh implants in her surgeries.
Whilst it is easy to identify the possible candidates to whom her pain may be attributable Mrs Brook's evidence is silent on this point.
Furthermore, even after having the link between pain and mesh generally explained to her by Dr Angus Mrs Brook's evidence is that she continued to consider her pain was caused by littoral cell angioma as she continued to have investigations into this and the reason for approaching her solicitors was to investigate the possibility of whether she had any remedy in relation to this condition.
In my view, the evidence establishes (and I find as fact) that it was not until the receipt of Dr Korda's report that Mrs Brook had any actual subjective awareness that her pain was caused by the mesh used in the 2013 surgeries and moreover, that the use of mesh in the November 2013 surgery was not (at least in Dr Korda's view) appropriate.
Despite having seen a battery of physicians no physician prior to Dr Korda had informed her of this. There is no evidence that Mrs Brook expressed any concern about Dr Yoong's surgeries prior to this point.
Whether Mrs Brook will ultimately succeed is a matter for trial. However, I agree with Mrs Brook that she was not actually aware of all of the facts to be satisfied under s 39(4) until the receipt of Dr Korda's report on 26 October 2020. Accordingly, that is the point from which the extension of time ought be granted.

Section 44 of the Limitation Act

In deciding an extension application I am to have regard to s 44 of the Limitation Act.
Dr Yoong did not address me on the impact of s 44 or whether she would be prejudiced if leave were granted and I have no evidence as to whether the delay in commencing the proposed action would unacceptably diminish the prospect of a fair trial of the action.
Whilst I have had regard to this caveat in the exercise of whether leave ought be granted I can form no view one way or the other in the absence of either evidence or objection.
Accordingly in my opinion, an extension of time is appropriate.

Conclusion

In my view, Mrs Brook ought be granted an extension of time to commence the action from 26 October 2020.
Neither party suggested that any period less than three years ought be granted and so I consider that the three year maximum allowed for by s 39(4) is the appropriate length of any extension to be granted.
The effect of this extension is that the action lodged is within time.
However, if I am wrong in this and Mrs Brook either was aware (or ought to have reasonably been aware) of the facts required by s 39(4) at the earlier time of receiving Dr Angus' opinions then the writ would nevertheless be lodged within the three year extension to have been granted from 2 September 2018.
The matter of costs was raised with both parties. As Mrs Brook has succeeded it seems likely that the action will proceed and further case management (and ultimately a trial) will occur.
In that situation, the appropriate order as to costs are that the costs of the application for leave to extend the limitation period be in the cause and they can be determined as and when this matter is concluded.
The parties agreed this was the appropriate disposition as to costs should Mrs Brook succeed, as she has.

Orders

The time by which Mrs Brook have to commence this action be extended to three years from 26 October 2020.
The costs of the application to extend the time to commence this action be in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TS
Court Officer
31 MARCH 2023