Clarke v Natalwala - [2022] WASC 261

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CLARKE -v- NATALWALA [2022] WASC 261
CORAM:   MASTER SANDERSON
HEARD:   25 MAY 2022
DELIVERED          :   15 AUGUST 2022
PUBLISHED           :   15 AUGUST 2022
FILE NO/S:   CIV 2054 of 2021
BETWEEN:   SHANI CLARKE
Plaintiff
AND
JAY NATALWALA
First Defendant
VINCE CHAPPLE
Second Defendant
JOONDALUP HOSPITAL PTY LIMITED
Third Defendant

Catchwords:

Practice & procedure - Application to extend time to bring proceedings for personal injury caused by surgery - Turns on own facts

Legislation:

Limitation Act 2005 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	R D McCabe
First Defendant	:	H Cormann
Second Defendant	:	H Cormann
Third Defendant	:	J A Earl

Solicitors:

Plaintiff	:	AJB Stevens Lawyers
First Defendant	:	Avant Law
Second Defendant	:	Panetta McGrath Lawyers
Third Defendant	:	Minter Ellison

Case referred to in decision:

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63

MASTER SANDERSON:

This was the plaintiff's application for an extension of time to commence proceedings against the defendants for breach of contract and/or negligence arising out of treatment she received for what might broadly be termed urinary incontinence. The application is supported by an affidavit of the plaintiff sworn 14 September 2021. Appearing as attachment 'SC1' to that affidavit is a draft statement of claim. The summary of the relevant background facts is taken from the draft statement of claim.
Both the first and second defendants are specialist obstetricians and gynaecologists. On 21 September 2010 and 14 December 2010, the plaintiff consulted the first defendant as a private patient for urinary incontinence. The first defendant provided to the plaintiff certain advice as to the treatment she should undergo. That treatment included surgery. On 10 May 2011, the plaintiff consulted the second defendant also as a private patient for the same complaint. Essentially, he provided the same advice including the advice she should have surgery.
On 8 June 2011, the plaintiff underwent surgery described as 'Anterior Repair' with mesh, 'Posterior Repair, TVT-O and Cystoscopy'. The surgery was performed by the second defendant at the premises of the third defendant. The plaintiff was admitted as a public patient of the third defendant.
After the surgery the plaintiff consulted the second defendant on two further occasions - 8 August 2011 and 27 September 2011. She also consulted her general practitioner and various other specialists. She had a variety of complaints including abdominal pain, groin pain, buttocks pain, hip pain, vaginal pain, pain in the backs of her legs, recurrent urinary tract infections and urinary incontinence worse than before the implant surgery. She had a variety of other complaints including mesh protrusion. The mesh implants were a form of treatment in relation to incontinence and other symptoms used on a number of women including the plaintiff.
Based upon the material facts pleaded in the statement of claim, the plaintiff says she has three causes of action. The first is what is generally known as a 'failure to warn' case. The plaintiff alleges she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clarke v Natalwala

Details

AGLC: Clarke v Natalwala [2022] WASC 261
Case: [2022] WASC 261
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, Shani Clarke, brought an application for an extension of time to bring proceedings against the defendants for breach of contract and/or negligence arising from treatment she received for urinary incontinence. The first and second defendants are specialist obstetricians and gynaecologists who recommended surgery for the plaintiff's condition. The plaintiff underwent surgery on 8 June 2011 at the premises of the third defendant, Joondalup Hospital Pty Limited, where she was admitted as a public patient. After the surgery, the plaintiff experienced a variety of complaints, including abdominal pain, groin pain, and recurrent urinary tract infections.

The legal issues the court had to decide involved whether the plaintiff was aware of the physical cause of her injury and, if not, when she ought to have become aware of it. The relevant sections of the Limitation Act 2005 (WA) are s 39(3) and s 39(4), which provide for the extension of time in certain circumstances. The leading authority in this area is the decision of the Court of Appeal in AME Hospitals Pty Ltd v Dixon [2015] WASCA 63.

The court found that the plaintiff was not aware of the physical cause of her injury when the limitation period expired, as she did not realise her ongoing problems were attributable to the surgery performed by the second defendant. The court further found that the plaintiff should not have reasonably become aware of the cause of her injury until she received an expert report in December 2020. As a result, the court granted the application and extended the time for the plaintiff to commence proceedings until 9 December 2023. The parties were directed to attempt to agree on a minute of orders, and the court invited any submissions on the issue of costs within 7 days of the publication of these reasons.

Orders