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 was not told about the insertion of mesh during the surgical procedure and she did not give her informed consent to its use. Second, she says the treatment she received was unnecessary. Based upon expert medical opinion, she says she could have and should have been treated conservatively without surgery. She alleges the surgery and its effects were unnecessary. Thirdly, she says when the surgery was undertaken, it was undertaken negligently. The last of these three allegations is made only against the second defendant. So far as the third defendant is concerned, if it is liable, it would be liable vicariously. If time to bring proceedings against the second defendant was not extended, then no order could be made against the third defendant. Conversely, if an order is made in relation to the second defendant, time must be extended in relation to the third defendant. That being the case, counsel for the third defendant did no more than confirm the third defendant supported the submissions made on behalf of the second defendant.
The Limitation Act2005 (WA) provides for a limitation period of 3 years. Clearly, absent leave, the time for commencing proceedings has long since expired. The Act provides that a court may extend time in certain circumstances. The relevant sections are s 39(3) and s 39(4). They read as follows:
(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.
(4)On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought 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).
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 was constituted by McLure P and Buss and Newnes JJA. McLure P and Buss JA provided separate detailed reasons. Newnes JA agreed with McLure P. Both judges undertook a very careful textual analysis of the two subsections. Their reasons differed only slightly.
McLure P listed a number of matters which her Honour saw as relevant to what is meant by 'physical cause'. Her Honour said the concept of causation as an element of a cause of action for damages for personal injury is directed at the causal connection between the defendant's negligent act or omission and the personal injury the subject of the claim, but the 'physical' cause of injury in s 39 is the different and logical first question of 'what, not whom': see pars [27] - [28]. There may be multiple successive or concurrent physical causes of a single injury and it may be in some cases that the last or penultimate physical causes are in substance an 'effect' for the purposes of s 39(3) and (4): see par [29].
A causal connection in fact (as distinct from causation in law) will satisfy the requirement that the injury is attributable to a person's conduct: see par [33].
The natural and ordinary meaning of the word 'aware' is cognisant or informed of. Awareness can result from information provided by a third party. In s 39(3), it is actual awareness that is required, not constructive awareness: see par [34]. What constitutes actual awareness will depend on the nature of the fact or matter in issue. Awareness of the physical cause of an injury could be a matter of inference, from primary facts, that requires expert knowledge or experience. That a person may have been aware of some or all of the primary facts cannot satisfy the actual awareness requirement: see par [36].
It is worth pausing at this point to note the different approaches taken in each of the subsections and the way in which they work together. This application focused on subsection 3(a). It is a subjective test. The question is whether the plaintiff at the time the cause of action accrued was herself aware of the physical cause of injury. The question is not should she have been aware of the physical cause of the injury - but rather was she actually aware of the physical cause of injury.
By reference to the plaintiff's affidavit, that question is relatively easy to answer. I should note no application was made to cross-examine the plaintiff and therefore her evidence must be accepted. (Of course, if any of the evidence was inherently incredible, it could be rejected even without cross-examination. But that is not this case.) The plaintiff begins by outlining her medical history. She had a hysterectomy in 1992. In 1999, she had a motorbike accident in which she broke her left arm and crushed her right foot. She was unable to work for about seven years. She had multiple surgeries. It was clearly a serious accident which left her with ongoing problems. She had a number of other health issues including frequent urinary tract infections.
In about 2005, she developed intermittent urinary incontinence. This condition progressively deteriorated and that led to her consultation with the first defendant. She subsequently saw the second defendant and as I have indicated in the summary of the facts, both doctors recommended surgery and that surgery took place in June 2011. So the question then is whether as at June 2014, the plaintiff was aware of the physical cause of her injury was attributable to the conduct of a person.
In pars 31 through to 52 of her affidavit, the plaintiff details her ongoing problems and the treatment she received from the second defendant. She also consulted her general practitioner, Dr Hernaman but apart from providing her with advice from time to time and referring her to the second defendant, Dr Hernaman did not provide any ongoing treatment.
It is not necessary to detail with precision the treatment the plaintiff received from the second defendant up until June 2013. It is sufficient if I say that her condition did not improve or at least it did not improve significantly. It was not until September 2011 at a consultation with Dr Hernaman, the plaintiff became aware that during the course of surgery a tape was used to 'lift up the bladder and bowel'. At a consultation with the second defendant in September 2011, the second defendant trimmed the exposed tape and reassured the plaintiff her condition should improve. At that same consultation, the second defendant advised the plaintiff there was a prospect that her abdominal pain might be due to ovarian cysts. The plaintiff had surgery performed by Dr Panos Maouris in December 2011 at which time she was told she had scarring in her vagina. Despite that surgery, the plaintiff continued to have abdominal pain and groin pain and a frequent urge to urinate.
The evidence of the plaintiff makes it clear as at June 2013, she did not appreciate her ongoing symptom were attributable to either the first or the second defendant. She was aware she had surgery and that it had been performed by the second defendant. But it is clear from her evidence she thought the ongoing problems might be due to ovarian cysts or some other cause. There is nothing at all in the evidence which could lead to a conclusion she was aware her ongoing problems related to the surgery performed by the second defendant. Accordingly, the discretion provided in subrule (3) is enlivened.
The enquiry under subrule (4) as this case was argued was really when the plaintiff 'ought reasonably to have become aware' her injury was attributable to the conduct of the first and second defendants. On behalf of the first and second defendants, it was put that the evidence disclosed the plaintiff actually became aware in 2017. If that were the case, then leave would be refused. It was the plaintiff's position she did not actually become aware her problems resulted from the surgery until the provision of an expert report in December 2020. Accepting that to be the case, it is for the first and second defendants to establish the plaintiff ought to have been aware her problems related to the surgery.
The first and second defendants put their position this way. The court must determine on the evidence when the plaintiff should have had an awareness by virtue of reasonable steps that she should have taken even if she did not take those steps. The issue is whether the plaintiff should have reached a state of awareness both a physical cause of the injury and the identification of one or more of the defendants as the source of the harm. It is the first and second defendants' position it is necessary to determine when the plaintiff should have determined a particular person was responsible for her injury. For instance, the step of instructing a solicitor will often be sufficient to indicate a prospective plaintiff was aware she had a claim and against whom that claim could be made.
It is the plaintiff's evidence that in December 2017, quite by chance she had a conversation with a woman who suggested to the plaintiff mesh may have been used in the surgery. This particular person alerted the plaintiff to a WA mesh Facebook group and advised her there was a mesh clinic at King Edward Memorial Hospital. The plaintiff joined the WA mesh Facebook group and on the recommendation of a member of that group, obtained her records from the Joondalup Health Campus. That was not the first time the plaintiff became aware mesh had been used in her surgery, but it was the first time there was a suggestion the mesh may have been causing the plaintiff's problems. That was December 2017.
Armed with the medical records and prompted by the Facebook group, the plaintiff contacted her present lawyers in about January 2018. In that same month the plaintiff consulted Dr Peter Hernaman and asked whether the symptoms could have been caused by mesh. According to the plaintiff, Dr Hernaman said words to the effect:
I don't think mesh is causing you your problems.
The plaintiff was referred to King Edward Memorial Hospital and on 12 February 2018, she was examined by the Hospital's urogynecological team. On 7 May 2018, the plaintiff attended King Edward Memorial Hospital and saw Dr Todd Ladanchuk. He was one of the doctors who had assisted in the mesh implant operation in June 2011. Dr Ladanchuk told the plaintiff that a 5mm portion of mesh could be seen in her vagina. He undertook further examination but, according to the plaintiff, Dr Ladanchuk never advised her that her pain and urinary tract infections symptoms were related to the mesh. The plaintiff underwent an ultrasound examination on or about 11 September 2018. The ultrasound probe resulted in pain in certain areas. The plaintiff says she understood as a consequence of this examination the effect of the mesh was limited to causing left groin and right buttock pain. Thereafter she continued to attend King Edward Memorial Hospital and received multidisciplinary treatment including gyneacology, counselling, physiotherapy treatment and obtained specialist consultations.
It is relevant at this point to ask what a reasonable person in the plaintiff's position would have concluded about who, if anyone, was responsible for her condition. She was aware she had surgery. It also seems clear her condition had deteriorated after the surgery. That said, her condition deteriorated between 2005 and 2010. That was why she consulted the first and second defendants. No medical practitioner had told her as at 2017 her condition was a consequence of the surgery. Perhaps from time to time she speculated about the consequences of the surgery. But there is no evidence to that effect, and even if it were the case, it was nothing more than speculation. Counsel for the first and second defendants focused particularly on the date the plaintiff attended the mesh clinic. Effectively, she equated attendance at the mesh clinic with a reasonable person concluding the operation which inserted the mesh was responsible for the plaintiff's condition. In my view, that connection is not made out.
The position can be looked at in this way. When the plaintiff attended the mesh clinic and when she was being treated throughout 2018, she might reasonably have asked herself whether it was the operation in 2010 which caused the problem. I am not satisfied that a reasonable person, on the evidence available to the plaintiff, would have concluded the surgery was the root cause of the problem. There could have been a gradual deterioration in her condition occasioned by past problems. She might well have concluded that the process of aging, coupled with pre-existing problems, was contributing to her pain. I am not satisfied a reasonable person would have concluded the problem lay with the surgery and in particular the use of mesh.
It is the plaintiff's position that the position became clear to her when she received the expert report of Dr Andrew Korda on 9 December 2020. Thereafter, given the contents of the report, she could have been in no doubt as to the cause of the difficulty. Accordingly, I am satisfied that the time within which to commence proceedings ought be extended until 9 December 2023.
On publication of these reasons, the parties should attempt to agree a minute of orders. My initial view is that costs should be in the cause of any proceedings issued by the plaintiff. However, if any party wishes to make submissions on the issue of costs, they should do so within 7 days.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AH
Associate to Master Sanderson
15 AUGUST 2022