Clarke v Natalwala

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.