LTP v Natalwala - [2023] WASC 414

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LTP -v- NATALWALA [2023] WASC 414
CORAM:   TOTTLE J
HEARD:   20 SEPTEMBER 2023
DELIVERED          :   31 OCTOBER 2023
FILE NO/S:   CIV 1424 of 2022
BETWEEN:   LTP
Plaintiff
AND
JAY NATALWALA
Defendant

Catchwords:

Limitation periods - Personal injury - Medical negligence - Application for extension of time within which to commence proceedings for damages for personal injuries pursuant to s 39 of the Limitation Act 2005 (WA) - Where causes of action in respect of surgical procedures undertaken in 2011 and 2013 - Whether limitation period in respect of 2011 cause of action should be extended - Limitation period extended - Accrual of cause of action in negligence where surgical procedure undertaken when contraindicated by plaintiff's condition - Where expert medical knowledge required to determine that symptoms are the manifestation of a not insignificant personal injury - Whether limitation period in respect of 2013 cause of action has expired - Limitation period in respect of 2013 cause of action not expired - Turns on own facts

Practice and procedure - Principle of open justice - Evidence discloses details of plaintiff's medical history - Balancing considerations of open justice and preservation of the confidentiality of the plaintiff's medical history - No public interest in disclosure of plaintiff's identify - Suppression of plaintiff's name

Legislation:

Limitation Act 2005 (WA), s 3(1), s 14(1), s 39(3), s 39(4), s 44, s 55(1), s 79(1), s 79(3)

Result:

Application successful in respect of 2011 cause of action
Time within which to commence proceedings in respect of 2011 cause of action extended

Category: B

Representation:

Counsel:

Plaintiff	:	R D McCabe
Defendant	:	H Cormann

Solicitors:

Plaintiff	:	AJB Stevens Lawyers
Defendant	:	Avant Law

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

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139
Mullaley v Western Australia [2020] FCA 13
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

TOTTLE J:

Introduction

The plaintiff has applied for an extension of time within which to bring an action for damages for personal injuries against the defendant, a consultant obstetrician and gynaecologist. The plaintiff alleges that while treating her for conditions related to pelvic organ prolapse the defendant breached his common law and contractual duties of care. Relevantly, the plaintiff wishes to sue in respect of a procedure performed and treatment administered in 2011 (the 2011 cause of action) and in respect of a procedure performed in 2013 (the 2013 cause of action).
The application is brought by an originating motion filed on 2 May 2022 and is made pursuant to s 39 of the Limitation Act 2005 (WA). In summary, the critical issues are:
(a)When did each cause of action accrue? As explained later, in respect of the 2013 cause of action, this question involves considering whether the plaintiff suffered a not insignificant injury when the defendant recommended and…

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.

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Details

Case: [2023] WASC 414
Decision Date: 31 OCTOBER 2023

CaseChat Overview and Summary

The case of LTP v Natalwala involved a claim by the plaintiff for damages arising from alleged medical negligence in the form of two separate surgical procedures performed by the defendant in 2011 and 2013. The plaintiff sought an extension of the limitation period to commence proceedings for these injuries under section 39 of the Limitation Act 2005 (WA). The Supreme Court of Western Australia was tasked with determining whether the limitation period for the 2011 cause of action should be extended and whether the limitation period for the 2013 cause of action had expired.

The court had to decide whether the limitation period for the 2011 cause of action should be extended, given that the plaintiff's symptoms were not immediately apparent and required expert medical knowledge to be identified as a manifestation of a significant personal injury. Additionally, the court needed to determine whether the limitation period for the 2013 cause of action had expired, considering the plaintiff's condition at the time of the procedure. The court also had to balance the principle of open justice against the need to protect the plaintiff's medical confidentiality, particularly in light of the plaintiff's request for anonymity.

The court found that the limitation period for the 2011 cause of action should be extended, as the plaintiff's symptoms were not immediately apparent and required expert medical knowledge to be identified as a manifestation of a significant personal injury. In relation to the 2013 cause of action, the court determined that the limitation period had not expired, as the surgical procedure was contraindicated by the plaintiff's condition at the time of the procedure. The court further found that there was no public interest in disclosing the plaintiff's identity and ordered that the plaintiff's name be suppressed.

Orders