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 undertook a procedure that the plaintiff alleges was contraindicated by her condition and, which not only failed to improve her condition, but resulted in the suffering of further symptoms.
(b)If the limitation period in respect of the causes of action has expired:
(i)When did the plaintiff become aware of the physical causes of her injury?
(ii)When did the plaintiff become aware her injury was attributable to the defendant's conduct?
It is well established that it is undesirable for limitation questions that depend upon contested factual issues to be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases.[1] The plaintiff has not commenced an action for damages. This application is made in anticipation that an action will be commenced and that the defendant will raise limitation defences. The determination of this application does involve factual issues, for example, what is the physical cause of the plaintiff's injuries? In bringing this application before commencing proceedings, as opposed to commencing proceedings and bringing the application within those proceedings, the plaintiff has followed the approach adopted in AME Hospitals Pty Ltd v Dixon,[2] the leading authority on s 39 of the Limitation Act. The approach was not the subject of any criticism in AME Hospitals Pty Ltd v Dixon but it may be observed that determining factual issues, the ambit of which are not easily confined, in advance of hearing all the evidence is not without its difficulties.
[1] Mullaley v Western Australia [2020] FCA 13 [10] (Colvin J) citing Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 (Mason CJ, Dawson, Gaudron & McHugh JJ).
[2] AME Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139.
The plaintiff has adduced expert evidence to establish the physical cause of her injuries and that the injuries were attributable to the defendant's conduct. The defendant has not challenged the opinions that are the subject of the plaintiff's expert evidence but has resisted the application on other grounds.
At the hearing, it was common ground between the parties that the limitation periods in respect of the causes of action have expired. When considering the issues after reserving judgment, I formed the provisional view that the limitation period in respect of the 2013 cause of action had not expired and the parties were provided with the opportunity to file written submissions addressing the propositions on which that provisional view was founded. Both parties filed and served supplementary submissions.[3]
[3] Plaintiff's supplementary submissions filed 19 October 2023; defendant's submissions filed 20 October 2023.
For the reasons developed below:
(a)I will grant the application in relation to the 2011 cause of action.
(b)I will dismiss the application in respect of the 2013 cause of action on the ground that the limitation period had not expired.
These reasons discuss the plaintiff's medical history in detail. Ordinarily, a patient's medical history is treated as strictly confidential. This is one of the ways in which the dignity of those who undergo medical treatment is preserved. Collateral damage in the form of the embarrassment and emotional and psychological distress resulting from the exposure of a person's medical history to public scrutiny may discourage a prospective plaintiff with an arguable claim from bringing an application such as this. When applying the principle of open justice there is a balance to be struck between the public interest in administering justice openly on the one hand and ensuring that the principle is not applied in a manner that operates as a barrier to access to justice on the other. In my judgment, the balance is to be achieved by making an order suppressing the publication of the plaintiff's name.
The plaintiff's identity is not essential to an understanding of these reasons and suppressing publication of her name preserves her privacy to the extent presently possible. These observations are made in the context of the present application for an extension of limitation periods. Different considerations may apply at later stages of the litigation process.

The evidence

The plaintiff's application was supported by two affidavits sworn by her on 29 April and 14 October 2022 respectively. The plaintiff's first affidavit set out her relevant medical history, the treatment she received from the defendant and other medical practitioners. The plaintiff attached to her first affidavit a report dated 30 April 2021 that her solicitors obtained from Professor Mike O'Connor, a consultant obstetrician and gynaecologist, in which he expressed opinions critical of the defendant's surgical technique and of the defendant's recommendation that the plaintiff have surgery in January 2013 for the insertion of a suprapubic transvaginal tape (a TVT).
The plaintiff did not, however, mention in her first affidavit that a surgeon, Dr Dionysios Veronikis, who had operated on her in June 2018 to remove the devices implanted by the defendant, had expressed views that were critical of the surgery undertaken by the defendant. The purpose of the plaintiff's second affidavit was to explain why she had not mentioned Dr Veronikis' critical comments in her earlier affidavit.
In her second affidavit the plaintiff referred to the opinions of two other medical practitioners about the treatment she had received. The plaintiff waived privilege in certain communications with her solicitors and attached emails she had exchanged with her solicitors as well as deposing to the content of conversations she had with them. In the second affidavit the plaintiff did not, however, mention a further report that had been obtained by her solicitors from a third medical practitioner, a Dr Marc Russo. Dr Russo's report was disclosed to the defendant's solicitors shortly before the hearing of the present application and a copy of it was attached to an affidavit affirmed by one of the defendant's solicitors.[4]
[4] Affidavit of Tessa Flynn affirmed 18 September 2023.
In addition to her own affidavits the plaintiff relied on an affidavit sworn by one of her solicitors that attached various medical records.[5]
[5] Affidavit of Qiming Zhou sworn 1 February 2023.
The plaintiff was cross‑examined on those aspects of her evidence most directly relevant to the critical issues.
Quite understandably, when the plaintiff was being cross‑examined, she was nervous. She seemed to find it difficult to follow some of the propositions being put to her even though they were straightforward.[6] That said, the plaintiff's evidence of her medical history and the treatment she received from the defendant and other medical practitioners was generally consistent with the medical records. It was not controversial, and I accept it. As I will explain below there were aspects of the plaintiff's evidence I do not accept.
[6] ts 59 - 63.
The defendant relied on three affidavits affirmed by his solicitors. In addition to the affidavit attaching Dr Russo's report, there were two further affidavits attaching medical records.[7]
[7] Affidavit of Morag Donaldson Smith affirmed 21 September 2022; affidavit of Morag Donaldson Smith affirmed 11 January 2023.

The background

The plaintiff was born in 1976 in England. She is the mother of two children born in 1993 and 1997. In about 1999 the plaintiff felt the presence of a bulge in her vagina. The bulge got progressively larger over the years. The plaintiff moved to Australia. In 2011 she consulted her general medical practitioner. He diagnosed a uterine prolapse, ordered a scan of her pelvis and referred her to the defendant.
On 21 March 2011, the plaintiff consulted the defendant. She described her symptoms and asked about the possibility of obtaining a hysterectomy. The defendant examined the plaintiff. Following the examination, the defendant said the prolapse was large for the plaintiff's age. He advised against a hysterectomy because the plaintiff was 'too young'. The defendant said that the plaintiff had 'especially weak connective tissues'. The defendant recommended using 'a natural product derived from pig' (a porcine biomesh) to repair the prolapse.
On 18 August 2011, the defendant operated on the plaintiff and undertook 'an anterior and posterior vaginal mesh repair and sacrospinous fixation'. Immediately after the operation the plaintiff began to experience nausea and pain in her lower back, left buttock, and groin. The plaintiff described the pain as radiating from her left buttock down her groin and down her legs to her ankles. She was unable to stand or walk due to the pain. She was given heat packs and strong pain killers (including morphine) to ease the pain. The plaintiff said she was unable to empty her bladder properly.
The plaintiff was discharged on 21 August 2011. She continued to experience the pain in her lower back, left buttock, groin and down her legs. The plaintiff experienced constipation, the need to urinate frequently, a burning pain on urinating, heavy vaginal bleeding, and urinary incontinence.
The plaintiff was reviewed by the defendant on 30 August 2011 and was prescribed Tramadol and medication for a urinary tract infection. The plaintiff continued to experience the same level of pain and was reviewed by the defendant again on 5 September 2011. On that review the defendant advised the plaintiff that 'the suture may be too tight and may need to be loosened'. This was a reference to the suture used in the sacrospinous fixation. The plaintiff's Tramadol prescription was renewed and she was reviewed by the defendant again on 12 September 2011.
At the 12 September 2011 review the defendant advised the plaintiff that the suture needed to be released and that the pain she was experiencing was likely to reduce. On 14 September 2011 the defendant operated on the plaintiff and removed the sacrospinous fixation suture on the left side. Referring to the operation in a letter to the plaintiff's general practitioner sent on 8 November 2011, the defendant said:[8]
[The plaintiff] has made a good recovery from her second operation. You may remember that she had a mesh repair and she had a lot of pain with the sacrospinous stitch on the left side, which I went back to remove.
Pain wise she is much better, she had a twinge every now and then but her main complaint at this stage seems to be heavy irregular bleeding as well as stress incontinence.
[8] Affidavit of Morag Donaldson Smith affirmed 21 September 2022, 'Attachment MDS1', 11.
After the operation on 14 September 2011 the plaintiff continued to experience pain of the nature experienced before that operation but the level of pain reduced. The plaintiff assumed that her pain symptoms would improve over time. She did not think that her ongoing pain could be related to the sutures.
The plaintiff continued to experience heavy menstrual bleeding and urinary problems. She consulted the defendant again on 8 November 2011. The defendant examined the plaintiff and advised that her uterus was descending but the front and back vaginal walls were well supported. The defendant recommended a dilation and curettage procedure, urodynamic testing, the insertion of a Mirena birth control device to help control the plaintiff's menstrual bleeding and the insertion of a mid‑urethral sling (a TVT-O sling).
In response to the plaintiff's complaints about ongoing pelvic pain the defendant advised the plaintiff that she had weak connective tissue. The plaintiff says the defendant said words to the effect, 'your tissue is like butter, it is very difficult for me to get anything to hold'. Relying on that advice the plaintiff believed that the state of her tissue was the reason why she was experiencing pain and why she needed further surgery.
The plaintiff underwent the urodynamic testing on 23 November 2011. The testing revealed a stable bladder with urodynamic stress incontinence.
On 29 November 2011, the defendant operated on the plaintiff and inserted a Mirena device and a TVT-O mid-urethral sling. Following the operation the plaintiff experienced an exacerbation of pain in her lower back, left buttock and groin. She also experienced pain in her thighs, particularly her left thigh, that radiated to the outer side of the thigh and down the leg. The plaintiff was given pain relief. She was discharged on 30 November 2011.
After being discharged the plaintiff noticed a lump in her vagina that seemed to be of the same nature as the lump or bulge that she had before the operation on 18 August 2011. The plaintiff was concerned that the prolapse had returned. The plaintiff experienced a stabbing pain on walking. She returned to see the defendant in December 2011 or January 2012. The defendant examined the plaintiff and told her that the Mirena device had 'dropped' and he removed it. The plaintiff continued to experience pain in her pelvic area and pain radiating down her leg but the level of pain improved over time.
On 17 January 2012, the defendant reviewed the plaintiff. The defendant advised the plaintiff that she had a recurrence of the prolapse, would need a hysterectomy and further surgery for the prolapse and to see him again in six months. The defendant explained that the plaintiff needed a break from surgery.
The plaintiff continued to experience pain and the symptoms of the prolapse. On 14 May 2012, she was reviewed by the defendant and at that review the defendant arranged for the plaintiff to undergo the further surgery he had recommended previously.
On 17 August 2012, the defendant performed a hysterectomy and laparoscopic sacrocolpopexy inserting a InterPro Y sling into the plaintiff's anterior and posterior vagina and sacrum.
Following the operation on 17 August 2012 the plaintiff experienced an exacerbation of back and hip pain radiating via her groin down her legs. She believed this to be normal post‑operative pain. The plaintiff also experienced chest pain and pain in her left shoulder which subsided.
On 21 November 2012, the plaintiff underwent a further urodynamic study following which she was reviewed by the defendant. The defendant recommended the plaintiff have further surgery 'for [her] prolapse and incontinence'.
On 18 January 2013, the defendant operated on the plaintiff and inserted the TVT (the suprapubic transvaginal tape to which reference was made earlier). Following this operation the plaintiff experienced an exacerbation of the pain in her groin and started to feel pain above her pubic bone (suprapubic pain). The plaintiff thought that the pain she was experiencing was part of the recovery process.
On 2 April 2013, the plaintiff was reviewed by the defendant. The defendant advised that she had weak connective tissues, her work (in childcare) was making her pain worse, and to avoid heavy lifting. The defendant said, 'I am trying everything possible'. The plaintiff was happy with the result of the surgery and believed that the surgeries had put her in 'the best state' that she could have been in though the plaintiff continued to experience pain in the buttock and groin.
On 19 August 2013, the defendant reviewed the plaintiff on referral from her general practitioner whom she had consulted about ongoing pelvic discomfort. His advice to the plaintiff was to the effect that she had an underlying connective tissue problem. The defendant referred the plaintiff to Dr Nicolas Tsokos, a consultant obstetrician, gynaecologist and urogynaecologist for a second opinion. In the referral letter to Dr Tsokos dated 19 August 2013 the defendant set out the details of the implant surgery he had undertaken and said:[9]
At this stage her main complaint seems to be suprapubic pain and a possible prolapse recurrence.
[9] Affidavit of Morag Smith 21 September 2022, 'Attachment MDS1', 18.
The plaintiff consulted Dr Tsokos on 29 October 2013. He advised her that she had an underlying connective tissue problem, to not have further surgery and to undertake physiotherapy. He told her that where she had 'tape' her pelvic organs were well supported and that the prolapse occurred where there was no 'tape'. Ultimately, the plaintiff did not undertake physiotherapy because she broke her ankle in November 2013.
The plaintiff continued to experience pain in her lower back, buttock, groin and legs. She experienced sharp pain when she walked. The plaintiff's general practitioner arranged for investigations to be undertaken to establish whether the pain she was experiencing could be caused by degeneration of her back and bursitis in her hip. Following those investigations, the plaintiff underwent surgery on her hip on 3 June 2016 after which she experienced some relief from her pain for a month but the pain returned.

In November 2017, the plaintiff consulted her general practitioner about her pain and was prescribed medication.
In early 2018 the plaintiff began investigating the possibility that the symptoms she was experiencing were due to the mesh implants. In her first affidavit she explained:[10]
[10] Affidavit of LTP sworn 29 April 2022 [82] - [84], [86] - [87], [92] - [97].
82.In about 2018, my husband [redacted] read an article on the BBC website about complications some people had from the mesh used in surgeries. He told me that there were some problems with the material and some of the complications these people experienced were similar to what I was having.
83.As I was unsure of the type of medical implant used in my surgeries, [redacted] sent an email to the hospital and obtained the names of the mesh implants.
84.On 30 January 2018, I consulted with Dr Lekha about my mesh implants. I wanted to have them removed in case they were the cause of some of my problems.
…
86.On 31 January 2018, I joined a mesh support group on Facebook 'Australian Pelvic Mesh Support Group'. I posted a message saying I had the products. A lady said I should join the WA mesh support group. The administrator of the WA mesh support group contacted me and gave me details of an information event about mesh to be held by AJB Stevens lawyers in February 2018.
87.In about February 2018, I attended the information event held by AJB Stevens Lawyers. They advised me that they were investigating claims for women who had faulty mesh implants. I instructed them to investigate whether I may have a claim arising out of my mesh implant.
…
92.The women I met through the WA mesh support group told me that in their experiences it was difficult to find a surgeon in Australia to do full mesh removal surgery, but a doctor called Dr Dionysios Veronikas in the US was doing this type of surgeries [sic].
93.I contacted Dr Veronikas by email on 30 March 2018 and had a phone consultation with him on 31 March 2018.
94.On 4 May 2018, I consulted with pain specialist Dr Rajiv Menon on a referral by Dr Lekah. Dr Menon told me that a lot of women who underwent similar surgeries had similar pain as I did.
95.Based on that information, I believed that because people who were treated by different surgeons developed the same problems, the problems were caused by the mesh material rather than the technique of the surgeons.
96.On 20 June 2018, I consulted with Dr Dionysios Veronikas in the USA. I described my symptoms of pain down both legs, groin pain and back pain. Dr Veronikis recommended removal of the mesh. I had the surgery on 22 June 2018.
97.Since my removal surgery, I experienced some relief of my symptoms. However, even with the passage of time, my low back pain, buttocks pain, groin pain and leg pain continued.
Dr Menon, the pain specialist referred to in par 94 of the plaintiff's first affidavit, prepared a report in which he described the plaintiff's presentation and his initial response to it as follows:[11]
[The plaintiff] describes her pain as a sharp, shooting pain 'like a bad sciatica'. It starts bilaterally in the buttocks mostly at nighttime and radiates down the groin to the front and then down the legs. She is unable to lie on her side or sit or stand for long periods of time without significant pain. It is accompanied by burning in the soles of the foot. She also gets intermittently sweaty. She has noticed over time with the ongoing pain, she is having gaps in her memory also. She is unable to drive or watch movies and has had to give up her work as a consequence of this pain. To ease the pain, she tries to lie on her stomach and rely on medications but neither of this have led to any significant improvement. She also noticed that her left elbow has started having a dull, throbbing background pain despite no significant injuries after removal of metal work in 2016
…
[The plaintiff] is certainly describing a severe, debilitating picture of pain which seems to be in keeping with symptoms that are experienced by other women who had similar surgery. I understand there is a significant proportion of people coming forward with similar pain following similar surgery, some of whom are being seen at the Mesh Clinic and there are ways apparently in process a class action lawsuit [sic] against Johnson & Johnson who created the mesh devices. I do not have a great deal of experience with pelvic pain secondary to this surgery and I will consult with my colleagues about this further at our next multidisciplinary meeting. In the meantime, I think it is important to address first principles regarding chronic pain and central sensitisation particularly in the setting of upcoming major surgery.
[11] Affidavit of Morag Donaldson Smith affirmed 21 September 2022, 'Attachment MDS2', 20 - 21.
In her second affidavit the plaintiff deposed following the surgery to remove the mesh implants, Dr Veronikis said to her words to the effect, 'your three mesh implants were in the wrong place' and 'if they were not removed, they could eventually go into your bladder, and you would lose your bladder'.

Subsequently, the plaintiff's solicitors had a telephone conference with Dr Veronikis. The solicitors' report of the conference to the plaintiff was as follows:[12]
Dr V did discuss your surgery with me and he did show me the photos of what he removed. He was disappointed with the poor level of work performed by your surgeon. He offered some preliminary views about your case based on his observations. These comments were helpful but he will have to provide a written report in order for us to rely on his opinion.
[12] Affidavit of Tessa Flynn affirmed 18 September 2023, 'Attachment TF4', 14.
Dr Veronikis provided his operation note and other records to the plaintiff who in turn provided them to her solicitors. It is not clear whether this occurred before or after the conference referred to in the preceding paragraph.
Between July 2018 and February 2020, the plaintiff and her solicitors made several attempts to obtain a report from Dr Veronikis. These attempts included the solicitors sending a letter to Dr Veronikis on 17 December 2018 in which they stated:[13]
We act for [the plaintiff] in relation to a claim for compensation arising from injuries our client has sustained from a surgical procedure on [18 August 2011, 29 November 2011, 17 August 2012 and 18 January 2013].
[13] Affidavit of Tessa Flynn affirmed 18 September 2023, 'Attachment TF4', 15.
The plaintiff was cross-examined about what she had learnt from Dr Veronikis. Her evidence was to the effect that after she had been told by Dr Veronikis that the mesh implants had been put in the wrong place she instructed her lawyers to investigate if she had a claim against the defendant. Somewhat inconsistently, the plaintiff agreed with the proposition that she intended to bring a claim against the defendant at that point.[14] Again somewhat inconsistently, she also said that even though she had been told that the implants were in the wrong place, she did not realise that 'there was something wrong with what [the defendant] had done' until she received Professor O'Connor's report.[15]
[14] ts 58.
[15] ts 58.
In about August 2018 the plaintiff's solicitors obtained an opinion from a Dr Robert Ford. Dr Ford's opinion was that the plaintiff 'most likely had poor connective tissues and that the same series of treatments provided by [the defendant] would have been provided by other surgeons'.
In late 2018 the plaintiff was assessed by two specialist medical practitioners. On 17 October 2018 the plaintiff was examined by Dr Marc Russo, a specialist pain management physician, practising in Sydney. In his report, Dr Russo expressed the following opinion about the plaintiff's prognosis:[16]
My prognosis is that [the plaintiff] has residual neuropathic pain i.e. nerve pain arising from nerve damage to the pelvic nerves that has occurred as a result of the surgeries that have been performed on her. She is likely to have long term chronic pain.
[16] Affidavit of Tessa Flynn affirmed 18 September 2023, 'Attachment TF2', 6.
In answer to a request for an opinion on 'whether [the plaintiff's] injuries and disabilities are causally related to the mesh implant surgery and its sequelae',[17] Dr Russo stated:[18]
It is my opinion that her injuries and disabilities are causally related to the mesh implant surgery and its sequelae.
[17] In their letter of instruction to Dr Russo the plaintiff's solicitors had not defined the expression 'mesh implant surgery' but it is clear from the context that the expression was intended to refer to the four procedures undertaken by the defendant rather than simply the procedure undertaken on 18 August 2011.
[18] Affidavit of Tessa Flynn affirmed 18 September 2023, 'Attachment TF2', 7.
In November 2018, the plaintiff was examined in London by Ms C R Landon, a consultant gynaecologist specialising in urogynaecology. Ms Landon prepared a report in which she expressed the view that the standard of care afforded by the defendant was satisfactory. Ms Landon expressed the opinion that it was more likely that the plaintiff suffered more significantly from pain due to hip and back problems and other joint problems than from the placement of mesh at the time of the sacrocolpopexy or the suburethral tape procedures. When recording the plaintiff's history Ms Landon noted that the plaintiff had been told 'that she has permanent nerve damage on the left side resulting from her surgery'. Ms Landon also recorded that the plaintiff told her that, '[s]he is sleeping much better but feels that her ability to remember things has been worse over the last two years and that this started to be a problem started [sic] after her TVT procedure'.[19]
[19] Affidavit of LTP sworn 14 October 2022, 'Annexure SJW-4'.
Dr Russo's report was provided to the defendant's solicitors on 12 September 2023. In an accompanying letter the plaintiff's solicitors stated that the plaintiff did not rely on the report for the purpose of her application but reserved 'the right to rely on the document during re‑examination should the need arise'. In cross-examination the plaintiff said she had seen Dr Russo's report only a week before the hearing. Her evidence was to the effect that no one had told her the outcome of Dr Russo's assessment of her.[20] The plaintiff's evidence was that she had not followed up with her lawyers to find out what Dr Russo had said about her condition.[21] This evidence is to be contrasted with her evidence that she followed her lawyers up to obtain a report from Dr Veronikis (though none was forthcoming) and she followed up her lawyers to obtain Ms Landon's report.
[20] ts 67.
[21] ts 69.
Ms Landon's record of what she recalled the plaintiff telling her about nerve damage ('[the plaintiff] describes being told that she has permanent nerve damage on the left side resulting from her surgery') was put to the plaintiff in cross‑examination. The plaintiff's response was that she did not tell Ms Landon that the nerve damage was 'because of the surgeries'. The plaintiff accepted that Dr Russo told her she suffered permanent nerve damage but she said she did not tell Ms Landon because she had not received any confirmation from Dr Russo.[22]
[22] ts 68.
I am unable to accept the plaintiff's evidence about what she had been told by Dr Russo and what she in turn told Ms Landon. The plaintiff accepts that the topic of nerve damage was discussed when she saw Dr Russo. Given that Dr Russo reported to the plaintiff's solicitors that the nerve damage occurred as a result of the surgeries and given that Ms Landon included in her report that the plaintiff reported to her that she (the plaintiff) had been told that she had permanent nerve damage on her left side resulting from her surgery, I am satisfied that this is what she was told by Dr Russo on 17 October 2018. I do not suggest that the plaintiff was dishonest in her evidence, simply that she was mistaken in her recollection. She was giving evidence nearly five years after her appointments with Dr Russo and Ms Landon and I take into account that she had reported to both Dr Menon and Ms Landon that she was experiencing problems with her memory. In the circumstances I have described, I find the contemporaneous reports of Dr Russo and Ms Landon a more reliable guide to what the plaintiff was told than the plaintiff's own recollection.
In August 2020, the plaintiff instructed her solicitors to obtain a report from Professor O'Connor. On 16 November 2020, the plaintiff's solicitors sent her a letter in which they reported that they had spoken at length to Professor O'Connor on the telephone and that the Professor's 'preliminary [view] was that your implanting surgeon's conduct fell below the standard expected from his peer professionals'.[23] The solicitors told the plaintiff that Professor O'Connor had requested further information on various matters. I infer that the further information was duly provided to him.
[23] Affidavit of LTP sworn 14 October 2022, 'Annexure SJW-5', 48.
Professor O'Connor prepared a report dated 30 April 2021. The plaintiff called her solicitors for an update in September 2021 and was told that Professor O'Connor's report had been received and would be sent to her shortly. The plaintiff received the report on 9 October 2021 and I infer she read it when she received it. There is no explanation in the evidence of why Professor O'Connor's report is dated 30 April 2021 but was not provided to the plaintiff until October 2021. There is no evidence as to when the plaintiff's solicitors received the report. I infer that they did not receive it until September 2021 because there is no apparent reason why they would not have provided it to the plaintiff if they had received it earlier.
In his report Professor O'Connor expressed the following opinions:
(a)The plaintiff's buttock and sciatic pain was more probably than not due to the sacrospinous fixation which accompanied the anterior and posterior vaginal repair on 18 August 2011.
(b)Buttock pain occurs in 0.4 to 9.3% of cases and is caused by entrapment or damage to the small nerve which runs through the SSLF-iliococcygeus muscle.
(c)Usually, buttock pain after a sacrospinous fixation spontaneously disappears after six weeks.
(d)The plaintiff sustained a nerve injury to branch(es) of the sciatic nerve caused by the insertion of the sacrospinous hitch to the sacrospinous ligament.
(e)While it is notoriously difficult to comment on the standard of surgery simply by reading an operation report, the combination of the buttock pain experienced by the plaintiff due to the entrapment of the levator ani nerve and sciatic pain due to entrapment or injury to the S3 root of the sciatic nerve suggests that the sacrospinous fixation was below the standard of a reasonably competent Australian gynaecologist.
(f)Pain which radiates down the leg is more likely caused by sciatic nerve or sacral nerve root entrapment and warrants immediate removal of the sutures.
(g)The plaintiff's groin pain and pain on the inner thigh is more probably than not a consequence of the insertion of the TVT-O on 29 November 2011. Professor O'Connor explained:[24]
The groin pain in the distribution of the obturator sensory nerve … represents a known risk of TVT-O procedures whereby damage to the obturator nerve is causative [sic]. In most cases, pain disappears within the first weeks after surgery, but it may persist for more than 4 weeks in 1% to 2.7% of the patients. (footnotes omitted)
(h)In relation to the implant of the TVT in January 2013 Professor O'Connor stated:[25]
a.In 2008, the FDA issued a public heath notification regarding the 'serious complications associated with transvaginal placement of surgical mesh in repair of [pelvic organ prolapse] and stress urinary incontinence'.
b.TVT was found to have higher rates of morbidity including bladder perforation, major vascular or visceral injury, mean operating time, operative blood loss, length of hospital stays and suprapubic pain. TOT approach was found to have statistically significant higher rates of groin pain. A bottom to top route TVT was more effective than top to bottom route in terms of subjective cure as well as having significantly less voiding dysfunction, bladder perforations and vaginal tape erosions. Short to medium term subjective cure rates of TOT versus TVT-O were again similar.
c.Given that the plaintiff had developed groin pain from the insertion of the TVT-O [on 29 November 2011], the defendant should have adopted alternative treatments such as periurethral bulking with Hydrogel which would have been less likely to cause major complications. (footnotes omitted)
[24] Affidavit of LTP sworn 29 April 202, 'Attachment SJW-2', 36 - 37.
[25] Affidavit of LTP sworn 29 April 202, 'Attachment SJW-2', 43 - 44.

The applicable Limitation Act provisions

Section 14(1) of the Limitation Act provides:
An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued.
The expression 'personal injury' is defined in s 3(1) of the Limitation Act to include 'a disease, impairment of a person's physical condition, and mental disability'.
Section 55(1) of the Limitation Act governs when a cause of action for personal injuries accrues. It provides:
A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs -
(a)the person becomes aware that he or she has sustained a not insignificant personal injury;
(b)the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.
In Thomas Peacock & Sons Pty Ltd v Abreu,[26] the Court of Appeal observed:[27]
Section 14 of the Limitation Act … gives effect to a parliamentary intention that if an action for damages for personal injury is to be brought, it must be brought within a period of three years from the time at which the plaintiff first becomes aware that they have suffered a 'not insignificant' injury. The provision in s 55 as to the time at which the cause of action accrues is plainly intended to avoid the prospect of the limitation period expiring before a person is aware they have an injury of a nature which would justify a claim for damages.
…
It is plainly the case that the purpose of s 55 is to avoid time running while a person is unaware that he or she has suffered a 'not insignificant' personal injury; that is, an injury which is not 'trifling' or 'of no consequence': Macquarie Dictionary. Whether or not an injury is of such nature must depend upon the extent of the injury itself. The effect of s 55 is that the cause of action accrues when the person first becomes aware that they have suffered such a personal injury or there is some symptom, clinical sign or other manifestation consistent with such a personal injury. The relevant criterion is awareness, or means of awareness, of the existence of a personal injury which is not insignificant.
[26] Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19.
[27] Thomas Peacock & Sons Pty Ltd v Abreu [32], [40] (Pullin, Newnes & Murphy JJA).
Thus, s 55(1)(a) is concerned with patent injuries and s 55(1)(b) is concerned with latent injuries.[28]
[28] AME Hospitals Pty Ltd v Dixon [22] (McLure P), [265] (Newnes JA).
In Mullaley v Western Australia[29] Colvin J considered s 55(1) and, in particular, what constituted a manifestation of a 'not insignificant injury' for the purposes of s 55(1)(b) of the Limitation Act. His Honour observed:[30]
A manifestation is a matter that shows, displays, indicates or reveals something else. It shows plainly or with considerable certainty something that is otherwise latent, abstract or uncertain. It is term that must be applied to a thing, state or condition that is being made manifest. There is no manifestation without the manifested. In that regard, s 55(1) does not refer simply to the first symptom, clinical sign or other manifestation of injury. Rather, it refers to a manifestation that is consistent with the prospective claimant having sustained a not insignificant personal injury. As noted below, inherent in the concept of personal injury is the occurrence of an external event or circumstance that is the source of harm to the person. So, the manifestation referred to is the manifestation of an injury of a kind that is attributable to an external event or circumstance.
Further, a symptom or clinical sign is not 'consistent with' a particular type of injury unless it indicates that injury with considerable certainty. Otherwise, it is 'consistent with' many things and provides no real manifestation of the particular type of injury. Therefore, the manifestation must be consistent with an external event or circumstance of a kind that would inflict a not insignificant personal injury and not some other cause or occurrence.
Taken together, the terms 'first symptom', 'clinical sign' and 'other manifestation' refer to something that allows a condition or state of affairs to be understood, perceived or deduced as being evident, obvious, apparent or plain. As the relevant condition or state of affairs is a 'not insignificant injury' and the terms 'symptom' and 'clinical sign' are used, they all indicate a manifestation of a kind that would enable an assessment to be made that a personal injury has been sustained and that it is a not insignificant injury. Such an assessment may not be able to be made without the application of medical expertise. Further, it is quite possible that there will be a point where there is a symptom or clinical sign of personal injury but it is not until it persists or worsens that there is the manifestation of a not insignificant injury.
Each of these aspects render the assessment as to when there was the first symptom or clinical sign of the requisite type of injury potentially a matter about which it is difficult to be precise. However, in order for there to be the requisite manifestation, there must be evidence of a kind that makes obvious or considerably certain that the person has suffered a not insignificant personal injury and an assessment as to whether that is the case may require the insight provided by expert medical examination of the available evidence.
Given the terms of s 55(1)(a), the reference to symptom, clinical sign or other manifestation does not require the prospective claimant to be convinced. If s 55(1)(b) were interpreted as requiring actual understanding by the prospective claimant then the additional test in s 55(1)(b) would add little if anything to s 55(1)(a). Rather, in context, there must be evidence of a kind that manifests the injury (irrespective of whether it is so understood by the prospective claimant). This would occur when what is evident would be understood by any reasonable person as being the first symptom, clinical sign or other manifestation of a not insignificant personal injury. However, as I have indicated, it is quite conceivable that the significance of what is evident may only be understood by a person with the requisite medical expertise. In those instances, there would be no first symptom, clinical sign or other manifestation of the requisite injury until it was so interpreted by a person with the expertise to do so. The evidence of itself would not manifest the injury. It would only be when the evidence was brought before a person with the skill and expertise to interpret its significance that it could be said that the evidence then manifests the injury. In that instance there would be no manifestation until the significance of the evidence was exposed by the person with the knowledge required to understand its significance.
In either case, if the matters alleged to manifest the injury lack the requisite character (because they would not be so understood by a reasonable person or they have not been so interpreted by a person with the requisite expertise) then the injury remains latent. A person may exhibit characteristics, conditions or behaviours that are ultimately seen to be the first symptom or clinical sign of an injury caused by an external event, but until they might be understood to have that revelatory character and the injury is understood to be a not insignificant one then the requirement expressed in s 55(1)(b) is not met. (emphasis added)
[29] Mullaley v Western Australia.
[30] Mullaley v Western Australia [32] - [37] (Colvin J).

Section 39 of the Limitation Act confers a discretion on the court to extend the time for the commencement of an action for damages for personal injuries if certain conditions are satisfied. Section 39(3) provides:
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, the person to whom a 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.
'Injury' in s 39(3)(a) means the personal injury the subject of the application for leave under s 39(1).[31] In the context of s 39(3) 'injury' is the actual injury itself, not the symptoms, clinical signs or other manifestations of the injury.[32]
[31] AME Hospitals Pty Ltd v Dixon [23] (McLure P), [265] (Newnes JA).
[32] AME Hospitals Pty Ltd v Dixon [181] (Buss JA).
'Aware' means cognisant or informed of.[33] Section 39(3) is concerned with actual awareness not constructive awareness.[34] What constitutes awareness will depend on the nature of the fact or matter in issue. Awareness of the physical cause of the plaintiff's injury will often be a matter of inference from primary facts that may require expert medical knowledge and experience.[35]
[33] AME Hospitals Pty Ltd v Dixon [34] (McLure P).
[34] AME Hospitals Pty Ltd v Dixon [34] (McLure P).
[35] AME Hospitals Pty Ltd v Dixon [34] - [36] (McLure P).
'Physical cause' is the factual not legal cause and the expression connotes the mechanism or circumstances that actually produced the injury.[36]
[36] AME Hospitals Pty Ltd v Dixon [187] (Buss JA).
In AME Hospitals Pty Ltd v Dixon,[37] McLure P (with whom Newnes JA agreed) explained:[38]
The 'physical' cause of a personal injury is the different and logical first question of 'what' caused the injury, not 'whom'. If a motor vehicle hits a pedestrian, the collision is the physical cause of the pedestrian's personal injuries. In lung cancer, the physical cause may be cigarette smoke. In mesothelioma, the physical cause may be asbestos fibres. In a failure to warn of the risks of surgery, it will be the performance of the surgical procedure. However, it is not a requirement that the injury result from direct physical contact (Nader v Urban Transport Authority (NSW) (1985) 2 NSWLR 501, 516) or that the effect be an organic injury. It makes sense that the notion of physical cause applies to the whole range of compensable personal injuries.
[37] AME Hospitals Pty Ltd v Dixon.
[38] AME Hospitals Pty Ltd v Dixon [28] (McLure P).
Conduct connotes both an act and an omission.[39] Section 39(3)(b) directs attention to the relevant conduct, the acts or omissions that are alleged to constitute the breach of duty.[40]
[39] AME Hospitals Pty Ltd v Dixon [39] (McLure P).
[40] AME Hospitals Pty Ltd v Dixon [213] - [214] (Buss JA).
'Attributable to' connotes a causal connection in fact as opposed to law and s 39(3)(b) (and s 39(4)(b) set out later) refer to a causal relationship between the injury and the conduct.[41] Whether an injury was attributable to the conduct of another is also a matter that may require expert medical knowledge and experience.[42] In AME Hospitals Pty Ltd v Dixon, McLure P observed:[43]
[A] person will be aware of a matter which requires expert knowledge and experience if he is aware of an expert opinion which is reasonably capable of being accepted and capable of establishing the relevant facts (that is, that the physical cause of the injury is attributable to the conduct of an identified person).
[41] AME Hospitals Pty Ltd v Dixon [33] (McLure P).
[42] AME Hospitals Pty Ltd v Dixon [39] (McLure P).
[43] AME Hospitals Pty Ltd v Dixon [41] (McLure P).
A court's power to extend time under s 39(3) is enlivened if the court is satisfied that one of the conditions in s 39(3)(a), (b) and (c) applies.[44]
[44] AME Hospitals Pty Ltd v Dixon [158] (Buss JA).
Section 39(4) defines the limits of the extension of time that may be granted. It provides:
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 the defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
In this case the defendant does not advance any submissions that rely on the second element in s 39(4), that is, that the plaintiff ought reasonably to have become aware of the specified matters at an earlier date. It is unnecessary to consider what the authorities say on the application of that test.
Section 44 of the Limitation Act provides:
When deciding, on an extension application, whether to extend the time for the commencement of an action, the court is to have regard to -
(a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and
(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the action).
Section 79(1) of the Limitation Act provides that the defendant bears the onus of proving that the action cannot be commenced because the limitation period has expired. Section 79(3) provides that the plaintiff has the onus of proving that the court should extend the relevant limitation period.

The importance of determining the expiry of the limitation periods

In the plaintiff's written submissions, the plaintiff accepted that the limitation period in respect of her causes of action had expired but did not identify a date, merely observing 'there may be debate as to when the plaintiff's cause of action may have accrued'.[45] The defendant contended that the causes of action in tort and contract accrued on the date the surgery was performed or immediately thereafter being 18 August 2011 and 13 January 2013 and that 'the time for commencing proceedings expired on 13 January 2016'.[46] Alternatively, the defendant contended that if a medical assessment was required to identify the first symptom, clinical sign or other manifestation consistent with a not insignificant injury then that had occurred by 4 May 2018 following the referral of the plaintiff to Dr Menon for management of her chronic pain condition and, after the referral was sought, to a specialist for mesh removal surgery, due to the plaintiff's belief that the mesh was the cause of the plaintiff's chronic pain condition.
[45] Plaintiff's submissions filed 7 September 2023 [8].
[46] Defendant's submissions filed 15 September 2023 [6(b)].
Assuming it is found that a relevant limitation period has expired it is critically important to make a finding as to when that occurred because that is the date on which the court must be satisfied of the matters set out in s 39(3) of the Limitation Act.

The causes of action

No distinction was drawn in the plaintiff's first set of written submissions between the causes of action the plaintiff wishes to advance. This lack of precision was compounded by a failure to identify the injury that was the subject of each cause of action.[47] Perhaps influenced by the approach adopted by the plaintiff, the defendant's first set of written submissions proceeded on the premise that there was only one limitation period and, as noted earlier, the defendant contends it expired on 13 January 2016.[48] Each cause of action, however, requires separate consideration.

2011 cause of action

[47] Plaintiff's submissions filed 7 September 2023 [9], [39].

[48] Defendant's submissions filed 15 September 2023 [6(b)].

The plaintiff attached to her first affidavit a proposed statement of claim in which she made four allegations of breach of duty in respect of the 18 August 2011 surgery and the post-operative care she received from the defendant. The plaintiff alleges:
(a)The defendant failed to perform the surgery with due care and skill in accordance with the practice widely accepted by the defendant's peers as competent professional practice.
(b)The defendant failed to diagnose that the plaintiff had suffered nerve damage before 5 September 2011.
(c)The defendant failed to remove the sacrospinous fixation sutures immediately upon diagnosis.
(d)The defendant failed to advise the plaintiff that the buttock and sciatic pain she experienced after surgery could be caused by poor surgical technique.
The plaintiff does not plead the injury she claims she suffered as a result of the various alleged breaches of duty with any precision. Relevantly, the proposed statement of claim states:
37The Plaintiff has suffered, and continues to suffer serious injury, loss and damage as a consequence of the Defendant's breach of duty of care, breach of contract and/or breach of statutory duty.
Particulars of Injury, Loss and Damage
37.1The Plaintiff will file Particulars of Damages pursuant to Rule 20.13 of the Rules of the Supreme Court 1971 (WA).
When read with Professor O'Connor's report, it is apparent from the proposed statement of claim that the injury which is the subject of the 2011 cause of action is the nerve damage that caused the plaintiff's sciatic and buttock pain. The nerve damage is the personal injury for the purposes of s 14 of the Limitation Act and the injury for the purposes of s 39(3)(a).

The limitation period in respect of the 2011 cause of action

On the basis that the plaintiff's personal injury is the nerve damage I will proceed on the basis that the injury is a latent injury which engages s 55(1)(b) of the Limitation Act.
I find that the limitation period in relation to the contractual and tortious causes of action arising from the surgery undertaken in August 2011 expired in September 2014. My reasoning for making that finding is as follows.
In the period between the surgery on 18 August 2011 and the further surgery on 14 September 2011 the plaintiff experienced severe pain. The pain was a symptom of a not insignificant injury (the nerve damage) and was diagnosed by the defendant to be a sign that the sacrospinous suture on the left side was impairing the plaintiff's 'physical condition'. I infer the suture was constricting a nerve. Even though the defendant may have considered that the impairment of the plaintiff's condition was temporary and would be alleviated by loosening or removing the suture, both the pain experienced by the plaintiff and the fact that a further operation was required to alleviate the impairment, support the conclusion that in September 2011 the plaintiff had sustained a 'not insignificant injury'.
For the purposes of s 55(1)(b) of the Limitation Act, the plaintiff's awareness of whether or not she had suffered a not insignificant injury is immaterial though, for the sake of completeness and for the avoidance of any doubt, I find that in September 2011 the plaintiff was not aware that she had sustained a not insignificant injury.

The 2011 cause of action and s 39(3) of the Limitation Act

The defendant contends that the physical cause of the plaintiff's injuries was the surgery undertaken on 18 August 2011. In my view, that is to look at the issue of physical cause at too general a level. Although as McLure P observed in AME Hospitals Pty Ltd v Dixon the physical cause of a personal injury in a road traffic accident is the collision, cases involving allegations of medical negligence require more detailed analysis. To illustrate the point, it could not have been said in AME Hospitals Pty Ltd v Dixon that the physical cause of the plaintiff's cerebral palsy was the process of birth rather than the intrapartum second stage events which interrupted the blood flow and led to hypoxic ischaemic encephalopathy.[49]
[49] AME Hospitals Pty Ltd v Dixon [29] - [30] (McLure P).
The injury the plaintiff suffered was nerve damage. Professor O'Connor's opinion is the nerve damage was caused by poor surgical technique. The poor surgical technique identified and described by Professor O'Connor was the physical cause of the plaintiff's injury.
The defendant did not contend that when the limitation period expired the plaintiff was aware of the physical cause of her injury. There is no evidence that in September 2014 the plaintiff was aware of the physical cause of her injury. The discretion to extend the limitation period in respect of the 2011 cause of action is thus enlivened.

The 2011 cause of action and s 39(4) of the Limitation Act

The defendant contended that the plaintiff became aware of the physical cause of her injury and that it was attributable to his conduct in 2018, either when she learned that Dr Veronikis was critical of the mesh implant surgery, or when Dr Russo told her that her symptoms were due to nerve damage resulting from the mesh implant surgery.
The comments made by Dr Veronikis about the mesh implant surgery were general in nature. His comments encouraged the plaintiff and her solicitors to investigate the possibility that the defendant's conduct may have been negligent by obtaining reports but his comments did not identify the physical cause of the plaintiff's injury as I have found it to have been.
Dr Russo's report identified the plaintiff's injury, damage to the pelvic nerve, and identified a cause, 'the mesh implant surgeries and its sequelae'. The reference to the 'mesh implant surgeries and its sequelae' lacks specificity. It is wide enough to embrace a number of potential causes including that the mesh implants were themselves inherently defective and the possibility that the nerve damage was a consequence of the condition of the plaintiff's connective tissue. Dr Russo's report did not identify the physical cause of the plaintiff's injury as I have found it to have been and the plaintiff was not made aware of the physical cause of her injury by what she was told by Dr Russo.
Further, while it is clear that by early 2018 the plaintiff was aware of the possibility of a connection between the mesh implant surgery and the pain and other symptoms suffered by her, that was an awareness of a possibility that stopped well short of being aware of the physical cause of the nerve damage she suffered.
I find the plaintiff became aware of the physical cause of her injury when she received and read a copy of Professor O'Connor's report on 9 October 2021.

Discretionary factors

The defendant did not contend that the discretion to extend the limitation period was affected by any of the considerations specified in s 44 of the Limitation Act. Although delay always has the potential to adversely affect the fair trial of an action, I do not consider that the delay in commencing the proposed action will unacceptably diminish the prospects of a fair trial. Nor do I consider that the delay will result in significant prejudice to the defendant.
I will extend the time for commencing an action in respect of the 2011 cause of action until 31 December 2023. There is no justification for an extension of any greater length.

2013 cause of action

In respect of the surgery undertaken on 18 January 2013 the breach of duty on which the proposed cause of action is based is expressed as follows:
27In respect of the surgery on 18 January 2013, the Defendant breached his duty of care to the Plaintiff in that he:
27.1Implanted the Plaintiff with a further Gynecare TVT System implant when the Plaintiff having suffered from groin and inner thigh pain following the implant of a Gynecare TVT System implant on 29 November 2011.
The plaintiff's written submissions make it clear that the substance of this allegation is that the TVT implant on 18 January 2013 was contraindicated by the groin and the inner thigh pain the plaintiff had experienced following the TVT-O implant on 29 November 2011 and that the defendant should have adopted alternative treatments such as periurethral bulking with Hydrogel which was less likely to cause major complications. Further, while the proposed statement of claim should have made it explicit, when read with Professor O'Connor's report, it is implicit that the plaintiff's case is that had the alternative treatment of periurethral bulking been administered there would have been an improvement in the plaintiff's condition and she would not have suffered suprapubic pain.

The opportunity to make further submissions

Before developing these reasons further it is helpful to set out the propositions on which the parties were given the opportunity to make further submissions. By way of an email from my associate sent to the parties' solicitors on 11 October 2023 the parties were given the opportunity to make submissions on the following propositions.
1.The 'not insignificant personal injury' that is the subject matter of the cause of action is appropriately described as a composite injury involving the following elements first, the procedure itself and associated pain and discomfort, secondly, the onset of suprapubic pain and thirdly, the continuation of the symptoms that the procedure was intended to alleviate and which, on the plaintiff's case she says would have been alleviated had the alternative treatment been administered.
2.Although the symptoms and signs of that injury were apparent from January 2013 onwards they were not interpreted as manifestations of the 'not insignificant injury' identified in (1) until Professor O'Connor’s report became available.
3.The cause of action in respect of the 2013 procedure did not accrue until October 2021 when Professor O'Connor's report became available to the plaintiff.
4.The limitation period has not expired in relation to the 2013 procedure.

The injury

Given that it is the plaintiff who bears the onus of proving that the limitation period should be extended, the failure to identify the relevant injury in the proposed statement of claim is unhelpful. I note, however, that at the hearing, the plaintiff's counsel agreed with my suggestion that although the surgery itself might be the injury, the major damage was the worsening of the plaintiff's pain and the spreading of the pain from the plaintiff's thigh to her pubic area.[50] In the plaintiff's supplementary submissions the plaintiff's injury was described as follows:[51]
a.An insertion of a mid-urethral TVT implant and cystoscopy performed on 13 January 2013 and the post-operative pain and discomfort and recovery;
b.Aggravation of damage to the obturator nerve … and
c.Continuation of urinary incontinence.
[50] ts 79, 101, 103.
[51] Plaintiff's supplementary submission filed 19 October 2023 [11].
In his supplementary submissions the defendant recorded that he took no issue with the plaintiff's description of the injury she suffered in January 2013.
Medical negligence cases constitute a not insignificant proportion of personal injury cases and the provisions of the Limitation Act to which I have referred earlier must be construed with that in mind. In that context it may be noted that limitation issues associated with latent injuries are not uncommon. A subset of those cases are cases in which it is alleged that a medical practitioner misdiagnosed a patient's condition or made the correct diagnosis but adopted an incorrect treatment modality. It is a feature of such cases that a patient's symptoms are not alleviated in circumstances in which if the correct diagnosis had been made or the correct treatment modality adopted, the patient's condition would have been addressed and the symptoms alleviated. In my view the expression employed in s 55(1)(a) and (b) of 'sustained a not insignificant personal injury' should be construed as accommodating those cases in which a patient continues to suffer from a condition which would have been alleviated had there not been a misdiagnosis or incorrect decision made as to treatment modality.

The injury (or injuries) sustained by the plaintiff as a result of the 2013 TVT procedure may be analysed in terms of three distinct personal injuries, first, the procedure itself and the associated pain and discomfort, secondly, the onset of suprapubic pain and thirdly, the continuation of the symptoms that the procedure was intended to alleviate and which, on my understanding of the plaintiff's case, she says would have been alleviated had the alternative treatment been administered. Alternatively, the consequences of the 2013 TVT procedure may be analysed as one injury constituted by those three elements. In my view, there is an element of artificiality in adopting an overly refined approach to the analysis of the injury and the preferable approach is to regard the injury as a composite injury.
Adopting the construction of the expression 'sustained a personal injury' where it appears in s 55(1) that I have set out in [99], I consider that the plaintiff sustained the composite injury that I have described following the performance by the defendant of the TVT procedure.
The plaintiff exhibited symptoms or signs of the composite injury from January 2013 but as a layperson she did not understand them to be manifestations of a not insignificant injury. The defendant had the expertise to understand that the plaintiff's symptoms might be manifestations of a not insignificant injury but there is no evidence to suggest that he reached any such understanding in relation to the plaintiff's condition in 2013.
The evidence does not support the conclusion that Dr Veronikis, Dr Ford, Dr Russo or Ms Landon interpreted the plaintiff's symptoms or clinical signs as revealing that she had suffered a not insignificant injury of the nature I have described as a result of the TVT procedure performed in January 2013. It was only when Professor O'Connor's report became available that the plaintiff's symptoms and signs were understood to be as manifestations of the plaintiff having suffered a not insignificant injury in January 2013. In my judgment the limitation period in respect of the 2013 cause of action did not accrue until 9 October 2021 and thus it has not expired. An application for an extension of time is not required in respect of the 2013 cause of action.

Conclusion

The limitation period will be extended in relation to the 2011 cause of action. No extension is required in respect of the 2013 cause of action. I will hear the parties as to the terms of the orders to be made and costs.
Any proceedings commenced by the plaintiff should be commenced in the District Court of Western Australia.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
31 OCTOBER 2023