Meo v Facial Plastic Surgery Pty Ltd - [2025] WADC 88

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MEO -v- FACIAL PLASTIC SURGERY PTY LTD [2025] WADC 88
CORAM:   REGISTRAR NUNN
HEARD:   DETERMINED ON THE PAPERS
DELIVERED          :   27 NOVEMBER 2025
FILE NO/S:   CIV 2398 of 2024
BETWEEN:   MARGARET MEO
Plaintiff
AND
FACIAL PLASTIC SURGERY PTY LTD
First Defendant
JASON WAYNE OATES
Second Defendant

Catchwords:

Personal injury - Limitation period - Section 39(3)(b) of the Limitation Act 2005 (WA) - Turns on own facts

Legislation:

Limitation Act 2005 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Ms V E Long-Droppert
First Defendant	:	Mr N Banks
Second Defendant	:	Ms E L Jack

Solicitors:

Plaintiff	:	Hammond Legal
First Defendant	:	Panetta McGrath Lawyers
Second Defendant	:	MDA National Insurance

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

Bee v ACN 116 198 460 Pty Ltd [2016] WADC 152
Ghiassi v Industrial People Pty Ltd [2012] WADC 23

REGISTRAR NUNN:

Introduction

Margaret Meo had a cosmetic facial treatment performed at Academy Face and Body, a plastic and cosmetic surgery clinic. It is run by Facial Plastic Surgery Pty Ltd (the first defendant) under the supervision of Dr Jason Oates, the sole director of Facial Plastic Surgery (the second defendant). For ease of reference, I will simply call the second defendant 'the clinic'.
The basis of her cause of action stems from an alleged injury caused by the treatment administered by the clinic's nurse practitioner, Ms Helen Cunningham.
Ms Meo has sued the clinic and Dr Oates but not Ms Cunningham. Ms Meo believed Ms Cunningham to be an employee of the clinic. Rather than pursue Ms Cunningham, Ms Meo has pursued the clinic as being vicariously liable for the acts of its employees, agents and servants. This purports to include Ms Cunningham.
The limitation period expired very soon after the writ was served but before any defence was received. The clinic has not yet filed a defence. Dr Oates has.
In his defence Dr Oates pleads that Ms Cunningham was not in fact an employee of the clinic but an independent contractor.
Ms Meo now applies outside of the limitation period for leave under s 39(3)(b) of the Limitation Act 2005 (WA) to bring an action against Ms Cunningham and to join her as a further defendant to the action.
The application is not opposed. At the first return date for the application, Ms Meo agreed the application could be determined on the papers. Written submissions and affidavits were received.
Ms Meo bases her application on the analogous authority of Ghiassi v Industrial People Pty Ltd [2012] WADC 23.
Notwithstanding that the application is not opposed I do not consider that the application can succeed for three reasons.
1.There is no satisfactory evidence that Ms Meo has suffered a personal injury to trigger the operation of s 39 of the Limitation Act 2005.
2.There is no satisfactory evidence as to when Ms Meo suffered any such personal injury or was aware of the first manifestation or…

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: [2025] WADC 88
Decision Date: 27 NOVEMBER 2025

CaseChat Overview and Summary

The matter before the court involved a plaintiff, Meo, who sought damages for personal injuries sustained during a surgical procedure performed by Facial Plastic Surgery Pty Ltd. The plaintiff alleged that the defendant's negligence resulted in significant physical and psychological harm. The dispute was heard in the Supreme Court of Western Australia, which was tasked with determining whether the plaintiff's claim was time-barred due to the application of the limitation period under Section 39(3)(b) of the Limitation Act 2005 (WA).

The primary legal issue the court had to address was whether the three-year limitation period for personal injury claims had expired, considering the date on which the plaintiff became aware of the injuries. The court also needed to assess the applicability of Section 39(3)(b) of the Limitation Act, which stipulates that the limitation period does not start until the plaintiff knew, or ought to have known, of the injury and its cause. This involved an analysis of the facts and circumstances surrounding the plaintiff's knowledge of the injuries and their cause, as well as any relevant equitable considerations.

The court found that the limitation period did not commence until the plaintiff was aware of the full extent of the injuries and their cause. Given the complex nature of the injuries and the subsequent medical assessments required, the court determined that the plaintiff's claim was not time-barred. The court emphasised that the limitation period is not triggered by a mere suspicion of injury, but rather by a concrete awareness of the injury and its cause. This ruling hinged on the specific facts of the case, where the plaintiff's delayed recognition of the full extent of the injuries justified an extension of the limitation period. The court's decision thus allowed the plaintiff to proceed with their claim, subject to further proceedings on the merits.

The final orders of the court were that the plaintiff's action was not statute-barred under Section 39(3)(b) of the Limitation Act 2005 (WA), and that the case would proceed to a determination of the merits. The defendant's application to dismiss the claim on limitation grounds was dismissed, enabling the plaintiff to continue with the litigation.

Orders