Tompkins v Natalwala - [2021] WADC 33

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   TOMPKINS -v- NATALWALA [2021] WADC 33
CORAM:   PRINCIPAL REGISTRAR MELVILLE
HEARD:   15 FEBRUARY 2021
DELIVERED          :   15 APRIL 2021
FILE NO/S:   CIV 2577 of 2020
BETWEEN:   TINA LOUISE TOMPKINS
Plaintiff

AND

JAY NATALWALA
Defendant

Catchwords:

Application to extend limitation period Limitation Act 2005 (WA) s 39(3) - Application of Competition and Consumer Act 2010 (Cth) s 87E and s 87F

Legislation:

Australian Consumer Law
Competition and Consumer Act 2010 (Cth)
Limitation Act 2005 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr G Droppert
Defendant	:	Ms H Cormann

Solicitors:

Plaintiff	:	AJB Stevens Lawyers
Defendant	:	Avant Law Pty Ltd

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

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Gill v Ethican Sarl (No 5) [2019] FCA 1905
Mullaley v State of Western Australia [2020] FCA 13

PRINCIPAL REGISTRAR MELVILLE:

On the 28 May 2019 the plaintiff commenced these proceedings in the Federal Court. The proceedings were subsequently transferred to the District Court of Western Australia. By these proceedings the plaintiff seeks damages for personal injury suffered as a result of the defendant's alleged negligence and breach of contract, and contravention of s 60 and s 61 of the Australian Consumer Law in respect of two surgeries he performed on the plaintiff on the 15 June 2012 (the first surgery) and 7 November 2013 (the second surgery).
The relevance of the date on which proceedings commenced lies in the fact the defendant has pleaded in his defence that the actions have been commenced outside of the time limited for bringing the action pursuant to the Limitation Act 2005 (WA) (the Act). It is agreed the causes of action accrued on or about 15 June 2012 and 7 November 2013.[1] For the purposes of the Act it follows therefore the limitation periods for each expired on the 15 June 2015 and 7 November 2016 respectively.
[1] ts 4, ts 5.
The defendant does not plead a limitation defence under the Competition and Consumer Act 2010 (Cth) or the Australian Consumer Law to the claims brought pursuant to s 60 and s 61 of the Australian Consumer Law.
The plaintiff has now brought an application pursuant to s 39 of the Act and s 87E and s 87F of the Competition and Consumer Act seeking an extension of time for the bringing of the actions.
By s 14(1) of the Act an action for damages relating to a personal injury cannot be commenced if three years has elapsed since the cause of action accrued.
By s 39(1) of the Act a plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury even though the limitation period provided for under the Act has expired.
By s 39(3) of the Act a court may extend the time in which the action can be commenced if satisfied that at the time the limitation period expired the plaintiff:
(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; and
(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.
By s 39(4) of the Act the court may extend the time in which the action can be commenced up to three 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)the identity of the person mentioned in par (b).
It can be immediately observed that the operation of s 39(4) is not enlivened if s 39(3) does not operate, that is to say, if the court is not satisfied that at or before the time the limitation period expired the plaintiff was not aware of the physical cause of the death or injury or was not aware that it was attributable to the conduct of a person, or that the identity of that person had not been established.[2]
[2] AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 [158] (Buss JA).
The plaintiff submits that the issues on which I am required to focus are whether she was not aware:
(a)of the physical cause of the injury; and
(b)the physical cause of the injury was attributable to the conduct of the defendant.[3]
[3] ts 5.
The plaintiff's agreement as to when the cause of action accrued, results in the conclusion that the plaintiff was either aware at about the time of the first surgery and the second surgery that she had sustained a not insignificant personal injury, or notwithstand she was not actually aware nevertheless the first symptom, clinical sign or other manifestation of personal injury consistent with having sustained a not insignificant personal injury had occurred.
It is against that background the plaintiff, who carries the burden of proof, must satisfy the court she was not aware of the injury or of the physical cause of the injury or that the physical cause of the injury was due to a person, namely the defendant.
In order to determine whether s 39(3) operates it is necessary to consider what is meant by the words:
(a)aware of the physical cause of the injury; and
(b)aware the injury was attributable to the conduct of a person.

The physical cause of the injury

The meaning of these words has been considered by the Court of Appeal in AME Hospitals Pty Ltd v Dixon. In the judgement of Mclure J, a judgement with which Newnes AJ agreed, Her Honour observed the reference to injury was a reference to the 'personal injury' the subject of the application for leave under s 39(1) which term was defined in s 3 of the Act to include 'a disease, impairment of a person's physical condition, and mental disability'.[4]
[4] AME Hospitals Pty Ltd v Dixon [23] - [24].
Her Honour then stated that the enquiry into the 'physical cause' of the injury is directed to what caused the injury and not who caused the injury. Her Honour provided several examples by way of demonstration of the distinction. One was in the case of a motor vehicle hitting a pedestrian, the physical cause of the injury being the collision. In lung cancer the physical cause may be the cigarette smoke. In mesothelioma the physical cause may be asbestos fibres. In the case of a failure to warn of the risks of surgery, it will be the performance of the surgical procedure.[5] All of those examples point to the enquiry into the physical cause of the injury being an inquiry into what caused it, not who caused it.
[5] AME Hospitals Pty Ltd v Dixon [28].
Her Honour went on to observe that there may be multiple successive or concurrent physical causes of a single injury. In the case that was then before the court, which involved a claim brought on behalf of a child born with brain damage as a result of a lack of oxygen, Her Honour observed that the last or penultimate physical cause of the brain damage was the lack of oxygen supply but that this was the effect of an alleged earlier physical cause, namely the failure to properly monitor the state of the baby in the prolonged second stage. Her Honour stated that it was unnecessary to know anything more precise about the physical cause for s 39 purposes.[6]
[6] AME Hospitals Pty Ltd v Dixon [29] - [30].
It is apparent from what Her Honour said that the identification of the 'physical cause' does not necessarily have to be identified or described in terms of a chain of pathological changes at a cellular or molecular or chemical level which identification might only be done by somebody with the appropriate scientific expertise. Her Honour's description of the physical cause of injuries suffered in a car accident as being the collision is sufficient to make the point and I repeat it at this stage of my reasons for the purpose of later dealing with any suggestion that a plaintiff cannot possibly attribute a physical cause to a personal injury without first obtaining an expert medical opinion as to the physical cause. The most basic illustration of the point is that of a person who suffers amputation of a finger when it becomes caught in an unguarded saw. That person does not need a medical or expert opinion to be aware of the physical cause of the injury.

Attributable to the conduct of a person

Whilst it might be open to argument that the expression 'attributable to the conduct of a person' is of very wide import and can include matters that might be regarded as not causally connected to that person, there can be no argument that if there is a causal connection in fact between a person's conduct and the injury then the injury is attributable to the conduct of the person.[7]
[7] AME Hospitals Pty Ltd v Dixon [31] - [33].

Aware

The requirement that a person not be aware of the physical cause of the injury, or not be aware that the injury was attributable to the conduct of the person, is a requirement that the person not be cognisant or informed of the injury or that it is attributable to the conduct of a person. Awareness must be actual and not constructive.[8]
[8] AME Hospitals Pty Ltd v Dixon [34].
In some cases it will be immediately apparent to the injured person what the physical cause of the injury is and that it is attributable to a person. An example is that given by McLure J in AME Hospitals Pty Ltd v Dixon, of injury suffered in a motor vehicle accident. However, in some instances whilst the person may be aware they are impaired (ie injured) the person does not have the necessary detailed knowledge of the nature of the impairment, and therefore the physical cause of the impairment and, further, until such time as they do have the necessary knowledge of the physical cause of the impairment the person will not be in a position to have any knowledge of whether the conduct of a person is the cause of that impairment and in turn the identity of that person.
An example of such circumstances might be, hypothetically, where a person is exposed to a poison such that they feel nauseous, lethargic and otherwise ill. It might only be until they have advice from an expert who is able to precisely and scientifically identify the nature of the illness and from that determine the physical cause of the illness (eg poisoning) and whether it is attributable to the conduct of the person that it can be said the person is aware of the physical cause of the illness and that it is attributable to the conduct of an identified person.
Hence in AME Hospitals Pty Ltd v Dixon the respondent's next friend although aware in general terms of the brain injury was not aware of the more scientific explanation of the brain injury (hypoxic ischaemic encephalopathy) and was not in a position to be aware of the physical cause of the brain injury and in turn that it was attributable to the conduct of the person, until expert opinion was obtained.[9]
[9] AME Hospitals Pty Ltd v Dixon [36].
Thus, in summary, in some factual circumstances the injury, the physical cause of the injury and that the physical cause of the injury was attributable to the conduct of the person will be patently obvious and the plaintiff will be immediately aware. In other factual circumstances the awareness will only arise after expert medical opinion is obtained.
In the circumstances of this case the application for an extension of the limitation period is based on the proposition that the plaintiff only became aware of the physical cause of her injury and that it was attributable to the conduct of a person, more particularly the defendant, when she received a medical report well after the limitation period expired.
On the other hand, the defendant submits that the plaintiff was aware of her injury, the physical cause of the injury and that it was attributable to the conduct of an identified person on or about the day the cause of action accrued and in any event well before the limitation period expired. The defendant further submits that in the event the plaintiff was not aware of these things at that time, then she ought reasonably to have become aware on or about that time with the result that even if s 39(4) was enlivened and the limitation period was extended for the maximum amount of three years, this action would still have been commenced outside of the limitation period and be subject to the limitation defence.

The factual background

It is admitted that at all material times the defendant was a medical practitioner holding himself out as an obstetrician and gynaecologist.[10] It is also admitted the defendant operated on the plaintiff on the 15 June 2012 (the first surgery), which operation involved the implantation of what is described as an 'InterPro mesh implant' and operated again on the 7 November 2013 (the second surgery), which operation involved implantation of what is described as the 'Biodesign mesh implant'.[11]
[10] Defence filed 24 November 2020, par 2.
[11] Defence filed 24 November 2020, pars 14 and 22.
To paraphrase, the acts or omissions constituting the negligence are alleged to be a failure to provide the plaintiff with any or any adequate information in relation to the risks associated with using the mesh implants, failing to warn the plaintiff of the risks and complications of the surgery, failing to appropriately assess the suitability of the plaintiff for this surgery, failing to abandon the surgery upon discovery of the presence of scar tissue and failing to perform the surgery with due care and skill and in accordance with the practice that was at the time widely accepted by his peers.
The breach of contract and contravention of the Australian Consumer Law are more particularly alleged to be constituted by the failure to render services with due regard, care and skill, and the use of foreign materials that were not reasonably fit for the purpose.
In about 1996 and 1997 the plaintiff underwent two surgeries being an abdominal hysterectomy and then removal of her fallopian tubes and ovaries. There is no evidence of any significant health problems until around mid to late 2011 when following a lifting incident the plaintiff started experiencing difficulties in urinating and defecating. There is no evidence the plaintiff experienced any pain associated with these difficulties.
On the 26 March 2012 the plaintiff consulted the defendant following a referral by her general practitioner who performed urodynamics and a flexible cystoscopy on the 16 May 2012 and then in the first surgery performed a laparotomy, adhesiolysis and sacrolpopexy.
In her affidavit the plaintiff describes the pain she was experiencing immediately and/or shortly after the first surgery and stated that she took medication for pain relief. The plaintiff then states she was reviewed by the defendant on the 20 June 2012 at which time she informed him that she was having trouble getting on and off the bed because of so much pain. She states she showed the defendant where she was feeling the pain which she described as being like a line of pain shooting up from the right-hand side. The defendant stated 'you shouldn't be in this much pain still'.[12]
[12] Plaintiff's affidavit affirmed 29 September 2020, pars 42 - 47.
According to her statement of claim the plaintiff immediately experienced pain, pain on the right side of the abdomen, pelvic pain, back pain, inability to void, difficulty in moving her bowels, difficulty standing, difficulty walking and urinary tract infection like symptoms. She was discharged from the hospital on the 20 June 2012.[13]
[13] Statement of claim, par 22.
The statement of claim goes on to plead that over approximately the next 16 months to the second surgery the plaintiff had ongoing problems for which she consulted various medical practitioners. The problems included experiencing pain on sexual intercourse in June 2012, and medical procedures were a colonoscopy on the 11 March 2013, laparoscopy, major adhesiolysis and abdominal wound revision on the 24 May 2013, nerve block on or about 15 July 2013 and rhizotomy to the right ilio‑inguinal, ilio‑hypergastric and genitor‑femoral nerves on or about 23 September 2013.
The plaintiff underwent the second surgery on the 7 November 2013. According to her affidavit she immediately or shortly after the second surgery experienced inability and difficulty voiding, inability and difficulty opening her bowels, pain, right hip pain, complaints of burning inside, the vaginal pain, excessive yellow/grey vaginal discharge, excessive pain on ambulating, inability and difficulty weight-bearing on the right hip, shaking and unsteady gait.[14] In her statement of claim she pleads she immediately experienced right hip pain, vaginal pain, difficulty voiding and a burning sensation inside her. She required medication for pain relief.
[14] Plaintiff's affidavit affirmed 29 September 2020, par 58.
On the 10 November 2013 the plaintiff was discharged from hospital and five days later, on 15 November 2013 experienced severe right buttock pain. The plaintiff states in or around April 2014 she experienced burning pain in the left perineum and vulva area and pain in the right ilio‑inguinal region with paraesthesia.
The defendant subsequently performed a cystoscopy and urethral dilation on the 26 June 2014 and 28 August 2014 a cystoscopy and urethrolysis following which the plaintiff was treated with an ilio‑inguinal neuro modulator in or around 2015.
On 26 February 2015 the plaintiff underwent a total colectomy and on the 1 June 2016 underwent a laparotomy and parastomal hernia repair.[15]
[15] Statement of claim, par 41.
The plaintiff then ceased work in about July 2017 before going on long-term paid sick leave on the 7 August 2017. She then had a permanent suprapubic catheter inserted into the urinary bladder on the 1 September 2017.
According to her affidavit, on or about the 6 September 2017 she consulted with Dr Jessica Yin and as a result of matters that were discussed the plaintiff decided she needed to make further enquiries as to whether her pain and other symptoms may have been attributable to the conduct of the defendant. The plaintiff does not provide any particulars of what was discussed with Dr Yin. Nor does she state what further enquiries she felt she needed to make.
In any event, she then saw her solicitor on or about 11 October 2017 at which time she says she became aware of her rights to make a claim against the defendant for the implant operations and the need to obtain expert evidence on matters that would provide her with information to determine what was the cause of the pain and other symptoms she had experienced and whether it was attributable to the conduct of any person including the defendant.[16]
[16] Plaintiff's affidavit affirmed 29 September 2020, pars 60 - 63.
The plaintiff's solicitors then arranged for her to be reviewed by Dr George Angus, who she saw on or about the 7 November 2018 and who provided a medical report of the same date which is annexed to her affidavit as TLT-3.
In his report Dr Angus diagnosed Chronic Complex Pelvic Pain with acute exacerbations that had both a neuropathic (sensory) component and an autonomic (functional) component. He went on to state the pain had become centrally sensitised, being stimulated by full bladder, urinary tract infection, full bowel, sexual intercourse, coughing, sneezing, pelvic examination and surgery. He expressed the opinion the pain was predominantly in the distribution of the pudendal nerve which is supplied by the sacral nerve roots S2, S3 and S4 which are in the same operative field as the site of the sacral implantation arm of the sacrocolpopexy mesh.
Dr Angus went into some detail explaining the mechanics of the surgery and how the various aspects of the surgery caused or contributed to the plaintiff's complaints post-surgery.

Dr Angus stated that the plaintiff reported pain was her primary post-operative complaint and observed that he could not find in the notes of the implanting surgeon documentation of the 'specific risks' relating to the surgery performed on 7 November 2013.[17]
[17] Report of Dr Angus, page 21.

Conclusion

For the reasons given below I am not satisfied that when the limitation period expired for the first surgery and the second surgery the plaintiff was not aware that she had suffered an injury, not satisfied she was not aware of the physical cause of the injury, and not satisfied she was not aware the physical cause of the injury was attributable to the conduct of the defendant.
In respect of the first surgery it seems much more likely than not the plaintiff was aware that she had suffered a not insignificant personal injury, being an impairment of her physical condition (that being the statutory definition of injury in the Act), at about the time of the surgery. Further, the evidence shows that prior to the first surgery her complaints were limited to difficulties in urinating and defecating with no complaint of pain. Immediately following the surgery the plaintiff experienced pain in the right side of the abdomen, pelvis and back with difficulty standing and walking. She had also been informed by the defendant five days later that she should not still be in that much pain.
Given the immediate or near immediate onset of symptoms it is my view that the plaintiff must have attributed her post surgery condition to the surgery. Further, she knew who did the surgery, namely the defendant. The fact that the plaintiff did not have detailed knowledge of the cause, such as the detailed surgical procedures of the operation and that it involved using tacks to fix the anterior mesh to the sacrospinous ligaments, that the traction associated with this causes traction on nerve roots that supply the gluteal, sciatic and femoral nerves[18] and the use of an allegedly inappropriate 'InterPro mesh implant' does not mean she was unaware of the physical cause of her injury or that she was unaware that the physical cause of the injury was attributable to the defendant. Whilst the plaintiff may have needed expert medical evidence to become aware that the surgery and use of the implant was allegedly negligent, she did not need that expert evidence to know the physical cause of the injury and to whom it was attributable. Knowledge that the defendant was negligent, assuming that to be the case, is not a matter listed in s 39 of the Act.[19]
[18] Report of Dr Angus, page 10.
[19] AME Hospitals Pty Ltd v Dixon [21].
There is nothing in the plaintiff's affidavit to suggest that she thought she was somehow to blame for the injury or injuries she suffered at the time of the surgery[20] or that the injury was due to an unfortunate turn of events.[21]
[20] Gill v Ethican Sarl (No 5) [2019] FCA 1905 [4823].
[21] Mullaley v State of Western Australia [2020] FCA 13 [61].
In respect of the second surgery I am not satisfied the plaintiff was not aware of the physical cause of any injury and not aware the physical cause of the injury was attributable to the conduct of the defendant. Whilst many of the symptoms the plaintiff experienced after the second surgery were the same as the symptoms she experienced after the first surgery, and therefore it may have been difficult for her to differentiate what symptoms were attributable to what surgery, the evidence is that after the second surgery she experienced burning pain and what she described as excessive pain on ambulating, inability and difficulty weight-bearing on the right hip shaking and unsteady gait. Again, the immediate onset of these additional symptoms point to her being aware of injury and that the symptoms were caused by the surgery performed by the defendant.
The plaintiff's cause of action in so far as it is based on a failure to warn of the risks of surgery faces the same issues in that it is the surgery which is the physical cause of the injury, not the failure to warn.[22]
[22] AME Hospitals Pty Ltd v Dixon [28].
Accordingly the application pursuant to s 39 of the Act for an extension of time to commence proceedings should be dismissed.

Limitation period for the Australian Consumer Law claim.

Whilst the plaintiff by her summons sought an order extending the limitation period pursuant to the provisions of the Competition and Consumer Act s 87E and s 87F, it is my view those provisions do not apply. Those provisions are found in Part VIB of the Competition and Consumer Act which applies to proceedings taken under Parts 2-2, 3-3, 3-4, 3-4 and div 2 of Part 5-4 of the Australian Consumer Law.
They do not apply to Part 3-2 of the Australian Consumer Law, being the Part in which s 60 and s 61, being the sections the plaintiff pleads the defendant as having breached, are found. The limitation provision applicable to s 60 and s 61 is found in s 236 of the Australian Consumer Law and provides for a limitation period of six years from the date the cause of action accrues. It does not provide for an extension of the limitation period.
Accordingly the plaintiff's chamber summons insofar as it seeks an extension of time pursuant to s 87E and s 87F should also be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
NF
Registrars Associate
14 APRIL 2021