Tompkins v Natalwala [No 2] - [2022] WADC 50

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   TOMPKINS -v- NATALWALA [No 2] [2022] WADC 50
CORAM:   RUSSELL DCJ
HEARD:   8 DECEMBER 2021
DELIVERED          :   30 MAY 2022
FILE NO/S:   CIV 2577 of 2020
BETWEEN:   TINA LOUISE TOMPKINS
Plaintiff
AND
JAY NATALWALA
Defendant

Catchwords:

Appeal against decision of principal registrar - Limitation of actions - Personal injury - Application for extension of time within which to commence proceedings for damages for personal injury - Section 39 and s 55 Limitation Act 2005 (WA) - Turns on own facts

Legislation:

District Court Rules 2005 (WA), r 15(2)
Limitation Act 2005 (WA), s 14(1), s 39(1), s 39(3), s 39(4), s 44, s 55(1), s 79(3)

Result:

Appeal allowed
Time within which to commence proceedings extended

Representation:

Counsel:

Plaintiff	:	Mr G Droppert SC
Defendant	:	Ms H M 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; (2015) 48 WAR 139
Briggs v Glentham Pty Ltd (1992) 8 WAR 339
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hunt v Knabe (No 2) (1992) 8 WAR 96
Kamath v Allight Sykes, Landsdale [2019] WADC 98
Kezic v St John of God Health Care Inc [2015] WASCA 220
Liebherr‑Australia Pty Ltd v Bloomfield [2006] WASCA 128
Mullaley v The State of Western Australia [2020] FCA 13
Spark v Rogers [No 3] [2017] WADC 4
Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19
Tompkins v Natalwala [2021] WADC 33
Waldron v Joondalup Hospital Pty Ltd [2018] NSWCA 182

RUSSELL DCJ:

Introduction

This is an appeal from a decision of Principal Registrar Melville made on 15 April 2021,[1] dismissing the appellant's application under s 39 of the Limitation Act 2005 (WA) for an extension of time to commence this action.
[1] Tompkins v Natalwala [2021] WADC 33.
The appellant, Tina Louise Tompkins, commenced proceedings in the Federal Court of Australia on 29 May 2019 against the respondent, Dr Jay Natalwala, claiming damages for personal injury alleged to have been caused by vaginal mesh implant surgeries performed by Dr Natalwala on 15 June 2012 (the first implant surgery) and 7 November 2013 (the second implant surgery).
By order of the Federal Court made on 11 May 2020, the proceedings were transferred to the Supreme Court of Western Australia and, in turn, remitted to this court by order made on 14 July 2020.
The statement of claim filed in the Federal Court stands as the statement of claim in this court. Ms Tompkins' claims against Dr Natalwala are alleged to arise (relevantly to this appeal) from breach of a duty of care and breach of contract. Dr Natalwala denies Ms Tompkins' claims and pleads in the amended defence[2] that those claims are statute barred.
[2] Amended defence filed 8 November 2021, par 37.
By chamber summons filed on 29 September 2020, Ms Tompkins applied (relevantly to this appeal) to extend the time to commence her action against Dr Natalwala pursuant to s 39 of the Limitation Act. Her application was opposed by Dr Natalwala.
For the following reasons, Ms Tompkins' appeal against the principal registrar's decision dismissing her application should be and is allowed and the time within which Ms Tompkins could commence the action is extended to 7 November 2021.

The appeal and the issues to be determined

The appeal

The appeal notice was filed on 27 April 2021, within the time required for commencing an appeal under the District Court Rules 2005 (WA) (DCR) r 15(2).
There is no requirement that Ms Tompkins show that the principal registrar made an error in the decision under appeal.[3] The appeal is by way of a new hearing of the matter that was before the principal registrar.[4] That is, to hear and determine Ms Tompkins' application as if it was before me for the first time.[5]
[3] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26,28; Spark v Rogers [No 3] [2017] WADC 4 [10]; Kamath v Allight Sykes, Landsdale [2019] WADC 98 [25].
[4] DCR r 15(6).
[5] Briggs v Glentham Pty Ltd (1992) 8 WAR 339, 349 - 350; Hunt v Knabe (No 2) (1992) 8 WAR 96, 109 ‑ 110; Hazart Pty Ltd v Rademaker (28); Liebherr‑Australia Pty Ltd v Bloomfield [2006] WASCA 128 [8]; Kezic v St John of God Health Care Inc [2015] WASCA 220 [42].
As such, I do not refer to or repeat the principal registrar's reasons for decision or make any observations or findings in relation to his decision and the reasons for it.

The issues to be determined

It is not in dispute that Dr Natalwala performed the first implant surgery, described as 'Laparotomy, Adhesiolyis and Sacrocolpopexy (Mesh) (InterPro LPPY-Sling)' in which an InterPro® LPPY-Sling mesh was implanted,[6] and the second implant surgery, in which a mesh known as 'COOK Medical Biodesign' was implanted.[7]
[6] Statement of claim, pars 18 and 19; Amended defence, par 14.
[7] Statement of claim, pars 36 and 37; Amended defence, par 22.
Nor is it in dispute that the proceedings were commenced more than three years after each of the first implant surgery and the second implant surgery. What is in dispute and the key issues to be determined in this appeal are:
1.whether Ms Tompkins' action for damages for personal injury was commenced within the limitation period;
2.if not, whether the court's discretion is enlivened under s 39 of the Limitation Act to extend the time within which Ms Tompkins' action for damages for personal injury can be commenced;
3.if so, whether the court should exercise its discretion to extend the time within which the action be commenced, and for how long?

The statutory framework and applicable legal principles

Time within which an action for damages for personal injury must be commenced

Section 14(1) of the Limitation Act provides that:
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.

When does a cause of action for damages for personal injury accrue?

By s 55(1) of the Limitation Act:
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.
Buss JA (as his Honour then was) considered the operation of s 55(1) of the Limitation Act in AME Hospitals Pty Ltd v Dixon,[8] stating:
173Section 55(1) does not distinguish between an 'injury' and the 'physical cause' of the injury. Instead, it distinguishes in effect between an 'injury', on the one hand, and when the person who suffers the injury becomes 'aware' that he or she has sustained the injury or when 'the first symptom, clinical sign or other manifestation' of the injury occurs, on the other.
174Section 55(1) altered the law as to when a cause of action for damages relating to a personal injury (other than a personal injury which is attributable to the inhalation of asbestos) accrues in that the provision is not concerned with when the person suffers the injury. Time no longer begins to run when the first not insignificant injury occurs. Time now begins to run upon the earlier of when the person becomes aware that he or she has sustained a not insignificant personal injury or when the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury occurs.
[8] AME Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139 [173] - [174].
It follows that the relevant date for accrual of the cause of action for personal injury is not when the injury (the subject of the action) was sustained, but when the person becomes aware of that injury or when there is some manifestation of the injury. The action must be commenced within three years of such awareness or manifestation.
In Thomas Peacock Sons Pty Ltd v Abreu,[9] the Court of Appeal referred to the relevant criterion in s 55(1) of the Limitation Act as being 'awareness, or means of awareness, of the existence of a personal injury'.
[9] Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [40].
Colvin J stated in Mullaley v The State of Western Australia,[10] that, in context, the reference by the Court of Appeal in Thomas Peacock Sons Pty Ltd v Abreu to 'means of awareness':
… was a reference to the second of the two events specified in s 55(1), namely, manifestation of injury. If there is no such manifestation before the person becomes aware of the injury then it is awareness that the claimant has suffered a not insignificant injury that is the only event and it sets the date that the cause of action accrues. However, if there is an earlier manifestation of the injury (by symptom, clinical sign or other manifestation) then that is the 'means of awareness' and the cause of action accrues at that time. To that limited extent, the cause of action may accrue even though there is no actual awareness.
[10] Mullaley v The State of Western Australia [2020] FCA 13 [28].
In considering when the cause of action accrued in Mullaley v The State of Western Australia,[11] Colvin J stated:
60… Awareness is to be determined having regard to the particular characteristics and circumstances of the prospective claimant. Manifestation must be of a not insignificant injury. It may not occur until there is a medical assessment by a person with the expertise to identify the first symptom, clinical sign or other manifestation as being consistent with the prospective claimant having suffered a not insignificant injury. It is at that point in time that the symptom, sign or manifestation occurs. The fact that it may have been evident but not recognised as a manifestation of a not insignificant injury at an earlier point in time does not make that earlier point the time of the first symptom or clinical sign.

Extension of time to commence action for personal injury

[11] Mullaley v The State of Western Australia [32] - [37].

By s 39(1) of the Limitation Act, a plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under that Act has expired.
The court has a discretion under s 39(3) of the Limitation Act to extend the time within which an action for damages for personal injury can be commenced. Section 39(3) provides (relevantly):
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 … injury;
(b)was aware of the physical cause of the … injury but was not aware that the … injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the … injury and that the … injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
If one of the three conditions in s 39(3) as set out above is met at the time the limitation period expires, s 39(4) of the Limitation Act provides that:
… 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 … injury;
(b) that the … 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 AME Hospitals Pty Ltd v Dixon, McLure P and Buss JA (as his Honour then was) separately construed some of the fundamental concepts and terms in s 39 of the Limitation Act.
McLure P, with whom Newnes JA agreed,[12] held as follows:[13]
[12] AME Hospitals Pty Ltd [265].
[13] AME Hospitals Pty Ltd [23], [28], [33], [34], [36], [41], [42].
23The term 'injury' in s 39(3) and s 39(4) means the personal injury the subject of the application for leave under s 39(1).
…
28The 'physical cause' of a personal injury is the different and logical first question of 'what' caused the injury, not 'whom'.
Her Honour gave examples, including:
28… If a motor vehicle hits a pedestrian, the collision is the physical cause of the pedestrian's injuries and, in a case concerning a failure to warn of the risks of surgery, it will be the performance of the surgical procedure.
…
33[A] causal connection in fact (as distinct from causation at law) will satisfy the requirement that the injury be 'attributable to' a person's conduct.
As to the term 'aware':
34The natural and ordinary meaning of the term 'aware' is cognisant or informed of. That is, awareness can result from information provided by a third party. In the context of s 39(3), actual awareness is required, not constructive awareness.
…
36What constitutes actual awareness will depend on the nature of the fact or matter in issue. In this case, awareness of the physical cause of the … injury is a matter of inference, from primary facts, that required expert medical knowledge and experience. …
…
41… 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 the physical cause of the injury is attributable to the conduct of an identified person).
In relation to the phrase, 'ought reasonably to have become aware' in s 39(4):[14]
42[T]he objective test of reasonableness is assessed having regard to the characteristics, attributes and circumstances of the particular person to whom the cause of action accrues.
[14] AME Hospitals Pty Ltd (agreeing with Buss JA).
Buss JA held as follows:[15]
[15] AME Hospitals Pty Ltd [180], [181], [188], [191], [192], [197] - [200], [205], [211], [213], [214].
180The relevant 'personal injury' for the purposes of s 55(1), and the relevant 'injury' for the purposes of s 39(3) and s 39(4), will be:
(a)the actual disease contracted by the person;
(b)the actual impairment of the person's physical condition;
(c)the person's actual mental disability (as defined in s 3(1));
(d)the actual damage or harm to the person's tissues, other bodily structures or physiological bodily functions; or
(e)any other actual injury, within the ordinary and natural meaning of that term, suffered by the person,
as the case may be, which is the subject of the person's cause of action or proposed cause of action for damages.
181The term 'injury' in s 39(3) and s 39(4) is concerned with the actual injury itself, and not with the symptoms, clinical signs or other manifestations of the injury.
The term 'physical cause' in the context of 'the physical cause of the injury', in s 39(3) and s 39(4):
188… is concerned with causation in fact, as distinct from causation at law.
…
191… is not concerned with whether the physical cause of the … injury is attributable to the conduct of a person.
192… is not concerned with whether the … injury is attributable to a wrongful act or omission.
The terms 'aware' and 'not aware' in s 39 are:
197… concerned with whether the person had 'actual awareness or knowledge', or did not have 'actual awareness or knowledge', of the relevant matter or matters enumerated in s 39(3) or s 39(4), as the case may be. …
198The term 'aware' in s 39(3) and s 39(4) does not mean reasonable belief or suspicion, and it does not refer to 'constructive awareness or knowledge'. …
199Actual awareness or knowledge is derived from information and depends upon understanding …
200… The 'actual awareness or knowledge' within s 39(3) and s 39(4) means awareness or knowledge of the relevant fact or facts with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process.
The phrase 'ought reasonably to have become aware' in s 39(4):
205In my opinion, is concerned with the state of awareness or knowledge that ought reasonably to have been acquired by the actual 'person to whom the cause of action accrues', within s 39(5). It is that person who is referred to in s 39(4). The court does not assess how a reasonable person in the position of the person to whom the cause of action accrues would have acted and, in making that assessment, disregard aspects of that person's actual characteristics, qualities and circumstances. The task of the court is to determine whether the person to whom the cause of action accrues ought reasonably to have become aware of the matters enumerated in pars (a), (b) and (c) of s 39(4) by reference to what can reasonably have been expected of that person having regard to the actual subjective factors mentioned. …
As to the terms 'attributable to' and 'conduct of a person' in s 39(3) and s 39(4):
211… the term 'attributable to', in s 39(3) and s 39(4), requires that the person to whom the cause of action accrues was aware, or ought reasonably to have become aware, of a connection between the injury, on the one hand, and the conduct of a person, on the other, with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or other originating process. …
…
213The 'conduct of a person', within s 39(3) and s 39(4), includes acts and omissions of the person. The relevant conduct of the person is to be ascertained from the proposed particulars of negligence relied on by the proposed plaintiff and the evidence adduced at the hearing of the extension application.
214The notion of 'awareness' in evaluating:
(a)whether the proposed plaintiff was aware or not aware that the injury was attributable to the conduct of a person, within s 39(3)(b); and
(b)when the proposed plaintiff became aware, or ought reasonably to have become aware, that the injury was attributable to the conduct of a person (whether a defendant or not), within s 39(4)(b),
is directed to the relevant conduct.
As to whether a prospective claimant was actually aware of the matters specified in s 39(3), Colvin J stated in Mullaley v The State of Western Australia:[16]
61… it is not an inquiry as to when the prospective claimant knew the facts on which the claim was based. Rather, it is an inquiry as to whether, by the end of the limitation period, the prospective claimant was consciously aware of the injury, that a person was responsible for their injury and who that person was …
[16] Mullaley v The State of Western Australia [61].
The power to extend the time within which an action for personal injury is commenced may be exercised after commencement of the proceedings.[17]
[17] Waldron v Joondalup Hospital Pty Ltd [2018] NSWCA 182 [136] (Sackville AJA).
The applicant in an extension application (in this case Ms Tompkins) has the burden of proving that the court should extend the relevant limitation period.[18]

Further matters the court must consider on an application to extend time

[18] Limitation Act s 79(3).

Section 44 of the Limitation Act requires that:
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).

Evidence adduced in the appeal

Ms Tompkins relied on her affidavits affirmed on 29 September 2020 and 26 July 2021.
Dr Natalwala sought leave to cross-examine Ms Tompkins on her affidavits at the hearing of the appeal. I heard that application on 8 December 2021 before the hearing of the appeal. For the ex‑tempore reasons given on 8 December 2021, I was satisfied that it was in the interests of justice and granted leave for Ms Tompkins to be cross‑examined on her affidavits on a limited basis. Her cross‑examination was confined to particular paragraphs of her affidavits as identified at the hearing of the application for leave to cross‑examine.
I refer to Ms Tompkins' evidence in further detail later in these reasons and to the relevant facts taken from her evidence and other evidence adduced in the appeal.
Dr Natalwala relied on the affidavit of Morag Donaldson Smith, a solicitor employed by his solicitors, Avant Law Pty Ltd, affirmed on 6 February 2021 and (for the application to cross‑examine Ms Tompkins) a further affidavit affirmed by Ms Smith on 29 November 2021.
Ms Smith's February 2021 affidavit attaches medical notes, records and reports relating to Ms Tompkins dated between 25 January 2013 and 24 March 2016.
There was also an affidavit sworn by Dr Natalwala on 5 January 2021, to which Dr Natalwala attaches clinical notes of his consultations with Ms Tompkins. He also deposes to having been unable to locate or retrieve certain records, including that appointment records for consultations he had with Ms Tompkins on 26 March 2012, 23 April 2012, 22 May 2012, 3 August 2012 and 5 April 2013 are no longer available and records relating to appointments before June 2013 have not been retrieved.

Ms Tompkins' evidence and the relevant facts

I found Ms Tompkins to be a credible and reliable witness. The following relevant facts are taken from her evidence, which I accept for the purpose of the appeal and extension application, and from the medical reports and notes attached to Ms Tompkins' September 2020 affidavit, Ms Smith's February 2021 affidavit and the clinical notes attached to Mr Natalwala's affidavit.
Ms Tompkins is 52 years old and has three children born in 1988, 1990 and 1991. She migrated to Australia in April 2006 from England to take up a position as a police officer with the Western Australian police force.
Ms Tompkins underwent two major abdominal surgeries in 1996 and 1997. She had a total abdominal hysterectomy in 1996 and, about a year later, in 1997, she had surgery to remove her fallopian tubes and ovaries. She was asked in cross-examination if, after those surgeries she experienced severe postoperative pain like she has described as having immediately after Dr Natalwala's surgery. She said, yes. She said they were very painful surgeries.
In mid to late 2011, Ms Tompkins started experiencing problems emptying her bladder and increased difficulty with her bowels. She was working in the driver training unit of the West Australian police force and frequently had to lift and change tyres for skid training. She felt that something had dropped from her lower abdomen area to her vagina and could feel a small bulge in her vagina. She had trouble voiding and had difficulty urinating and defecating.
Ms Tompkins had her first consultation with Dr Natalwala on 26 March 2012 following a referral from her general practitioner (GP). During that consultation with Dr Natalwala, he informed her and recorded in his clinical notes that she had a vaginal prolapse. Dr Natalwala fitted a pessary during that and during a subsequent consultation with him on 23 April 2012. However, on each occasion the pessary did not remain in place.
Ms Tompkins' next appointment with Dr Natalwala was on 22 May 2012 at which, in summary, he informed her that her only option was to have surgery. Ms Tompkins recalled him talking about her vagina having collapsed and to attaching mesh, but she had no idea what mesh was. She also recalled him saying he would have to do an open procedure because of prior adhesions she had. She understood these were from her earlier surgeries.
Ms Tompkins underwent the first mesh implant surgery on 15 June 2012, which was performed by Dr Natalwala at Glengarry Private Hospital.
Ms Tompkins experienced pain on the right side of her abdomen, pelvic pain and back pain after the first implant surgery. She took medication for pain relief.
In cross-examination, Ms Tompkins confirmed her evidence in her affidavit that, immediately after the first implant surgery, she experienced pain including on the right side of her abdomen, pelvic pain and back pain. She also confirmed that a couple of days after the first surgery, whilst she was still in hospital, her pain was so bad that she had trouble getting on and off the bed.
During her stay at the hospital, Ms Tompkins says she was advised by the nurse that the doctor did not like giving strong painkillers because it caused constipation and you can become tolerant to it. Ms Tompkins said she felt like she was being a whinger asking for pain relief even though she had just had major open abdominal surgery. She said it made her feel like a drug addict.
When Dr Natalwala visited Ms Tompkins in hospital on 20 June 2012, she told him she was in pain and showed him where she was feeling pain. She described it as a line of pain shooting up from the right‑hand side. She said that Dr Natalwala said 'You shouldn't be in this much pain still'. She understood that to mean that she had a lower pain tolerance as compared to an average person and believed it was her fault for not being able to cope with the pain.
She said she had just had major open abdominal surgery and had no idea what level of pain she should be expecting from the surgery and did not know what was normal.
Ms Tompkins was injected with a local anaesthetic and steroid, which alleviated her pain, and discharged by Dr Natalwala on 20 June 2012. She was aware that he had gone overseas after discharging her and she was advised to contact his colleague, Dr Chapple, if she had any problems while he was away.
Ms Tompkins telephoned Dr Natalwala's rooms on about 21 or 22 June 2012 and reported she had significant pain in her right abdomen. She said in her affidavit that Dr Chapple diagnosed her with a haematoma and said that he would prescribe her stronger painkillers and for her to rest and she should be fine. In re-examination, Ms Tompkins said that Dr Chapple told her that he thought there was a haematoma near the scar, 'on the sheath - the muscle'. Ms Tompkins' evidence is that, at the time, she thought the cause of her pain was the haematoma and was normal postoperative pain.
On 3 August 2012, Ms Tompkins consulted Dr Natalwala and reported pain when she urinated and abdominal pain near the surgical site. She said that Dr Natalwala diagnosed her pain as caused by inflammation in the urethra or bladder and prescribed a course of antibiotics. She said that Dr Natalwala advised that the abdominal pain was likely due to muscle being caught in the stitches when closing up and should improve and advised her that she had a lot of scarring and adhesions in her abdomen from her previous surgeries.
Ms Tompkins' evidence is that, based on Dr Natalwala's advice, she believed that her pain was from urethral or bladder inflammation and/or a muscle being caught in the stitches. She believed that they were normal postoperative issues and would resolve by themselves with time.
Ms Tompkins said she had problems with defecation after the surgery on 15 June 2012. At first she attributed that to not eating much after the surgery and then believed it to be due to the pain medication she was taking.
As the constipation continued, she consulted her GP and was referred for a colonoscopy to investigate the cause of the constipation. She underwent a colonoscopy on 5 February 2013. No structural cause was found for her constipation.
Ms Tompkins saw Dr Natalwala on 5 April 2013 and reported her ongoing pain and voiding problems to him and relayed the findings of her colonoscopy. She said that Dr Natalwala commented that her colon may have been caught in adhesions which may be the reason for the pain and constipation, and he suggested she undergo an operation to free up the adhesions and explore whether there was muscle caught.
Ms Tompkins said she believed that the fact that she had developed adhesions was an unfortunate turn of events. She had a history of adhesions in her prior abdominal and knee surgeries and felt she was prone to them. She said she did not have reason to suspect that there was anything Dr Natalwala could have done differently to prevent it.
She saw Dr Natalwala for review on about 28 May 2013 and he advised her that she had numerous adhesions and they had been divided and that the mesh was in the appropriate position. Dr Natalwala referred her to Dr Visser for pain management.
Ms Tompkins' evidence is that her understanding at that time was that the adhesions were the cause of her pain and symptoms. She did not believe at that time that they were related to or caused by anything Dr Natalwala did in the surgery.
On 14 June 2013, Ms Tompkins consulted with Dr Chan, a consultant in pain medication, who advised that her pain may be nerve pain and suggested a block be put on the nerves. Dr Chan's letter to Ms Tompkins' GP dated 14 June 2013[19] describes Ms Tompkins as having a history of right lower abdominal pain in the region of her pfannenstiel incision and to her having had several surgeries in the past, including a hysterectomy, a salpingo‑oophorectomy (removal of fallopian tubes and ovaries) and, most recently, a sacralcolpopexy. Dr Chan states that she developed a sharp pain in the right side of her abdominal pelvis, that the pain feels superficial to her and radiates from the border of the scar on the right side down to her groin area and that she also complains of pain radiating back towards her hip. In his assessment, he says Ms Tompkins has a history of persistent neuropathic pain within the region of the right side of her pfannenstiel incision following surgery, with the distribution of the right ilioinguinal and iliohypogastric and right genitofemoral nerves, to be treated by nerve blocks followed by rhizotomy, if indicated.
[19] Annexure C to affidavit of Morag Donaldson Smith affirmed on 5 February 2021.
Ms Tompkins saw Dr Natalwala for review on 8 July 2013. She says she asked him about Dr Chan's opinion that her pain was nerve pain. She says that Dr Natalwala advised her that a stitch might be too tight and that stitches dissolve and it should calm down. Dr Natalwala also suggested during this consultation that she have a further operation for voiding problems and she felt confident after this review with Dr Natalwala that the dissolving stitches would alleviate the pain she was having.
On or about 15 July 2013, Ms Tompkins underwent a nerve block by Dr Chan at Hollywood Private Hospital. The nerve block was placed by inserting a needle near her scar on her abdomen. She believed the nerve problem was associated with the scarring where her incision was and was local in nature. She said in cross-examination that the nerve block was for the pain she felt near the incision from the surgery.
In re-examination, Ms Tompkins said that the nerve pain treated by Dr Chan was the pain on the right side of her incision from the surgery on the right side of her abdomen. She said that was different pain to the other types of pain she described as having come on after the surgery. The nerve pain near the incision was where she was opened up when she had the first surgery with Dr Natalwala. She said it was just part and parcel of the surgery - It was 'where he'd cut, there was a nerve there'. She described that as being only superficial and said the injections were into the corner of the scar.
For about four weeks following that procedure, Ms Tompkins had no pain. The pain then returned. She saw Dr Chan for review on 23 August 2013. She understood that the nerve block showed her pain was associated with those specific nerves in the area of her scar and should respond to a rhizotomy at the location of those nerves.
On 26 August 2013, Ms Tompkins saw Dr Natalwala and reported that she had pain and voiding problems. She said that Dr Natalwala diagnosed her pain as caused by inflammation in the urethra or bladder and prescribed her with antibiotics to be reviewed in two weeks.
Ms Tompkins says that she believed that developing inflammation was an unfortunate turn of events where no one was to blame and not related to anything that Dr Natalwala did.
On 23 September 2013, Ms Tompkins had a rhizotomy by Dr Chan at Hollywood Private Hospital and her pain was better following the procedure. She then had a flare up which later settled. The pain in her right thigh had reduced.
Ms Tompkins had a consultation with Dr Natalwala on 28 or 29 October 2013 at Joondalup Health Campus at which a second vaginal mesh implant surgery was arranged for 7 November 2013. Ms Tompkins understood that surgery was intended to help with her bowel and bladder evacuation. She believed it was necessary for her to have that surgery to be able to use the toilet normally again.
On about 1 November 2013, Ms Tompkins consulted with Dr Chan who advised her that she would experience an increase in pain following the surgery by Dr Natalwala. Ms Tompkins understood that the increase in pain would be a normal postoperative symptom. Dr Chan referred her to arrange an epidural analgesia for 48 hours to reduce postoperative pain.
Ms Tompkins underwent the second implant surgery on 7 November 2013 at Glengarry Private Hospital.
After the second implant surgery, Ms Tompkins experienced inability and difficulty voiding, inability and difficulty opening her bowels, pain, right hip pain, complaints of burning inside, vaginal pain, excessive vaginal discharge, excessive pain on ambulating, inability and difficulty weight bearing on her right hip, shaking and an unsteady gait. She believed the pain she was experiencing was from the growth of adhesions based on earlier medical advice. Dr Natalwala referred her to have an X-ray scan of her hip to find the cause of her right hip pain. She had a scan on 11 November 2013.
She saw Dr Natalwala for review on 13 November 2013 and was advised that the scan of the hip was normal and the pain is likely to be referred pain from her back.
She saw Dr Natalwala for review on 20 December 2013 and says he advised that she was healing well and the vaginal support was good. She was referred for pelvic physiotherapy and to be reviewed by Dr Natalwala in 6 months time.
She continued to see Dr Chan for pain management and had a repeat rhizotomy on 4 April 2014, following which she had improvement of pain in the lower abdomen and pelvic region.
Ms Tompkins had ongoing investigation for her voiding problems and on about 26 June 2014, underwent urethral dilation by Dr Natalwala at Glengarry Private Hospital. After that procedure, she had improvement in passing urine for a short time.
A few weeks following the urethral dilation, Ms Tompkins started having voiding difficulty again. She saw Dr Natalwala on 15 August 2014 and he suggested an urethrolysis, an operation to remove adhesions near the urethra.
Ms Tompkins had a third rhizotomy on 22 August 2014 under the care of Dr Veltman at Joondalup Health Campus. Her pain decreased after that procedure.
On 27 and 28 August 2014, Ms Tompkins underwent investigative and treatment procedures by Dr Natalwala at Glengarry Private Hospital including urethrolysis. Her urine flow improved after this procedure.
On 3 October 2014, Ms Tompkins saw Dr Natalwala for review and he told her that, during the urethrolysis procedure, a 'V' cut was made to the mesh and that there was a re-prolapse of the upper anterior vagina. Ms Tompkins says that he told her she failed to lay down enough collagen and that nothing needed to be done at that stage. Dr Natalwala's notes record that her pain and voiding are much better and that she was told she still has some upper anterior wall prolapse where she has failed to lay down collagen.
On 9 January 2015, Ms Tompkins saw Dr Natalwala for review. She was still having slow flow when urinating and constipation. She said that, on examination, Dr Natalwala advised that her vagina looked completely normal with no prolapse. He indicated there was nothing further he could do and asked her to return for review in 18 months' time.
Ms Tompkins was asked in cross-examination if she maintains now that, in 2015 when she last saw Dr Natalwala, she did not attribute the pain and the symptoms that she says she suffered or the nerve pain that she suffered to the surgery. She said 'that's correct'. She also accepted that it was fair to say that when she last saw Dr Natalwala in January 2015, the two things that she had seen him for had not been fixed. She confirmed that when she saw Dr Natalwala in January 2015 she had ongoing severe pelvic pain, back pain and hip pain. She said she had nerve pain in the scar. She accepted that none of those were issues immediately before the surgeries.
Ms Tompkins had ongoing difficulty with urine evacuation. She says that, although it was not fixed by the second implant surgery, she did not have any reason to suspect that it was because of the surgery.
She continued to see Dr Chan for pain management and had another rhizotomy on 12 January 2015.
On 20 February 2015, she saw Dr Koong in relation to her ongoing constipation and he organised a colonoscopy and a referral to another doctor, Dr Hool. Ms Tompkins continued to believe her bowel issues were caused by the adhesions in her abdomen.
She continued to see Dr Chan for pain management and had a trial implant of a peripheral nerve field stimulator on 12 September 2015 and another nerve block on 25 January 2016.
On 26 February 2016, Ms Tompkins underwent a total colectomy and ileostomy under the care of Dr Hool at Hollywood Private Hospital.
On 2 May 2016, Ms Tompkins consulted with Dr Hool and, as she was having intermittent trouble voiding, he suggested she be referred for urogynaecology review. As Dr Natalwala had been unable to fix her voiding problems, she asked to be referred to a different urogynaecologist and was referred to Dr Tsokos.
Ms Tompkins underwent further rhizotomies by Dr Chan on 30 May 2016, 9 December 2016 and 24 July 2017. She also had further consultations and surgeries, including a laparotomy and parastomal hernia repair on 1 June 2016, a cystoscopy with urethral dilation on 21 September 2016 and stoma revision surgery on 12 October 2016.
On about 6 September 2017, Ms Tompkins consulted with Dr Jessica Yin. Dr Yin used a computer simulation program to show Ms Tompkins how the first mesh was attached and how the second mesh had been overlaid. Dr Yin explained to her that some of her symptoms could be related to the pudendal nerve, which is the nerve that was closer to the spine with all the other nerves coming off it, including nerves that operate the bladder and bowel. Dr Yin suggested to her that she seek legal advice regarding the mesh surgeries.
Ms Tompkins' evidence is that this was the first time that a doctor explained to her that her pain in and around her pelvis and abdomen and her bladder and bowel problems could be related to the mesh surgeries. Until her consultation with Dr Yin on about 6 September 2017, she did not believe anything had been done improperly in her first or second implant surgeries. She did not believe her pain and other conditions were because of those surgeries.
Ms Tompkins consulted AJB Stevens Lawyers on about 11 October 2017. AJB Stevens Lawyers arranged a consultation for Ms Tompkins with Dr George Angus. Dr Angus subsequently prepared a report dated 7 November 2018, a copy of which is annexed to Ms Tompkins' affidavit of 29 September 2020.

Ms Tompkins' lawyers filed the Federal Court proceedings on 29 May 2019.

Report of Dr George Angus

In his report dated 7 November 2018,[20] Dr George Angus expresses his opinions relating to Ms Tompkins' condition, Dr Natalwala's treatment of her, the surgeries he performed, her symptoms and their cause. He states that his conclusions are based on the clinical and medical records referred to in his report, from consultation with Ms Tompkins and an ultrasound examination on 16 October 2018.
[20] Report of Dr George Angus, 7 November 2018 (Angus Report): Annexure 'TLT-3' to affidavit of Tina Louise Tompkins, affirmed 29 September 2020.
Dr Angus' diagnosis is chronic complex pelvic pain with acute exacerbations. That is, pain that has a neuropathic sensory component and an autonomic functional component. He refers to the pain having become centrally sensitised and describes where the source of the pain is, being the pudendal nerve. He says that the autonomic component of the pudendal nerve supplies the functional control of continence of bladder and bowel and the autonomic control of micturition and defecation.[21]
[21] Angus Report, page 7.
Dr Angus states that the pudendal nerve is supplied by various sacral and nerve roots. In summary, he states that those nerve roots are in the same operative field as the site of the sacral implantation arm of the sacrocolpopexy mesh.
He states, in effect, that in his opinion the insertion of the mesh has caused damage to the nerves which are located precisely in the area of where the mesh was inserted and concludes that damage to those nerves is the cause of Ms Tompkins' symptoms.[22]
[22] Angus Report, pages 7 - 10.
Dr Angus states that it is his opinion that there is a direct causal link between the implantation surgery and the injuries and pain suffered by Ms Tompkins and sets out the mechanisms for the development of pain as:
1.Direct injury to sensory nerves - pudendal nerve and its branches, splanchnic nerves and superior hypogastric plexus, the nerve roots of the gluteal and femoral nerves and ilio‑inguinal nerves, are within the operative field of the surgical dissection and implantation of the polypropylene, sacrocolpopexy mesh.
2.Fibrosis occurs after implantation of synthetic implants so that progressive development of pain and autonomic dysfunction occurs due to traction, compression or distortion of nerves and/or their blood supply by the ongoing fibrosis.
3.Contraction of synthetic implants occurs after implantation and causes direct injury to nerves and/or their blood supply, or by the process of fibrosis described in 2 above.[23]
[23] Angus Report, pages 14 - 15.

Submissions

The appellant's submissions

I do not repeat all of the appellant's submissions. In summary, it was submitted on behalf of Ms Tompkins, in effect, that:
1.In addition to the surgeries, Ms Tompkins saw Dr Natalwala a number of times between 15 June 2012 and January 2015 and told him of her symptoms. He gave her various explanations, including pre-existing adhesions and scarring from earlier surgeries, not enough collagen being laid down, inflammation of her bladder or urethra. He never told her there was damage to her nerves or that damage had occurred in the implant surgeries.
2.None of the explanations given to Ms Tompkins for her symptoms were such as to give rise to an awareness that she had an injury from the surgery or that her symptoms were caused by something attributable to the conduct of Dr Natalwala - that there was damage to her nerves deep inside her abdomen that occurred in the course of or as a result of the surgery he conducted.
3.The first time that Ms Tompkins became aware that her symptoms could be related to or may have been caused by the surgeries performed by Dr Natalwala was when she consulted Dr Yin on 6 September 2017. Until then, she did not attribute her pain or symptoms to anything Dr Natalwala had done or that she may have suffered injury from the surgeries.
4.Ms Tompkins was not aware that she had an injury or that it was attributable to the conduct of a person (Dr Natalwala) until she saw Dr Angus' report dated 7 November 2018, which:
(a)identified that nerves in and around the area of the mesh implants had been damaged;
(b)stated that the damaged nerves were the cause of her ongoing symptoms; and
(c)explained that the damage to the nerves occurred in the course of the surgeries.
5.If the court finds that the proceedings were not issued within the limitation period, the court should be satisfied that at the time of expiration of the limitation period, Ms Tompkins was not aware of the physical cause of her injury or aware that it was attributable to the conduct of a person (Dr Natalwala).
6.There is nothing in this case to suggest, and Dr Natalwala has not adduced evidence or identified anything to support, that the prospects of a fair trial of the action would be unacceptably diminished or that would significantly prejudice him if the court were to exercise its discretion to extend time.

The respondent's submissions

I do not repeat all of the respondent's submissions. In summary, it was submitted on behalf of Dr Natalwala, in effect, that:
1.Pursuant to s 55 of the Limitation Act, Ms Tompkins' causes of action (in tort and contract) accrue from the date the surgeries were performed and the time for commencing proceedings expired on 15 June 2015 and 7 November 2016, respectively.
2.As Ms Tompkins commenced the proceedings on 29 May 2019, her claims are statute-barred.
3.The court's power under s 39(3) of the Limitation Act is not enlivened because there is insufficient evidence to discharge Ms Tompkins' onus of establishing that she was not aware of the physical cause of the injury, or alternatively, that if she was, that she was not aware that the injury was attributable to the conduct of a person.
4.Even if the court's power is enlivened because it is satisfied of either of those things, the time for commencing the action can only be extended for three years from June 2015 (to June 2018) at the latest, being the time when Ms Tompkins ought reasonably to have become aware of the matters in s 39(4) of the Limitation Act.
5.The 'personal injury' the subject of the proceedings is pain, including on the right side of the abdomen, pelvis and back, inability to void, difficulty moving bowels and in standing/walking, which on Ms Tompkins' pleaded case occurred immediately after both the first implant surgery and the second implant surgery.
6.Ms Tompkins was aware immediately after the surgeries that she had sustained a not insignificant personal injury, or was aware that the first symptom, clinical sign or other manifestation of personal injury consistent with having sustained a not insignificant personal injury had occurred.
7.Given the immediate, or close to immediate, onset of symptoms postoperatively, it is reasonable to conclude that Ms Tompkins attributed her post surgical condition to the surgery.
8.This is not a case where expert medical knowledge and experience is required for Ms Tompkins to have been aware that the injury was attributable to the conduct of Dr Natalwala. It is clear from matters stated by Ms Tompkins in her affidavits that she was aware of the connection between her injuries and Dr Natalwala's alleged conduct.
9.If the court is satisfied that its discretion under s 39(3) is enlivened, based on the statement of claim and the evidence, Ms Tompkins ought reasonably to have become aware of the physical cause of her injury and that it was attributable to the conduct of Dr Natalwala by June 2015, or at the latest by February 2016. It is submitted that this is because, by June 2015:
(a)Ms Tompkins suffered immediate and substantial postoperative complications that differed to pre-existing symptoms suffered, and involved outcomes about which she says she had not been warned as being possibilities.
(b)In the days after the first implant surgery, Ms Tompkins alleges having trouble getting on and off the bed due to the extent of her pain, and Dr Natalwala arranging injection of anaesthetics and steroids, and a day or two later, she was prescribed stronger painkillers.
(c)In July 2012, her GP noted she continued to suffer with right iliac fossa/abdominal pains as well as altered bowel and bladder function, and lots of pain on defecation and urination.
(d)In January 2013, her GP recorded chronic pains on the right iliac fossa side, not resolved from surgery, and possible rectal prolapse.
(e)In April and June 2013, chronic pains and urine/bowel incontinence continue to be noted, and Dr Chan reported as early as June 2013, that following the first implant surgery she had developed a history of persistent neuropathic pain within the region of her right side of her incision, which he opined was consistent with involvement of her nerves.
(f)Ms Tompkins expressed concerns to her GP in November 2013 about the prospect of undergoing further surgery with Dr Natalwala and concerns about the potential for an increase in pain following that surgery, which she says he confirmed to her would be likely.
(g)Immediately after the second implant surgery, she alleges she experienced inability and difficulty voiding, inability and difficulty opening bowels, pain, right hip pain, vaginal pain, excessive discharge, difficulty weight bearing on right hip, shaking and unsteady gait.
(h)Ms Tompkins is reported to be unable to work due to these post-operative symptoms as at April 2014. By October 2014, she is reported to be fed up with all the surgeries and her GP noted 'Bladder/bowel incontinence, failed two surgeries'.
(i)Ms Tompkins was referred to Dr Philip Kriel for management of complex chronic pelvic pain in February 2015 and general surgeon, Dr Koong, reported on 20 February 2015 that she had a 'complex problem', being essentially 'obstructed defecation' which was an issue that he believed had 'attempted to be repaired by a gynaecologist'.
(j)Ms Tompkins was advised by Dr Chan that her pain might be nerve pain, in respect of which a nerve block was suggested and done.
10.The later date of early February 2016 is when Ms Tompkins asked to be referred to another gynaecologist.
11.Reasonable steps extended to seeking a medical and/or legal opinion and ignorance as to what the physical cause of her injury was or that it was attributable to the conduct of a person (Dr Natalwala) is the result of Ms Tompkins' failure to take such reasonable steps.
12.Ms Tompkins' suggestion that her injury was somehow an unfortunate turn of events and that she was not aware it was connected to the surgeries is not plausible.

Was Ms Tompkins' action for damages for personal injury commenced within the limitation period?

The personal injury

The personal injury the subject of Ms Tompkins' claim is pleaded as the various complaints set out in the statement of claim and particularised in the plaintiff's reply to the defendant's request for further and better particulars of the statement of claim (particulars),[24] as follows:
[24] Statement of claim, pars 22 - 23 and 40 - 42; Plaintiff's reply to defendant's request for further and better particulars of the statement of claim, pars 1 and 6.
1.in relation to the first implant surgery, pain on the right side of abdomen, right hip pain, vaginal pain, pelvic pain, back pain, reliance on medication for pain relief, inability to void, difficulty moving her bowels, difficulty standing, difficulty walking and urinary tract infection like symptoms, and the matters pleaded at par 23 of the statement of claim;
2.in relation to the second implant surgery, pain, reliance on medication for pain relief, right hip pain, vaginal pain, difficulty voiding, a burning sensation inside her, and the matters particularised at par 41 of the statement of claim;
3.in relation to both the first implant surgery and the second implant surgery, the matters set out in pars 1(a)(iii) and 6(a)(iii) of the particulars, including:
(a)damage to her nerves and/or tissue at pelvis, including nerve damage to the pudendal and other nerves referred to;
(b)pudendal neuropathy;
(c)damage to nerves and/or tissue at right iliac fossa, bladder, ureter/s, urethra, vagina, bowel, colon, rectum, anus, perineum and buttocks;
(d)neurogenic bladder;
(e)ileostomy bag;
(f)suprapubic catheter;
(g)loss of colon;
(h)fistula;
(i)chronic pain, including neuropathic pain, chronic inguinal pain and chronic pelvic pain; and
(j)psychological injuries, including severe major depressive disorder.
As noted earlier in these reasons, in his report dated 7 November 2018, Dr Robert Angus' diagnosis is chronic complex pelvic pain with acute exacerbations. Dr Angus states that the source of the pain is the pudendal nerve, the autonomic component of which supplies the functional control of continence of bladder and bowel and the autonomic control of micturition and defecation.
It is Dr Angus' opinion that the insertion of the mesh has caused damage to the nerves located in the area where the mesh was inserted and that nerve damage is the cause of Ms Tompkins' symptoms. That is her chronic pain, voiding and other issues leading to her colectomy and ileostomy.
That is my high level summary of Dr Angus' report and opinion. He addresses all of these matters in significantly more detail in his report.

Accrual of the cause of action

As already noted, the relevant date for accrual of the cause of action for damages for personal injury is not when the injury (the subject of the action) was sustained, but when the claimant becomes aware of that particular injury or when there is some manifestation of that injury.
As observed by Colvin J in Mullaley v The State of Western Australia,[25] awareness is to be determined having regard to the particular characteristics and circumstances of the claimant. It may be that manifestation of the injury does not occur until there is a medical assessment by a person with the expertise to identify the first symptom, clinical sign or other manifestation as being consistent with the claimant having suffered a not insignificant injury. The fact that it may have been evident but not recognised as a manifestation of a not insignificant injury at an earlier point in time does not make that earlier point the time of the first symptom or clinical sign.
[25] Mullaley v The State of Western Australia [32] - [37].
I find that this is such a case. Though Ms Tompkins had pain and other symptoms immediately following the first implant surgery and the second implant surgery, it was not until she was informed by Dr Yin on 6 September 2017 that her pain and symptoms may be related to an injury to her pudendal nerve arising from the mesh implant surgeries that Ms Tompkins' symptoms and clinical signs were recognised as manifestations (or potential manifestations) of a not insignificant injury.
It was not until she was informed by Dr Angus' report dated 7 November 2018, that she was actually aware of what her injury was and that her symptoms and clinical signs were consistent with that injury.
As such, and as the proceedings were issued on 29 May 2019, within three years of both 6 September 2017 and 7 November 2018, Ms Tompkins' action for damages for personal injury was issued within the limitation period and no extension of time is required.
If I am wrong about that and Ms Tompkins' cause of action accrued in relation to one or more of her injuries earlier than three years before she commenced her action, because:
1.she was aware she had sustained a not insignificant personal injury; or
2.the first symptom, clinical sign or other manifestation of personal injury consistent with her having sustained a not insignificant personal injury had occurred,
I am satisfied that, if that is the case, my discretion under s 39(3) of the Limitation Act is enlivened, and that I should exercise it by extending the time within which Ms Tompkins' action for damages for personal injury could be commenced. The reasons for this are set out in the following sections of these reasons.

Is the court's discretion to extend time under s 39 of the Limitation Act enlivened?

As noted earlier in these reasons, the term 'injury' in s 39(3) and s 39(4) is concerned with the actual injury itself, and not with the symptoms, clinical signs or other manifestations of the injury.
The task of the court is to determine whether by the end of the limitation period (assuming it had expired at the time the proceedings were issued), Ms Tompkins was actually aware of the physical cause of her injury or injuries the subject of her cause of action, and that a person (Dr Natalwala) was responsible for the injury or injuries.
I am satisfied that Ms Tompkins was not aware at any time before (at the earliest) 6 September 2017 of the physical cause of her injuries the subject of her cause of action in the proceedings or that they were (or, at that stage, may have been) attributable to the conduct of Dr Natalwala.
She was not actually aware what the physical cause of her injuries was, or that they were, attributable to the surgeries conducted by Dr Natalwala, until she was informed of those matters by Dr Angus' report on or about 7 November 2018.
As far as Ms Tompkins was concerned, the pain and other symptoms she was experiencing initially was what she considered to be normal postoperative pain or because of adhesions from her earlier surgeries. She did not connect the pain and other symptoms she was experiencing with a significant injury or to anything done by Dr Natalwala to cause such an injury. This was reinforced, in her mind by:
1.Dr Natalwala informing her:
(a)that her pain was caused by inflammation in the urethra or bladder, or was likely due to a muscle being caught in the stitches and that she had a lot of scarring and adhesions in her abdomen from previous surgeries;
(b)in May 2013, that she had numerous adhesions and they had been divided, and that the mesh was in the appropriate position;
(c)on 8 July 2013, that a stitch might be too tight and that the stitches would dissolve and should calm down;
(d)on 26 August 2013, when Ms Tompkins reported she had pain and voiding problems, that her pain was caused by inflammation in the urethra or bladder;
(e)on 13 November 2013, that the scan of her hip was normal and that the pain was likely to be referred pain from her back;
(f)on 20 December 2013, that she was healing well and the vaginal support was good;
2.in August 2014, Dr Natalwala suggesting a urethrolysis, an operation to remove adhesions near the urethra, and later in August 2014, she underwent investigative and treatment procedures by Dr Natalwala, including urethrolysis, after which her urine flow improved; and
3.Dr Natalwala advising her, in January 2015, when she reported still having slow flow when urinating and constipation, that her vagina looked completely normal with no prolapse and he would review her in 18 months.
In the circumstances, I am satisfied that my discretion under s 39(3) of the Limitation Act is enlivened.

Should the discretion to extend the time within which the action could be commenced be exercised, and for how long?

I am also satisfied that I should exercise my discretion to extend the time within which the action be commenced, and do so, to regularise the proceedings, and allow Ms Tompkins to proceed with her claims.
It was submitted on behalf of Dr Natalwala, in effect, that the court should not exercise its discretion to extend the time within which the action could be commenced because Ms Tompkins' ignorance as to what the physical cause of her injury was, or that it was attributable to the conduct of Dr Natalwala, is the result of Ms Tompkins failing to take reasonable steps by seeking a medical and/or legal opinion. I do not accept that submission.

Given the sheer volume of medical consultations, procedures and surgeries undergone by Ms Tompkins, it is difficult to see what more she could possibly have done to have become aware earlier what the physical cause of her injuries was and that they were attributable to the conduct of Dr Natalwala. This is particularly so, in the circumstances I have referred to, where Dr Natalwala himself did not attribute her pain and symptoms to being caused by the surgeries, and there is no evidence that any of the other medical professionals considered that Ms Tompkins may have been injured by the implant surgeries. There was no indication of that or the need to seek any further medical advice or legal advice until Ms Tompkins consulted Dr Yin on 6 September 2017.
Ms Tompkins consulted AJB Stevens Lawyers shortly after that, on 11 October 2017. There is no evidence before me as to why it took from then to 7 November 2018 to obtain Dr Angus' report or from which I can conclude that Ms Tompkins ought reasonably to have become aware of the matters in s 39(4)(a), s 39(4)(b) and s 39(4)(c) any earlier than she did.
As to the matters I am required to consider under s 44 of the Limitation Act, it was submitted on behalf of Dr Natalwala that I should take into account the long passage of time between the likely trial date and the matters in dispute. In particular the time that will have passed since the consultations Dr Natalwala had with Ms Tompkins before each of the surgeries. Dr Natalwala deposes in his affidavit to some records being unavailable, but his counsel expressly stated that he has access to his clinical notes and there is no question of prejudice from that point of view.
Though a significant amount of time has elapsed since the first implant surgery and the second implant surgery and the consultations that preceded them, there is nothing before me to suggest, and Dr Natalwala has not adduced any evidence to indicate that the delay in commencing the proceedings has unacceptably diminished the prospects of a fair trial of the action, or that would cause him significant prejudice if I were to exercise my discretion to extend the time.
I am satisfied that, in all the circumstances, it is appropriate that I exercise my discretion to extend the time within which Ms Tompkins' action for damages relating to her personal injuries could be commenced to 7 November 2021. That is three years from the date of Dr Angus' report, by which she became aware of precisely what her injuries were, their physical cause and that they were attributable to the conduct of Dr Natalwala.

Conclusion and orders

For the reasons stated, the appeal is allowed and the orders made by the principal registrar on 15 April 2021 are set aside.
I will hear from the parties in relation to the form of the orders I should make and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
30 MAY 2022