Facts
On 23 July 2019 the plaintiff attended the Fiona Stanley Hospital emergency department after a co-worker stepped on her right foot. She had injured the same foot on a door 11 days earlier. She was fitted with a Camboot for a suspected cuboid fracture. On 1 August 2019 she presented to Rockingham General Hospital with a cold, discoloured foot and foot drop, and was diagnosed with a peroneal nerve injury.
She retained solicitors in January 2023. Dr Sekel’s report of 19 December 2023 attributed a permanent nerve injury to the Camboot having been over-tightened. She applied for an extension under s 39(3)(a) on 13 November 2025.
Decision
The cause of action accrued on or about 1 August 2019, when the plaintiff knew she had a not insignificant injury, so the limitation period expired in August 2022.
SMHS argued she knew the cause well before then. Among other things, it relied on a note from April 2020 in which she spoke of nerve damage and threatened to sue. It also relied on a JobSeeker provider’s remark in late 2021 or early 2022 that the hospital had “crushed” her leg.
The Court rejected both arguments. The April 2020 note recorded her asking whether she had nerve damage. Her threat to sue was aimed at the doctor who had first seen her and missed the fracture, not at the Camboot. There was no evidence that the JobSeeker provider had medical qualifications, and the plaintiff treated the remark as something worth looking into rather than as an answer.
Applying AME Hospitals Pty Ltd v Dixon [2015] WASCA 63, the Court held that the physical cause of the injury, and its attribution to the hospital, depended on inferences drawn by a medical expert. Awareness therefore required an expert opinion reasonably capable of acceptance and capable of establishing those facts. Dr Sekel’s report was the first such opinion. The Court found that the plaintiff became aware of all three s 39(4) matters on 19 December 2023, and that there was no basis to find she ought reasonably to have become aware earlier.
The plaintiff’s evidence was inconsistent about what she had been told in August 2019. The Court did not need to resolve that question and accepted that she was doing her best to tell the truth.
The time she took to obtain legal advice was assessed against her own circumstances, including homelessness, impecuniosity, and the difficulty of separating the effects of two separate traumas from the effects of the boot. It was held not to be unreasonable.
Her solicitors then took 10 months to brief Dr Sekel. The Court said this was longer than might be expected but not unreasonable. It was more troubled by the unexplained period between Dr Sekel’s report and the application. That delay was not fatal, because the application was filed less than two years after the report and within the three-year extension that s 39(4) allows. Brisbane South Regional Health Authority v Taylor was distinguished as a decision on a different statutory test.
On prejudice under s 44, SMHS led no specific evidence. The Court accepted that delay always causes some prejudice. It considered that emergency department clinicians would have no independent recollection of a patient within weeks, let alone years, and would rely on the notes regardless. Those notes were still available.
The Court proposed to extend time to 22 December 2026, with orders to be settled after hearing from the parties.
Comment
Where the cause of an injury is a matter of medical inference, AME makes it difficult for a defendant to prove earlier actual awareness from a plaintiff’s suspicions, comments by lay people, or threats to sue. Constructive awareness is assessed against the plaintiff’s own circumstances, so arguing it needs evidence of what she could realistically have done earlier.
The more practical lesson concerns prejudice. SMHS filed no affidavit and relied on general submissions about delay, which the Court gave little weight in a hospital claim with complete records. A defendant opposing an extension should put on evidence of specific prejudice, such as unavailable witnesses, lost records, or clinical questions that can no longer be assessed.
