Extending Time for Personal Injury Claims: Lessons from Gale v East Metropolitan Health Service

By Malvinpal Singh Khaira, Principal Solicitor

On 13 January 2026, the District Court of Western Australia delivered its decision in Gale v East Metropolitan Health Service (2026) WADC 3, which considered the application of the Limitation Act 2005 (WA) in personal injury matters. In particular, the Court was required to consider an extension of time for the bringing of personal injury actions pursuant to Section 39 of the Act.

The Plaintiff in his Application sought either a declaration that he had commenced his action within time, or an extension of time to bring his action under s39 of the Act.

The facts

The facts that were not in contention and read into evidence were:

1. The plaintiff sustained an injury to his left heel after having fallen from his balcony on 19 June 2020.
2. Following the fall, he presented to the Royal Perth Hospital for a CT scan and was diagnosed with a comminuted fracture to the left calcaneum, and a right big toe distal phalanx fracture.
3. His foot was placed in a cast and he was discharged and told to return to the outpatient clinic on 25 June 2020, with surgery due to be undertaken on 26 June 2020.
4. He returned to the Royal Perth Hospital on 25 June 2020 when the cast was removed. Sores were observed on his leg and the leg was reportedly black and blue with bruising and swelling. He was informed he had a serious injury and that he would no longer be undergoing surgery as the swelling needed to reduce. He was told future fusion surgery may be necessary. Although a nurse told the Plaintiff his cast had been applied too tight, a doctor said the marks on his leg were not from the cast and did not cause any problems.
5. The Plaintiff understood that the surgery was unable to proceed because his leg was too swollen, which he understood to be normal for his injury.
6. On 7 July 2020, he attended another hospital due to worsening swelling to his ankle. He reported his cast being too tight, creating two sores on his shin.
7. On 27 July 2020, he attended a third hospital and the notes state that he suffered heel and ankle pain with pressure sores from incorrect plaster application. The notes further express concerns raised by the Plaintiff as to the quality of his follow-up care at the hands of the Defendant.
8. On 6 August 2020 he was told the surgery was not needed, but that fusion surgery was needed in future.
9. Further medical investigations were undertaken during 2021 and in January 2022 he was booked for fusion surgery.
10. Further medical treatment and investigations followed:
    • On 7 September 2022 he underwent the planned fusion surgery. At the time of surgery, a calcaneal deformity was noted but not corrected.
    • The surgical wounds became infected, which ultimately needed surgical attention on 18 October 2022.
    • On 14 February 2023, a CT scan showed non-union of the fusion surgery and the Plaintiff’s foot was in a deformed state.
    • He underwent further surgery on 14 June 2023 to remove metalwork from his foot.
    • On 5 September 2023 he underwent further surgery designed to achieve a subtalar fusion. He remained in severe pain and the foot remained deformed.
11. The Plaintiff consulted his solicitors on 29 September 2023 to investigate a case in respect of the ankle fusion surgery of September 2022.
12. The Plaintiff’s solicitors received the Plaintiff’s complete medical file as held by the Defendant. Various other medical records were procured from other parties between October 2023 and April 2025.
13. A CT scan on 19 February 2024 showed fusion with approximately 25% bone bridging across the subtalar joint, with bony bridging across the previous fracture sites.
14. The Plaintiff’s lawyers procured two expert opinions before March 2025 when investigating the cause of action relating to the September 2022 surgery. No physical reports were obtained; rather they had conferred with the doctors, who had provided conflicting opinions on the question of liability for both the June 2020 treatment and the September 2022 surgery.
15. Eventually, on 2 May 2025, Dr Donovan, Orthopaedic Surgeon, formed the opinion that the poor application of the cast impacted the plaintiff’s ability to undergo surgery in late June 2020.
16. On this date the solicitors also advised the Plaintiff of the same. A report was subsequently prepared and issued to the Plaintiff on 20 May 2025.

Timing of the determination

The Act makes it clear that s39 Applications can be brought and ruled upon before a trial, even before the commencement of the substantive action. The appropriate timing of the determination of an extension of time application is a matter for the court’s discretion.

When a Court is dealing with evidence that is not contested, the task in these applications is relatively straightforward; findings of fact can be comfortably made and the court can properly resolve the application at the interlocutory stage. This is so even where there has been cross-examination of the Plaintiff.

However, where the Court is confronted with material disputes of fact, the Court must proceed warily. The Court must be mindful of the High Court’s decision in Wardley Australia Ltd v State of Western Australia [1992] HCA 55, that it is generally undesirable to decide limitation questions turning on contested issues of fact at an interlocutory stage. In such cases the Court may order that the extension application be determined at the trial of the substantive action.

As there were no material disputes to the Affidavit evidence laying out the facts, the Court considered it appropriate to determine the limitation issue at the interlocutory stage.

The four issues in a Section 39 application

The Court considered the four issues to be determined in a Section 39 Application:

1. When did the limitation period expire in respect of the cause of action that the Applicant wishes to pursue?
2. Has the plaintiff satisfied any of the three limbs of s39(3) of the Act?
3. If the Plaintiff has satisfied a limb of s39(3), is an extension of time available to the Plaintiff under s39(4) that will be sufficient to cover the time period in which the action was (or will be) brought?
4. If a sufficient extension of time is available, and having regard to any relevant considerations in s44, what extension of time shall be granted?

The Court reiterated that s39(3) and s39(4) operate in tandem. The discretion to extend time in s39(4) is enlivened only if the Plaintiff first passes through one of the three “gateways” in s39(3). Once enlivened, s39(4) then governs the extent of any extension (and the Court’s discretion is to be exercised having regard to s44).

Limitation expiry

In relation to the expiry of the limitation period, it was common ground that the action had commenced out of time, with the statute of limitation expiring on or about 19 June 2023 (according to the Defendant) or on or about 26 June 2023 (according to the Plaintiff). On that basis the Court progressed on the basis that the applicable limitation period expired in or about June 2023.

The gateway issue

The gateway issue was broken down into the following sub-issues:

1. What is the relevant “injury” for the purposes of s39(3)?
2. What is the relevant “physical cause” for the purposes of s39(3)?
3. Was the Plaintiff aware of the physical cause at the time the limitation period expired? (first gateway)
4. If so, was the Plaintiff aware that the injury was attributable to the conduct of a person? (second gateway)
5. If so, was the Plaintiff unable to establish that person’s identity after reasonable enquiry? (third gateway)

The relevant “injury”

A key aspect of the reasoning was the Court’s approach to characterising the relevant injury in a medical negligence claim arising from the treatment of a pre-existing injury.

The Court accepted that, in cases of this kind, the relevant injury for s39 purposes is not necessarily the original injury which brought the patient to treatment (here, the fall), but may be:

• a fresh injury arising in the course of treatment; and/or
• a “continuation-type” injury, being the continuation or degradation of the original condition beyond the point where the treatment should have alleviated it.

In this case, the Plaintiff’s injury was characterised as the continuation of the calcaneal fracture (and associated deformity) after about early July 2020, being the point at which fixation surgery could have been applied. The Court adopted that characterisation and referred to it as the “Relevant Injury”.

The relevant “physical cause”

The Plaintiff advanced the physical cause as being the “soft tissue environment and pressure sores”. The Court did not treat that as wrong, but considered it artificial to isolate one factor and label it the physical cause where the injury was the product of multiple sequential contributors.

The Court identified a sequence: cast application, then swelling within the cast, then formation of pressure sores and tenderness, then presentation of swelling and sores on cast removal, then the decision not to proceed with early fixation and instead manage conservatively (leading to malunion and deformity).

The Court therefore formulated the physical cause more compendiously as “the particular treatment administered” at Royal Perth Hospital in June 2020, including the manner of cast application and the consequences of that (pressure issues) and the resulting surgical decision-making.

First gateway: awareness of the physical cause at the expiry of the limitation period

The first gateway turns on whether the Plaintiff was aware of the physical cause when the limitation period expired (here, June 2023).

The Court emphasised that “awareness” in this context means actual awareness in the sense of being cognisant or informed of the relevant matter. It is not enough that the Plaintiff:

• knew the underlying facts (for example, swelling, sores, surgery being cancelled); or
• suspected something had gone wrong; or
• speculated about a causal link.

Importantly, the Court reiterated that the solicitor’s knowledge is not imputed to the Plaintiff. The Plaintiff’s state of knowledge is the focus.

On the facts, the Court accepted the Plaintiff’s unchallenged evidence that he believed surgery did not proceed because swelling was a normal consequence of a serious injury; that he had been told by a doctor that the cast did not cause problems and the sores were not from the cast; and that he did not appreciate that the cast and soft tissue compromise could explain the decision not to proceed with early fixation (and thereby contribute to the avoidable continuation-type injury).

The Court found the Plaintiff did not become aware of the physical cause until 2 May 2025, when the substance of Dr Donovan’s opinion was communicated to him by his solicitors. Accordingly, the Plaintiff passed through the first gateway in s39(3)(a).

Second gateway: awareness that the injury was attributable to the conduct of a person

Although not strictly necessary once the first gateway was satisfied, the Court also addressed the second gateway.

The Court approached “attributable to” as requiring a factual causal relationship, not a legal conclusion about liability. It again emphasised that suspicion is not enough, and that in medical negligence cases awareness may crystallise only once expert opinion identifies the link.

Consistently with the first gateway, the Court found the Plaintiff’s awareness of attribution did not arise until the same point in time (being when Dr Donovan’s opinion was conveyed), and therefore the Plaintiff passed through s39(3)(b) as well.

Third gateway: identity after reasonable enquiry

Because the Plaintiff satisfied the first and second gateways, the Court did not need to determine the third gateway.

However, the Court’s later reasoning on s39(4) treated “identity” as satisfied because the Plaintiff sued the Health Service entity responsible for the treating staff, and did not need to identify individual clinicians to meet the “identity” requirement.

Section 39(4): the extension period

Once a gateway is satisfied, s39(4) becomes critical. The Court described s39(4) as importing both:

• a subjective (actual awareness) component; and
• an objective component (“ought reasonably to have become aware”).

The three-year extension period is measured from the date the person becomes aware (or ought reasonably to have become aware) of all of the required matters (physical cause, attributability, identity), and not from the expiry of the original limitation period.

Actual awareness date

Consistently with the gateway findings, the Court found the Plaintiff became aware of the relevant s39(4) matters on 2 May 2025, when he was advised that the cast and soft tissue compromise likely prevented early surgery and contributed to the long-term outcome.

When ought the Plaintiff reasonably to have become aware?

This was where the Court’s reasoning has the greatest practical utility for lawyers. The Plaintiff relied in part on the fact that the Defendant’s October 2023 production of records was incomplete and that additional clinical notes were produced in April 2025. The Court accepted that the late production caused some delay in the procurement of Dr Donovan’s opinion (a relatively minor delay in context). However, the Court was not prepared to find that the missing notes were so “revelatory” that the link could not have been explored earlier, noting the Plaintiff already knew of pressure sores and that other contemporaneous records referred to pressure areas from plaster.

The Plaintiff first consulted solicitors on 29 September 2023. The Court accepted there was no basis to say he ought to have appreciated the relevant matters before then (unaided by expert input). However, by January 2024, the solicitors had a substantial volume of records, including other hospital notes referencing pressure areas and incorrect plaster application. The Court found that there was sufficient material to commence expert briefing by that time.

There was then a period (approximately February 2024 to August 2024) where there was no evidence explaining what was being done beyond record collection. The Court allowed time for file review and identifying an expert, but still found an unexplained delay of about four months.

Because that four-month period was unexplained, the Court inferred there was no justification for it and found the Plaintiff ought reasonably to have become aware of the relevant matters by 2 January 2025, being four months earlier than the actual awareness date.

Which date governs the three-year period?

The Court held that the three-year period runs from the earlier of actual awareness and objective awareness. Accordingly, the extension period ran from 2 January 2025, which plainly captured the writ date of 2 June 2025.

The discretion issue: should an extension be granted, and to what extent?

Once gateway and sufficiency were established, the Court turned to the discretion, noting that the Plaintiff must not only enliven the discretion, but also demonstrate good reason to exercise it; and that the Court must have regard to s44 (fair trial and prejudice) as mandatory considerations (though not exhaustive).

Section 44 considerations

The Defendant did not seek to rely on s44 factors. Nonetheless, the Court considered them and found that the delay did not unacceptably diminish the prospects of a fair trial, and that an extension would not significantly prejudice the Defendant other than the fact of having to meet the claim.

In doing so the Court took into account that the reason for the delay in commencing proceedings and bringing the application had been adequately explained; that the Plaintiff, until recently, was not aware that the Relevant Injury could be attributed to the manner in which he was treated by the Defendant’s staff; and that upon receipt of Dr Donovan’s report, he acted swiftly to commence proceedings and to bring the Application. Further, the Plaintiff had an arguable case against the Defendant, such that an extension of time would serve a useful purpose in permitting that case to be ventilated at trial.

Two practical procedural remarks

The Court made two remarks that are likely to be repeatedly cited in interlocutory applications of this nature:

• Attacks on admissibility of expert reports. The Court declined to determine admissibility disputes about Dr Donovan’s opinion at the limitation stage, treating those as matters for trial. The report was considered to understand the case and assess arguability, not to finally determine merits.
• Belated disclosure of earlier expert opinions. The Court accepted the Defendant’s criticism that earlier, less supportive opinions (obtained by conference or file note) should have been disclosed up front where the Plaintiff’s evidence relied on them as part of the investigation narrative. The Court did not refuse the extension on that basis, but it is a clear warning that selective disclosure can become a real issue in s39 applications.

Practical guidance for lawyers considering a section 39 extension application

The decision is most useful for what it offers by way of guidance to plaintiff solicitors on the issues to be determined for such an application.

Affidavit evidence should squarely deal with:

• what the Plaintiff was told at the time;
• what they believed caused the outcome;
• what they did not understand (the “missing link”); and
• the specific date and mechanism by which awareness crystallised.

Gale is a reminder that “we were waiting on records” will not always protect you on the objective test. Once you have sufficient material to brief an expert on liability, brief the expert and continue to chase additional records concurrently. Missing notes may explain a short delay, but if the theory could have been investigated from available records and patient history, missing notes will have limited utility in resisting an adverse objective awareness finding.

Silence will be treated as “no explanation”. The four-month unexplained inactivity was central to the Court bringing forward the objective awareness date. Keep a clear chronology of investigative steps, file reviews, and reasons for any pauses (funding, client capacity, expert availability, record production issues).

Do not confuse “knowledge of events” with “awareness of physical cause”. A Plaintiff can know they had swelling, sores and cancellation of surgery without appreciating the causal proposition that those features were avoidable and causally linked to the long-term injury. The Court treated that distinction as fundamental.

For insurance solicitors representing Defendants, do not turn the extension hearing into a mini-trial on admissibility. The Court was not prepared to determine admissibility disputes about the Plaintiff’s expert report at the limitation stage.

Gale reinforces that the most effective resistance often lies in pressing the objective limb of s39(4) with a granular investigation chronology; identifying what material was available and when, and what reasonable steps could have been taken earlier; and putting on evidence of actual prejudice (witness availability, loss of contemporaneous records, and any forensic disadvantage), rather than relying on limitation principle alone.