There’s nothing quite like the thrill a defence lawyer gets when they see a date that means a claim might be over before it even begins. The pause as the date calculations run through their mind, counting those 3 long years on their fingers as they hold their breath. Then a long exhale and a silent fist pump. The statutory clock appears to be on your client’s side, and a welcome, uncomplicated, succinct defence to be drafted – “the limitation period has expired”. No need for trawling through medical records, complex causation questions or competing expert evidence.
The decision of the District Court in Gale v East Metropolitan Health Service [2026] WADC 3 (Gale), provides a timely reminder that this thrill can sometimes be short lived. Even when a claim appears long expired, the clock may not be as definitive as a defendant might hope. A fresh expert report and some legal advice were enough to reopen a pathway to litigation nearly 5 years after the treatment the subject of the claim took place.
On 19 June 2020, the plaintiff sustained a comminuted fracture of his left heel, and a fracture of his right big toe. He attended Royal Perth Hospital where a below‑knee plaster cast was applied. When the cast was removed days later, swelling and pressure sores were present, and surgery to repair the fracture was cancelled. At the time, the plaintiff believed this was due to normal swelling.
Over the next few years, he underwent multiple surgeries, infections, malunion, and deformity. It was only in 2025 that he understood that the way the plaster cast was applied might have caused the subsequent complications. The plaintiff then commenced proceedings out of time and applied for an extension of time to bring his action under s. 39 of the Limitation Act (WA) 2005.
After it was found that the limitation period had expired, s. 39 required the court to consider the following 3 questions:
Did the plaintiff know, before June 2023, that his injury was caused by the way the cast was applied and the consequences of that treatment?
Under s. 39(3), the plaintiff had to show that he was not aware, by the time the original limitation period expired (June 2023), of at least one of the following key matters:
The court found the plaintiff in Gale satisfied both 39(3)(a) and (b).
To pass through the first gateway, the plaintiff is not considered to be aware of the physical cause of the injury if their awareness does not go beyond being aware that something was possibly the cause, or suspecting something was the cause. The Court found that the cause of the plaintiff’s injury was the treatment he had in 2020. He was aware that he had treatment in 2020, but believed that the failure to proceed with early surgery was due to ordinary swelling from his fracture. Although he knew he had pressure sores, he did not know their clinical significance, that they were caused by a poorly applied cast or that they contributed to the cancellation of surgery.
The Court found that the plaintiff only became aware (in the sense required by s39(a)) of the physical cause of his injury when the opinion of Dr Donovan was provided to the plaintiff by his solicitors on 2 May 2025. He therefore lacked actual awareness of the physical cause of his injury at the time the limitation period expired, permitting him to pass the first gateway under s 39(3)(a).
Even if he had been aware of the physical cause, but not aware that the injury was attributable to the conduct of a person, he would still satisfy the second gateway. Because the plaintiff did not understand the physical cause until 2 May 2025, he likewise could not have appreciated before this date that his injury was attributable to the actions of the hospital staff.
He therefore also passed the second gateway under s 39(3)(b).
Could s 39(4) provide an extension long enough to include the date he filed the writ (2 June 2025)?
Per s. 39(4) of the Limitation Act, an extension can run for up to 3 years from the date the plaintiff became aware, or ought reasonably to have become aware, of all matters in s. 39(4). The Court found that the plaintiff actually became aware of the cause of his injury and that it was attributable to a person on 2 May 2025, when he received Dr Donovan’s opinion
The Court found he ought to have become aware by 2 January 2025, four months earlier, because by January 2024, his solicitors already had sufficient medical records that noted pressure sores from application of the cast. There was an unexplained 4 month delay (from February to August 2024) in briefing experts. Had reasonable steps been taken, expert opinions could have been obtained by April 2024, which would have led to awareness by January 2025.
The extension period begins on the earlier of the two dates:
Therefore, the extension begins on 2 January 2025. A 3 year extension from 2 January 2025 enabled proceedings to be commenced at any time prior to 2 January 2028. This was well beyond the filing date of 2 June 2025 and so the plaintiff’s proceedings were made good.
Should the court exercise its discretion to grant the extension, and how long an extension should be granted?
Finally, the Court was required to determine whether it should exercise its discretion to grant the extension and considered:
This supported granting the plaintiff an extension to commence proceedings until 2 June 2025.
Gale is a timely reminder that the thrill that comes with a limitation defence for a defence lawyer and their client can be fleeting. Even when a claim appears comfortably out of time, an expired date is no longer the decisive shield defendants once relied upon. As Gale demonstrates, a plaintiff’s lack of early awareness, especially in medical negligence matters, can reopen what looks like a firmly closed door.
For potential defendants, the lesson is clear: limitation defences remain a valuable tool, but are not an impenetrable shield. Defendants often take comfort in the warmth of a limitation defence, relying on the certainty of a hard statutory cut‑off to contain their exposure. While that initial spark of excitement will always be part of the defence lawyer’s experience, Gale shows that this comfort is increasingly fragile, as courts remain willing to reopen “out‑of‑time” claims where causation is complex and awareness arises late, leaving defendants far more exposed than they might expect.
The question then becomes – should a defendant insist on a preliminary determination of the limitation issue, or leave it for determination at trial?
The courts certainly prefer for this issue to be determined at trial, but given the complexity and expense of running a medical negligence claim to trial, there is often a real benefit to the parties knowing whether the action is statute barred or not before significant resources are expended investigating and defending the claim to trial. If both parties agree that the limitation period has expired, then it is usually appropriate for the question of an extension of the limitation period to be determined as a preliminary issue. A defendant may choose not to raise a strong defence to the plaintiff’s application, and merely leave it in the court’s hands to determine whether the plaintiff has satisfied the criteria in section 39 of the Limitation Act.
This article was written by Hayley French, Lawyer Insurance