Meo v Facial Plastic Surgery Pty Limited [2025] WADC 88 (Link to JADE).
Margaret Meo had a cosmetic facial treatment performed at Academy Face and Body, a plastic and cosmetic surgery clinic operated by the first defendant Facial Plastic Surgery Pty Ltd.
The basis of her cause of action stemmed from an alleged injury caused by the treatment administered by the clinic’s nurse practitioner, Ms Helen Cunningham. The plaintiff sued the first defendant and a supervising doctor. She did not sue Ms Cunningham, believing her to be an employee for whom the first defendant would be vicariously liable.
The limitation period expired soon after service of the proceedings. The defence filed by the second defendant doctor asserted that Ms Cunningham was not in fact an employee of the clinic but an independent contractor.
Ms Meo then applied outside of the limitation period for leave under s 39(3)(b) of the Limitation Act 2005 (WA) to bring an action against Ms Cunningham and to join her as a further defendant to the action.
Notwithstanding that the application was not opposed by the current defendants, the court did not consider that the application could succeed for three reasons.
- There was no satisfactory evidence that Ms Meo has suffered a personal injury to trigger the operation of s 39 of the Limitation Act 2005.
- There was no satisfactory evidence as to when Ms Meo suffered any such personal injury or was aware of the first manifestation or clinical sign of such injury to ascertain when the limitation period commenced.
- Ghiassi was distinguishable on its facts and an inappropriate analogue for this situation. Ms Meo was always aware of the person to whom her injury was attributable (whether in fact or law). A mistake as to Ms Cunningham’s employment status is not one that is captured by operation of s 39 and the principles established by Ghiassi when no other entity or individual was otherwise involved.
For these reasons Ms Meo’s application was dismissed.
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