Category Archives: Medical negligence

Damages, LAW FIRM, Medical negligence, Negligence

Cattanach v Melchior [2003] HCA 38

July 16, 2003 Legal Helpdesk Lawyers

ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003).

http://www.austlii.edu.au/au/cases/cth/HCA/2003/38.html

A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. She told the doctor that she believed that her right fallopian tube had been removed when she was 15. The doctor performed a tubal ligation on the left fallopian tube and made no further investigation regarding the right tube. As it turned out, the right tube had not been removed and the woman later fell pregnant, unintentionally.

The woman and her husband sued the doctor and the State of Queensland (who ran the hospital) seeking damages for negligence on the grounds that the doctor failed to advise the woman of the risks of conceiving without specific investigation of the right fallopian tube.

The woman and her husband were awarded damages for the costs of raising and maintaining the healthy but unintended child, despite those damages being for pure economic loss (ie not arising from any actual injury).

The Civil Liability Acts have since prohibited awards of damages for the costs of rearing or maintaining a child or the parents’ loss of earnings whilst rearing or maintaining a child.

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Civil procedure, Duty of Care, LAW FIRM, Legislation, Medical negligence, Negligence, Nuisance, Occupiers Liability, Personal Injury, Product liability, Professional negligence, Torts

Civil Liability Act 2002 (NSW)

June 18, 2002 Legal Helpdesk Lawyers

ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.

The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.

The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.

The significant features of the Act include:

Statement of principles for determining negligence.
Modification of causation test.
No duty to warn of obvious risk.
No liability for materialisation of inherent risk.
No liability for harm suffered from obvious risks of dangerous recreational activities.
No duty of care for risk warning of dangerous recreational activity.
Standard of care for professionals.
Contributory negligence can defeat a claim.
Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
Limiting interest.
Restrictions for persons in custody.
Restrictions for mental harm.
Allocation of proportionate liability for concurrent wrongdoers.
Limiting liability of public authorities.
Restricting recovery for intoxicated persons.
Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
Apologies not to affect liability.
Limiting damages for birth of a child.
Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
Costs restrictions.

The Act does not apply to claims (or parts of claims) regarding:

Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
Dust diseases.
Tobacco.
Motor Accidents and public transport accidents.
Workers, Victims and Sporting Injuries compensation.

Sydney, Australia

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Causation, Duty of Care, Evidence, LAW FIRM, Medical negligence, Negligence, Personal Injury

Chappel v Hart [1998] HCA 55

September 2, 1998 Legal Helpdesk Lawyers

ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html

A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.

Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure to do with the actual care provided.

The court also applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.

Per Gaudron J at [32]:

“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”

Per McHugh J at [23]:

“The question of causation is not resolved by philosophical or scientific theories of causation”

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Duty of Care, Evidence, LAW FIRM, Medical negligence, Negligence, Personal Injury

Rogers v Whitaker [1992] HCA 58

November 19, 1992 Legal Helpdesk Lawyers

ON 19 NOVEMBER 1992, the High Court of Australia delivered Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992).

http://www.austlii.edu.au/au/cases/cth/HCA/1992/58.html

Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.

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