West Australian Medical Negligence Law Blog : West Australian Medical Negligence Lawyer & Attorney : Julian Johnson Law Firm : Medical Malpractice, Cerebral Palsy Litigation

 I admit that I am partisan, when it comes to comment upon cases that I have been involved in.  Read the following bearing this in mind.  As you will gather, they are not 'rose-coloured' glasses I see this through..

I have previously posted in relation to the case of Wright v WA Country Health Services (effectively Broome Hospital), in which I have acted for Billy Wright.

The final (now sad) chapter in this case came with the Court of Appeal's decision yesterday, upholding the hospital's appeal and dismissing Billy's claim.  

The Court's conclusion was that the evidence at trial did not justify the conclusion that Billy would have been better off, had his infection which lead to his initial attendance at the hospital, been treated at such hospital, rather than his being at home.

The result left by this decision is as follows, in terms of the facts of the case:

1) Billy was negligently treated by hospital staff when he attended Broome Hospital's A+E department, following the onset of severe abdominal pain.  He should not (as he was) have been discharged after being kept for observation for an hour or so, when he continued to experience significant pain, the cause for which had not been identified.

The hospital did not appeal against this conclusion by the trial judge (it could not).

2) Had Billy been kept at the hospital (as he should), within an hour or so, it would have been identified that his condition was deteriorating.  He developed rigors and probably at such point had a temperature, indicative of infection.  Presumably, had this been identified, tests would have been done to identify the cause for this infection and (initially broad spectrum) antibiotics would have been commenced.

Again the hospital did not (and could) appeal against this conclusion.

3) Billy's condition deteriorated over the following 30+ hours, such that when his family took him back to Broome Hospital, he was in critical condition and at risk of dying.

The hospital did not appeal this, because Billy's condition when he re-attended the  hospital is self-evident from the records.

All of the above seems reasonable. The 'catch' comes at the next step....

4) The bug responsible for Billy's illness was never identified.  Blood cultures and x-rays taken after he returned to the hospital confirmed his critical illness but not its cause.  This is not remarkable.  Evidence at trial was that this can commonly occur.  Further, perfectly understandably given they were trying to save his life, staff at Broome Hospital had given Billy large doses of IV antibiotics when he returned to Broome Hospital, which it was accepted could explain why the bugs responsible for his infection were not identifiable.

Here is the killer step....

5) Because such bug could not be identified, the hospital's insurer argued (and this was accepted by the Court of Appeal) that it could not be proven that Billy would necessarily have been better off had he been kept at the hospital under observation, rather than being discharged, at his initial visit.  In other words, despite the fact they ought to have seen his progressing symptoms, if they had done the right thing and kept him at hospital, the view taken is that it could not be proven that any treatment at the hospital would have been effective and would have made any difference to his condition, compared with its development while he lay in bed at home.

Quite apart from the difficulty of this outcome as a matter of common sense (in my humble opinion) such conclusion also ignores the fact that uncertainty as to the identity of the responsible bug was at least contributed to by the hospital's negligence in the first place.  Had they done what they should have, kept Billy for observation and identified his deterioration within an hour or so, it seems to me that the relevant bug must have been a good chance of being identified by blood test etc at that time or at least, the further information as to Billy's progressive symptoms that would have been available would have assisted in identifying the most likely cause.  The problem of proving the type of bug present was directly a consequence of the hospital's negligence.

Despite my putting this last point to the Court of Appeal during argument - that this link between the hospital's negligence and any uncertainty as the bug's identity should tend towards a conclusion in BIlly's favour, the reasons for the Court's decision are silent on the point.

All in all a bitter outcome for my client and I.  My client, understandably in my view, has difficulty accepting the Law's reasoning as achieving a just result....

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 I was interested to see the recent NSW decision in Hollier v Sutcliffe [2010] NSWSC 279, delivered on 23 April 2010.  

The case concerned alleged side-effects following insertion of an Implanon device in October 2006.

Some years ago, there was a spate of litigation associated with this contraceptive device, primarily related to failures of insertion of the device resulting in unwanted pregnancies.  I am still involved in 1 such case proceeding through the courts.

In this case, the Plaintiff claimed that following insertion she had developed a severe reaction to such device, resulting in diffuse symptoms including leg soreness, pain in her upper limb into which the device was inserted and pain to her armpit.  

Remarkably and a source of difficulty for the Plaintiff at trial, it was clear that although the Plaintiff had seen the GP who had inserted the device, on the day following its insertion (and at that time both she and the GP had palpated the device), she had said nothing about the abnormal symptoms, she claimed to have experienced.  Her explanations why this was, were difficult to understand.

The device was removed with the assistance of a further general practitioner.  Despite initial improvement following this, the Plaintiff claimed that her condition then deteriorated.

Medical expert witnesses gave concurrent evidence ("hot tubbed" as it is known), that if the procedure occurred as the GP alleged, this was appropriate.  On the other hand, if the procedure had been performed as the Plaintiff claimed, involving her forcefully pushing upon the obturator, then this was not appropriate technique. 

In other words, the outcome as to breach of duty depended upon whether the patient or doctor's account of the initial procedure was accepted.

As may have been guessed given the above comments, the trial judge was not persuaded to accept the Plaintiff's evidence.  He found 'the evidence of the Defendant was consistent within itself and consistent with objective independent evidence.  On the other hand, the evidence of the Plaintiff was both internally and externally inconsistent in a number of respects." [115]

Apart from the issue with her explanation for not expressly mentioning her symptoms full extent when seeing the Defendant GP on the day following insertion, as not infrequently occurs, the Plaintiff had problems because of divergence in her account of events provided to subsequent clinicians [118].  This is a point always worthy of careful consideration - it is an obvious line of attack by a defendant in cross-examination.

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 As I have often said to clients, in many large claims, what is done post-settlement in terms of investment + use of the settlement funds is as important, if not more so, than the precise quantum achIeved.

An interesting and recurrent issue is the question of the capacity for the trustee, in cases in which the client is either a child or otherwise unable to manage their affairs, to exercise discretion as to how to utilise/expend (rather than invest) funds for the benefit of the client post-settlement.

An interesting recent case in our District Court, deals with the problems that can arise in this respect, if such trustee is the Public Trustee and the court is asking to specifically approve funds' use.  The case is  BH by her next friend VH -v- AME HOSPITALS PTY LTD & ORS [2010] WADC 47, which can be found at the Court's website.  

The case concerned an application for approval by the Court of the Trustee's expenditure upon improvements/modifications to a home for a catastrophically injured child (cerebral palsy related to birth trauma).  Approval was (with some hiccups) granted, though the whole process seemed remarkably tortuous and did not suggest ideal project management had occurred. 

It is worth noting that the Court's involvement in this 'approval' process would not generally arise, if the relevant settlement proceeds were not held by the Public Trustee, but rather with a private approved trustee.

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 Just a quick post, appreciating I've been lax of late, to note the High Court handed down its decision today, rejecting the appeal against the NSW Court of Appeal's decision, against the plaintiff in this case.  Does this mean the end of 'loss of a chance" damages in Australia?

I will digest the decision and provide my thoughts as soon as I can....

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In a case which in some respects seemed more like a John Grisham novel than a serious piece of Australian litigation, as well publicised, on 5 March 2010 Justice Jessup of the Federal Court found in favour of Graham Peterson (and in relevant respects, in favour of the other members of his representative class) in his case against Merck Sharpe and Dohme, the Australian manufacturer of the anti-inflammatory drug Vioxx.

Mr Peterson had suffered from back pain for many years prior to being prescribed Vioxx by his GP, Dr Dickman in May 2001.  He found, as did many other patients, that Vioxx provided relief from his pain without the adverse gastro-intestinal side effects which were encountered with other drugs providing similar pain relief.  

In December 2003 whilst still continuing to regularly take Vioxx, Mr Peterson suffered a serious heart attack for which he received prompt and effective medical treatment leading to his making an uncomplicated medical recovery.  At the time this heart attack occurred neither he nor his GP or the cardiac team considered that his heart attack was related to his consumption of Vioxx.  This all changed following the withdrawal of Vioxx from the market in September 2004 and subsequent revelations as to its potential side-effect.

Interestingly, the basis upon which Justice Jessup found in favour of Mr Peterson was in many ways the least contentious.

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 The High Court delivered its much anticipated decision in this case on 3 March 2010.  I have to say my impression is a sense of anticlimax...

As I have said in an earlier post, this case was seen amongst some (including me!) as providing an opportunity for the High Court to provide useful guidance as to the appropriate approach for deciding whether negligence or other breach of duty should be found to have caused an adverse outcome, in complex cases.  Cases involving 'evidentiary gaps' and were identifying whether or not a poor outcome was a consequence of the lack of care/negligence was difficult, because of the complexity of the science behind such conclusion etc, are some such cases.

The case, as is well known, was an asbestos exposure case.  Mr Ellis had been exposed to asbestos dust in the course of his work and by the time of this appeal there was no dispute that Amaca were at fault in allowing such exposure to occur.

The complexity to the case came from the fact that Mr Ellis's medical condition about which the claim arose (and from which he had died by the time of this appeal), was lung cancer.  

Apart from exposure to asbestos, on the scientific evidence, it was clear this could have resulted from his heavy tobacco smoking habit (15 to 20/day for 26 years).  In fact the unanimous scientific evidence was that such smoking was likely to have contributed to the occurrence of his cancer.  The key question was whether his asbestos exposure had also probably contributed.

The medical evidence confirmed (at least on Mr Ellis' case) that it was quite possible that both his smoking and asbestos exposure could have contributed to his cancer, either through a collective effect or as independent (but cumulative) causes.

The critical legal question was whether, in such circumstances Mr Ellis' exposure to asbestos could be said to have made "a material contribution" to the occurrence of his cancer (the accepted legal test).

Surprisingly, Bret Walker SC, the fabulous Counsel appearing on Mr Ellis' behalf, accepted for the purposes of this appeal, that the asbestos exposure should only be accepted as a cause of his lung cancer, if it were accepted on the evidence that it was more likely than not that had such exposure not occurred, his cancer would have been avoided (a lot of negatives in this proposition I know - don't worry, if you say it 20x you'll get the gist!).  

This was an acceptance of what is known as the 'but for' test, a traditional, non-exclusive test used by Courts to determine whether negligent conduct causes a particular bad outcome (or 'injury").

On the expert evidence (which was primarily epidemiological), the High Court found that such test was not met.  It was not  more likely than not that had Mr Ellis not been exposed to the asbestos he was, that his lung cancer would not have occurred.  This was therefore the end of his claim (given the concession by Mr Walker SC) and the appeal by Amaca was upheld.

In fact the majority of what was, by contemporary standards, a relatively short decision, dealt with this review/consideration of the complex scientific evidence on this topic.  No statements of broad application or modifications to the Law concerning the approach to deciding so called 'causation' questions were made.

The disappointment of all this (for me at least) is that it seems to me there was a question the case raised, which the court could have (but were not asked to) discussed and explained.  This was the fact it is clearly accepted  that in some circumstances negligent action can be accepted as causing harm even where it cannot be shown that had such negligent not occcurred, the relevant outcome would have been avoided.  In other words, where the 'but for' test is not met.  The most obvious category of such case is where 2 causes for such injury, each sufficient to cause the injury occur simultaneously.  Another is where multiple causes each contribute collectively to the occurrence of harm and the negligence is only one such cause.  This latter category is one which is confronted fairly often in medical negligence claims.

In this case, it seems to me that even if Mr Ellis' asbestos exposure could not be shown to have been necessary for the lung cancer to occur, this did not automatically mean it was not sufficient to be found to have in fact contributed to its occurrence, particularly where it was possible such exposure acted in conjunction with Mr Ellis' smoking.  It is a pity the Court were not asked and so did not comment on the appropriate approach to considering whether such asbestos exposure should have been found to have been a cause of Mr Ellis cancer, on this basis, if, as they did, they were not satisfied that it could be concluded that it would not have occurred but for such exposure.

It is also a pity the court were not asked to consider and discuss the role policy should play in deciding whether, in Law, negligent conduct should be found to have caused harm.  It is well recognised by previous case law that policy has a role to play, one would have thought most commonly in situations where science struggles to provide guidance as to whether an 'injury' is caused by negligence or not.  Because of the constraints on the way Mr Ellis' argument on appeal was run (no doubt for good reasons, though I am not privy to them), this issue was also not explored by the Court.

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 The year has not got off to a good start for Plaintiffs in medical negligence claims in our Court of Appeal. In Hammond v Heath [2010] WASCA 6, the Court of Appeal on 19 January 2010 dismissed Mr Hammond’s appeal against the District Court Judge’s finding, rejecting his medical negligence claim against Dr Heath and Dr Heath’s employer, the Minister for Health (as operator of Joondalup Health Campus).

The case concerned hernia surgery.

The Appeal challenged the District Court’s Judge's decisions rejecting Mr Heath’s claim, firstly, that Dr Heath ought to have warned Mr Hammond of risks associated with allowing mesh to remain in situ following surgery that had been performed in May 2001. 

The Court of Appeal led by Chief Justice Martin rejected this ground on the basis that as the Commissioner had found, there was no evidence that at the time, and in the circumstances, allowing the mesh to remain in place would reasonably have been thought to pose any appreciable adverse risk to Mr Hammond [17].

The next attack upon the District Court Judge’s decision was in relation to the finding that Dr Heath was not negligent in failing to remove the relevant mesh on 28 August 2001.

The difficulty (which proved insurmountable) for the Appellant on this ground was the fact that Dr Heath had given uncontradicted evidence as to his reasons for not doing so on this date and particularly that he wishes to minimise surgical intervention as much as possible given Mr Hammond’s general poor health. Dr Heath was not at Trial cross-examined about this decision or its rationale and no expert evidence was put forward by any other surgeon suggesting that his reasoning was unreasonable.

The appeal was therefore dismissed.

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 As is a matter of public record, I act for Dr Philip Rowlands, an obstetrician and gynaecologist, in relation to the forthcoming Coroner's Inquest into the death of Ms McLevie at Osborne Park Hospital, in April 2006, 30 or so hours after she gave birth to a child at such hospital.  On any analysis a sad and tragic case.

In the course of preparing for such inquest, I came across an interesting recent case dealing with the Coroner's obligations and so called 'adverse findings,' made by him, the important issue of giving warning to persons before such findings are made against them and the capacity to challenge such findings (Re: the State Coroner ex parte Min for Health [2009] WASCA 165, delivered by the Court of Appeal (WA) 18 Sept 2009).

It is well known that in conducting his investigation, the coroner is not bound by the rules of evidence (section 41) and effectively has broad power as to the information (and sources of information) he considers and the use he makes of such information.

The case is a typically thorough summary of the coronial process, lead by Buss JA.  It is worth review by anyone involved in these inevitably tragic cases.

The end result was 'bitter sweet' for the relevant medical practitioner concerned in this case.  It is notable that such psychiatrist did not bring the appeal - this was brought by her employer, the Minister for Health.

On appeal it was established that the initial Supreme Court judge had erred, in concluding the relevant coroner's conclusions that 'with hindsight' the relevant psychiatrist, could have avoided the deceased's death via a community treatment order ("CTO") to ensure the deceased took his medication required to control his psychiatric state (and avoid psychotic episodes, such as lead to his death), were not adverse to such psychiatrist (ie the Court of Appeal accepted such comments were adverse to the psychiatrist and presumably her employer).

The Court of Appeal however concluded that the Coroner was entitled to make such finding on the evidence and no error was shown in such conclusion.  In other words, the adverse finding stands.

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 In this decision delivered by Judge Stevenson of the District Court on 23 December 2009, Judge Stevenson concluded that he had no power to extend the time for commencement of a claim under the 2005 Limitation Act, in relation to a child born prior to such Act's commencement.

The case, in which I am involved on behalf of the child Patrick, relates to alleged negligence on the part of King Edward Memorial Hospital in Patrick's mother's obstetric care in November 1996. Patrick suffers from cerebral palsy which it is alleged arose because of the shortcomings in care.  The allegations of shortcomings of care and that this caused Patrick's cerebral palsy are supported by compelling expert opinions from independent obstetricians, neonatologists, paediatric neurologists and otherwise.  Uncontested medical evidence put before the court spelt out Patrick's significant disability as a consequence of his cerebral palsy.

Prior to November 2005 the law in Western Australia provided that any medical negligence claim against a public hospital alleging negligent care causing birth injury had to be commenced, at the very latest (and this time limit required either the hospital's consent or permission from the court) by the time the child turned six years of age (section 47A Limitation Act 1935).  Such time-limit self evidently could result in gross unfairness and injustice, and for a substantial period of time has been the subject of criticism by judges, law reform bodies and others.  No equivalent applied to private hospitals or private patients in public hospitals (at least in so far as claim was brought against the private obstetrician), against whom the time limit was generally the child's 24th birthday.

In this case it was argued on behalf of Patrick that changes to the limitation laws which came into effect in November 2005 should permit the court a discretion to allow claim to be brought outside the six-year time limit, if warranted as a matter of justice.

As stated at the outset, Judge Stevenson, whilst expressing obvious disappointment at such conclusion, determined that this was not the case and in effect, the changes to the limitation period laws in 2005 were only of prospective effect and did not remedy the injustice arising for children born prior to November 2005 (when such laws came into effect).

An appeal has been commenced to seek the Court of Appeal's decision in relation to this important issue.

The situation specifically with regard to Patrick's case is complicated further by the fact that the failure to begin a claim within the six-year time limit required was caused by the hospital's failure prior to this deadline, to disclose a critical piece of evidence in relation to Patrick's delivery and his mother's obstetric care (the CTG trace relating to such labour).  As Judge Stevenson mentions in passing in his decision, apart from further accentuating the injustice of the six-year time limit, this potentially gives rise to complex legal issues in terms of the hospital's capacity to rely upon such six-year time limit as a defence to the claim.

What is assured is that Judge Stevenson's decision is by no means the end of this matter.

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 Judge Davis of the District Court rejected Ms Lentzner's medical negligence claim against general surgeon, Max Baumwol, delivering her decision on 6 November 2009.

Ms Lentzner's claim alleged that Mr Baumwol was negligent in the manner in which he sought to perform repair of bilateral inguinal hernias in 2003.  For an explanation of surgery (albeit laparoscopic so different from in Ms Lentzner's case) to repair inguinal hernias, see here.

The primary allegation was that such repair ought to have utilised mesh to repair the relevant hernias and not, consisted only of surgical suturing of the relevant hernias.  It was said that if this had occurred, the relevant hernias would not have recurred.

Judge Davis [55] concluded that Ms Lentzner's account of events was in some respects unreliable, though she accepted Ms Lentzner believed the truth of what she said.  This was based on Judge Davis conclusion that Ms Lentzner's claims as to very severe pain immediately following her surgery were unreliable, because the observations recorded in the hospital records did not suggest anything out of the ordinary.  Judge Davis emphasised hospital staff's appreciation of the importance of the accuracy of records, as reason she could confidently conclude that if Ms Lentzner's claimed symptoms had been present, they would have been reported.

Despite clear inconsistencies between his claims as to the method of repair of 1 hernia and the contemporaneous records, Judge Davis accepted Dr Baumwol's claims as to the manner in which he performed such repair, based only on his claims as to his usual practice [111].  

This, with respect, was generous to him.  If inconsistency with the records was enough to reject Ms Lentzner's claims (as set out above), why was such reason not reason to reject Dr Baumwol's claims, which were not even asserted to be based on recollection, but of 'usual practice.'

 Consequently this basis of alleged negligence failed.

Based on the same medical evidence, Judge Davis dismissed the claim that there was an obligation to warn Ms Lentzner that if mesh were used to repair her hernias, this would reduce the risk of recurrence.  The evidence before Judge Davis did not support this conclusion that such a reduced risk would apply.

Of significance, Dr Archer, a surgeon relied upon by Ms Lentzner who had operated upon her following Dr Baumwol's care, gave clear evidence at trial that the problems he identified were not, as Ms Lentzner's case alleged, a recurrence of the hernias that had been treated by Dr Baumwol [R80].  This was really the end of Ms Lentzner's case, because if her hernia did not recur, she had little claimed consequence of any of the alleged shortcomings in her care.

All in all an unhappy experience no doubt for Ms Lentzner.

From a legal principle perspective, the case included 2 further interesting issues:

1) The case included an interesting examination of the capacity for a psychologist to provide expert evidence concerning diagnosis.  Traditionally this has been an area in which psychologists (I have thought unfairly) have been held unable to give expert evidence.  This issue was identified but not decided by Judge Davis in relation to evidence of diagnosis based on knowledge of DSM IV on the part of a well known local psychologist, Bill Douglas.

2) the case confirmed the traditional 30% discount for early receipt of past lost superannuation benefits is now too great.  Judge Davis, in accordance with submissions from both Counsel accepted that a rate of 15% was now reasonable (in her provisional assessment of damages).

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 The Court of Appeal delivered its decision on 7 Oct 09, rejecting the losing patient's appeal against District Court Judge Wager's decision, dismissing her claim at trial.  The lead decision was delivered by Justice Newnes, with whom the 2 other members of the Court agreed.

The case concerned alleged negligent medical care following Ms Davy undergoing knee replacement surgery in February 2004.  Ms Davy claimed that the public hospital, Sir Charles Gairdner Hospital, at which she was receiving post-operative care was negligent in failing to arrange more urgent review and intervention when she developed post-operative swelling and signs of infection, ultimately leading to her requiring major further surgery.  Interestingly, it was clear these infection issues did not arise until July 2004, so 5 months after her surgery.

The case overwhelmingly depended upon the issue of whether Ms Davy was to be believed as to her claimed attempts to contact the hospital's orthopaedic department to try to arrange her review, when her post-operative problems arose.

Judge Wager, the District Court judge was not convinced that Ms Davy's claims were reliable, largely because she found that Ms Davy's statements as to her attempts had varied over time and so in Judge Wager's view, were ultimately unreliable.  Judge Wager also noted that Ms Davy's GP's records did not suggest she had raised concerns in relation to her knee's condition, at a series of consultations after she claimed the problem had arisen (and after it was clear she had raised it with such GP).  On the other hand, it was clear that Ms Davy had phoned the orthopaedic department repeatedly over the relevant period (this was supported by her phone records).

Because of Judge Wager's rejection of Ms Davy's evidence (she found Ms Davy was "an honest, but unreliable historian"), she found the hospital were not negligent and there was not a need for the hospital to have arranged review and treatment of Ms Davy more urgently than occurred.

In a sense the appeal was a brave one.  It is well recognised principle that because an appeal court do not have the trial judge's advantage of seeing and hearing the manner in which witnesses give evidence, they are generally very slow to interfere with conclusions reached by a trial judge which are based on credit/truthfullness of a witness.

The above points were made clear by Justice Newnes, who found there was no merit in Ms Davy's attacks upon the trial judge's conclusions, which he confirmed were all open to her, even if contrary more favourable conclusions could have been made.

The case is again a good reminder of the difficulty of appeals when a trial judge has made adverse credit findings.  If a trial judge makes adverse findings about a plaintiff or their witness' evidence that are 'harsh' (perhaps because based on relatively minor errors etc) there is often little that can be done.  In a sense, in such cases, often an appeal is not really open.

It is also a very good reminder of the need to prepare for trial carefully and particularly to ensure all important witnesses are reminded of any previous statements or sworn evidence they may have given relevant to the facts of the case (which may have been given quite some time earlier).  This is absolutely critical in cases where the primary facts are the fundamental dispute (as here).  In this case, Ms Davy's evidence in the witness box diverged in some respects from statements she had made, particularly in answers to interrogatories.  

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Again, slightly off topic, though the broader consequences apply in a healthcare context.

Read with interest the Editorial in the Weekend Australian yesterday about the High Court's recent decision, with the less than informative name, C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47.

The facts in the case were simple:

1. the case concerned a claim of negligence against a Tasmanian hotel owner who handed back motorcycle keys lodged for safe-keeping to an insistent, belligerent patron who on leaving the pub was killed in a crash while showing a blood alcohol level of 0.253.
2. A reading of 0.05 doubles the risk of a crash. At 0.08, the risk increases seven times. At 0.15, it is 25 times higher. Data was too scant to reliably calculate the risk at the level taken by the dead man.
3. The man had drunk seven or eight cans of bourbon and cola between 5.15pm and 8.30pm. According to the judgment, the licensee told him he had had enough, that it was time to go home, and asked for his wife's phone number so that she could fetch him. The patron became agitated and said "If I want you to ring my f'ing' wife, I'd f'ing ask ya." The Licensee responded: "Whoo hang on, whoo, whoo, whoo, this is not, you know, don't go crook at me, this is not the arrangement that was made." Not having the wife's phone number, and not wanting to push the issue into further confrontation the licensee then gave the keys to the patron, after asking him three times if he was OK to drive
   
   

As has been widely reported (to the joy of many in the hotels industry), the High Court dismissed the claim against the publican, finding that no duty was owed to the driver that had been breached.

I accept the points made in the Australian, concerning the need for our society to accept individual choices and responsibilities.

On the other hand, when regard is had to the carnage each year on the roads due to alcohol, such 'individual responsibility" is hardly a promising or pro-active step to saving our bright young things from self-destruction on the road.  

Quite apart from the case of habitual heavy drinkers, who has not had opportunity to intervene when friends and loved ones might out of character have had a bit much to drink and required a tap on the shoulder and gentle insistence on a lift home?  It is a consequence of intoxication that it impairs judgement, not just behind the wheel but in getting behind the wheel in the first place.

The Court's decision seems to ignore the more complex issues behind public safety and the 'cost' of irresponsible alcohol sale, instead championing a self-determinant right to self-destruction (and potentially harm to innocent third parties on the road).

With respect there is much to be said of the comments in the Age, concerning this decision, which reach a very different conclusion to the Editorial in the Weekend Australian.

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Although not concerning medical negligence cases, this case is of interest.

In this recent Court of Appeal decision (delivered 6 Nov 09), the Court found that a driver of a stolen car did not owe any duty of care to a passenger in such vehicle, who was aware of the fact the car was stolen.  The Court found the driver and passenger were engaged in "a joint criminal enterprise" and so no duty to take care arose.

Consequently, when the driver drove negligently colliding with a pole causing injury, the passenger, who at the time was a 16 year old girl, could not recover compensation for her injuries.  The passenger's injuries were serious and another passenger in the vehicle died from their injuries.  

The passenger was in a relationship in which she regarded the driver as akin to her 'uncle' and at trial evidence had been lead indicative of the driver's insistence that the passenger remain in the vehicle, when she had asked to be dropped off.  She had made this request when the driver, after initially driving safely, had started to speed and drive more dangerously.

I would have thought, with respect, that this final point would have removed any 'joint criminal enterprise" finding.  The passenger wished and requested to be let out of the car.  Had her request been followed, the joint illegal conduct (driving the stolen car) would have come to an end and she would not have been in the car at the time of the collision.  This point was recognised and commented upon by Buss JA.  I am surprised it wasn't emphasised more by the passenger.

Newnes JA, the other member of the Court based his conclusions on a view that:

"the respondent could not reasonably have expected that the appellant would drive the vehicle according to the ordinary standard of care" 

With respect, this seems to me to make a great leap.  Why was the fact the passenger's 'uncle' was driving a stolen car, necessarily reason to assume he would not drive safely and would put the occupants of the vehicle at risk by dangerously driving?  Also, what is the relevance to this of the fact, as stated above, that the passenger had requested to be let out as soon as the driver started to drive unsafely?  Doesn't this say anything of her expectations?

This decision reversed the trial judge's conclusion in favour of the passenger.

No doubt a shortcoming on my part, but with the greatest of respect, I can't understand the reasons for this conclusion.  McLure JA and Buss JA suggest the foundation for such view is that given the illegality of the enterprise it is not possible to ascertain an appropriate standard of care to be expected [R3] + [R81].    

Buss JA stated [R82]:

It is not feasible or appropriate for the law to endeavour to fix a standard of care by taking into account and evaluating the incidents of the criminal enterprise upon which the appellant and the respondent were jointly engaged

I for one am not sure why this wasn't feasible or appropriate.

Clearly a tough stance for our highest court. 

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The High Court has now heard argument concerning this important (potentially ground breaking) decision and we are now in the Court's hands, for their decision.

The transcript of argument can be found here.  Although reading the transcript is not the same as hearing 1st hand, it seems Bret Walker SC had a torrid time, at least from some members of the Court!  

Interestingly, and this is close to a common concern in medical negligence claims, emphasis was placed by him on the capacity of the negligent party to know the information from which firmer conclusions about whether "A caused B" could be drawn.  It is often the case in medical negligence claims that when it is difficult to prove whether negligent medical care caused a particular bad outcome, that frustration is felt that the answer to such question would be known with certainty - if only the negligent care hadn't occurred (eg if the negligent failure to diagnose the breast cancer hadn't occur, we would have known whether there was or was not lymph node spread etc).

It seems to me that at least the more outspoken members of the Court during argument, expressed considerable scepticism at the approach of our Court of Appeal, in accepting that the Plaintiff's exposure to asbestos had contributed to his lung cancer, even though at least some evidence suggested it was 100 times more likely his cancer was a consequence of his smoking.

It also looks to me that the Court may be contemplating narrowing the traditional degree of contribution from negligent (or other tortious) conduct to an injury, for liability to arise.  

Traditionally, enough was shown if negligent action made a "material" contribution, which has often been accepted as met, when the contribution was more than negligible.  

in other words, if the Court accepted there were multiple causes for injury or illness, damages would be awarded if one of such causes was due to negligence (even if it was a minor or secondary cause - and even if it was likely the injury/illness may have occurred even if no such negligence occurred).  Further (and this has always been the difficult part to this, for me conceptually!), liability would then be for the entire consequences of the illness.  There would often not be a substantial reduction in the damages awarded, for the chances the same outcome would have occurred, even if the negligence had not occurred.

From my reading, several members of the Court were grappling, during argument, as to whether for a contribution to be 'material,' and so liability and damages follow, a greater extent of contribution should be required.

It will be interesting to see how the dynamics of argument translate into the Court's decision.

As a footnote, have to say I liked Justice Gummow's comment, when the submission was put that deciding whether a factor was or was not a cause of disease, was a matter of 'logic,' that:

"Logic itself is a house of many mansions"

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As is well known, I act for Billy Wright, the 61 year old aboriginal man, who is the Plaintiff in a medical negligence claim against Broome Hospital in relation to medical care he received at such hospital in July 2004.

Billy's case arose from his attending such hospital with an acute onset of severe abdominal pain, which he identified when he awoke on 3 July 2004.  After being kept for observation for an hour or so, Billy was sent home.  He was taken back to hospital about 40 hours later by family and by this time was acutely unwell and at danger of not surviving, due to septic shock/sepsis.

Billy's claim proceeded to trial before Judge Fenbury of our District Court, with days of hearing in Broome and Perth late last year and early this year.

Pleasingly, Judge Fenbury found in Billy's favour, concluding the hospital had been negligent in its care of him and awarded him damages when he delivered his decision in late March 2009.  Judge Fenbury found that the hospital ought to have kept Billy for observation and further investigation and not sent him home when they did (see Wright -v- WA Country Health Service [2009] WADC 46) .

The hospital have appealed, though not in relation to the finding it was negligent, only as to Judge Fenbury's finding that such negligence caused harm to Billy, through progression of his illness while he was at home (though this point does not seem, with respect, to have been properly appreciated by Justice Newnes, see his summary of the appeal at [5] of the decision referred to below).

On 9 October 2009, argument occurred as to whether the hospital should pay Billy some or all of his compensation, pending hearing and determination of his appeal.

Billy had explained that he wished to utilise a part of the damages he has been awarded in order to purchase a "new" vehicle (estimated at a cost of $25,000) to transport his ill wife, who requires regular 3 times per week dialysis treatment, from their remote community home, to Derby, which is where such treatment is provided.

The well accepted rule is that generally a successful party should be entitled to be paid damages they are awarded, even if an appeal is lodged.  It is accepted that 'special circumstances' are needed to be shown for the unsuccessful party to avoid such obligation to make payment.

After hearing argument on 9 Oct 09 Justice Newnes determined that the hospital should not be obliged to make payment, until (unless) the appeal is decided against it (WA Country Health Service -v- Wright [2009] WASCA 177).  Despite the 'special circumstances' test being accepted by the hospital and Justice Newnes, he concluded that it should not be obliged to make payment, because if it did, there was some danger that it may not ultimately receive back such funds from Mr Wright or if it did, this may be over a period or involve inconvenience.

Interestingly, contrary to the submissions put before him, that recognised that if a discretion to grant a stay arose, this involved a question of the 'balance of convenience,' Justice Newnes described the test as tougher from Mr Wright's perspective.  He put it at one point as being whether not requiring payment would "impose unreasonable hardship" on the party who had won at trial (in this case, Billy) (see at [11])..

Ultimately Justice Newnes concluded (though there was no evidence before him to this effect) that there was likely to be a significant loss on a resale of the vehicle Billy intended to purchase and his modest financial circumstances were such that repayment of any balance would take a long time (see at [17]).  For this reason he refused to require the hospital to make payment of any monies at this time.

This is a very tough decision in my view.  In no way is the fact Billy is poor, a 'special circumstance.'  Many, many clients I have and do represent come from a poor socio-economic background.  That no obligation to pay arises in this case, suggests that nothing special is in fact required.  It seems, if Justice Newnes is right, that if a poorly off plaintiff succeeds at trial, a wealthy defendant (or its insurer) can avoid making any payment, if it appeals, until after such appeal is completed.  It can do this if it can show any chance that repayment of the money to be paid may be other than absolutely straightforward.

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We have no doubt all seen or heard stories about ill-advised Facebook and other social networking posts.  Well another to add to this, on this occasion via a recent District Court decision of Keen DCJ in Barford -v- Bini [2009] WADC 152, delivered on 6 Oct 2009.

In this case, a motor vehicle accident claim, the key question was whether or not the plaintiff, a passenger in a vehicle involved in a collision, had sustained enduring neck and back injury in addition to transient bruising etc.  After a thorough review of the evidence, Judge Keen found he could not accept the plaintiff's evidence in a number of important respects and so was not satisfied any significant injury had occurred.  

Relevantly, Judge Keen found inconsistency  between the plaintiff's activities during an extended trip to Europe and North America and his claimed degree of neck symptoms.  Judge Keen was taken, as one example, to the plaintiff's Facebook entry which referred to 'climbing' the Empire State Building.  The plaintiff was evasive as to what 'climbing' meant and to what extent he had climbed stairs at this landmark.

The plaintiff's claim was dismissed on the basis that no serious injury had been sustained.

Interesting to speculate how the defendant obtained access to the plaintiff's Facebook posts.  It seems likely this was fed to the defendant (the compulsory third party insurer) by an acquaintance wishing to 'dob him in.'  With friends like that......

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 Although not a medical negligence claim, the recent decision by Judge O'Brien in Jenkin -v- Brook [2009] WADC 140, delivered on 9 September 2009, provides interesting reading as a recent factual example and summary of the assessment of damages in a claim where negligence causes death.

In this case Judge O'Brien accepted the plaintiff, who was the grand-daughter of a women killed in a motor vehicle accident, was entitled to make claim for the 'value' of lost services her grandmother would have provided to her.

Importantly, as Judge O'Brien (with respect) correctly identified, the claim could be made, regardless of whether there was a "need" for the services that would have been provided by the grandmother.

Sadly, the claimant suffered from severe global developmental delay.  She also has physical impairments.  She had a special bond with her grandmother, who provided extensive support and as Judge O'Brien found, would have continued to do so, had she not died.

Judge O'Brien recognising that the valuation of such services was not necessarily to be limited to their commercial value (given such services 'value' was not simply its replacement cost by a professional carer etc).  However because no other rate was put forward by the parties, Judge O'Brien accepted such commercial rate should be used in this particular instance ($35/hour).

Total damages were awarded in the sum of $340,000.00.

Even though not a medical negligence case, the principles of assessing potential quantum in the event a family member dies, who providing services but not financial support, illustrated by this case are equally applicable in medical negligence cases.  As the case demonstrates, the commonly held view that if wages were not earnt and contributed by a deceased, no claim of substance can be brought, is wrong.  

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Further to an earlier post, a further recent skirmish in the matter of Pollard v Endale Pty Ltd is of note. 

This latest instalment concerning this dispute between Ms Pollard and the operators of Mount Lawley’s Private Hospital, is a decision by Judge Davis on 28 August 2009 (Pollard v Endale Pty Ltd [2009] WADC 135).  

This decision related to an application by Ms Pollard for an adjournment of the trial in the matter, due to proceed on 7 September 2009. The application was dismissed and from my review of the Court list, it appears this has lead to a resolution of the matter, one way or another (I suspect, not on terms the Plaintiff would be happy with).

The interesting issue arising concerning this application is that this is one of the first occasions in which our District Court has considered the recent High Court decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.  

This recent decision by the High Court has been met with concern by lawyers handling claims in the medical negligence and other personal injury areas, because it appears (and this seems supported by Judge Davis’ interpretation) to toughen Courts' stance to delays or requests for indulgence.  

Somewhat against the 'accepted position' following the High Court’s previous well known decision in JL Holdings, which emphasised the ultimate goal for Courts of ensuring justice between the parties, such decision emphasised potential prejudice to the quality of justice where there is unnecessary delay in Court proceedings.  It also emphasised as a “public interest” consideration of the efficient use of Courts, as factors against allowing a late adjournment of Trial.

Judge Davis’ decision reinforces the impression already arising following the High Court’s decision in Aon Risk Services, that it will now be harder for Plaintiffs (and for that matter Defendants) to obtain adjournments of Trial or other indulgences, if they are likely to delay or extend a Trial and the Court’s commitment of resources to it. 

It appears those seeking a 'late' adjournment, extension of time or amendment now (more than ever) better be well prepared and can expect close scrutiny of the reasons for such issues arising late in the piece.       

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Entirely as expected, the High Court on Friday granted special leave for the appeal in the recent NSW Court of Appeal decision in Gett -v- Tabett.

The High Court will now, sometime in 2010, decide whether damages should be recoverable for a loss of a chance of a better outcome from medical treatment, where such lost chance (lost due to negligent medical care) is < 50%.  

See my earlier post for more details of the NSW Court of Appeal's decision on this point, which created conflict between NSW and Victorian Law and uncertainty for the rest of the country.

With this issue and the complex causation issues that will be considered by the Court in October in Amaca/Ellis, the High Court will have an opportunity to set the legal position with wide ramifications for those involved in the medical negligence area of litigation across Australia.

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Further to an earlier post, the New South Wales Court of Appeal has recently delivered its decision concerning the appeal in relation to Ms O’Gorman’s delay in diagnosis of breast cancer claim.

Tragically in the period between the initial decision in her favour and this appeal, Ms O’Gorman died from her metastatic breast cancer.   As a consequence the appeal was contested by her Estate.
The Area Health Service responsible for BreastScreen New South Wales, the Sydney South-West Area Health Service succeeded in its appeal and the Court of Appeal have ordered a re-trial on the issue of negligence.

The primary reason for the Appeal being upheld and a re-trial being ordered was the Court of Appeal’s view that the trial judge had been wrong to refuse to allow the two radiologists involved in assessing Ms O’Gorman’s original breast images to give evidence as to whether they had taken reasonable care in examining her breast images.

This is a not uncommon situation. A defendant seeks to bolster its case by reinforcing its “independent” expert witnesses’ opinions by the views of the particular doctors concerned. I have had first hand experience of this in several cases at and approaching trial in the last two or three years.

Consistent with the New South Wales Court of Appeal’s decision, the generally accepted position is that such evidence cannot be put forward unless its substance has been disclosed an appropriate period prior to trial (as with any other expert’s opinion).  By this means the parties are given an appropriate opportunity to consider such opinion, its foundation and prepare cross examination etc.

Subject to this requirement, such expert evidence can generally be put forward, albeit (and this point was acknowledged by the New South Wales Court of Appeal), there will always be issues as to the weight to be attached to such opinion given the witnesses' lack of impartiality.

More interestingly in a general sense, the Court of Appeal in this case made some interesting observations in relation to causation questions.

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I read with some interest a recent decision by Judge Sleight in Pollard v Endale Pty Ltd [2009] WADC 97. The decision concerned an application by an injured patient seeking that Mount Lawley Private Hospital, the hospital at which their care was provided, should be obliged to disclose documentation relating to its accreditation with the Australian Council of Health Care Standards ("ACHCS").

Such accreditation is a voluntary process.  To be accredited a hospital must agree to maintain various standards, in terms of adverse event monitoring and avoidance.

Intriguingly in such claim, criticisms were made of the private hospital for failing to adequately show care and skill in its assessment of medical practitioners, before giving them rights to admit and treat patients at the Hospital, to monitor their performance thereafter and to ensure the Hospital's facilities were utilised competently.

Judge Sleight ordered that the Hospital produce documentation passing between the private Hospital and ACHCS in relation to its accreditation application.

The case is intriguing because it has long been known that particularly the better run private hospitals compile and have access to enormous volumes of data concerning the performance of surgeons and other clinicians practicing at their hospital. Notoriously such things as complications rates and their type and cause are captured and readily available, though never released to potential claimants (or prospective patients).

Pursuing allegations of the unusual type apparent in this case may be a useful way of obtaining access to this information, otherwise jealously protected by the hospital's operators. Quite apart from having an additional ground for criticisms of Hospitals, no doubt very useful information may be obtained to support claim against the primary surgeon/ clinician responsible for the treatment which led to the poor outcome    

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It was interesting to read the Sunday Times newspaper's, front page article a week ago in relation to the unnamed obstetrician/ gynaecologist recently struck off from practise in Western Australia. 

I was particularly interested to read the newspapers' editorial column concerning their strong view that the ongoing suppression order, prohibiting publication of the particular Doctors details, was inappropriate. 

There is a clear public interest in the broader community being made aware of the identity of the relevant practitioner (or other doctors in such cases).  This has 2 primary aspects:

• an entitlement on the part of former and prospective patients to be aware of the conduct of this practitioner.
• as a strong deterrent against similar conduct by other health professionals (the “shame” factor) 

Clearly from the report there were 2 factors tempering this, in this particular case.  These no doubt lead to the relevant suppression order being made by Judge Chaney:

1. Firstly, it is clear that though doubts may exist concerning such opinions, there was evidence before the Tribunal that the relevant Doctor was psychiatric fragile and at some risk of suicide or self harm in the event that his name was published. 

As no doubt emphasised by his representative before the Tribunal, the potential for such harm if the suppression order was lifted would seem a very powerful consideration indeed.

2. Secondly, it is clearly the fact that the relevant Doctor is no longer practising in Western Australia or elsewhere in Australia. As such, there is no necessary concern for the Tribunal as to potential harm to future patients coming under his care. 

There is also some suggestion that former patients of the practitioner had been informed of the allegations brought which further ameliorates this consideration.  

In these circumstances, I can well understand Judge Chaney’s conclusions, unpopular though they may be. Certainly though, it would be hoped that once "risk" to the Doctor’s health has reduced, his details will be released.  

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Recent media releases have publicised our State Administrative Tribunal's recent decision, granting Dr Michael McGushin, former Kalgoorlie surgeon, a career lifeline, despite finding that he was grossly careless in his care of several patients, 1 of whom at least, died as a result.

Judge Chaney accepted that McGushin's gross carelessness was not due to technical incompetence, but to his clinical decision-making and patient management.  

I doubt this is cause for great comfort.  I would have thought that clinical decision making and "patient management" (whatever this was intended to mean) are more intangible qualities and harder to learn/hone than technical skills.  

The case in which his patient died, concerned Dr McGushin's decision to operate on the patient to remove their gall bladder when he knew the patient was at increased risk of bleeding, yet he did not wait until a supply of platelets was available.  He did not examine the patient, review their notes or test results.  The patient bled during the operation and subsequently died.

I suppose Judge Chaney was convinced that with the ongoing supervision he has ordered, that this sort of risk-taking care will not recur.  This strikes me as very, very generous indeed.  Presumably Judge Chaney was persuaded by Dr McGushin's current 'mentor's' evidence as to improvements in his approach, while now working under supervision at 2 of Perth's leading public hospitals.

Our firm presently is handling 2 cases concerning Dr McGushin's surgical care, whilst practising in Kalgoorlie.

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I was interested to read recent news reports concerning a case decided in Canada. An Indian/Canadian man, Mr Kahlong was awarded CAD $5 million in a claim against a Hospital in Vancouver.

According to news reports, Mr Kahlong who was 41 years of age suffered from low back pain for which he was referred for a CT scan. The CT scan demonstrated some abnormalities and the radiologist asked Mr Kahlong to return for a follow up scan. Mr Kahlong failed to heed this advice believing for some reason that his pain would go away on its own. In actual fact Mr Kahlong was suffering from spinal tuberculosis which was a progressive condition, ultimately resulting in profound cognitive impairment and disability.

The British Columbian Supreme Court found the Hospital at which the radiologist was working to have been negligent. They found he should have, but did not, promptly provide a written report upon the initial abnormal CT scan. The Court decided that had such report been prepared (and presumably provided to the treating practitioner etc.) it would have lead to a chain of enquiry which would have resulted in diagnosis of Mr Kahlong's condition.

The Court decided (understandably) that Mr Kahlong was also negligent by failing to follow the radiologist’s advice to return (known as contributory negligence).

The consequence of deciding there was contributory negligence is that the patient’s damages are reduced by the percentage by which his own negligence is decided to have contributed to his injury. In Mr Kahlong’s case, he was decided to be 30% at fault and so he lost 30% of his compensation.

I have to say that this seems from the news report, to have been a very generous decision from Mr Kahlong’s perspective. My expectation would be that if such a case was presented before our Courts, it would be far more likely the case would have failed entirely. I think it likely our Court would conclude that it was the patient’s negligence in failing to follow the radiologist’s advice that led to the non-diagnosis.

Alternatively, I would have expected a significantly greater percentage of negligence to be found on the part of the patient.

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Reading the recent West Australian Court of Appeal decision in Gingin -v- Coomb [2009] WASCA 92, handed down last month.  This was a case concerning a catastrophically injured young man who suffered injury when he lost control of his trail-bike when riding it in a designated off-road recreational area, near Lancelin, a beach side town an hour or so North of Perth.

Unfortunately for Mr Coomb, the Court of Appeal (2:1) reversed the trial judge's finding that the Shire were in breach of the duty they owed him, in failing to more adequately warn him of the potential for such injury when riding in the dune area.

I have to say I am very surprised at the evidence at trial (which it does not seem was contradicted) that because the dunes in the designated area were "ever changing, depending on wind strength and direction" (Martin CJ @ R26), it was not feasible for the Shire to inspect the area and cordon off obviously dangerous areas, despite it being found the Shire encouraged use of such area (R20) and that a designated area was set aside for this activity (and was very popular).

It surprises me that it seems the dune face Mr Coombs fell down, which was 10 - 15m high at an angle of 80 degrees, with a hard rock bottom, would not have been an obvious hazard, had it been inspected even a month or 2 before the accident.  In fact very shortly prior to Mr Coombs' accident (on the same day) another rider was fatally injured at the precise same location. This suggests the area was commonly crossed and again, in my view, indicates that inspection/identification of the particular and unusual hazard of the particular location ought to have been possible. The danger (or near inevitability of injuries) for someone riding at anything other than very low speed, over such a dune, and confronting such a face, seems absolutely clear as a matter of common sense.

The case is another example of the difficulty of demonstrating claims, based on an alleged failure to warn. See the contrasting factual conclusions by Martin CJ (in the majority) -v- McLure JA on this.

Once again, the case faced a fundamental evidentiary gap, because Mr Coombs was not asked (as he should have been) and so did not say, how a better sign warning of the particular risk of this sort of dune, would have changed the way he approached the relevant dune on his trail bike (appreciating the difficulty of this, because he had no recollection of the accident).

Although this is not a medical negligence case, it is relevant, given a 'failure to warn' is a very common type of medical negligence or malpractice case investigated.  The key question of whether the person making claim can show that if warned, they would have acted differently (in a medical context, would not have had the surgery etc), remains the most substantial hurdle for claims.

image: GrahamKing 

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I noticed via a recent news release, that 2 Queensland women are pursuing medical negligence claims via Maurice Blackburn, Lawyers, against BreastScreen Queensland.

This follows the O'Gorman case in Sydney in late 2008. In that case Ms O'Gorman was successful against the New South Wales equivalent, BreastScreen NSW, which was found negligent in relation to a screening mammogram. Ms O'Gorman had breast cancer that should have been identified. By the time it was, her cancer had progressed. At the time of trial, she was given only a very short period to live.

As with O'Gorman, these new cases appear to arise from routine breast screening mammograms being read as normal, when it is alleged they were abnormal. In 1 of the 2 women's cases, the delay in identification and treatment is alleged to have resulted in spread of her cancer such that she has been given 2 years to live.

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I recently gave some thought (amongst other things, I had to, I had agreed to present a paper on the topic...),  as to what this recent Court of Appeal decision in New South Wales is going to mean in the medium term for claims in Western Australia.  It seems likely the period before the High Court gets its say, will be another 12 - 18 months.

In Gett, in brief, the New South Wales Court of Appeal decided that even when a Dr or hospital is found to have been negligent, damages could not be awarded in that State for loss of a chance of a better outcome from more appropriate medical treatment when the chances of this occurring were less than 50%.  In other words, if a Dr is negligent, and this may have worsened the outcome for the patient, damages can only be awarded if this chance of a better outcome (if the Dr or hospital had not been negligent) is > 50%.

In Gett, the chance of an improved outcome was put as 15%.  Because of the Court of Appeal's decision, the patient was found entitled to no compensation at all, despite the fact the medical care was accepted as having been negligent (and their resulting disability was very severe).

The decision was based upon a careful and thorough analysis of past case law, from which the Court concluded that such damages should not be awarded, according to established doctrine.

Gett's decision is contrary to the previously accepted position in New South Wales and is contrary to the position in Victoria.  It now creates uncertainty as to whether Western Australian (and the other) State Courts should follow the New South Wales or Victorian position.  

As stated, this position will ultimately be determined by the High Court of Australia's decision on the topic (it is almost certain that it will now have to look at the issue, given the divergence between the States' Courts).

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