West Australian Medical Negligence Law Blog

West Australian Medical Negligence Law Blog

Insights On Medical Negligence Issues From The Perth Area And Throughout Australia

I have been a lawyer for 21 years, during which time I have predominantly represented injured people in pursuing compensation claims. In the last 10 - 15 years, I have focused on medical malpractice / medical negligence law and particularly claims arising from negligent medical care. Read more

Tag Archives: Case Summary

An example of the dangers of self-representation

Posted in Case Summary
My impression is that there has been an increase in recent times of cases presented before our District Court in which claimants have represented themselves, without a lawyer. A sobering example of the dangers of this course, is the New South Wales Supreme Court’s recent decision in Fan -v- South Eastern Sydney Local Health District (No. 3) [2015] NSWSC 1620.… Continue Reading

Time Limit for a Medical Negligence Claim: Court of Appeal generous as to extensions

Posted in Case Summary
Western Australia’s Court of Appeal in its decision AME Hospitals PTY, Limited v. Dixon [2015] WASCA 63, delivered on 27 March 2015, confirmed, particularly relevantly in the medical negligence claims area, significant scope for persons to bring claim outside the basic 3-year time limit for such claims arising since November 2005 and the introduction of the Limitation… Continue Reading

UK adopts Rogers + ‘patient driven’ test about risks disclosure for medical treatment

Posted in Case Summary, Cerebral Palsy, Contemporary Medicine
The UK has recently altered its position in relation to the important question of a doctor’s obligations to warn their patients concerning risks of treatment. Preceding the decision in Montgomery v. Lanarkshire Health Board [2015] UKSC 11, delivered on 11 March 2015, the UK had long maintained its acceptance of the so-called Bolam principle, reiterated… Continue Reading

Mules v Ferguson: peer defence overturned + patient wins!

Posted in Case Summary, Causation Issues
I read with interest the Queensland Court of Appeal’s recent decision in relation to this matter. The Court of Appeal by a 2:1 majority overturned the trial judge’s earlier rejection of this medical negligence claim. The case involved allegations of negligence against a general practitioner for failing to refer a patient ultimately found to suffer… Continue Reading

Paul v Cooke – High Court rejects timing difference as enough to prove causation

Posted in Case Summary, Causation Issues, Failure to Warn
The High Court recently dismissed the special leave application brought in this case by Ms Paul, seeking to overturn the New South Wales Court of Appeal’s decision rejecting her claim. As may be known, the case concerned a delay in diagnosis of an intracranial aneurysm suffered by Ms Paul. She underwent a head CT Scan… Continue Reading

Another Failure to Warn case lost (Odisho v Bonazzi [2014] VSCA 11)

Posted in Case Summary, Causation Issues, Failure to Warn
The Victorian Court of Appeal delivered its decision in relation to the Appeal in this case on 18 February 2014.  The Court of Appeal unanimously agreed to dismiss Ms Odisho’s appeal against the Trial Judge’s dismissal of her claim. The case concerned an alleged failure to warn Ms Odisho of a very rare risk of… Continue Reading

Extensions of Time: Court of Appeal find a way to make sense of section 41 Limitation Act (Barr v Farrell)

Posted in Case Summary
On 10 September 2014 the Court of Appeal, by a majority of 2 to 1, upheld appeal against a decision by Judge Bowden in the District Court rejecting the applicant’s request for an extension of time in which to bring claim under Section 41 of the Limitation Act 2005. As I have commented previously, such section on its… Continue Reading

Almario: the final chapter

Posted in Case Summary
 To complete the journey, can confirm that the special leave argument on this case, mentioned in earlier posts, was dismissed by the High Court on 16 August 2013.  The court did not required counsel for the respondent to make oral submissions…  Clearly they believe the Court of Appeal got it right..… Continue Reading

Court of Appeal open the door (a little..) for old obstetric hospital claims.

Posted in Case Summary, Obstetrics
 On 14 December 2012 the Court of Appeal upheld an appeal in the claim brought by Tahlia Burns against King Edward Memorial Hospital (formally the Minister for Health), alleging negligent obstetric care at the time of her birth in April 2004. Tahlia’s claim had previously been dismissed by the District Court as being out of… Continue Reading

unnecessary dental treatment/over-servicing – tough line in new decision

Posted in Case Summary
A recent NSW case Dean v Phung [2012] NSWCA 223 raises interesting issues in a case of over-servicing/recommending unnecessary treatment. This seems an increasingly common suspicion/temptation with some areas of ‘elective’ medicine/dental treatment. The facts in the case were awful!! The defendant left no stone or ‘tooth’ unturned – performing treatment on every single tooth… Continue Reading

Wallace v Kam: a landmark case on failure to warn of possible surgical risk

Posted in Case Summary, Failure to Warn
The NSW Court of Appeal, on 13 April 2012 handed down its decision in relation to Mr Wallace’s claim against neurosurgeon Dr Kam. The case sought to challenge the accepted position in relation to failure to warn cases. Following the High Court’s decision in Rosenberg v Percival, it has generally been accepted that to succeed… Continue Reading

Jordan v Lee – neurosurgery case dismissed

Posted in Case Summary
This much anticipated decision was delivered by Judge Goetze on 25 May 2012. As widely expected, Judge Goetze found in neurosurgeon Michael Lee (and paediatric oncologist Dr Baker’s favour) and dismissed Daniel Jordan’s claim. The case is interesting as it raised the question of the obligations upon a surgeon (or other medical practitioners) to advise… Continue Reading

How a Judge decides who to believe?

Posted in Case Summary
In passing I came across the following very good explanation of how a Judge is to weigh up and decided who to believe when 2 witnesses (in our context usually patient v doctor) give conflicting evidence on an important topic. As well explained, this does not necessarily involve a conclusion someone is lying. In my… Continue Reading

The Humble Hot Chip!

Posted in Case Summary
As yet further proof that the most humble of circumstances can be made complex by the Law, the High Court recently (7 March 2012) handed down its decision in the “Big W hot chip case” (Strong v Woolworths [2012] HCA 5). The case concerned a claimant, the aptly named (given the need to litigate her… Continue Reading

section 47A catches its last victims….

Posted in Case Summary
 If I had to pick one legislative provision which has resulted in more gross unfairness than any other, over the period of my career, its a ‘no-brainer:’ section 47A of the Limitation Act 1935. Section 47A in the context I have seen it most regularly, set a time limit for claims to be made against public hospitals,… Continue Reading

Medical Experts: Duty to the Court Reminder..

Posted in Case Summary
I gave a talk a couple of weeks ago for the College of Surgeons, highlighting the key principles governing the obligations owed by medical and other expert witness’ to the court + set out in the District Court of Western Australia’s Code of Conduct.  Emphasis was placed upon the trust and reliance the Court places… Continue Reading