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

One of the most emotionally demanding, complex and ultimately, often rewarding categories of case handled by medical negligence lawyers, are those cases arising from a negligent delay in diagnosis of cancer. At any one time, I am generally acting in 4 or 5 such cases.

Following the High Court’s decision earlier this year, in Tabet

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 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,

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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 One rumour I have heard suggests that the High Court will be asked in Amaca and Ellis to review the degree of causation needed for negligent action to be taken to have caused loss.  These critical cases are due to be heard by the Court, later this year, probably in October.

At present (and for