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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…

I note with interest the Court of Appeal’s decision in Nigam v Harm [2011] WASCA 211.

Whilst a case concerning a negligence action against a firm of solicitors, the important aspects of the case predominantly related to medical negligence claims.  

It was alleged the relevant firm of solicitors had been negligent in failing to:…

 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…

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.

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.…

Continue Reading A Balance of Probabilities does NOT mean >50% (at least in NSW)