SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT v Gillan; Gillan v ACT |
Citation: | [2018] ACTSC 223 |
Hearing Dates: | 27 October 2015; 17 May 2016 |
DecisionDate: | 17 August 2018. |
Before: | Penfold J |
Decision: | 1. The ACT’s appeal is dismissed. 2. Mr Gillan’s appeal is upheld to the extent necessary to give effect to the new awards set out at [156] below, and to make any necessary consequential changes to the other awards made by the Magistrate. 3. By 24 August 2018, the parties are to prepare draft orders to give effect to Order (2), and: (a) the parties are to file an agreed draft order; or (b) if agreement cannot be reached, each party is to file and serve a draft order. 4. Unless either of the parties wishes to be heard on costs, the ACT is to pay Mr Gillan’s costs of the appeal and the cross-appeal. |
Catchwords: | APPEAL – APPEAL AND NEW TRIAL – Appeal from Magistrates Court – medical negligence – failure to explain treatment options – economic loss – errors in assessment of damages – appeal upheld. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Supreme Court Act1933 (ACT) pts 2, 2A Court Procedures Rules 2006 (ACT) r 5115(1)(b) |
Cases Cited: | Arkinstall v Jenkins [2001] QSC 421 JL v Director-General, Community Services Directorate [ECD] [2015] ACTSC 24 |
Parties: | Australian Capital Territory (Appellant) Andrew Bruce Gillan (Respondent) |
Representation: | Counsel Mr Stretton SC (Appellant) Mr Segal with Mr Hogan (Respondent) |
| Solicitors ACT Government Solicitor (Appellant) Slater & Gordon (Respondent) | |
File Number: | SCA 39 of 2015 |
Decision under appeal: | Court/Tribunal: ACTMC Before: Magistrate Cook Date of Decision: 13 April 2015 Case Title: Gillan v ACT Court File Number: CS 138 of 2013 |
Introduction
Andrew Gillan was a long-distance bus driver. He ruptured his Achilles tendon in an accident (the accident) that created no entitlement to compensation for him.
Mr Gillan went to Queanbeyan District Hospital, where his leg was put in a half-cast, and he was referred to the Canberra Hospital (TCH). He was seen several times at TCH, by several different doctors. His leg was examined, and new casts were put on. There was no surgical intervention, and none of the TCH doctors discussed the possibility of surgical intervention with him.
Mr Gillan‘s leg healed with some lengthening of the tendon, which was said by him to have reduced his capacity to maintain his employment as a bus driver, and particularly as a long-distance bus driver.
Mr Gillan took action in negligence against the Australian Capital Territory (the ACT), in which he asserted that the ACT, through TCH, had breached its duty of care to him,…
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- Case
- [2018] ACTSC 223
- Decision Date
CaseChat Overview and Summary
The court considered whether the ACT was negligent in its failure to explain treatment options to Mr Gillan. It found that the ACT was indeed negligent, as it failed to meet the standard of care expected of a medical practitioner. The court also reviewed the assessment of damages, determining that the Magistrate had erred in the assessment of Mr Gillan’s economic loss. The Magistrate had overlooked certain expenses and had miscalculated other damages.
The court held that the ACT’s appeal was dismissed, and Mr Gillan’s cross-appeal was upheld to the extent of correcting the damages. The court detailed the new awards to be made to Mr Gillan, which included additional economic loss and consequential adjustments to other awards. The parties were directed to prepare draft orders to reflect these changes by a specified date. Costs of the appeal and cross-appeal were awarded to Mr Gillan, unless either party requested a hearing on costs.
Orders
Orders of the court
1. The ACT’s appeal is dismissed.
2. Mr Gillan’s appeal is upheld to the extent necessary to give effect to the new awards set out at [156] below, and to make any necessary consequential changes to the other awards made by the Magistrate.
3. By 24 August 2018, the parties are to prepare draft orders to give effect to Order (2), and:
(a) the parties are to file an agreed draft order; or
(b) if agreement cannot be reached, each party is to file and serve a draft order.
4. Unless either of the parties wishes to be heard on costs, the ACT is to pay Mr Gillan’s costs of the appeal and the cross-appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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