ACT v Gillan; Gillan v ACT - [2018] ACTSC 223

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 KL v Farnsworth [2002] NSWSC 382 O’Brien v Noble [2012] ACTCA 13 Richards v Rahilly [2002] NSWSC 943 Rogers v Whitaker (1992) 175 CLR 479 The Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52; 7 ACTLR 142 Wallace v Kam [2013] HCA 19; 250 CLR 375
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACTSC 223
Decision Date: 17 August 2018.

CaseChat Overview and Summary

The Australian Capital Territory (ACT) appealed against a judgment in the Magistrates Court, where it had been found liable for medical negligence against Mr Gillan. The ACT was found to have failed to explain treatment options to Mr Gillan, resulting in economic loss. Mr Gillan cross-appealed, arguing that the assessment of damages was incorrect. The court had to decide whether the ACT was liable for negligence, the extent of Mr Gillan’s economic loss, and the accuracy of the damages assessed by the Magistrate.

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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