Alrifai v ACT - [2024] ACTCA 13

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Alrifai v ACT
Citation:	[2024] ACTCA 13
Hearing Date:	22 February 2023
Decision Date:	12 April 2024
Before:	McCallum CJ, O’Sullivan J and McWilliam AsJ
Decision:	(1) The appeal is dismissed. (2) The appellant is to pay the respondent’s costs.
Catchwords:	APPEAL – Medical negligence – allegation of delayed diagnosis of pancreatic cancer – where hospital admitted a failure to exercise reasonable care and skill consisting in the failure of treating clinicians to obtain a surgical opinion at a particular point in time – where all other allegations of negligence rejected by primary judge – whether primary judge erred in declining to find the admitted breach caused the injuries alleged
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 40, 45, 46 Evidence Act 2011 (ACT), ss 77, 136 Supreme Court Act 1993 (ACT), s 37E Court Procedures Rules 2006 (ACT), r 1243
Cases Cited:	Alrifai v Australian Capital Territory [2022] ACTSC 48 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Dearman v Dearman [1908] HCA 84; 7 CLR 549 Fox v Percy [2003] HCA 22; 214 CLR 118 Tabet v Gett (2010) [2010] HCA 12; 240 CLR 537
Parties:	Faten Alrifai ( Appellant) Australian Capital Territory ( Respondent)
Representation:	Counsel D Hooke SC and D Richards ( Appellant) V Thomas and K Beattie ( Respondent)
Solicitors United Legal ( Appellant) ACT Government Solicitor ( Respondent)
File Number:	ACTCA 16 of 2022
Decision Under Appeal:	Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Balla AJ Date of Decision: 18 March 2022 Case Title: Alrifai v Australian Capital Territory Citation: [2022] ACTSC 48

THE COURT:

Introduction

1․Faten Alrifai claimed damages for medical negligence arising from alleged delay in the diagnosis of her pancreatic cancer during her treatment at the Canberra Hospital. The proceedings were brought against the Australian Capital Territory as the entity vicariously liable for the conduct of the hospital.
2․Mrs Alrifai presented at the Canberra Hospital on numerous occasions in 2018 with various complaints including nausea and intense pain in the chest, abdomen and flank. Between the beginning of 2018 and the end of April that year, she had abdominal computed tomography (CT) scans on 1 January 2018, 6 April 2018 and 22 April 2018. On 26 April 2018, she had an endoscopic ultrasound which included a fine-needle aspiration. The hospital’s response to the results of those tests formed the central basis of Mrs Alrifai’s claim for medical negligence.
3․It was not alleged that the radiologists were negligent in reporting on the tests. The claim was confined to the response of the hospital medical team when results became available on three critical dates. The particulars of negligence alleged that the hospital was negligent in failing on or by 3 January 2018 or alternatively 6 or 26 April 2018 to recognise Mrs Alrifai’s increased risk of pancreatic adenocarcinoma given her symptoms (particular 25(a)); in failing on or…

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.

Continue reading Alrifai v ACT

Details

AGLC: Alrifai v ACT [2024] ACTCA 13
Case: [2024] ACTCA 13
Decision Date: 12 April 2024

CaseChat Overview and Summary

The appeal in *Alrifai v ACT* concerned an allegation of medical negligence against a hospital, brought by the appellant. The primary dispute revolved around the alleged delayed diagnosis of pancreatic cancer. While the hospital admitted a failure to exercise reasonable care and skill, specifically in the treating clinicians’ failure to obtain a surgical opinion at a particular point in time, all other allegations of negligence were rejected by the primary judge. The central question on appeal was whether the primary judge erred in declining to find that the admitted breach of duty caused the injuries alleged by the appellant.

The court was required to determine whether the admitted failure to obtain a surgical opinion constituted a causative breach of the duty of care owed to the appellant, and if so, whether that breach caused the appellant's alleged injuries. This involved an assessment of the causal link between the admitted negligence and the progression of the appellant's medical condition.

The court dismissed the appeal, upholding the primary judge's decision. The reasoning focused on the lack of a sufficient causal connection between the admitted breach and the appellant's alleged harm. The court found that even if a surgical opinion had been obtained earlier, it would not have altered the outcome or the appellant's injuries. The appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The appellant is to pay the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.