Arkinstall v Jenkins

SUPREME COURT OF QUEENSLAND

CITATION:

Arkinstall v Jenkins [2001] QSC 421

PARTIES:

JANNEAN MARIE ARKINSTALL
(plaintiff)
v
ANDREW MALCOLM JENKINS
(defendant)

FILE NO/S:

S 1482 of 1998

DIVISION:

Trial Division

DELIVERED ON:

9 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2001

JUDGE:

Douglas J

ORDER:

Judgment for the plaintiff against the defendant in the sum of $30,876.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – whether the plaintiff was informed as to her choices for plastic surgery on her breasts.

TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – whether the plaintiff could be compensated for pain and suffering caused by an unsatisfactory result with respect to a breast augmentation procedure.

PROFESSONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – RELEVANT PRINCIPLES – DUTY TO WARN OF RISKS – PARTICULAR CASES – plastic surgeons and their duty to fully inform patients of their options for breast surgery.

COUNSEL:

T C Somers for plaintiff
D H Tait for defendant

SOLICITORS:

Creswick Lawyers for plaintiff
Blake Dawson Waldron for defendant.

1. DOUGLAS J:  The plaintiff is a woman in her early thirties who, after having given birth to, and breast fed for some considerable time two children, observed that her breasts were sagging, drooping and lacking in shape.  She therefore consulted her general practitioner who advised her to consult the defendant, an expert in plastic and reconstructive surgery.

1. In or about May 1995 the plaintiff attended the defendant’s surgery to obtain his professional advice with respect to her breasts.  She says that at that consultation the defendant agreed with her that her breasts were drooping and that there needed to be something done.  She said that at the time they talked about only a reduction or an enlargement.  I find that it was she who first suggested to the defendant the alternatives of a reduction or enlargement surgery.  I also find that at no time at that consultation was the procedure known as a mastopexy mentioned to her.  The plaintiff said, and I accept, that she told the defendant that she did not mind if she had a reduction or an enlargement, she just wanted the best result.  She informed the defendant that she had been a size 10D in the past and from breastfeeding the size had reduced to a 10C.

1. The defendant carried out a physical examination of the plaintiff, including a calculation of her height and the width of her back.  He explained to her that with reduction surgery there would be a lot more scarring and also explained that with her height and size she could hold an enlargement and that there would be, with that, less scarring.  She says, and I accept, that he advised her that that was the procedure she should “go with”.

1. There was a second consultation before the actual surgery.  On that occasion the plaintiff and the…