Athanasiadis v Likos - [2010] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ATHANASIADIS v LIKOS
[2010] SADC 85
Judgment of Her Honour Judge McIntyre
25 June 2010
TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE - WEIGHT AND CREDIBILITY OF EVIDENCE
Plaintiff's wife died in November 2001 as a result of gall bladder cancer which is a rare cancer that does not generate symptoms until it is in its terminal stage. Earlier diagnosis generally occurs as an incidental finding arising from the diagnosis and treatment of another condition such as gall stones. The plaintiff claims damages, including for nervous shock, against his wife's general practitioner contending that his wife had a symptomatic case of gall stones preceding the development of her cancer and that the defendant was negligent in not investigating her complaints of symptoms and arranging for treatment of that condition prior to September 2001.
Held: the plaintiff has not established a factual basis upon which it can be said that a reasonably competent medical practitioner should have investigated the possibility that his wife had gall stones prior to September 2001. Further, even if the defendant had diagnosed the gallstone condition prior to September 2001, the plaintiff has failed to establish that earlier diagnosis would have resulted in removal of the gall bladder at a time when the gall bladder cancer and subsequent death could have been avoided. Even if the plaintiff had been successful in establishing negligence he has not established that he is suffering from a psychiatric illness and thus has failed to establish an entitlement to damages for nervous shock.
Civil Liability Act 2004 s23, referred to.
Scala v Mammolitti (1965) 114 CLR 153; Rogers v Whitaker (1992) 175 CLR 479; Whitehouse v Jordan (1981) All ER 267; Von Den Heavel v Tucker (2003) 85 SASR 512; QEH v Curtis (2008) 102 SASR 534; Jaensch v Coffey (1984) 155 CLR 549; Phan v Lawson (1997) 68 SASR 124; Jones v Dunkel (1959) 101 CLR 298, considered.

DAMAGES - GENERAL PRINCIPLES - DIFFICULTY OF ASSESSING DAMAGES
Evidence presented deficient - Courts are obliged to use best endeavours to assess damages even if there are deficiencies in the evidence however, in the present case, given the findings on liability and the paucity of evidence there is no utility to proceeding with an assessment of damages. Observations made on claims under Survival of Causes of Actions Act 1940 and for aggravated and exemplary damages.
Survival of Causes of Action Act 1940 s3(1)(b), referred to.
Lamb v Cotogno (1987) 164 CLR 1; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Whitfield v DeLauret & Co Ltd (1923) CLR 71 at 77; Wilson v McLeay (1961) 106 CLR 523, considered.

ATHANASIADIS v LIKOS
[2010] SADC 85
Summary

Mrs Theodora Athanasiadis died at the age of 65 on 22 November 2001 as a result of gall bladder cancer leaving a husband and three adult sons. She had consulted her general practitioner, Dr Peter Likos, on a…

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 Athanasiadis v Likos

Details

AGLC: Athanasiadis v Likos [2010] SADC 85
Case: [2010] SADC 85
Decision Date: 25 June 2010

CaseChat Overview and Summary

The plaintiff, Athanasiadis, brought an action against the defendant, Likos, a general practitioner, seeking damages for the death of his wife from gall bladder cancer. The plaintiff claimed that the defendant was negligent in not diagnosing and treating his wife's gall stones, which he alleged were symptomatic, prior to September 2001. The plaintiff argued that earlier diagnosis and treatment could have led to a better prognosis and sought damages for nervous shock, as well as for the wife’s pain and suffering.

The primary legal issues for the court to determine were whether the defendant was negligent in the treatment of the plaintiff's wife and, if so, whether such negligence caused or materially contributed to her death. Additionally, the court had to consider the appropriate quantum of damages, if any, given the circumstances of the case. The court had to weigh the credibility of the evidence presented, particularly regarding the symptoms of gall stones and the potential for earlier diagnosis.

The court found that the plaintiff had not established a causal link between the defendant’s alleged negligence and the wife’s death. The evidence provided was deemed insufficient to prove that the wife had symptomatic gall stones or that earlier diagnosis and treatment would have altered the outcome. The court concluded that there was no basis to award damages to the plaintiff. Given the findings on liability, the court determined that there was no utility in proceeding with an assessment of damages, given the deficiencies in the evidence. The court also noted that the claims under the Survival of Causes of Action Act 1940 and for aggravated and exemplary damages were not substantiated.

No orders were made as the plaintiff’s claim was dismissed in its entirety.

Orders