Austen v Tran

Case [2023] ACTCA 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Austen v Tran

Citation: 

[2023] ACTCA 44

Hearing Date: 

23 February 2023

Decision Date: 

29 November 2023

Before:

McCallum CJ, Wheelahan J and Crowe AJ

Decision: 

The appeal is dismissed. 

Catchwords: 

APPEAL – CIVIL LAW – Medical negligence – where appellant had brought a claim in medical negligence against general practitioner for delay in the diagnosis of non-Hodgkin’s lymphoma – where appellant had claimed before primary judge that breach of duty constituted by general practitioner ordering only blood tests and no follow-up appointment where she claimed severe leg pain – where primary judge found no breach of duty and alternatively causation not established – where on appeal appellant claimed that primary judge erred in failing to find general practitioner had breached duty at first consultation – where appellant further claimed primary judge erred by failing to consider the matters in s 43(2)(a) and (b) of the Civil Law (Wrongs) Act 2002 (ACT) – where primary judge had the benefit of hearing evidence – no error in failing to find breach of duty – no failure to consider s 43(2)(a) and (b) of the Act – rejection of appellant’s grounds of appeal regarding primary judge’s findings dispositive of appeal – unnecessary to address grounds directed to primary judge’s findings as to causation – appeal dismissed

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44

Cases Cited: 

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420

Austen v Tran [2022] ACTSC 114

Boensch v Pascoe [2019] HCA 49; 268 CLR 593

Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233

DL v The Queen [2018] HCA 26; 266 CLR 1

Griffiths v Kerkmeyer (1977) 139 CLR 161

Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1

Lee v Lee [2019] HCA 28; 266 CLR 129

Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550

Rogers v Whittaker (1992) 175 CLR 479

Rosenberg v Percival [2001] HCA 18; 205 CLR 434

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871

Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51

Tame v New South Wales [2002] HCA 35; 211 CLR 317

Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; 273 CLR 454

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320; 91 NSWLR 752

Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422

Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402

Whisprun Pty Ltd v Dixon [2003] HCA 48; 234 CLR 492

Wyong Shire Council v Shirt (1980) 146 CLR 40

Texts Cited:

Commonwealth of Australia, Review of the Law of…

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Austen v Tran [2023] ACTCA 44
Case
[2023] ACTCA 44
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the primary judge in a medical negligence claim brought by the appellant against the respondent, a general practitioner. The appellant alleged that the respondent had breached his duty of care by delaying the diagnosis of non-Hodgkin’s lymphoma. Specifically, the appellant contended that the respondent's failure to order further investigations beyond blood tests and to schedule a follow-up appointment, despite the appellant reporting severe leg pain, constituted a breach of duty. The primary judge had found that no breach of duty occurred and, in the alternative, that causation was not established.

On appeal, the appellant argued that the primary judge erred in failing to find a breach of duty at the initial consultation and in failing to consider the provisions of section 43(2)(a) and (b) of the *Civil Law (Wrongs) Act 2002* (ACT). The appellate court was required to determine whether the primary judge had made any errors in their findings regarding the respondent's conduct and the application of the relevant legislation.

The Court of Appeal found no error in the primary judge's determination that the respondent had not breached his duty of care. Having had the advantage of hearing the evidence directly, the primary judge's findings of fact were upheld. Furthermore, the Court concluded that the primary judge had not failed to consider the matters raised by section 43(2)(a) and (b) of the *Civil Law (Wrongs) Act 2002* (ACT). As the grounds of appeal concerning the findings of breach of duty were rejected, these findings were considered dispositive of the appeal, rendering it unnecessary for the Court to address the grounds relating to causation.

Consequently, the appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

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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