(1)	Judgment is entered for the defendant.
(2)	The plaintiff is to pay the defendant’s costs.
(3)	If any variation to the costs order is sought, the parties have liberty to apply within 14 days of the making of these orders.

Catchwords:

NEGLIGENCE – MEDICAL NEGLIGENCE – General practitioner – where delay in diagnosis of non-Hodgkin's lymphoma – where

only blood tests ordered at initial presentation and practitioner did

not follow up – whether breach of duty of care – whether

practitioner should have ordered an MRI at a subsequent

presentation – whether any breach caused a delay in diagnosis
DAMAGES – DOMESTIC SERVICES – whether ‘household’ in s

100 of the Civil Law (Wrongs Act) 2002 (ACT) includes extended

family – where plaintiff’s claim includes future domestic assistance provided to the plaintiff’s extended family and plaintiff

is primary caregiver in large indigenous familial group

Legislation Cited:

Civil Law (Wrongs Act) 2002 (ACT) ss 42, 43, 44, 45, 46, 99, 100
Civil Liability Act 2002 (NSW) s 5D
Motor Accidents Act 1988 (NSW)

Cases Cited:

Action Paintball Games Pty Ltd (In liq) v Barker [2013] NSWCA

128
Amin v Vidal [2020] ACTSC 227
Benning v Richardson [2021] ACTSC 34
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020]
ACTCA 2; 15 ACTLR 233
Dixon v Foote [2012] ACTSC 101
George v Survery [2009] NSWSC 1348
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA
15; 229 CLR 498; 81 ALJR 919
Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161

Hauraki v Steinhoff Asia Pacific Limited t/a Freedom Furniture

[2021] ACTSC 54
HL v HP [2019] ACTSC 299
Hulanicki v Walton [2014] ACTSC 17

MacCabe v Westlock Roman Catholic Separate School District

No 110 [2002] 1 WWR 610

Mason v Demasi [2009] NSWCA 227
Nouri v Australian Capital Territory [2018] ACTSC 275
Nouri v Australian Capital Territory [2020] ACTCA 1
Perry v Pese [2018] ACTSC 205
Reeve v Commonwealth [2014] ACTSC 1
Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC
207
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42;
234 CLR 330
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Skelton v Collins [1966] HCA 14; 115 CLR 94
Tabet v Gett [2010] HCA 12; 240 CLR 537
Tsueneaki v Stewart [2013] ACTCA 34
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Wilkins v Council of the City of Broken Hill [2005] NSWCA 468
Young v Rothin [2009] ACTSC 71

Parties:

Sandra Austen (Plaintiff)

Tuan Quoc Tran (Defendant)

Representation:

Counsel

D Richards (Plaintiff)
W Sharwood (4 March 2021) and A Muller (3, 4, 6, 7, 12 May
2021) (Defendant)

Solicitors

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 Austen v Tran

Details

AGLC: Austen v Tran [2022] ACTSC 114
Case: [2022] ACTSC 114
Decision Date

CaseChat Overview and Summary

Sandra Austen sued her former general practitioner, Tuan Quoc Tran, for medical negligence. She alleged that Dr Tran's failure to diagnose her non-Hodgkin's lymphoma in a timely manner led to a worsened prognosis. The Supreme Court of the Australian Capital Territory found that Dr Tran did not breach his duty of care in either of the two consultations with Ms Austen. The Court reasoned that while some aspects of Dr Tran's conduct could be criticised, they did not fall short of what a reasonably competent general practitioner would have done. Furthermore, even if a breach had occurred, the Court found that it did not cause any delay in diagnosis or worsen Ms Austen's prognosis. The Court awarded judgment in favour of Dr Tran and ordered Ms Austen to pay his costs.

Orders