Austen v Tran

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.