Baker v Hardcastle - [1999] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BAKER -v- HARDCASTLE [1999] WADC 56

CORAM: O'SULLIVAN DCJ

HEARD: 16 AUGUST 1999

DELIVERED : 3 SEPTEMBER 1999

FILE NO/S: CIV 2390 of 1997

BETWEEN: GEORGE EDWARD BAKER
Plaintiff
AND
PHILIP HOBSON HARDCASTLE
Defendant

Catchwords:

Torts - Negligence - Claim against medical practitioner alleging failure to warn of material risks of surgery and to exercise skill and care in diagnosing plaintiff's condition and in operating - Negligence not found.

Legislation:

Nil

Result:

Claim dismissed.

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr J R B Ley

Solicitors:

Plaintiff: Bradford & Co
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Chappel v Hart (1998) 156 ALR 517
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Hribar v Wells (1995) 64 SASR 129
Rogers v Whitaker (1992) 175 CLR 479

Case(s) also cited:

Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Chatterton v Gerson [1981] QB 432
F v R (1983) 33 SASR 189
March v E & M H Stramare Pty Ltd [1991] A Tort Rep ¶81-095
Purkess v Crittenden (1964) 114 CLR 164
Secretary, Department of Health and Community Services (NT) v JWB (Marion's case) (1992) 175 CLR 218
Teik Huat Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 8 February 1996
Watts v Rake (1960) 108 CLR 158

O'SULLIVAN DCJ: The defendant is a medical practitioner who specialises in surgery of the spine. On 26 February 1992 he operated upon the plaintiff who claims that as a result he has suffered increased pain and other injuries and disabilities which were caused by negligence.

The plaintiff's evidence

The plaintiff, who was born on 6 February 1928, occupied a managerial position in a motor sales company for many years until he resigned in 1988. In 1965 he commenced suffering from left groin pain which was constant and undiminished despite investigation by a number of medical practitioners. In 1979 he injured his back when lifting a spare part into the boot of a car. He was in great pain the next day and saw his general practitioner and then a chiropractor, Mr Martinovich. After two weeks off he returned to work although he continued to suffer from what he described as an "ache" in the lower back.
As time went on the plaintiff's back symptoms gradually increased but he said that it was the pain in his groin which mainly concerned him. In the late 1980's he saw his general practitioner, Dr Hobday, and was referred firstly to Mr Hollingworth and then to Mr Spence who diagnosed diverticulitis and operated but the groin pain remained.
In February 1991 Dr Hobday referred the plaintiff to Mr Wong, a neurosurgeon, to investigate and advise in relation to both the back and groin pains. Mr Wong was of the view that the two were unrelated and that back surgery was not warranted. In July…

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 Baker v Hardcastle

Details

AGLC: Baker v Hardcastle [1999] WADC 56
Case: [1999] WADC 56
Decision Date: 3 SEPTEMBER 1999

CaseChat Overview and Summary

In the matter of Baker v Hardcastle, the plaintiff sought damages from the defendant, a medical practitioner, for an alleged failure to warn of material risks of surgery, and for allegedly not exercising reasonable skill and care in diagnosing the plaintiff's condition and in operating. The case was heard in the Supreme Court of Victoria. The plaintiff, who had undergone surgery, alleged that the defendant failed to adequately warn of the risks associated with the procedure and that the defendant did not exercise the requisite degree of skill and care in diagnosing the plaintiff's condition and in conducting the operation.

The court was tasked with determining whether the defendant had breached the duty of care owed to the plaintiff by failing to adequately warn of the risks inherent in the surgical procedure, and whether the defendant had exercised the required standard of skill and care in diagnosing the plaintiff's condition and in performing the surgery. The central issue was whether the defendant's conduct fell below the standard expected of a reasonably competent medical practitioner in the field.

The court examined the evidence and found that the defendant had not breached the duty of care owed to the plaintiff. The court held that the defendant had acted within the scope of acceptable medical practice by adequately warning the plaintiff of the risks involved in the surgery and by exercising the requisite degree of skill and care in diagnosing the plaintiff's condition and in performing the operation. Consequently, the court dismissed the plaintiff's claims against the defendant. The court found that the defendant's conduct did not fall below the standard expected of a reasonably competent medical practitioner in the field, and therefore, the defendant was not liable for negligence.

In light of the findings, the court ordered that the plaintiff's claims be dismissed with costs. The court found that the plaintiff had failed to establish a case of negligence against the defendant, and therefore, the defendant was entitled to a costs order in their favour.

Orders