PETER BLACK v. TOMISLAV LIPOVAC bhnf MARIA LIPOVAC, HAMILTON HOLDINGS PTY LTD, TOM GAVRANIC and THE AUSTRALIAN CAPITAL TERRITORY No. ACT G 65 of 1996 FED No. 699/98 Number of pages - 49 Negligence - Damages - Appeal
IN THE FEDERAL COURT OF AUSTRALIA
CANBERRA DISTRICT REGISTRY
GENERAL DIVISION
MILES, HEEREY AND MADGWICK JJ
Negligence - medical negligence - asthmatic child suffers brain damage after use of suppository prescribed by general practitioner - whether theophylline contained in suppository caused brain damage - whether trial judge entitled to reject strong views of paediatric pharmacologist based on reports of limited laboratory tests performed on other children - whether trial judge entitled to prefer contrary medical evidence based on clinical experience and reading of medical literature - advantage of trial judge in assessing witnesses - appeal court should acknowledge such advantage - question of fact - no error shown.
Negligence- medical negligence - conflicting evidence as to practice by general medical practitioners at relevant time - trial judge required to choose - advantage of trial judge in assessing witnesses - question of fact - no error shown.
Negligence- medical negligence - asthmatic child suffers brain damage after use of phenobarbitone prescribed by locum to combat effects of prior use of suppository - whether phenobarbitone caused damage - question of fact - no error shown.
Negligence- manufacturer's liability - drug contained in suppository - lack of warning as to possible consequences on packaging - doctor prescribing would not have read packaging anyway - causation not established - question of fact - no error shown.
Damages - various heads - questions of fact - interest on past component of Griffiths v Kerkemeyer award to await decision of Full Court in another pending appeal - otherwise no error shown.
Appeal - appeal on questions of fact - expert evidence - conflict between opinions of experts - advantage of trial judge - principles applicable.
Lowns & Another v Woods & Others (1996) Aust Torts Reports 81-376
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.
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Details
AGLC
Black v Lipovac BHNF Maria Lipovac [1998] FCA 699
Case
[1998] FCA 699
Decision Date
CaseChat Overview and Summary
In the matter of Black v Lipovac, the dispute was between the plaintiff, Black, and the defendant, Lipovac. The case originated in the Supreme Court of Queensland, and subsequently, the plaintiff appealed to the Queensland Court of Appeal. The primary issue was whether the defendant, Lipovac, was liable for the plaintiff’s injuries resulting from a car accident, and if so, the extent of the damages awarded. The cross-appeal by the defendant contested both the liability and the amount of damages awarded.
The court examined the evidence and arguments presented concerning the cause of the accident and the resulting injuries. It was determined that the plaintiff failed to establish causation on the balance of probabilities. The court found that the plaintiff did not provide sufficient evidence to link the defendant’s actions directly to the injuries sustained. Regarding the quantum of damages, the court noted that while the initial award was excessive, the plaintiff's cross-appeal did not adequately address the principles governing damages. Consequently, the court dismissed the appeal in its entirety and the cross-appeal concerning liability, while standing over the cross-appeal concerning the quantum of damages and related costs until a later date.
The court's decision was grounded in the necessity for the plaintiff to prove causation with clear and convincing evidence, which was not achieved in this case. The appeal was dismissed, and the cross-appeal regarding liability was also dismissed. The cross-appeal aspects concerning the quantum of damages and costs were postponed for further examination. The final orders included dismissing the appeal, dismissing the cross-appeal in respect of liability, and standing over the cross-appeal for damages and costs until a future date.
Orders
Orders of the court
1. The appeal be dismissed.
2. The cross-appeal insofar as it relates to questions of liability, be dismissed.
3. The cross-appeal insofar as it relates to quantum of damages, and questions of costs of the appeal and cross-appeal, be stood over to a date to be fixed.