Briant v Allan - [2002] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

Briant v Allan & Anor [2002] QCA 157

PARTIES:

MELANIE JOYCE BRIANT

(plaintiff/respondent)
v
JOHN ALLAN
(first defendant/appellant)
and
THE UNITING CHURCH IN AUSTRALIA PROPERTY
TRUST (Q)
(second defendant/not a party to appeal)

FILE NO/S:

Appeal No 11587 of 2001
DC No 1649 of 1993

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave - s 118(3) District Court Act 1967
General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2002

JUDGES:

de Jersey CJ, McPherson and Williams JJA
Joint reasons for judgment of McPherson and Williams JJA; separate reasons of de Jersey CJ, concurring as to the orders made.

ORDER:

Leave to appeal granted. Appeal allowed with costs. Judgment set aside. In lieu, judgment is given for the defendant in the action, together with costs of and incidental to the action, including reserved costs, if any.

CATCHWORDS:

TORTS – NEGLIGENCE – MISCELLANEOUS FORMS OF NEGLIGENT CONDUCT – where trial judge found defendant doctor to have negligently cross-infected the plaintiff with herpes virus in the course of receiving artificial insemination – whether trial judge incorrectly identified the mechanism by which the contamination occurred

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – SUFFICIENCY – whether plaintiff produced adequate evidence to establish that the defendant had been negligent in not sterilising his medical equipment – whether trial judge had based his conclusion that the defendant had used an unsterilised speculum on matters of inference or unwarranted speculation rather than fact –

TORTS – PROOF OF NEGLIGENCE – ONUS OF PROOF whether the plaintiff failed to discharge the onus of proof that rested upon her to prove her case on the balance of probabilities – whether a new trial was warranted because the critical findings made by the trial judge were based on inference rather than credibility

District Court Act 1967 (Qld), s118(3)

Devries v Australian National Railways Commission (1993) 177 CLR 472, considered
Rhesa Shipping SA v Edmunds (1985) 1 WLR 948, applied

COUNSEL:

SC Williams QC, with DJ Morgan, for the appellant
M Grant-Taylor SC for the respondent

SOLICITORS:

Flower & Hart for the appellant
Murphy Schmidt for the respondent

de JERSEY CJ: The respondent sued the applicant medical practitioner for damages for alleged professional negligence. A learned District Court Judge found the negligence established, and gave judgment in the respondent’s favour in the amount of $36,328.50. The appellant purported to appeal, overlooking the need first to obtain leave, the amount at issue being less than $50,000 (s 118(3) District Court Act 1967). Upon the hearing of the application for leave, the court entertained submissions going to the merits of the appeal. It is convenient to turn at once to the substance of the appeal.

The applicant is a medical practitioner practising in the fields of obstetrics and gynaecology. The respondent retained his services to undergo artificial insemination. The applicant carried out a vaginal scan on…

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 Briant v Allan

Details

AGLC: Briant v Allan [2002] QCA 157
Case: [2002] QCA 157
Decision Date: 10 May 2002

CaseChat Overview and Summary

In Briant v Allan, the plaintiff, who had received artificial insemination from the defendant doctor, alleged that she was negligently cross-infected with the herpes virus. The plaintiff pursued legal action, and the trial judge ruled in her favour, finding the defendant negligent for failing to sterilise his medical equipment. The defendant appealed this decision, arguing that the trial judge had incorrectly identified the mechanism by which the contamination occurred and had based his conclusion on inference rather than fact.

The appeal court was required to decide whether the trial judge had correctly identified the mechanism by which the contamination occurred and whether the plaintiff had produced adequate evidence to establish the defendant's negligence in not sterilising his medical equipment. Additionally, the court needed to determine if the trial judge had based his conclusion that the defendant had used an unsterilised speculum on matters of inference or unwarranted speculation rather than fact, and if the plaintiff had failed to discharge the onus of proof that rested upon her to prove her case on the balance of probabilities.

The appeal court found that the trial judge had erred in his identification of the mechanism by which the contamination occurred. The court held that the plaintiff had not produced adequate evidence to establish that the defendant had been negligent in not sterilising his medical equipment. Furthermore, the court found that the trial judge had based his conclusion that the defendant had used an unsterilised speculum on matters of inference or unwarranted speculation rather than fact. As a result, the appeal court concluded that the plaintiff had failed to discharge the onus of proof that rested upon her to prove her case on the balance of probabilities. Therefore, the appeal was allowed, the trial judgment was set aside, and judgment was given for the defendant in the action, together with costs of and incidental to the action, including reserved costs, if any.

Orders

Orders of the court

Leave to appeal granted. Appeal allowed with costs. Judgment set aside. In lieu, judgment is given for the defendant in the action, together with costs of and incidental to the action, including reserved costs, if any.

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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CITATION:	Briant v Allan & Anor [2002] QCA 157
PARTIES:	MELANIE JOYCE BRIANT (plaintiff/respondent) v JOHN ALLAN (first defendant/appellant) and THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) (second defendant/not a party to appeal)
FILE NO/S:	Appeal No 11587 of 2001 DC No 1649 of 1993
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave - s 118(3) District Court Act 1967 General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 May 2002
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2002
JUDGES:	de Jersey CJ, McPherson and Williams JJA Joint reasons for judgment of McPherson and Williams JJA; separate reasons of de Jersey CJ, concurring as to the orders made.
ORDER:	Leave to appeal granted. Appeal allowed with costs. Judgment set aside. In lieu, judgment is given for the defendant in the action, together with costs of and incidental to the action, including reserved costs, if any.
CATCHWORDS:	TORTS – NEGLIGENCE – MISCELLANEOUS FORMS OF NEGLIGENT CONDUCT – where trial judge found defendant doctor to have negligently cross-infected the plaintiff with herpes virus in the course of receiving artificial insemination – whether trial judge incorrectly identified the mechanism by which the contamination occurred EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – SUFFICIENCY – whether plaintiff produced adequate evidence to establish that the defendant had been negligent in not sterilising his medical equipment – whether trial judge had based his conclusion that the defendant had used an unsterilised speculum on matters of inference or unwarranted speculation rather than fact – TORTS – PROOF OF NEGLIGENCE – ONUS OF PROOF whether the plaintiff failed to discharge the onus of proof that rested upon her to prove her case on the balance of probabilities – whether a new trial was warranted because the critical findings made by the trial judge were based on inference rather than credibility District Court Act 1967 (Qld), s118(3) Devries v Australian National Railways Commission (1993) 177 CLR 472, considered Rhesa Shipping SA v Edmunds (1985) 1 WLR 948, applied
COUNSEL:	SC Williams QC, with DJ Morgan, for the appellant M Grant-Taylor SC for the respondent
SOLICITORS:	Flower & Hart for the appellant Murphy Schmidt for the respondent