Carr and Anor. v Anderson - [2001] QDC 300

DISTRICT COURT OF QUEENSLAND

CITATION: Carr & Anor. v. Anderson [2001] QDC 300

PARTIES: IAN JOHN CARR   (First Plaintiff)
And
TERRI CARR   (Second Plaintiff)
And
KEITH ANDERSON   (Defendant)

FILE NO/S: D264 of 2001

DIVISION: Civil

PROCEEDING: Trial

ORIGINATING COURT: Maroochydore

DELIVERED ON: 9^th November 2001

DELIVERED AT: Maroochydore

HEARING DATE: 22^nd-23^rd October 2001

JUDGE: Judge J.M. Robertson

ORDER: Judgment for the defendant against both plaintiffs with costs.

CATCHWORDS: Negligence – medical negligence – first plaintiff had suppressed immunity and susceptible to skin cancers; defendant doctor diagnosed skin lesion as dermatitis, but subsequent diagnosis was cancer – whether doctor breached duty of care

COUNSEL: AJH Morris QC with P de Plater (for the plaintiff)
SC Williams QC with GW Diehm (for the defendant)

SOLICITORS: Boyce Garrick Lawyers (for the plaintiff)
Flower & Hart Solicitors (for the defendant)

The first plaintiff was born in the United Kingdom on the 23^rd July 1944. He emigrated to New Zealand and continued his employment as a police officer until 1986 when he was discharged as medically unfit. He was diagnosed with Alpha I. antitrypsin deficiency, which is a severe progressive lung disease, and after moving to Australia he underwent a single lung transplant at St Vincents Hospital in Sydney in November 1993. His younger brother had a similar transplant as a result of the same disease in 1991, and he died in November 2000 aged 47 years. Similarly, his older sister died very soon after a lung transplant in or about 1992. The first plaintiff married the second plaintiff on the 30^th October 1979.

As a transplant recipient, the first plaintiff was required to take a range of drugs some of which were designed to prevent rejection. Soon after the transplant, the first plaintiff came under the care of general practitioner Dr Mark Bown at the Point Cartwright Family Medical Centre, however the first plaintiff was also in the habit of attending the Kawana Waters 24 Hour Medical Centre from time to time, despite having regular (average three weeks) consultations with Dr Bown. It is common ground that a person in the position of the first plaintiff as a transplant recipient is considerably more susceptible to the development of cancerous skin lesions than the average person, because of the repression of his immune system by the anti-rejection drugs.

It is really not in issue on the evidence that the first plaintiff was aware of the increased risk of such cancers, and was very vigilant in ensuring that any suspect lesion or growth was attended to by a doctor as soon as possible. It is common ground that the first plaintiff was very reluctant to attend hospitals for any form of treatment because of his fear of infection associated with such visits. He had a similar concern about crowded waiting rooms at Dr Bown’s surgery.

The evidence establishes that over the years, Dr Bown removed a number of suspect lesions from the first plaintiff’s body, including a squamous cell carcinoma…

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 Carr and Anor. v Anderson

Details

AGLC: Carr and Anor. v Anderson [2001] QDC 300
Case: [2001] QDC 300
Decision Date: 9th November 2001

CaseChat Overview and Summary

The plaintiffs, Carr and another, sought damages from the defendant, Dr Anderson, for alleged medical negligence. The first plaintiff had suppressed immunity, making him highly susceptible to skin cancers. Dr Anderson diagnosed a skin lesion as dermatitis. However, a subsequent diagnosis revealed that it was a cancerous lesion. The plaintiffs alleged that Dr Anderson breached his duty of care by failing to diagnose the cancer correctly and in a timely manner.

The court was required to determine whether Dr Anderson breached his duty of care owed to the plaintiffs. The court examined whether Dr Anderson's diagnosis and treatment of the skin lesion met the standard of care expected of a reasonable medical practitioner in his position. The court also considered whether the plaintiffs' injuries were a direct result of the alleged breach of duty.

The court found that Dr Anderson did not breach his duty of care. The court held that Dr Anderson's diagnosis and treatment of the skin lesion were within the standard of care expected of a reasonable medical practitioner. The court also found that the first plaintiff's susceptibility to skin cancers was a known and significant factor, but it did not absolve Dr Anderson from his duty of care. The court held that the plaintiffs' injuries were not a direct result of the alleged breach of duty.

The court entered judgment for the defendant against both plaintiffs with costs.

Orders

Orders of the court

Judgment for the defendant against both plaintiffs with costs.

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:	Carr & Anor. v. Anderson [2001] QDC 300
PARTIES:	IAN JOHN CARR (First Plaintiff) And TERRI CARR (Second Plaintiff) And KEITH ANDERSON (Defendant)
FILE NO/S:	D264 of 2001
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	9^th November 2001
DELIVERED AT:	Maroochydore
HEARING DATE:	22^nd-23^rd October 2001
JUDGE:	Judge J.M. Robertson
ORDER:	Judgment for the defendant against both plaintiffs with costs.
CATCHWORDS:	Negligence – medical negligence – first plaintiff had suppressed immunity and susceptible to skin cancers; defendant doctor diagnosed skin lesion as dermatitis, but subsequent diagnosis was cancer – whether doctor breached duty of care
COUNSEL:	AJH Morris QC with P de Plater (for the plaintiff) SC Williams QC with GW Diehm (for the defendant)
SOLICITORS:	Boyce Garrick Lawyers (for the plaintiff) Flower & Hart Solicitors (for the defendant)