DEN ELZEN -v- HARRIS [2008] WADC 106

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 106
Case No:	CIV:1983/2005	Heard:	11-15 JUNE 2007 & 5-7 FEBRUARY 2008
Coram:	MACKNAY DCJ	Delivered:	25/07/08
Location:	PERTH
No of pages:	28	Judgment Part:	1 of 1
Result:	Claim under Fatal Accidents Act 1959 (WA) dismissed Claim by plaintiff for damages for nervous shock dismissed
PDF Version

Parties:	KATRIN DEN ELZEN SARAH HARRIS
Catchwords:	Negligence Medical negligence Whether negligent failure to make correct diagnosis Causation Whether outcome would have differed in any event Turns on own facts
Legislation:	Fatal Accidents Act 1959 (WA)
Case References:	Amaca Pty Ltd v Hannell (2007) 34 WAR 109 Chappel v Hart (1998) 195 CLR 232 City of Stirling v Tremeer (2006) 32 WAR 155 Strempel v Wood [2005] WASCA 163

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : DEN ELZEN -v- HARRIS [2008] WADC 106 CORAM : MACKNAY DCJ HEARD : 11-15 JUNE 2007 & 5-7 FEBRUARY 2008 DELIVERED : 25 JULY 2008 FILE NO/S : CIV 1983 of 2005 BETWEEN : KATRIN DEN ELZEN

Plaintiff

AND

SARAH HARRIS

Defendant

Catchwords:

Negligence - Medical negligence - Whether negligent failure to make correct diagnosis - Causation - Whether outcome would have differed in any event - Turns on own facts

Legislation:

Fatal Accidents Act 1959 (WA)

Result:

Claim under Fatal Accidents Act 1959 (WA) dismissed

Claim by plaintiff for damages for nervous shock dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr G Droppert

Defendant : Mr J R B Ley

Solicitors:

Plaintiff : Julian Johnson

Defendant : Clayton Utz

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

Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Chappel v Hart (1998) 195 CLR 232
City of Stirling v Tremeer (2006) 32 WAR 155
Strempel v Wood [2005] WASCA 163

(Page 3)

MACKNAY DCJ

Introduction

1 This is a claim under the Fatal Accidents Act 1959 (WA) ("the Act"), and also a claim for nervous shock.

2 Mark Den Elzen (the deceased) was a married swimming pool maintenance business proprietor who was born on 30 December 1961 and who died on 16 September 2004 of various complications following the contracting of hydrocephalus.

3 The claim under the Act is brought by the deceased's widow, the plaintiff, born on 10 June 1964, on her own behalf and that of the two young children of her marriage to the deceased, Rahel Ingrid Den Elzen born 4 November 1992; and Joschka Mark Den Elzen born 14 August 1995, and that for nervous shock on her own behalf.

4 The defendant at all material times was a registered medical practitioner employed as a part-time general practitioner by the Point Walter Medical Centre ("the medical centre").

5 The deceased attended the medical centre on 23 January 2004 with a complaint of headache, and saw Dr Kennan Taylor.

6 He attended again on 27 January 2004, and saw the defendant, with a similar complaint, and was given printed material concerning tension…

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 Den Elzen v Harris

Details

AGLC: Den Elzen v Harris [2008] WADC 106
Case: [2008] WADC 106
Decision Date: 25 JULY 2008

CaseChat Overview and Summary

The case of Den Elzen v Harris involved a dispute over whether the defendant, Harris, a medical practitioner, was negligent in his diagnosis of the plaintiff, Den Elzen. The plaintiff sought damages for personal injuries and nervous shock due to the alleged negligence. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue was whether Harris was negligent in failing to correctly diagnose Den Elzen's condition, and if so, whether this negligence caused the plaintiff's injuries or if the outcome would have been the same regardless. Additionally, the court needed to determine if Den Elzen was entitled to damages for nervous shock.

In addressing these issues, the court found that Harris had not been negligent in his diagnosis. The court emphasised that the question of causation in medical negligence cases often depends on the specific facts of each case. Here, it was determined that the plaintiff's injuries would likely have occurred regardless of the defendant's actions, meaning that the negligence, if any, did not cause the plaintiff's injuries. Furthermore, the court held that the plaintiff was not entitled to damages for nervous shock. Consequently, the claim under the Fatal Accidents Act 1959 (WA) and the claim for damages for nervous shock were both dismissed.

The Supreme Court of Western Australia ordered that the claim under the Fatal Accidents Act 1959 (WA) and the claim by the plaintiff for damages for nervous shock be dismissed.

Orders

Orders of the court

Claim under Fatal Accidents Act 1959 (WA) dismissed

Claim by plaintiff for damages for nervous shock dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.