Di Carlo v Dubois - [2003] QSC 204

SUPREME COURT OF QUEENSLAND

CITATION:

Di Carlo v Dubois & Ors [2003] QSC 204

PARTIES:

SALVATORE DI CARLO
(plaintiff)
v
DR PHILIP JAMES DUBOIS
(first defendant)
PHILIP DUBOIS (MEDICAL) PTY LIMITED
(ACN 010 673 864)
(second defendant)
DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O’ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWITZ, PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE AND PETER FERGUS LEGH trading under the firm name of style of QUEENSLAND X-RAY SERVICES
(third defendant)
DR MICHAEL CORONEOS
(fifth defendant)

FILE NO:

SC No 1281 of 1996

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2002, 22 November 2002, 25 November 2002, 26 November 2002, 27 November 2002, 28 November 2002, 29 November 2002

JUDGE:

Mackenzie J

ORDER:

The plaintiff’s action against the first, second and third defendants is dismissed with costs, including costs of the first trial and any other reserved costs.

The plaintiff is entitled to judgment against the fifth defendant in the sum of $80,000 with costs, including reserved costs as between them to be assessed. Costs are to be assessed on the basis of District Court costs appropriate to the judgment amount.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where plaintiff underwent CT Scan – where plaintiff claimed he specified to his neurosurgeon, the fifth defendant, that he would not undertake an invasive procedure – where plaintiff and fifth defendant pleaded a plain CT Scan was ordered - where severe reaction to contrast medium – where claim that CT Scan procedure not explained – where no direct warning given as to risks of CT Scan – whether fifth defendant negligent in not specifying a plain scan only was to be carried out – whether first , second and third defendants liable for breach of duty of care in not carrying out plain scan only – whether first, second and third defendants liable for failure to warn of material risk

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GENERALLY – NON-PECUNIARY DAMAGE – LOSS OF AMENITIES OR CAPACITY FOR ENJOYMENT – where plaintiff sought damages for negligence – where plaintiff claimed financial loss and loss of amenities of life – where plaintiff had extensive pre-incident medical history and history of stress – where plaintiff also suffered unconnected injury after the event – where significant component of plaintiff’s anger over the event derived from a misapprehension of the nature and properties of contrast dye used – where misapprehension due to mistake of fact, not irrational belief – whether loss wholly attributable to CT Scan incident – extent to which any negligence caused loss of economic capacity

Hribar v Wells (1995) 64 SASR 129
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001)…

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

Case: [2003] QSC 204
Decision Date: 16 July 2003

CaseChat Overview and Summary

The case of Di Carlo v Dubois involves a claim by the plaintiff against several defendants, including a neurosurgeon and medical practitioners, following a severe reaction to a contrast medium administered during a CT scan. The plaintiff argued that he had specifically requested a plain CT scan, which does not involve contrast medium, but that this request was allegedly ignored. The plaintiff further contended that the defendants failed to warn him about the risks associated with the contrast medium used in the CT scan. The dispute reached the court, which was tasked with determining whether the defendants were negligent in not ensuring a plain scan was carried out and whether they failed to warn the plaintiff of the material risks involved in the CT scan procedure.

The legal issues at hand required the court to assess whether the defendants breached their duty of care by not specifying that only a plain CT scan would be performed and whether they were liable for the failure to warn about the risks of the contrast medium. Additionally, the court had to consider the extent to which the plaintiff’s subsequent financial losses and loss of amenities of life were attributable to the CT scan incident. The plaintiff’s extensive pre-incident medical history and a post-incident unconnected injury complicated the attribution of damages.

The court concluded that the plaintiff’s action against the first, second, and third defendants was dismissed with costs, including costs of the first trial and any other reserved costs. The court found that the plaintiff’s financial losses and loss of amenities were not wholly attributable to the CT scan incident. However, the court held the fifth defendant liable for negligence, awarding the plaintiff $80,000 in damages along with costs. The court assessed these costs on the basis of District Court costs appropriate to the judgment amount.

Orders

Orders of the court

The plaintiff’s action against the first, second and third defendants is dismissed with costs, including costs of the first trial and any other reserved costs.

The plaintiff is entitled to judgment against the fifth defendant in the sum of $80,000 with costs, including reserved costs as between them to be assessed. Costs are to be assessed on the basis of District Court costs appropriate to the judgment amount.

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.

CITATION:	Di Carlo v Dubois & Ors [2003] QSC 204
PARTIES:	SALVATORE DI CARLO (plaintiff) v DR PHILIP JAMES DUBOIS (first defendant) PHILIP DUBOIS (MEDICAL) PTY LIMITED (ACN 010 673 864) (second defendant) DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O’ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWITZ, PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE AND PETER FERGUS LEGH trading under the firm name of style of QUEENSLAND X-RAY SERVICES (third defendant) DR MICHAEL CORONEOS (fifth defendant)
FILE NO:	SC No 1281 of 1996
DIVISION:	Trial Division
PROCEEDING:	Civil Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	16 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2002, 22 November 2002, 25 November 2002, 26 November 2002, 27 November 2002, 28 November 2002, 29 November 2002
JUDGE:	Mackenzie J
ORDER:	The plaintiff’s action against the first, second and third defendants is dismissed with costs, including costs of the first trial and any other reserved costs. The plaintiff is entitled to judgment against the fifth defendant in the sum of $80,000 with costs, including reserved costs as between them to be assessed. Costs are to be assessed on the basis of District Court costs appropriate to the judgment amount.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where plaintiff underwent CT Scan – where plaintiff claimed he specified to his neurosurgeon, the fifth defendant, that he would not undertake an invasive procedure – where plaintiff and fifth defendant pleaded a plain CT Scan was ordered - where severe reaction to contrast medium – where claim that CT Scan procedure not explained – where no direct warning given as to risks of CT Scan – whether fifth defendant negligent in not specifying a plain scan only was to be carried out – whether first , second and third defendants liable for breach of duty of care in not carrying out plain scan only – whether first, second and third defendants liable for failure to warn of material risk DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – GENERALLY – NON-PECUNIARY DAMAGE – LOSS OF AMENITIES OR CAPACITY FOR ENJOYMENT – where plaintiff sought damages for negligence – where plaintiff claimed financial loss and loss of amenities of life – where plaintiff had extensive pre-incident medical history and history of stress – where plaintiff also suffered unconnected injury after the event – where significant component of plaintiff’s anger over the event derived from a misapprehension of the nature and properties of contrast dye used – where misapprehension due to mistake of fact, not irrational belief – whether loss wholly attributable to CT Scan incident – extent to which any negligence caused loss of economic capacity Hribar v Wells (1995) 64 SASR 129 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001)…