Dobler v Halverson

Case [2007] NSWCA 335
Reported Decision: 70 NSWLR 151

New South Wales


Court of Appeal


CITATION: Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335
HEARING DATE(S): 6 and 11 September 2007
 
JUDGMENT DATE: 
26 November 2007
JUDGMENT OF: Giles JA at 1; Ipp JA at 138; Basten JA at 139
DECISION: Appeal dismissed with costs.
CATCHWORDS: NEGLIGENCE - medical negligence - loss of consciousness events - whether general practitioner in breach of duty in failing to refer patient for an ECG - whether if had referred the ECG would have revealed condition from which patient later suffered cardiac arrest - operation of s 50 of Civil Liability Act - appellate review of findings of fact including as to expert evidence - no error in judge's findings.
LEGISLATION CITED: Civil Liability Act 2002, s 50
CASES CITED: Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 46 ASCR 504;
Ahmedi v Ahmedi (1991) 23 NSWLR 288;
Bolam v Friern Hospital Management Committee (1957) 2 WLR 582;
Bolitho v City of Hackney Health Authority (1998) AC 232;
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424;
CSR Ltd v Della Maddellena [2006] HCA 1; (2006) 80 ALJR 458; (2006) 224 ALR 1;
Duralla Pty Ltd v Plant (1984) 2 FCR 342;
Faferriere v Lawson (1991) 1 SCR 541;
Flinders Medical Centre v Waller [2005] SASC 155; (2005) SASR 378;
Forbes v Selleys Pty Ltd [2004] NSWCA 149;
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118;
Jones v Bradley [2003] NSWCA 81;
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359;
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 80 ALJR 367; (2005) 223 ALR 171;
Ramsay v Watson (1961) 108 CLR 642;
Rogers v Whitaker (1992) 175 CLR 479;
Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678;
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262;
Sidaway v Governors of Bethlem Royal Hospital (1985) AC 871;
State of New South Wales v Allen [2000] NSWCA 141;
Wiki v Atlantis Relocation (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127.
PARTIES:

In matter No. 40856/06:
Kenneth Dobler - Appellant
Kenneth Ronald Halverson, Janet Gai Halverson & Annika Jane Halverson (by her tutor Kenneth Ronald Halverson) - Respondents

In matter No 40857/06:
Kenneth Dobler - Appellant
Kurt Halverson (by his tutor Kenneth Ronald Halverson) - Respondent
FILE NUMBER(S): CA 40856/06; 40857/06
COUNSEL: D F Jackson QC & K C Morgan - Appellant in both matters
P Semmler QC & L Grey - Respondent in both matters
SOLICITORS: Blake Dawson Waldron - Appellant in both matters
Maurice Blackburn Cashman - Respondent in both matters
LOWER COURT…

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Details
AGLC
Dobler v Kenneth Halverson; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335
Case
[2007] NSWCA 335
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim for medical negligence brought by the appellant, Ms Dobler, against the respondent, Dr Halverson. Ms Dobler alleged that Dr Halverson, her general practitioner, had breached his duty of care by failing to refer her for an electrocardiogram (ECG) following a series of loss of consciousness events. She contended that had an ECG been performed, it would have revealed a cardiac condition from which she later suffered a cardiac arrest. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that Dr Halverson was not in breach of his duty of care, and whether the trial judge had erred in finding that an ECG would not have revealed the condition that led to Ms Dobler's cardiac arrest. The Court was also required to consider the operation of section 50 of the *Civil Liability Act 2002* (NSW) and to review the trial judge's findings of fact, particularly in relation to the expert evidence presented.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's findings of fact. The judges were satisfied that the trial judge had correctly assessed the expert evidence and had made appropriate findings regarding the standard of care expected of a general practitioner in the circumstances. Furthermore, the Court found that the trial judge had correctly concluded that, even if an ECG had been performed, it would not have revealed the underlying cardiac condition that ultimately caused Ms Dobler's cardiac arrest. Consequently, the Court held that the provisions of section 50 of the *Civil Liability Act 2002* (NSW) did not assist the appellant.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed 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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