Edwards v Clinical Beauty P/L - [2002] QCA 251

[2002] QCA 251

COURT OF APPEAL

de JERSEY CJ
WILLIAMS JA
JERRARD JA

Appeal No 2940 of 2002

ANNE PAIVI EDWARDS

First Respondent (Plaintiff)

and

CLINICAL BEAUTY PTY LTD
(ACN 073 347 092)

and

WARREN WING NIN CHAN

Appeal No 2941 of 2002

ANNE PAIVI EDWARDS

and

CLINICAL BEAUTY PTY LTD
and

WARREN WING NIN CHAN

Not party to appeal (First Defendant)

Appellant
(Second Defendant)

Appellant (Plaintiff)

Respondent
(First Defendant)

Respondent
(Second Defendant)

BRISBANE

..DATE 22/07/2002

JUDGMENT

THE CHIEF JUSTICE: There will be an order that Primrose Couper Cronin Rudkin have leave to withdraw as solicitors for the second defendant. And that the second defendant pay their costs of and incidental to the application for leave to withdraw to be assessed.

...

THE CHIEF JUSTICE: The applicant failed in her claim against the first defendant company and the learned primary Judge found that when the applicant met with the first defendant's director Ms Noon on the 1st of May 1998 it was the applicant herself who specified Dr Chan as the doctor she wished to carry out the procedure. That must be the correct interpretation of his Honour's reasons for judgment.

The Judge said he was not satisfied that Ms Noon recommended Dr Chan. Those findings were plainly based on a comparative assessment of the credibility of the applicant and Ms Noon in a case where as his Honour pointed out elsewhere credibility loomed large. The Judge also rejected the applicant's evidence as to representations made by Ms Noon and found it unlikely that the applicant would have relied on any in any case because the applicant was shortly to see Dr Chan. Those findings again were heavily dependant on matters of credibility.

The applicant seeks leave to appeal against the dismissal of her claim against the first defendant because subsequently to the conclusion of the hearing the first defendant fell into liquidation. Leave under the Corporations Law is additionally necessary.

The application for leave to appeal should, in my view, be refused because an appeal would not enjoy any substantial prospect of success. The applicant would contend that the Judge should have held the first defendant vicariously responsible for the second defendant's negligence, the second defendant being the first defendant's servant or agent.

In its defence, the first defendant effectively denied that the second defendant was its servant or agent. As the Judge pointed out, evidence of their relationship was not led. There would be no prospect of success on this point of appeal in those circumstances.

The effective findings that it was the applicant herself who nominated Dr Chan and that Ms Noon did not actively recommend Dr Chan and that Ms Noon made no representation relied on by the applicant were all, as I have said, heavily dependent on the resolution of issues of competing credibility. The reasons for judgment suggest no error of approach.

In those circumstances an appeal would have no substantial prospects of success and the application for leave to appeal should, in my…

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: [2002] QCA 251
Decision Date: 22 July 2002

CaseChat Overview and Summary

In the case of Edwards v Clinical Beauty P/L, the plaintiff, Anne Paivi Edwards, sought to appeal a decision from the District Court that had found the defendants, Clinical Beauty P/L and Warren Wing Nin Chan, liable for medical negligence. The primary issues in the case concerned the adequacy of the pre-operative consultation and the warnings provided to the plaintiff regarding the potential risks of the procedure. The Court of Appeal was tasked with determining whether the plaintiff's application for leave to appeal should be granted.

The Court of Appeal found that the primary judge's conclusions were based on a comparative assessment of the credibility of the plaintiff and the defendant, Ms. Noon, as well as the evidence provided regarding the plaintiff's understanding of the risks involved. The court noted that the primary judge had rejected the plaintiff's evidence of representations made by Ms. Noon, finding it unlikely that the plaintiff would have relied on any such representations due to the impending consultation with Dr. Chan. The court concluded that the primary judge's findings were heavily dependent on matters of credibility, and there was no evidence or materials that would suggest any substantial prospect of success on appeal.

Given the nature of the primary judge's findings, the Court of Appeal ruled that the application for leave to appeal should be refused. The judges agreed that the appeal would not have any substantial prospect of reversing the findings made by the primary judge, particularly in relation to the inadequacy of the pre-operative consultation and the warnings provided to the plaintiff. The Court of Appeal also noted that the plaintiff's reasonable expectation that the matter would be brought to finality should be acknowledged.

The Court of Appeal further found that the primary judge had accepted the plaintiff's evidence regarding the inadequacy of the pre-operative consultation and had rejected the defendant's evidence to the contrary. The court concluded that the plaintiff's credibility on this specific matter was not in question, and the defendant's evidence provided no assistance since the defendant had no recollection of any conversation prior to the operation. Therefore, the Court of Appeal upheld the decision of the primary judge and dismissed the application for leave to appeal with costs to be assessed.

Orders