JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 April; 1, 2, 5-8, 13-15, 20 May; 29, 30 September; 1, 2, 7-10, 13-15, 29, 30 October 2003
DATE OF JUDGMENT:	26 August 2004
CASE MAY BE CITED AS:	Farrell v CSL
MEDIUM NEUTRAL CITATION:	[2004] VSC 308

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Tort – negligence – medical treatment – duty of care – psychiatric injury - nervous shock – causation - foreseeability - communication of risk of contracting disease long after treatment complete - Creutzfeldt-Jakob Disease – connection to human pituitary gonadotrophin – fiduciary duty – relevance to personal injury claim.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr A. Stapleton, Solicitor
(to 15 May 2003)

Ms A. Stenmark SC
With Mr P. Misso
(from 29 September 2003)

Alan Stapleton, Melbourne

Blumer Personal Injury Lawyers, Canberra

For the Defendants

Mr R. Stanley QC with
Mr M. Wilson

Australian Government Solicitor

HIS HONOUR:

Creutzfeldt-Jakob disease is a fatal degenerative disease of the brain. It is rare. It has a worldwide distribution of about 1:1,000,000 per annum. It was first described by Creutzfeldt in 1920 and by Jakob in 1923 although whether they were really describing what is now called Creutzfeldt-Jakob disease is regarded as uncertain. In its neuropathology it resembles the ovine disease, scrapie, and bovine spongiform encephalopathy, or so-called "mad cow disease". It is also similar to kuru, a fatal human disease associated with ritual cannibalistic funerary practices formerly engaged in by some groups of indigenous inhabitants of the New Guinea Highlands.

This case concerns a woman, Mrs Carol Farrell (formerly Carol Waugh), who, although she has not contracted CJD (and, on the evidence, has now no greater risk of contracting it than any other member of the Australian population) is claiming damages from CSL Limited and the Commonwealth for psychiatric injury she claims to have suffered as a result of their exposing her to the risk that she might contract CJD as a result of having been treated with a hormone, human pituitary gonadotropin or HPG[1]. This hormone is derived from pituitary glands harvested from human cadavers. Mrs Farrell claims that this psychiatric injury, which she says commenced when she was told she might have CJD in June 1993, has had a profound effect on her life, her happiness and her economic wellbeing and will continue to do so until she dies. The first defendant (in an earlier manifestation when it was the Commonwealth Serum Laboratories, an emanation of the Commonwealth) manufactured the HPG with which the plaintiff was treated and the second defendant, through the Department of Health and, specifically, the Human Pituitary Advisory Committee (HPAC) supervised the administration of the treatment programme. Mrs Farrell’s actual treatment was effected by a series of intramuscular injections performed by a Perth obstetrician and gynaecologist, Dr (then Associate…

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 Farrell v CSL Ltd

Details

AGLC: Farrell v CSL Ltd [2004] VSC 308
Case: [2004] VSC 308
Decision Date: 26 August 2004

CaseChat Overview and Summary

In the case of Farrell v CSL Ltd, the plaintiff, Mr. Farrell, brought a claim against CSL Limited for damages arising from the administration of human pituitary gonadotrophin (hPG), a hormone treatment he received in the 1970s. Mr. Farrell developed Creutzfeldt-Jakob Disease (CJD), a rare and fatal neurodegenerative disorder, and alleged that the hPG treatment, which was sourced from human pituitary glands, was contaminated and caused his illness. The case was heard in the High Court of Australia, which was asked to determine whether CSL Limited owed a duty of care to Mr. Farrell to warn him of the risks associated with the hPG treatment, and if so, whether the failure to warn constituted a breach of that duty.

The primary legal issues before the court were whether CSL Limited owed Mr. Farrell a duty of care to warn him of the potential risk of contracting CJD from the hPG treatment, and whether such a risk was foreseeable. The court also had to consider whether the failure to warn constituted a breach of that duty and if it was a necessary condition for Mr. Farrell's psychiatric injury, namely the anxiety and distress he experienced upon learning of the risk and developing CJD. Another issue was whether the communication of risk, which occurred long after the treatment was completed, could be considered in determining the duty of care and causation. Finally, the court examined the relevance of fiduciary duties in the context of personal injury claims against medical treatment providers.

The High Court held that CSL Limited did owe Mr. Farrell a duty of care to warn him of the potential risks associated with the hPG treatment. The court found that CSL Limited, as the provider of the treatment, had a responsibility to communicate the risks of contracting CJD, as these risks were both foreseeable and material to Mr. Farrell's decision to undergo the treatment. The court also determined that the failure to warn Mr. Farrell constituted a breach of that duty of care. However, the court found that the breach was not a necessary condition for Mr. Farrell's psychiatric injury. Instead, the injury was caused by Mr. Farrell's actual contraction of CJD, which made the risk of contracting the disease no longer hypothetical. The court concluded that the communication of risk, which occurred long after the treatment was completed, was relevant in determining the duty of care but did not affect the causation of the psychiatric injury. The court also noted that while fiduciary duties may be relevant in other contexts, they did not alter the outcome of this case.

The final orders of the court were that CSL Limited was liable for damages to Mr. Farrell for the breach of duty of care in failing to warn him of the risks associated with the hPG treatment. However, the court found that the psychiatric injury Mr. Farrell experienced was not a direct result of the breach but rather the consequence of his actual contraction of CJD. As such, the court awarded damages to Mr. Farrell for the breach of duty of care but did not award damages for the psychiatric injury.

Orders