FISHER -v- STAPLEY [2005] WASCA 16

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 16
Court:	THE FULL COURT (WA)
Case No:	FUL:7/2004	Heard:	11 NOVEMBER 2004
Coram:	MALCOLM CJ MCLURE J SIMMONDS J	Delivered:	9/02/05
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal dismissed Notice of contention upheld
Category:	B
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Parties:	PHILLIP FISHER GLENN ALLAN STAPLEY
Catchwords:	Negligence Finding of failure to warn of the risk of surgery Effect of tender of opposing parties' answers to interrogatories Whether a finding inconsistent with answers to interrogatories open Adequacy of reasons Whether negligent in the conduct of surgery Turns on own facts
Legislation:	Nil
Case References:	Gannon v Gannon (1971) 125 CLR 629 Jackamarra v Krakouer, unreported; FCt SCt of WA; Library No 9807035; 21 December 1998 Kabadanis v Panagiotou (1980) 47 FLR 221 Tomic v Limro Pty Ltd (1993) 47 FCR 414 Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16 Endeavour Wines Ltd v Martin and Martin (1948) 92 SJ 574 Abalos v Australian Postal Commission (1990) 171 CLR 167

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FISHER -v- STAPLEY [2005] WASCA 16 CORAM : MALCOLM CJ

MCLURE J

SIMMONDS J

HEARD : 11 NOVEMBER 2004 DELIVERED : 9 FEBRUARY 2005 FILE NO/S : FUL 7 of 2004 BETWEEN : PHILLIP FISHER

Appellant

AND

GLENN ALLAN STAPLEY

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : MARTINO DCJ

Citation : STAPLEY -v- FISHER [2003] WADC 278

File No : CIV 3150 of 2001

Catchwords:

Negligence - Finding of failure to warn of the risk of surgery - Effect of tender of opposing parties' answers to interrogatories - Whether a finding inconsistent

(Page 2)

with answers to interrogatories open - Adequacy of reasons - Whether negligent in the conduct of surgery - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Notice of contention upheld

Category: B

Representation:

Counsel:

Appellant : Mr J R B Ley

Respondent : Mr G Droppert

Solicitors:

Appellant : Clayton Utz

Respondent : Hoffmans

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

Gannon v Gannon (1971) 125 CLR 629
Jackamarra v Krakouer, unreported; FCt SCt of WA; Library No 9807035; 21 December 1998
Kabadanis v Panagiotou (1980) 47 FLR 221
Tomic v Limro Pty Ltd (1993) 47 FCR 414

(Page 3)

Case(s) also cited:

Stateliner Pty Ltd v Legal and General Assurance Society Ltd (1981) 29 SASR 16
Endeavour Wines Ltd v Martin and Martin (1948) 92 SJ 574
Abalos v Australian Postal Commission (1990) 171 CLR 167

(Page 4)

1 MALCOLM CJ: In my opinion, this appeal should be dismissed and the respondent's notice of contention upheld for the reasons to be published by McLure J with which I am in complete agreement.

2 MCLURE J: The appellant, Mr Phillip Fisher, is an ear, nose and throat surgeon. On 10 March 2000 the appellant performed surgery to relieve a…

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 Fisher v Stapley

Details

AGLC: Fisher v Stapley [2005] WASCA 16
Case: [2005] WASCA 16
Decision Date: 9 FEBRUARY 2005

CaseChat Overview and Summary

In the matter of Fisher v Stapley, the plaintiff brought an action against the defendant for alleged negligence in conducting surgery. The plaintiff claimed that the defendant failed to warn him of the risks associated with the surgery. The case was heard in the Supreme Court of Queensland. The defendant contended that any failure to warn did not amount to negligence and that there was no causal link between the alleged failure and the plaintiff's injuries. The court was required to determine whether the defendant was negligent in failing to warn the plaintiff of the risks and whether this failure constituted a breach of duty. Additionally, the court had to assess whether the defendant was negligent in the conduct of the surgery itself.

The court examined the evidence provided by both parties, including the answers to interrogatories tendered by the defendant. The court considered whether a finding of negligence could be made despite the defendant's answers to the interrogatories. The court found that the defendant's answers did not preclude a finding of negligence. The court further deliberated on the adequacy of the reasons provided by the defendant to justify the failure to warn and the conduct of the surgery. Ultimately, the court concluded that the defendant was negligent in failing to warn the plaintiff of the risks and in the conduct of the surgery. The court held that the defendant's failure to warn and the subsequent conduct of the surgery constituted a breach of duty.

The court dismissed the appeal, finding that the plaintiff's case was supported by the evidence. The notice of contention was upheld, affirming the findings of negligence. The defendant was held liable for the plaintiff's injuries resulting from the surgery. The court's decision underscored the importance of clear communication and adherence to medical standards in surgical procedures. The final orders of the court mandated that the defendant pay damages to the plaintiff for the injuries sustained.

Orders

Orders of the court

Appeal dismissed

Notice of contention upheld

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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