Flinders Medical Centre v Waller - [2005] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
FLINDERS MEDICAL CENTRE AND ANOR v WALLER AND ANOR
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
20 April 2005
NEGLIGENCE
Appeal by a specialist neurologist and the hospital which employed him against a finding of negligence against the neurologist following a trial in the District Court - the Trial Judge found that he had breached his duty of care to the first respondent whom he had misdiagnosed as suffering from multiple sclerosis - proper investigations at an early stage would have revealed an epidermoid cyst which could then have been removed by surgery, thereby avoiding more serious complications in her condition, which eventually had rendered her paraplegic - held that the Trial Judge was not shown to have erred in reaching the finding of negligence - observations as to adequacy of reasons where one body of expert evidence is preferred over another - appeal dismissed.

DAMAGES
The first respondent suffered from paraplegia and other sequelae following negligent treatment by the second appellant, a specialist neurologist - the Trial Judge in the District Court rejected the argument that she should be awarded damages only for loss of a chance of improvement and held that, more than likely, if properly treated she would have avoided paraplegia and other serious conditions which developed - Trial Judge's finding upheld on appeal - however on the first respondent's cross-appeal, damages of $50,000 awarded for future loss of earning capacity increased to $100,000.
Rowland v Police (2001) 79 SASR 569; Rogers v Whittaker (1992) 174 CLR 479, considered.

FLINDERS MEDICAL CENTRE AND ANOR v WALLER AND ANOR
[2005] SASC 155
Full Court: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ: I have had the advantage of considering the reasons prepared by Perry J. I agree with his reasons for holding that the defendants’ appeal against the finding of negligence by the second defendant should be dismissed.
The issue of whether the second defendant was negligent is a difficult one. The case was a long one, involving much expert evidence.
On a number of matters, relevant to the ultimate issue of negligence, judgments involving an exercise of professional skill had to be made by Professor Burns when treating Mrs Waller. Likewise, when giving evidence about that treatment, the expert witnesses were called upon to express an opinion involving the exercise of professional judgment. There was expert evidence supporting each side on the key issues.
The trial Judge reviewed the evidence thoroughly and carefully. In the course of the appeal we were referred to a good deal of the evidence. Counsel assisted us with detailed submissions, supported by extensive references to the evidence. Since the hearing of the appeal I have re-read parts of that evidence.
The issue for the Court is whether the trial Judge’s conclusion is wrong. It is not for us to decide the case afresh. Like Perry J, I am not…

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 Flinders Medical Centre v Waller

Details

AGLC: Flinders Medical Centre v Waller [2005] SASC 155
Case: [2005] SASC 155
Decision Date: 20 April 2005

CaseChat Overview and Summary

The case of Flinders Medical Centre v Waller involved the plaintiffs, Vivien Kaye Waller and Kenneth James Waller, who sought damages for alleged negligent treatment of Mrs Waller by Professor Richard John Burns, a neurologist, during his practice at Flinders Medical Centre (FMC). Mrs Waller claimed that the negligence of Professor Burns, who diagnosed her condition but did not disclose the possibility of multiple sclerosis, led to a significant impact on her health and livelihood. The District Court awarded Mrs Waller damages of $3,202,000 and Mr Waller $16,800. The appellants, FMC and Professor Burns, challenged the trial judge's finding of negligence and the assessment of damages, while Mrs Waller, in a cross-appeal, argued that the damages awarded were inadequate.

The primary legal issues before the court were whether Professor Burns was negligent in his treatment of Mrs Waller and, if so, the appropriate assessment of damages. The court had to determine if Professor Burns breached his duty of care by failing to disclose the potential diagnosis of multiple sclerosis and whether this omission significantly contributed to Mrs Waller's future health issues and economic loss. Additionally, the court needed to assess the adequacy of the damages awarded by the trial judge, particularly in relation to future economic loss.

The court found that Professor Burns was indeed negligent in not disclosing the potential diagnosis of multiple sclerosis to Mrs Waller, which was a significant factor in the progression of her condition. The court held that Professor Burns's failure to inform Mrs Waller of the possible diagnosis and the nature of her condition amounted to a breach of duty, leading to considerable harm. Regarding the assessment of damages, the court agreed that the trial judge's award of damages was generally appropriate but identified that the allowance for future economic loss was inadequate. The court concluded that an increase in the damages for future economic loss was warranted and set the appropriate amount at $100,000. The court dismissed the appeal against the damages awarded, except for the increase in future economic loss damages, and allowed the cross-appeal to that extent.

The final orders of the court were to dismiss the appeal regarding the award of damages, except for the aspect of future economic loss, and to allow the cross-appeal to increase the damages awarded to Mrs Waller by $50,000, bringing the total award to $3,252,000. This adjustment was deemed appropriate given the evidence presented and the overall fairness of the damages awarded by the trial judge.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The narrative account of the background to the matter, which I set out below, will therefore contain a number of references to the terms in which Professor Burns reported to the general practitioners. It is drawn generally from the trial judge’s reasons for judgment.Background Mrs Waller is now aged 51 years. She was born on Kangaroo Island and continued to live there until 2003. She qualified as a hairdresser. Until prevented from doing so by reason of her health, she worked in a hairdressing business on Kangaroo Island, except for periods off when she was caring for her children. Mr and Mrs Waller married in 1972. Mr Waller worked on his father’s farm and also as a wool classer. In the early years of their marriage, Mrs Waller was in good health. She played competitive netball and tennis. She led an active social life. On 1 April 1975, while pregnant with her second child, Mrs Waller consulted Dr Alcorn, a general practitioner in Kingscote, complaining of back pain. An x-ray of her thoracic spine was normal. A little later, on 17 April 1975, she consulted Dr Alcorn again, complaining of numbness in her legs and feet, as well as a continuation of the back pain. She exhibited decreased sensation below the level of her breasts and some ankle spasms. Dr Alcorn referred her to Professor Burns. At that stage, Dr Alcorn feared that Mrs Waller had multiple sclerosis (“MS”), but he did not tell her. On 22 April 1975, Professor Burns admitted Mrs Waller to St Andrew’s Hospital, where he conducted various examinations and tests. He reported to Dr Alcorn by letter of 24 April 1975. Part of his report reads as follows:“On examination the cranial nerves were normal as were the upper limbs. In the lower limbs there was weakness of hip flexion and knee flexion, greater on the right and some weakness of dorsiflexion on the right foot. Tone was increased in the legs with non-sustained clonus at the ankles and her knee and ankle jerks were hyperactive with bilateral extensor plantar responses. Sensory examination revealed impairment of vibration sense and position sense, mainly in the right foot with some mild but definite pain and temperature impairment on the left side. Hsi level, admittedly subjective to both touch and pain, could be demonstrated at about T6. There was sacral sparing.” In the letter, he concluded:“The signs indicated a probable intramedullary lesion in the thoracic cord. This seemed to be either a post-viral transverse myelitis or a first episode of multiple sclerosis.” Professor Burns did not carry out any further investigations at that stage. The trial judge accepted that this was in part attributable to her pregnancy, which he described as “an inhibiting factor”. Mrs Waller was discharged from St Andrew’s on 1 May 1975. On that date, Professor Burns wrote again to Dr Alcorn. In the letter he said:“The diagnosis I think lies between a first episode of multiple sclerosis versus a transverse myelitis of post-viral origin. … I have not mentioned the diagnosis of multiple sclerosis to the patient or her husband. I have told them that it is some type of loss of myelin in the spinal cord of an inflammatory nature and that I am hopeful that in time it will get better. … I would very much like to learn of her progress and, if she is coming to Adelaide at some stage in the future, I would be only too pleased to be able to examine her again.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PERRY J

There can be no precision in this. In the light of the evidence before the Judge, I consider that an appropriate allowance in respect of this aspect of Mrs Waller’s damages is $100,000, and that the amount allowed by the Judge is inadequate.Conclusion For those reasons I reject the criticisms made by Mrs Waller and by the defendants of the assessment of damages, except for Mrs Waller’s complaint about the allowance for future economic loss. It is appropriate to increase the allowance made under that head to $100,000. That result does not follow as a matter of course. If I thought that amounts awarded under other heads were rather high or rather generous, without being manifestly excessive, it might not be appropriate to increase the overall amount of the award. However, my conclusion is that the amounts awarded by the Judge under other heads are not towards the upper end of the range. For that reason, and having regard to the manner in which the appeal was argued, it is appropriate to proceed on the basis that the other allowances are appropriate, and to increase the award of damages. Increasing the allowance for future economic loss does not entitle the plaintiff to additional interest. Accordingly, in my opinion it would be appropriate to dismiss the appeal in relation to the award of damages, but to allow the cross-appeal for the purpose of increasing the amount awarded in favour of the first plaintiff to $3,252,000. This is an appeal against a judgment given following a trial in the District Court. The respondents, Vivien Kaye Waller (“Mrs Waller”) and Kenneth James Waller (“Mr Waller”) were the plaintiffs in the proceedings. The appellants, Flinders Medical Centre (“FMC”) and Richard John Burns (“Professor Burns”) were the defendants. At the relevant time FMC, which is a body corporate, managed and conducted a public hospital known by the same name, situated at Bedford Park. For some time before 1975, Professor Burns practised as a medical specialist, more particularly as a neurologist. In 1977, he became Senior Director of Neurology at FMC, and in 1978 an Associate Professor of Medicine at Flinders University. In the proceedings, Mr and Mrs Waller claimed damages for alleged negligent treatment of Mrs Waller by Professor Burns in the course of his practice as a neurologist. The trial judge awarded Mrs Waller damages against both appellants in the sum of $3,202,000 including interest. The trial judge awarded Mr Waller damages of $16,800, including interest. In their notice of appeal, the appellants challenge the trial judge’s finding that Professor Burns was negligent, and challenge various aspects of the trial judge’s assessment of Mrs Waller’s damages. In a notice of cross-appeal, Mrs Waller complains that in various respects the trial judge’s assessment of damages was inadequate. She seeks an order that the amount of damages awarded to her be increased. In its defence, FMC admitted liability for the acts and omissions of Professor Burns after 1 July 1997. That admission makes it unnecessary to deal further with the case as against FMC.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

Full text does not contain this section.