Foote v Dixon - [2014] ACTCA 51

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Foote v Dixon
Citation:	[2014] ACTCA 51
Hearing Date:	15 May 2014
DecisionDate:	19 December 2014
Before:	Murrell CJ, Refshauge and Dowsett JJ
Decision:	1. The appeal is dismissed. 2. The appellant pay the respondent’s costs of the appeal incurred · up to 1 August 2012 on a party and party basis · thereafter and up to 20 February 2013, on an indemnity basis; and · thereafter on a party and party basis. 3. The respondent’s costs of the appeal include the costs of her submissions concerning the question of costs.
Category:	Principal Judgment
Catchwords:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES –Negligence – Whether standard of care breached – No basis for disturbing finding of trial judge PROCEDURE – Costs – Calderbank offer – Appellant acted unreasonably in not accepting offer
Cases Cited:	Dixon v Foote [2012] ACTSC 101 Fox v Percy (2003) 214 CLR 118
Parties:	Andrew Foote (Appellant) Susan Virginia Dixon (Respondent)
Representation:	Counsel Mr A Bartley and Mr F Fascano (Appellant) Mr D Campbell and Mr D Hirsh (Respondent)
Solicitors Ken Cush & Associates (Appellant) Bradley Allen Love Lawyers (Respondent)
File Number(s):	ACTCA 67 of 2012 SC 778 of 2007
Decision under appeal:	Court: ACT Supreme Court Before: Sidis AJ Date of Decision: 27 June 2012; 24 July 2012; 26 July 2012 Case Title: Dixon v Foote (No 1, 2 and 3) Citation: [2012] ACTSC 101; [2012] ACTSC 119; [2012] ACTSC 123

THE COURT:

The respondent, Susan Virginia Dixon, consulted the appellant, Dr Andrew Foote, a urogynaecologist, on 24 September 2004 for advice concerning the breakdown of a mesh sling that provided support following the prolapse of her uterus.

On 22 October 2004 as a result of a further consultation, Dr Foote recommended that she have an abdominal hysterectomy and sacral colpopexy which he then performed.

Post-operatively, Mrs Dixon’s condition deteriorated very significantly necessitating further urgent surgery.

She has experienced ongoing difficulties and disabilities as a consequence and on 2 November 2007 commenced proceedings in the Supreme Court of the Australian Capital Territory claiming damages for personal injury suffered by her as a result of Dr Foote’s claimed negligence.

On 27 June 2012, the Supreme Court (Sidis AJ) found Dr Foote negligent and ordered that there be a verdict for Mrs Dixon. See Dixon v Foote [2012] ACTSC 101.

On 24 July 2012, the Supreme Court quantified the damages and entered judgment for Mrs Dixon in the sum of $284,427.16 plus costs.

Dr Foote has now appealed against the judgment on a number of grounds set out in the Notice of Appeal. Some of those grounds were abandoned at the hearing of the appeal.

On 15 May 2014 the Court dismissed the appeal and said we would give our reasons later. These are our reasons for dismissing the appeal.

The issues at the trial

It is not necessary to set out each of the grounds of appeal as counsel for…

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 Foote v Dixon

Details

AGLC: Foote v Dixon [2014] ACTCA 51
Case: [2014] ACTCA 51
Decision Date: 19 December 2014

CaseChat Overview and Summary

The appeal in *Foote v Dixon* concerned a dispute where the appellant alleged negligence against the respondent. The matter was heard by Murrell CJ, Refshauge and Dowsett JJ.

The primary legal issue before the Full Court was whether the trial judge's finding that the respondent had not breached the standard of care owed to the appellant was sustainable on appeal. A secondary issue related to the costs of the appeal, specifically whether the appellant had acted unreasonably in rejecting a *Calderbank* offer made by the respondent.

The Court found no basis to disturb the trial judge's factual findings regarding the standard of care. The judges applied the established principles for appellate review of findings of fact, concluding that the appellant had failed to demonstrate any error in the trial judge's assessment. Regarding costs, the Court determined that the appellant's refusal to accept the *Calderbank* offer was unreasonable, justifying a departure from the usual order for costs.

Consequently, the appeal was dismissed. The appellant was ordered to pay the respondent's costs of the appeal, with a distinction made for costs incurred before and after specific dates, reflecting the impact of the rejected *Calderbank* offer on the cost order. The respondent's costs were also to include the costs associated with her submissions on the issue of costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the appeal

incurred

· up to 1 August 2012 on a party and party basis

· thereafter and up to 20 February 2013, on an indemnity basis; and

· thereafter on a party and party basis.

3. The respondent’s costs of the appeal include the costs of

her submissions concerning the question of 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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