Fuller v ACT (No 2)

[2025] ACTSC 174

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Fuller v ACT (No 2)

Citation: 

[2025] ACTSC 174

Hearing Date: 

30 January 2025

Decision Date: 

2 May 2025

Before:

Mossop J

Decision: 

See [93]

Catchwords: 

TORT – NEGLIGENCE – Damages – medical negligence – broken needle lodged in or near spine in preparation for caesarean section – plaintiff sustained radiculopathy and other related harm – general damages awarded – damages awarded for some loss of earning capacity – damages also awarded for domestic assistance and other out of pocket expenses – damages for use of sick leave not awarded, but leave given for further submissions to be made on that issue

Legislation Cited: 

Court Procedures Rules 2006 (ACT)

Cases Cited: 

Cressy v Miloriad [2016] ACTSC 303

Dow v Elbarbary [2017] ACTSC 418; (2018) Aust Torts Reports ¶82-370

Fuller v Australian Capital Territory [2022] ACTSC 361

Fuller v Australian Capital Territory [2024] ACTCA 19

Kiiver v King [2013] ACTSC 142

Lee v McGrath [2018] ACTSC 173; Aust Torts Reports ¶82‑391

Lewis v Woolworths Limited [2018] ACTSC 200; Aust Torts Reports ¶82‑407

Maher v Russell [2022] ACTSC 297

Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207

Ryrie v Tanner (No 2) [2020] ACTSC 104; 92 MVR 27

Seselja v Reardon [2020] ACTSC 167; 93 MVR 28

Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390

Parties: 

Bronwyn Fuller ( Plaintiff)

Australian Capital Territory ( Defendant)

Representation: 

Counsel

B Dooley SC with D Richards ( Plaintiff)

D Shillington ( Defendant)

Solicitors

United Legal ( Plaintiff)

ACT Government Solicitor ( Defendant)

File Number:

SC 299 of 2021

MOSSOP J:  

Introduction

1․This is an assessment of damages following the remittal of these proceedings by the Court of Appeal.

2․The plaintiff attended the Canberra Hospital on 14 February 2020 in order to undergo a caesarean section. That involved the administration of a spinal anaesthetic. The administration of a spinal anaesthetic requires the insertion of a needle between the spinous processes of the vertebrae and then the injection of local anaesthetic into the subarachnoid space. In the plaintiff’s case, while the doctors were attempting to correctly insert the needle, it broke. The broken needle had to be surgically removed.

3․The plaintiff brought proceedings against the Australian Capital Territory alleging that it was vicariously responsible for negligent conduct of its doctors. The plaintiff failed at first instance because the primary judge was not satisfied that the plaintiff had proved that, in the circumstances, the duty owed to her had been breached: Fuller v Australian Capital Territory [2022] ACTSC 361. The primary judge did not accept that, having made a number of unsuccessful attempts to insert the needle, the needle should have been replaced. The primary judge also made some additional, contingent, findings in relation to damages, most significantly as to whether she suffered ongoing problems as a result of lower limb radiculopathy. On that issue, the primary judge preferred the evidence of the expert witness called on behalf of the…