SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Fuller v Australian Capital Territory |
Citation: | [2024] ACTCA 19 |
Hearing Date: | 22 August 2023 |
Decision Date: | 5 July 2024 |
Before: | McCallum CJ, Baker and Taylor JJ |
Decision: | (1) The appeal is allowed. (2) Set aside the orders made on 22 December 2022. (3) In lieu thereof, order that judgment be entered for the appellant. (4) Remit the proceedings to the Supreme Court for an assessment of damages on the basis that the scope of liability includes radiculopathy. |
Catchwords: | APPEAL – NEGLIGENCE – Medical Negligence – Appeal from the Supreme Court – anaesthetist – where a spinal needle used to administer spinal anaesthetic in a planned caesarean section broke – whether the primary judge erred in relying on a witness’ evidence to make certain factual findings – whether the spinal needle should have been replaced before further attempts – whether the primary judge erroneously applied s 5O of the Civil Liability Act 2002 (NSW) – whether the failed administration of the anaesthetic caused the appellant’s injuries – assessment of the primary judge’s factual findings – consideration of the primary judge’s use of the expert evidence – appeal allowed – matter remitted to the Supreme Court for assessment of damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44 Civil Liability Act 2002 (NSW), s 5O Supreme Court Act 1933 (ACT), s 37E |
Cases Cited: | Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 DeVries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 Fox v Percy [2003] HCA 22; 214 CLR 118 Fuller v Australian Capital Territory [2022] ACTSC 361 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Warren v Coombes [1979] HCA 9; 142 CLR 531 |
Parties: | Bronwyn Fuller (Appellant) Australian Capital Territory (Respondent) |
Representation: | Counsel R McIlwaine SC with D Richards (Appellant) M Fordham SC with S McCarthy (Respondent) |
| Solicitors United Legal (Appellant) ACT Government Solicitor (Respondent) | |
File Number: | ACTCA 4 of 2023 |
Decision Under Appeal: | Court: ACT Supreme Court Before: Robinson AJ Date of Decision: 22 December 2022 Case Title: Fuller v Australian Capital Territory Citation: [2022] ACTSC 361 Court File Number: SC 299 of 2021 |
THE COURT:
Introduction
1․On 14 February 2020, the appellant, Bronwyn Fuller, was administered spinal anaesthetic for the purposes of a planned caesarean section at The Canberra Hospital. During the procedure, the spinal needle being used to administer the anaesthetic broke into two pieces, with one piece remaining in the appellant’s…
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- Case
- [2024] ACTCA 19
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the primary judge had erred in making certain factual findings, particularly in reliance on a witness's evidence, and whether the spinal needle should have been replaced before further attempts at anaesthetic administration. Furthermore, the court considered whether the primary judge had erroneously applied section 5O of the *Civil Liability Act 2002* (NSW) and whether the failed administration of the anaesthetic had caused the appellant's injuries. The appeal also involved a review of the primary judge's assessment of factual findings and the use of expert evidence.
The appellate court allowed the appeal, setting aside the previous orders. The court found that the primary judge had erred in their assessment of the evidence and application of the law. Consequently, judgment was entered for the appellant. The proceedings were remitted to the Supreme Court for an assessment of damages, with the scope of liability to include radiculopathy.
Orders
Orders of the court
(1) The appeal is allowed.
(2) Set aside the orders made on 22 December 2022.
(3) In lieu thereof, order that judgment be entered for the appellant.
(4) Remit the proceedings to the Supreme Court for an assessment of damages on the basis that the scope of liability includes radiculopathy.
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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