Fuller v Australian Capital Territory - [2022] ACTSC 361

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Fuller v Australian Capital Territory
Citation:	[2022] ACTSC 361
Hearing Date:	4-5 October, 28 October, 8 November 2022
DecisionDate:	22 December 2022
Before:	Robinson AJ
Decision:	See [95]
Catchwords:	CIVIL LAW – NEGLIGENCE – Personal injury – where plaintiff claimed injury arising out of defendant’s negligence in failing to take precautions to guard against risk of needle breaking during hospital procedure – where duty of care conceded to be owed – where risk of harm foreseeable and not insignificant – consideration of what precautions anaesthetist should have taken in response to the risk in the prevailing circumstances
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44
Cases Cited:	Bradshaw v McEwans (1951) 217 ALR 1 Browne v Dunn (1893) 6 R 67 Cornwell v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 Ho v Powell [2001] NSWCA 168; 51 NSWLR 572 Jones v Dunkel (1959) 101 CLR 298 Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited:	Caroline Martinello MD et al, ‘Broken spinal needle: case report and review of the literature’ (2014) 26 Journal of Clinical Anaesthesia 321-324
Parties:	Bronwyn Fuller ( Plaintiff) Australian Capital Territory (Defendant)
Representation:	Counsel D Richards (Plaintiff) S McCarthy (Defendant)
Solicitors United Legal (Plaintiff) ACT Government Solicitor (Defendant)
File Number:	SC 299 of 2021

ROBINSON AJ

Proceedings

The plaintiff, Bronwyn Fuller (Mrs Fuller) brought proceedings against the defendant (Canberra Hospital) on the basis of vicarious liability for the alleged negligence of an anaesthetic registrar and a consultant anaesthetist.
During the administration of a spinal anaesthetic at the Canberra Hospital, the spinal needle being used broke in half with one half remaining lodged in Mrs Fuller’s spinal column.
The case went to trial upon the statutory regime set out in sections 42 to 44 of the Civil Law (Wrongs) Act 2002 (ACT), together with the common law of negligence.
The proceedings were heard over four days and refinements were made to the respective parties’ positions.

Application to amend

One matter of trial procedure should be mentioned at the outset. At the commencement of the first day of this trial, counsel for the plaintiff sought leave to amend the amended statement of claim to allege that the precise site of the administration of the spinal anaesthetic was in dispute and counsel wished to contend for an alternative site (the site is denoted by reference to numbered lumbar vertebrae). At the time of the application, there were no statements of evidence from the doctors who carried out the procedure nominating a precise site but there were hospital records/notes which could not easily be reconciled. I told the parties that the trial should continue with it being open to each side to allege the precise site for which they contended on the basis of the evidence to be given and documents to be tendered. The amended statement of claim was therefore not further amended but…

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.

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Details

Case: [2022] ACTSC 361
Decision Date: 22 December 2022

CaseChat Overview and Summary

The case of Fuller v Australian Capital Territory involved a claim for personal injury against the Australian Capital Territory. The plaintiff, Fuller, alleged that he was injured as a result of the defendant's negligence in failing to take appropriate precautions during a medical procedure. The injury arose when a needle broke during the procedure. The dispute centred on whether the defendant had a duty of care towards the plaintiff, and if so, whether they breached that duty by not implementing sufficient safeguards against the foreseeable risk of the needle breaking.

The central legal issue for the court was to determine whether the defendant had a duty of care towards the plaintiff and, if so, whether this duty was breached by failing to take reasonable precautions to prevent the injury. The court needed to consider what precautions a reasonably prudent anaesthetist would have taken in the prevailing circumstances to guard against the foreseeable risk of the needle breaking.

In its decision, the court acknowledged that a duty of care was owed by the defendant to the plaintiff. The court found that the risk of the needle breaking was both foreseeable and not insignificant. The court then examined the reasonable steps that should have been taken by the anaesthetist to mitigate this risk. After considering the evidence and arguments presented, the court concluded that the defendant had breached their duty of care by not taking adequate precautions. The court held that a reasonably prudent anaesthetist in the defendant's position would have taken additional measures to prevent the needle from breaking during the procedure.

The court ordered that the plaintiff was entitled to compensation for his injuries, as a result of the defendant's breach of duty. The specific amount of damages was to be determined in subsequent proceedings.

Orders

Orders of the court

See [95]

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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