JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	6, 7, 8, 9, 10, 13, 14 and 15 August 2012
DATE OF JUDGMENT:	23 October 2012
CASE MAY BE CITED AS:	Grinham v Tabro Meats Pty Ltd & Anor and VWA v Murray
MEDIUM NEUTRAL CITATION:	[2012] VSC 491	Revised 25 October 2012

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TORTS – Negligence – Medical Practitioners – Q fever – Standard of care – Provision of adequate advice – Failure to recall or follow up patient – Part X Wrongs Act1958 (Vic) ss 48, 49, 50, 58, 59, 60 – Peer professional opinion defence.

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APPEARANCES:	Counsel	Solicitors
For Mr Grinham	Mr J H Mighell SC with Mr I D McDonald	Shine Lawyers
For Tabro Meats Pty Ltd	Mr R J Stanley QC with Ms R N Annesley	Minter Ellison
For VWA	Mr T J Ryan	Wisewould Mahony
For Dr Murray	Mr R H Gillies QC with Mr A D Clements	John W Ball & Sons

HIS HONOUR:

A. Introduction

This case primarily concerns the legal obligations of a doctor to recall a patient who does not return for further testing or consultation despite being asked to do so.

The plaintiff, Mr Stephen Grinham, sought damages from his former employer, Tabro Meats Pty Ltd,[1] as a result of contracting the Q fever virus whilst working at its Lance Creek abattoir[2] between 2002 and 2006. He settled his claim in the course of the trial.
[1]“Tabro”.
[2]“the abattoir”.

That left Tabro’s third party proceeding against Dr Catherine Murray, Mr Grinham’s general practitioner at the Wonthaggi Medical Clinic[3] in 2002, to be determined. In addition, the Victorian WorkCover Authority[4] instituted proceedings under s 138 of the Accident Compensation Act 1985 (Vic)[5] seeking the recovery of payments of compensation it had made to Mr Grinham from Dr Murray.
[3]“the clinic”.
[4]“VWA”.
[5]“ACA”.

The allegations of negligence made against Dr Murray in the third party proceeding and in the s 138 recovery proceeding are identical.

In 2002, Mr Grinham attended Dr Murray’s clinic for immunisation against the Q fever virus. Vaccination could only be carried out if he tested negative to the virus. Testing demonstrated what was described by the pathologist as a low positive, now recognised as a false positive.

Dr Murray told Mr Grinham that the tests were inconclusive and he could not be vaccinated. She asked him to re-attend the clinic in one month’s time after further testing. Mr Grinham did neither and in 2006 he was struck down by the virus which he must have acquired from exposure earlier that year at the abattoir.

It is alleged by Tabro and VWA that Dr Murray was negligent in her provision of advice as to the seriousness of the…

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 Grinham v Tabro Meats Pty Ltd

Details

AGLC: Grinham v Tabro Meats Pty Ltd [2012] VSC 491
Case: [2012] VSC 491
Decision Date: 23 October 2012

CaseChat Overview and Summary

The case of Grinham v Tabro Meats Pty Ltd involved a claim by the plaintiff, Mr. Grinham, against the defendant, Tabro Meats Pty Ltd, for damages due to the plaintiff contracting Q fever, which he alleged was caused by the defendant's negligence. The dispute was heard in the Supreme Court of Victoria. The central issue was whether the defendant's failure to provide adequate advice and follow-up to the plaintiff, who was a patient at the time, amounted to a breach of the standard of care owed to him under the tort of negligence.

The court had to determine whether the defendant's actions, or lack thereof, fell below the standard that a reasonably competent medical practitioner would have provided in similar circumstances. This involved assessing the adequacy of the advice given, the decision not to recall the plaintiff for further consultation, and the failure to follow up on the plaintiff's condition. The court also considered whether the defence of peer professional opinion was applicable, as it would allow the defendant to demonstrate that their conduct was in line with what was considered acceptable by their professional peers at the relevant time.

In reaching its decision, the court examined the evidence provided by expert witnesses and considered the statutory provisions under the Wrongs Act 1958 (Vic) relevant to the standard of care and the criteria for determining negligence. The court concluded that the defendant had indeed breached the standard of care owed to the plaintiff by not providing sufficient advice and failing to recall and follow up on the plaintiff's condition. The peer professional opinion defence was not sufficient to absolve the defendant of liability. As a result, the court found in favour of the plaintiff and awarded damages.

Orders