Hammond v Heath

[2008] WADC 138

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   HAMMOND -v- HEATH & ANOR [2008] WADC 138

CORAM:   COMMISSIONER LEY

HEARD:   25-28 SEPTEMBER 2006, 6 SEPTEMBER 2007

DELIVERED          :   18 SEPTEMBER 2008

FILE NO/S:   CIV 2837 of 2004

BETWEEN:   MICHAEL STEVEN HAMMOND

Plaintiff

AND

DOUGAL HEATH
First Defendant

THE MINISTER FOR HEALTH
Second Defendant

Catchwords:

Medical negligence - Abdominal surgery to clear bowel obstructions - Repair of incisional hernia - Insertion of Marlex mesh - Further abdominal surgery - Development of infection and abdominal fistula - Standard of care - Whether breach of duty of care by failing to warn of risks of maintaining Marlex mesh in situ and failing to remove Marlex mesh - Causation - Assessment of damages

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela

First Defendant              :     Mr D R Clyne

Second Defendant         :     Mr D R Clyne

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo

First Defendant              :     Jarman McKenna

Second Defendant         :     Jarman McKenna

Case(s) referred to in judgment(s):

Amaca Pty Ltd v Hannell (2007) 34 WAR 102

Bennett v Minister of Community Welfare (1992) 176 CLR 408

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

City of Stirling v Tremeer (2006) 32 WAR 155

Hall v Petros [2004] WADC 87

Rogers v Whitaker (1992) 175 CLR 479

Strempel v Wood [2005] WASCA 163

Wall v Cooper [2008] WASCA 53

1. COMMISSIONER LEY:  The plaintiff, Michael Steven Hammond, claims damages for negligence by the first defendant, Dougal (actually spelt Dugal) Ian Heath, a general surgeon, in performing abdominal surgery on the plaintiff at Sir Charles Gairdner Hospital in Nedlands ("SCGH") during 2001, and for failing to give the plaintiff certain advice.  The plaintiff also claims damages from the second defendant who, at the material time, had the responsibility, management and control of SCGH, and employed all medical practitioners at SCGH, including the first defendant.  On that basis, the plaintiff alleges that the second defendant is vicariously liable for the negligence of the first defendant.  The defendants deny that the first defendant was negligent.  However the second defendant accepts that, if the first defendant is found to be negligent, he (the second defendant) will be vicariously liable to the plaintiff for his (the first defendant's) negligence.

Facts

1. The plaintiff is 54 years of age.  He has been on a disability pension since 1983, but I was not told how he came to be on a disability pension in the first place.  Prior to 1983, he served in the Australian Army Reserve and worked for a time as a spray–painter.  Since going onto the pension, the only work he has done has been the delivery of pamphlets for a company called Salmat, which does letterbox deliveries of advertising material.  The plaintiff did that work two or three days per week between 7 November 1995 and 18 August 2000 (exhibit 1).

2. From about 1997, the plaintiff began to suffer from bouts of severe abdominal pain associated with vomiting…