HANSEN -v- BABICH [2006] WADC 189

Link to Appeal :

[2008] WASCA 137

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WADC 189
Case No:	CIV:264/2003	Heard:	26-28 APRIL & 26 MAY 2006
Coram:	HH JACKSON DCJ	Delivered:	23/11/06
Location:	PERTH
No of pages:	51	Judgment Part:	1 of 1
Result:	Claim dismissed
PDF Version

Parties:	VENUS HANSEN PAUL JEROME BABICH
Catchwords:	Negligence Medical practitioner -Warning Treatment Other practitioners Scarring to back Causation Turns on own facts
Legislation:	Nil
Case References:	Nil Dunning v Scheibner, unreported; NSWSC; BC9402391; 15 February 1994 Fisher v Stapley [2005] WASCA 16 Rosenberg v Percival (2001) 205 CLR 434

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : HANSEN -v- BABICH [2006] WADC 189 CORAM : HH JACKSON DCJ HEARD : 26-28 APRIL & 26 MAY 2006 DELIVERED : 23 NOVEMBER 2006 FILE NO/S : CIV 264 of 2003 BETWEEN : VENUS HANSEN

Plaintiff

AND

PAUL JEROME BABICH

Defendant

Catchwords:

Negligence - Medical practitioner -Warning - Treatment - Other practitioners - Scarring to back - Causation - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

(Page 2)

Representation:

Counsel:

Plaintiff : Mr B L Nugawela

Defendant : Mr D Wallace

Solicitors:

Plaintiff : CLP Lawyers

Defendant : Jarman McKenna

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

Nil

Case(s) also cited:

Dunning v Scheibner, unreported; NSWSC; BC9402391; 15 February 1994
Fisher v Stapley [2005] WASCA 16
Rosenberg v Percival (2001) 205 CLR 434
(Page 3)

HH JACKSON DCJ

Background

1 The plaintiff seeks damages against a medical practitioner in respect of scarring to her back. She was born in 1973. The medical practitioner was one of a number of general practitioners working in a suburban medical clinic which the plaintiff often attended. There is no doubt that she now has an unsightly large scar on her right upper back or shoulder. The issues of liability and damage came before me at trial. While for the reasons which appear below I do not need to assess damages I simply remark that if liability were established significant damages would follow the cosmetic injury but that it is not of the dramatic and overwhelming nature painted at trial by the plaintiff. The real issues before me are as to whether risk warnings were given, as to the causation of the scarring and the role, if any, of the defendant therein. The onus, of course, is on the plaintiff on the balance of probabilities.

Pleadings

2 The statement of claim recites the following chronology of events:

"3 On or about 6 February 1997 the Plaintiff attended at the Centre and:

3.1 during a consultation with the Plaintiff the Defendant noted a pigmented mole on the Plaintiff's right shoulder blade; and

3.2 on the Defendant's advice, the Plaintiff consented to and contracted with the Defendant for a punch biopsy to be performed.

4 On or about 13 February 1997 the Plaintiff attended at the Centre and the Defendant performed the punch biopsy ('the first procedure').

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 Hansen v Babich

Details

AGLC: Hansen v Babich [2006] WADC 189
Case: [2006] WADC 189
Decision Date: 23 NOVEMBER 2006

CaseChat Overview and Summary

The case of Hansen v Babich involved a dispute between the plaintiff, Hansen, and the defendant, Babich, a medical practitioner. Hansen alleged that Babich was negligent in providing medical treatment, which resulted in scarring to Hansen's back. The case was heard in the court, which was tasked with determining whether Babich had breached a duty of care owed to Hansen and whether this breach caused the scarring. The court was also required to consider whether any warnings provided by Babich were adequate and whether other practitioners were involved in the treatment that could have contributed to the scarring.

The central legal issues revolved around whether Babich owed Hansen a duty of care, whether this duty was breached, and if the breach caused the scarring. The court had to examine the standard of care expected of a medical practitioner in similar circumstances and determine if Babich's actions fell below this standard. Additionally, the adequacy of any warnings given by Babich needed to be assessed to see if they were sufficient to inform Hansen of potential risks associated with the treatment. The court also had to consider if other practitioners involved in the treatment contributed to the scarring, which could potentially absolve Babich of liability.

In delivering the judgment, the court concluded that the plaintiff had not established a breach of duty of care by the defendant. The court found that any warnings provided by Babich were adequate, and the scarring was not directly caused by the treatment. The court also determined that other practitioners were involved in the treatment, and their actions could have contributed to the scarring. As a result, the court dismissed the claim against Babich.

Orders

Orders of the court

Claim dismissed

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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