Hawes v Holley - [2008] NSWDC 147

CITATION: Hawes v Holley [2008] NSWDC 147

HEARING DATE(S): 7-11 April 2008, 16 May 2008 and 7-8 July 2008

JUDGMENT DATE:
22 August 2008

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To extent necessary, if liability in negligence of first defendant had been found, damages quantified in amount of $95,005.18. Action settled as between plaintiff and second defendant.

CATCHWORDS: TORTS - Professional negligence - Medical practitioner - Failure to treat patient by pharmacological means to avoid need for abdominal surgery - Pseudo obstruction in bowel secondary to spinal surgery - Complications from abdominal surgery - Whether diagnosis wrong as leading to mismanagement of patient - Whether treatment in accordance with acceptable professional standards of competent medical practice - Defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice - Whether differing peer professional opinions - Quantification of damages

LEGISLATION CITED: Civil Liability Act 2002, ss 5O, 13 and 16 (2)
Civil Liability Amendment (Personal Responsibility) Act 2002
Workers Compensation Act 1987, s 151Z

CASES CITED: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bruce v Kaye [2004] NSWSC 277
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Dobler v Kenneth Halverson [2007] NSWCA 335
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Rogers v Whitaker (1992) 175 CLR 479
Rooty Hill Medical Centre v Gunther [2002] NSWCA 60

TEXTS CITED: "Acute Colonic Pseudo-Obstruction" - American Society for Gastrointestinal Endoscopy Journal Vol 56, No 6, 2002
"Neostigmine for the Treatment of Acute Colonic Pseudo-Obstruction" - The New England Journal of Medicine 15/7/99, Vol 341, No 3

PARTIES: Debra Kim Hawes (Plaintiff)
James Chalfont Holley (First Defendant)
Geraldine Angela Linda Long (Second Defendant)

FILE NUMBER(S): 5063 of 2006

COUNSEL: Mr B Hull (Plaintiff)
Mr J Downing (First and Second Defendants)

SOLICITORS: Emery Partners (Plaintiff)
TressCox Lawyers (First and Second Defendants)

JUDGMENT

1 Complications following spinal surgery on 14 January 2003 involved disturbance of bowel function leading to the performance of surgery to the abdomen by way of laparotomy on 22 January 2003 to decompress the bowel. This further surgery itself had its own complications with alleged serious and long-lasting effects for the patient, but where it was claimed that those effects could have been avoided by the use of less invasive pharmacological treatment. This action for professional negligence against the bowel surgeon alleged a breach of the duty of care he owed the patient by depriving her of the chance of her condition being relieved without the need for surgery until it was too late.

Background facts

2 The plaintiff, Debra Kim Hawes, was a 45 years of age lady who lived with her husband at Toronto, near Newcastle; there were four adult children of the marriage. She had had continuing problems with her lumbar back since December 1992 when she suffered an injury at the workplace with Inghams Enterprises Pty…

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 Hawes v Holley

Details

AGLC: Hawes v Holley [2008] NSWDC 147
Case: [2008] NSWDC 147
Decision Date: 22 August 2008

CaseChat Overview and Summary

The case of Hawes v Holley involved a dispute over professional negligence by a medical practitioner. The plaintiff, Hawes, sought compensation for the defendant's alleged failure to treat a pseudo obstruction in his bowel, which arose following spinal surgery, by pharmacological means to avoid the need for abdominal surgery. Complications from the abdominal surgery subsequently occurred. The plaintiff argued that the diagnosis was incorrect, leading to his mismanagement, and that the treatment did not align with the acceptable professional standards of competent medical practice. The defendants, Holley and another, contended that their treatment was in accordance with the standards of competent medical practice and was widely accepted by peer professional opinion as such.

The court had to determine whether the diagnosis and treatment were in line with the acceptable professional standards of competent medical practice and whether the defendants' treatment was widely accepted in Australia by peer professional opinion as competent. Additionally, the court had to consider whether there were differing opinions among the peer professional community and to quantify the damages if liability had been found.

The court ruled in favour of the first defendant, Holley, finding that the treatment provided was in accordance with acceptable professional standards and was widely accepted by peer professional opinion. The court found that there were differing opinions among peer professionals, but this did not affect the conclusion that the treatment was competent. The court quantified the damages, if liability had been found, as $95,005.18. The plaintiff's action against the second defendant was settled. The parties were to be heard on costs before final orders were made.

Orders

Orders of the court

Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To extent necessary, if liability in negligence of first defendant had been found, damages quantified in amount of $95,005.18. Action settled as between plaintiff and second defendant.

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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CITATION:	Hawes v Holley [2008] NSWDC 147
HEARING DATE(S):	7-11 April 2008, 16 May 2008 and 7-8 July 2008
JUDGMENT DATE:	22 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To extent necessary, if liability in negligence of first defendant had been found, damages quantified in amount of $95,005.18. Action settled as between plaintiff and second defendant.
CATCHWORDS:	TORTS - Professional negligence - Medical practitioner - Failure to treat patient by pharmacological means to avoid need for abdominal surgery - Pseudo obstruction in bowel secondary to spinal surgery - Complications from abdominal surgery - Whether diagnosis wrong as leading to mismanagement of patient - Whether treatment in accordance with acceptable professional standards of competent medical practice - Defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice - Whether differing peer professional opinions - Quantification of damages
LEGISLATION CITED:	Civil Liability Act 2002, ss 5O, 13 and 16 (2) Civil Liability Amendment (Personal Responsibility) Act 2002 Workers Compensation Act 1987, s 151Z
CASES CITED:	Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bruce v Kaye [2004] NSWSC 277 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Dobler v Kenneth Halverson [2007] NSWCA 335 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Rogers v Whitaker (1992) 175 CLR 479 Rooty Hill Medical Centre v Gunther [2002] NSWCA 60
TEXTS CITED:	"Acute Colonic Pseudo-Obstruction" - American Society for Gastrointestinal Endoscopy Journal Vol 56, No 6, 2002 "Neostigmine for the Treatment of Acute Colonic Pseudo-Obstruction" - The New England Journal of Medicine 15/7/99, Vol 341, No 3
PARTIES:	Debra Kim Hawes (Plaintiff) James Chalfont Holley (First Defendant) Geraldine Angela Linda Long (Second Defendant)
FILE NUMBER(S):	5063 of 2006
COUNSEL:	Mr B Hull (Plaintiff) Mr J Downing (First and Second Defendants)
SOLICITORS:	Emery Partners (Plaintiff) TressCox Lawyers (First and Second Defendants)