Hontin, C.K. v Utley, G

Re: CLAIRE KATHLEEN HINTON
And: GRAHAM UTLEY
No. ACT G57 of 1991
FED No. 453
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Sheppard(1) and Neaves(1) JJ.

CATCHWORDS

Negligence - vicarious liability of radiologist for acts of employed radiographer performing mammography - placing of wooden cassette case under plaintiff's body - subsequent contact of plaintiff's hip with case causing injury to plaintiff's spine - radiographer found to have acted in accordance with standard practice - practice found to be reasonable - whether radiographer's conduct negligent.

HEARING

CANBERRA

#DATE 26:6:1992

Counsel for the Appellant: Mr D.F. Rofe QC and Mr B. Hull

Solicitors for the Appellant: Nelson and Co.

Counsel for the Respondent: Mr R.E. Williams QC and Mr G.J. Richardson

Solicitors for the Respondent: Minter Ellison

ORDER

THE COURT ORDERS THAT:-

1. The appeal be dismissed.

2. The appellant pay to the respondent his costs of

the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Miles C.J.) in which the appellant seeks the setting aside of an order made by the Supreme Court on 20 August 1991 dismissing an action brought by her for negligence. The facts, although in dispute at the hearing, are not now in contest. For the purposes of the appeal counsel for the appellant was content to rely upon the findings of primary fact made by the trial Judge. The account of the evidence which follows is taken from his Honour's judgment. Some of that account is of evidence given by the appellant which his Honour did not ultimately accept. But it is necessary for us to refer to it so that his Honour's findings may be seen in their context.

1. On 16 April 1980 the appellant was referred to the respondent for a mammogram. The respondent carries on practice as a radiologist. The appellant alleged that, as a consequence of the procedure, she suffered a subluxation or partial dislocation of a facet joint slightly to the left of the L5/S1 junction. His Honour found that "an injury of that nature" occurred during the mammogram procedure. But he said that it was difficult to decide how it occurred. He added that the incident during which it was sustained "was so unremarkable" that the appellant made no mention of it to the radiographer when it occurred or in conversation with the respondent prior to leaving his rooms.

2. His Honour said that the mammogram was performed by means of a technique known as Xeroradiography. The technique which was involved was introduced into Australia in about 1976 and ceased to be used in about 1986. The reason for its cessation was because of the perceived risks associated with the radioactivity of the materials used.

3. Xeroradiography avoided the use of X-ray film. Instead a cassette was substituted. The cassette was a sensitive plate easily susceptible…