Hribar v Wells - [1995] SASC 5111

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2) BOLLEN(1) AND DUGGAN(3) JJ

CWDS
Negligence - dental surgery failure to give adequate prior warning of risks involved in the surgery - causation - damages - damages here include adverse consequences of surgery other than those not the consequences against which a warning should have been given. Bruno v Davies (1988) 144 LSJS 226; Rogers v Whitacker (1991) 23 NSWLR 600 and Neall v Watson (1960-61) 34 ALJR 364, applied. Havenaar v Havenaar (1982) l NSWLR 626, discussed.

HRNG ADELAIDE, 7-10 April 1995 #DATE 8:6:1995 #ADD 4:9:1995

Counsel for appellant: Mr B Martin QC

Solicitors for appellant: Wallmans

Counsel for respondent: Mr D Howard

Solicitors for respondent: J A Carr and Co

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal by the unsuccessful defendant in an action in the District Court. The appellant is a dental surgeon. He is a specialist in oral and maxillo-facial surgery.

2. The appellant performed an operation on the respondent at the Wakefield Street Hospital on 15th April 1989. In 1987 a dentist whom the respondent consulted had referred her to an orthodontist because she was grinding her teeth. That was caused by a malocclusion. In due course the respondent became the patient of the appellant. The appellant advised the respondent that she should have an operation to correct the malocclusion. The operation was to be by way of breaking and realigning the jaws. It was performed.

3. The operation left the respondent with pain and disability. Sometimes the pain was severe. The respondent had other surgery and treatment from other doctors and surgeons. Some area of pain was relieved but still she was, and is, suffering pain and discomfort.

4. The respondent claimed damages for breach of duty and in negligence. I think that the pleadings were wide enough to cover the causes of action of breach of contract and negligence. It does not matter which is considered. This is no place to embark further upon the debate about contract or tort. If there was a breach of contract it consists of a negligent omission. The learned trial judge saw the case as one "based on professional negligence". So be it.

5. The allegations against the appellant boiled down at trial to two. One was failure adequately to advise the respondent of possible adverse effects of the operation. The other was failure to provide proper post-operative care and management. There was, in the end, no evidence to justify the second allegation. So the case came down to a case about "informed consent". Had the appellant given adequate warning to the respondent about "possible untoward consequences of the operation" (words of the learned trial judge).

6. The learned trial judge found that he had not, that he was negligent in that sin of omission and that the respondent thereby suffered damage. He awarded damages. His Honour found that, had she been warned, the respondent would not have had…

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 Hribar v Wells

Details

AGLC: Hribar v Wells [1995] SASC 5111
Case: [1995] SASC 5111
Decision Date: 8 June 1995

CaseChat Overview and Summary

In this case, the Full Court of the Supreme Court of South Australia dismissed an appeal by the defendant, a dental surgeon, against a decision of the District Court that awarded damages to the plaintiff, a patient who suffered adverse consequences from a dental surgery. The plaintiff alleged that the defendant failed to give adequate prior warning of the risks involved in the surgery, specifically the risk of permanent and painful nerve damage. The trial judge found that the defendant had not fulfilled his duty to warn the plaintiff of the risk of permanent and painful nerve damage and that the plaintiff would not have had the operation if she had been warned. The Full Court upheld the trial judge's findings and concluded that the award of damages was not manifestly excessive. The court considered the issue of causation and whether the plaintiff was entitled to damages for all other pain, suffering, and loss of amenities caused by having the operation, not just the products of the failure to warn. The court found that the full recovery idea should be adopted and that the trial judge did not err in assessing the damages. The appeal was dismissed.

Orders