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…
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- AGLC
- Hribar v Wells [1995] SASC 5111
- Case
- [1995] SASC 5111
- Decision Date
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