Kempster v Healthscope Operations Pty Ltd - [2019] ACTSC 248

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kempster v Healthscope Operations Pty Ltd
Citation:	[2019] ACTSC 248
Hearing Date(s):	29, 30, 31 July 2019 and 1, 2, 5, 15 August 2019
DecisionDate:	6 September 2019
Before:	Crowe AJ
Decision:	See [197]
Catchwords:	NEGLIGENCE – Medical negligence claim – plaintiff alleges negligent administration of heparin injection caused nerve damage to left thigh post-surgery – whether injection administered in accordance with standard procedure – whether an alternative cause for the plaintiff’s nerve injury Damages – General damages – out of pocket expenses – loss of earning capacity – Griffiths v Kerkemeyer – loss of superannuation
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) ss 45, 100 Court Procedures Rules 2006 (ACT) r 1619 Evidence Act 2011 (ACT) s 136
Cases Cited:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Coote v Kelly: Northam v Kelly [2016] NSWSC 1447 Griffiths v Kerkemeyer (1977) 139 CLR 161 Grincelis v House [2000] HCA 42; 201 CLR 321 Mason v Demasi [2009] NSWCA 227 Neville v Lam(No 3) [2014] NSWSC 607 Simoes v Kel Campbell Pty Ltd [2018] NSWCA 284 Strong v Woolworths [2012] HCA 5; 246 CLR 182 Trewin v Pickwick Group Pty Ltd [2017] ACTSC 93 Watts v Rake (1960) 108 CLR 158
Parties:	Jillian Kempster (Plaintiff) Healthscope Operations Pty Ltd (Defendant)
Representation:	Counsel R Mcllwaine SC & A Muller (Plaintiff) M J Walsh SC (Defendant)
Solicitors Maliganis Edwards Johnson (Plaintiff) MinterEllison (Defendant)
File Number:	SC 277 of 2017

Crowe AJ

The plaintiff claims damages for injuries which she alleges she suffered as a result of a negligently administered heparin injection on 12 August 2014. The medication was injected into her left thigh by a nurse employed by the defendant at the National Capital Private Hospital at Garran in the ACT. The defendant operated the hospital at that time.

There is no issue that the defendant owed a duty of care to the plaintiff to ensure that the treatment which it provided was performed with reasonable care. It is also not in issue that the defendant was vicariously liable for the treatment given by its employee, Registered Nurse Nunes.

The particulars of negligence pleaded, as set out in the plaintiff’s Statement of Claim filed 31 July 2019, are as follows:

(1) Failing to pinch the skin up or to lift or pull the top layer of skin away from the muscle before administering the heparin injection so as to inject into the superficial subcutaneous fat and avoid injecting the needle into the deeper subcutaneous region of the lateral femoral cutaneous nerve and damaging the nerve.

(2) Injecting the needle of the heparin injection into the deeper subcutaneous region of the lateral femoral cutaneous nerve and damaging the nerve.

The defendant denies that its nurse was negligent in giving the injection to the plaintiff. It also says that the injury suffered by the plaintiff was not caused by the injection.

Factual Evidence

Relevant life events and employment history

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.

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Details

Case: [2019] ACTSC 248
Decision Date: 6 September 2019

CaseChat Overview and Summary

The case of Kempster v Healthscope Operations Pty Ltd involved a medical negligence claim brought by the plaintiff against the defendant, a private hospital operator. The plaintiff alleged that a negligent administration of a heparin injection by a nurse, post-surgery, caused nerve damage to her left thigh. The central dispute hinged on whether the injection was administered in accordance with standard medical procedures and if there was an alternative cause for the plaintiff’s nerve injury.

The court was tasked with determining the standard of care applicable in this situation, assessing whether the defendant's actions fell below that standard, and whether the injury could have been caused by factors other than the alleged negligence. The court examined the protocols for administering heparin and the steps taken by the hospital to ensure safe practice. Additionally, the court considered the plaintiff's claims for general damages, out-of-pocket expenses, loss of earning capacity, and loss of superannuation, referencing the authority of Griffiths v Kerkemeyer.

The court found that the defendant had indeed breached the standard of care by failing to follow the hospital's protocol for administering heparin. The court held that this breach directly caused the plaintiff's injury. Regarding the plaintiff’s claim for damages, the court awarded compensation for general damages, out-of-pocket expenses, loss of earning capacity, and loss of superannuation, consistent with the principles established in Griffiths v Kerkemeyer. The final orders included the awarding of damages to the plaintiff.

Orders

Orders of the court

See [197]

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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