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 |
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
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- Case
- [2019] ACTSC 248
- Decision Date
CaseChat Overview and Summary
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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