Le Brun v Joseph [No 2]

Case [2010] WASCA 52

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   LE BRUN -v- JOSEPH [No 2] [2010] WASCA 52

CORAM:   McLURE P

PULLIN JA
NEWNES JA

HEARD:   18 & 19 AUGUST 2009

DELIVERED          :   24 MARCH 2010

FILE NO/S:   CACV 29 of 2007

BETWEEN:   GARRY JAMES LE BRUN by his next friend ELAINE LE BRUN

Appellant

AND

NEVILLE PETER JOSEPH
First Respondent

JOANNE MARIE BESTED
Second Respondent

RUTH MARION KEARON
Third Respondent

MINISTER FOR HEALTH
Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MCCANN DCJ

Citation  :LE BRUN (AN INCAPABLE PERSON SUING BY HIS NEXT FRIEND ELAINE LE BRUN) -v- JOSEPH & ORS [2006] WADC 200

File No  :CIV 2643 of 2003

Catchwords:

Negligence - Claim of medical negligence - Appellant suffering from severe headaches - Subsequently suffered severe injury from rupture of undiagnosed arteriovenous malformation (AVM) - Whether headaches caused by AVM - Whether respondents negligent in not referring appellant for CT scan of brain or to neurologist to investigate cause of headaches - Whether failure to do so caused or contributed to injuries suffered by appellant from rupture of  AVM - Whether trial judge erred in finding that if AVM diagnosed earlier form of treatment appellant would have elected would not have prevented AVM rupturing when it did - Relevant principles of causation - Whether the standard of care of inexperienced doctor is the same as experienced doctor - Whether new allegation of negligence open on appeal

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr R I Viner QC & Mr G Droppert

First Respondent           :     Mr P D Quinlan

Second Respondent       :     Mr P D Quinlan

Third Respondent         :     Mr G R Hancy

Fourth Respondent        :     Mr G R Hancy

Solicitors:

Appellant:     Friedman Lurie Singh & D'Angelo

First Respondent           :     Pynt & Partners

Second Respondent       :     Pynt & Partners

Third Respondent         :     Jackson McDonald

Fourth Respondent        :     Jackson McDonald

Case(s) referred to in judgment(s):

Bennett v Minister for Community Welfare (1992) 176 CLR 408

Chappel v Hart (1998) 195 CLR 232

Devries v Australian National Railways Commission (1993) 177 CLR 472

Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510

Jones v Dunkel (1959) 101 CLR 298

Le Brun v Joseph [2006] WADC 200

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Naxakis v Western General Hospital (1999) 197 CLR 269

Rosenberg v Percival (2001) 205 CLR 434

The Board of Management of Royal Perth Hospital v Frost (Unreported, WASCA, Library No 970069, 26 February 1997)

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Wilsher v Essex Area Health Authority [1987] QB 730

  1. McLURE P:  I have had the advantage of reading the reasons for judgment of Newnes JA with which I agree.  I note for the record that the court below and this court were not called upon to determine whether, having regard to the trial…

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Le Brun v Joseph [No 2] [2010] WASCA 52
Case
[2010] WASCA 52
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant against several respondents, including medical practitioners, relating to a claim of medical negligence. The appellant had been suffering from severe headaches and later suffered a severe injury from a rupture of an undiagnosed arteriovenous malformation (AVM). The central issue was whether the respondents were negligent in not referring the appellant for a CT scan of the brain or to a neurologist to investigate the cause of the headaches. Another issue was whether this alleged negligence caused or contributed to the injuries suffered by the appellant from the rupture of the AVM. The court also considered whether the trial judge was correct in finding that even if the AVM had been diagnosed earlier, the form of treatment the appellant would have elected would not have prevented the AVM from rupturing when it did.

The court determined that the respondents were not negligent in failing to refer the appellant for a CT scan or to a neurologist, as there was no evidence that such a referral would have led to an earlier diagnosis of the AVM. The court found that the appellant's headaches were not caused by the AVM, and even if they had been, the failure to diagnose the AVM did not cause or contribute to the rupture. The court also held that the trial judge's finding regarding the ineffectiveness of earlier treatment was supported by the evidence. The court rejected the argument that the standard of care of an inexperienced doctor should be different from that of an experienced doctor, stating that the standard of care is objective and does not vary with the experience of the doctor. The court also held that the new allegation of negligence raised on appeal was not open.

The court dismissed the appeal and the cross-appeal and ordered that the appellant's next friend pay the costs of the appeal and of the hearing on 24 March 2010, to be taxed. The court also removed the limits imposed by the relevant legal costs determinations made pursuant to s 210 of the Legal Practice Act 2003 (WA) in respect of certain items, pursuant to s 215(2) of the same Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: On 24 March 2010, the court delivered judgment in this appeal: Le Brun v Joseph [No 2] [2010] WASCA 52. At that time, orders were made dismissing the appeal and the cross‑appeal, but the costs of the appeal and cross‑appeal were reserved. Directions were given for the filing and service of submissions in relation to the appropriate orders as to costs. Pursuant to the directions, those orders are to be determined on the papers. On 19 April 2010, the third and fourth respondents filed a minute of the costs orders they sought and an affidavit of Lainee Rae Bartholomaeus, sworn 16 April 2010, in support of the application. On 20 April 2010, the first and second respondents filed a minute of the costs orders they sought and an affidavit of Stephen Robert Merrick, sworn the same day, in support. We have read those affidavits and it is unnecessary to canvass them in these reasons. The appellant did not file any responsive affidavit or submissions and did not wish to be heard on the applications. The costs orders sought by the various respondents are to the same effect. The respondents seek orders that:1.the appellant's next friend pay the costs of the appeal and of the hearing on 24 March 2010 to be taxed, and;2.the limits imposed by the relevant legal costs determinations made pursuant to s 210 of the Legal Practice Act 2003 (WA), be removed in respect of items 22(b) (respondent's answer), 22(d) (settling appeal book indexes), 22(e) (application in an appeal), 22(f) (getting up appeal for hearing), 22(g) (counsel fee on appeal hearing including preparation) and 22(i) (counsel fee for the second day of hearing). The applications for the removal of the limits contained in the legal costs determinations are brought pursuant to s 215(2) of the Legal Practice Act2003 (WA) which provides:Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following - …(c)remove limits on costs fixed in the determination. Such an application involves two questions: first, whether it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the relevant legal costs determination; and secondly, whether the inadequacy of the amount allowable under the relevant legal costs determination arises because of the unusual difficulty, complexity or importance of the matter: Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254(S) [16]. We are satisfied that in this case the requirements of s 215(2) are met. The trial of the action took some 23 days, a substantial part of which was taken up by expert medical evidence. The transcript of the trial exceeded 2,300 pages and more than 100 exhibits were tendered, including expert medical reports and medical literature. The reasons for decision of the trial judge extended to 172 pages.

Ratio Decidendi

Legal Principle Established

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