Le Brun v Joseph [No 2]

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.