McCarthy v Kidd - [2001] NSWCA 304

NEW SOUTH WALES COURT OF APPEAL

CITATION: McCarthy v Kidd [2001] NSWCA 304

FILE NUMBER(S):
40871/00

HEARING DATE(S): 21 August 2001

JUDGMENT DATE: 12/09/2001

PARTIES:
Barbara Ann McCarthy (Appellant)
Iain Harrison Kidd (First Respondent)
Hunter Area Health Service (Second Respondent)

JUDGMENT OF: Powell JA Heydon JA Studdert J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4717/99

LOWER COURT JUDICIAL OFFICER: Rolfe DCJ

COUNSEL:
Mr S G Campbell (under pro bono scheme) (Appellant)
Mr J P Gormly (Respondents)

SOLICITORS:
Appellant litigant in person
Tress Cocks & Maddox (Respondents)

CATCHWORDS:
Torts - Negligence - Medical Negligence - Failure to warn - Role of medical evidence from specific practitioners in relation to Court's own assessment of necessity for warning and content of warning - Subjective and hypothetical nature of question as to whether patient would have heeded warning
Torts- Negligence - Medical Negligence - Causation - Appeal from trial judge's finding that no causation proved - Whether iron injections caused gluteal fibrosis - Where medical evidence was controversial - Where the trial judge observed the plaintiff give evidence and found her to be a poor historian - ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40871/00
  DC 4717/99
POWELL JA
  HEYDON JA
  STUDDERT J
12 September 2001
BARBARA ANN McCARTHY v IAIN KIDD & ANOR

Torts – Negligence – Medical Negligence – Failure to warn – Role of medical evidence from specific practitioners in relation to Court’s own assessment of necessity for warning and content of warning – Subjective and hypothetical nature of question as to whether patient would have heeded warning

Torts – Negligence – Medical Negligence – Causation – Appeal from trial judge’s finding that no causation proved –Whether iron injections caused gluteal fibrosis - Where medical evidence was controversial – Where the trial judge observed the plaintiff give evidence and found her to be a poor historian

The appellant (the plaintiff at trial) had suffered from a long term problem of anaemia and since 1970 had received numerous iron injections. In August 1984 the appellant was admitted to hospital under the care of a doctor (the “first respondent”), and the Hunter Area Health Service, (the “second respondent”). Whilst in hospital the appellant underwent a hysterectomy operation and was given six injections of an iron supplement. The appellant brought a claim for damages in the District Court against the first and second respondents, alleging that the first respondent was negligent in not warning her of the risks associated with the injections and that the second respondent was negligent in giving the injections. She contended that the injections had caused fibrosis in her gluteal area. The appellant was unsuccessful at trial and appealed.

Held by Studdert J (Powell JA and Heydon JA concurring), dismissing the appeal:

In relation to causation, the trial judge did not direct himself as to the factual question too narrowly.
a.The trial judge did not err by considering the issue of causation…

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.

Continue reading McCarthy v Kidd

Details

AGLC: McCarthy v Kidd [2001] NSWCA 304
Case: [2001] NSWCA 304
Decision Date: 12 September 2001

CaseChat Overview and Summary

In *McCarthy v Kidd*, the plaintiff, Ms. McCarthy, appealed a decision of the trial judge who had found that her medical negligence claim against the defendant, Dr. Kidd, failed on the issue of causation. Ms. McCarthy alleged that Dr. Kidd was negligent in failing to warn her of the risks associated with iron injections, and that these injections caused her to develop gluteal fibrosis.

The central legal issues before the appellate court were whether the trial judge erred in finding that Ms. McCarthy had not proven causation, specifically whether the iron injections administered by Dr. Kidd caused her gluteal fibrosis. This involved considering the controversial medical evidence presented regarding the link between such injections and the condition, and the trial judge's assessment of Ms. McCarthy as a witness. The court also implicitly considered the role of medical evidence in determining the necessity and content of warnings in medical negligence cases, and the subjective and hypothetical nature of whether a patient would have heeded a warning.

The appellate court upheld the trial judge's findings. It was noted that the trial judge had the advantage of observing Ms. McCarthy give evidence and concluded she was a poor historian, which likely influenced her assessment of her credibility and the reliability of her account. The court found that the medical evidence regarding causation was indeed controversial, and that the trial judge was entitled to weigh this evidence and conclude that Ms. McCarthy had not discharged the onus of proving that the iron injections caused her gluteal fibrosis.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

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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