BETWEEN: JACOB RIELEY MCLENNAN by his next friend YVONNE JOYCE MCLENNAN
Appellant
AND
KEITH ARNOLD MCCALLUM
First Respondent
THE MINISTER FOR HEALTH
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :JACOB RIELY [SIC] MCLENNAN an infant suing by his next friend YVONNE JOYCE MCLENNAN & ANOR -v- MCCALLUM & ANOR [2007] WADC 67
File No  :CIV 959 of 2003

Catchwords:

Tort - Medical negligence - Appellant born with severe encephalopathy - Whether obstetrician negligent - Whether nursing staff negligent - Causation - Turns on own facts

Appeal - Whether appellant should be permitted to advance a new case on appeal - Whether appellant should be permitted to re-amend his statement of claim - Whether appellant should be permitted to re-amend his orders wanted on appeal to claim a re-trial - Turns on own facts

Legislation:

Nil

Result:

Application to re-amend the statement of claim dismissed
Application to re-amend the orders wanted dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr A G Melick SC & Mr D H Hirsch
First Respondent           :     Mr C L Zelestis QC & Mr J A Thomson
Second Respondent      :     Ms C J Thatcher

Solicitors:

Appellant:     Julian Johnson Lawyers
First Respondent           :     Panetta McGrath Lawyers
Second Respondent      :     State Solicitor for Western Australia

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

Banque Commerciale SA, en liquidation v Akhil Holdings Limited [1990] HCA 11; (1990) 169 CLR 279
Bell v Lever Brothers Ltd [1932] AC 161
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Findlay v State of Victoria [2009] VSCA 294
Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63; (2007) Aust Torts Reports 81-891
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632
Pringle v Everingham [2006] NSWCA 195; (2006) 46 MVR 58
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 158 CLR 447
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

INDEX

Buss JA's reasons

Overview of…

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 McLennan v McCallum

Details

AGLC: McLennan v McCallum [2010] WASCA 45
Case: [2010] WASCA 45
Decision Date: 12 MARCH 2010

CaseChat Overview and Summary

The case of McLennan v McCallum was heard in the Court of Appeal, where the appellant, McLennan, sought to hold the respondent, McCallum, an obstetrician, and associated nursing staff, accountable for medical negligence resulting in his severe encephalopathy at birth. The appellant alleged that the negligence of the respondent and the nursing staff led to his condition, which necessitated a prolonged stay in hospital and resulted in significant emotional and financial distress. The primary legal issues addressed in the case revolved around whether the obstetrician and nursing staff were indeed negligent in their care, and if so, whether their negligence directly caused the appellant's severe encephalopathy. The court also had to consider whether the appellant could advance a new case on appeal, re-amend his statement of claim, and re-amend his orders wanted on appeal to seek a retrial.

The court meticulously examined the evidence presented to determine the standard of care provided by the obstetrician and nursing staff. It was noted that the case turned on its own unique facts, requiring a detailed analysis of the specific circumstances surrounding the birth. The court evaluated whether the obstetrician and nursing staff adhered to the accepted medical standards and whether any deviation from these standards constituted negligence. Additionally, the court explored the causation element, determining whether the negligence, if any, directly resulted in the appellant's severe encephalopathy. The court's decision was based on the specific details of the case, highlighting the necessity for a thorough examination of the evidence and medical practices involved.

In reaching its decision, the court determined that the appellant should not be permitted to advance a new case on appeal, re-amend his statement of claim, or re-amend his orders wanted on appeal to claim a retrial. The court found that the evidence did not support the appellant's claims of negligence on the part of the obstetrician and nursing staff. It was concluded that the appellant's severe encephalopathy was not a result of the respondent's or the nursing staff's negligence. Consequently, the appeal was dismissed, and no new trial was ordered. The court's ruling emphasised that each case is unique, and the outcome was based on the specific facts and evidence presented in McLennan v McCallum.

Orders