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Molloy v El Masri

Molloy v El Masri

Case [2014] SADC 53 4 April 2014

Duty of Care

Causation

Compensatory Damages

Contributory Negligence

Tort Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MOLLOY v EL MASRI
[2014] SADC 53
Judgment of His Honour Judge Soulio
4 April 2014
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - AFFECTING PARTICULAR PROFESSIONS OR OCCUPATIONS
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Trial as to liability - 48 year old woman – consulted general practitioner with complaint of irregular vaginal bleeding – told to return if symptoms persisted – later discovered she was pregnant – too late for therapeutic abortion – child born with trisomy 21 - claim for damages by parents.
Held – defendant liable in negligence – no contributory negligence.
Limitations of Actions Act 1936 ss 36, 48; Civil Liability Act 1936 ss 3, 40, 41, referred to.
Walkin v South Manchester Health Authority [1995] 1 WLR 1543; Akpata v Minister for Immigration and Citizenship [2012] FCA 806; Harriton v Stephens (2006) 226 CLR 52; CES & Anor v Superclinics (Australia) Pty Ltd & Ors (1995) 38 NSWLR 47; Cattanach & Anor v Melchior & Anor (2003) 215 CLR 1; F v R (1983) 33 SASR 189; Rogers v Whitaker (1992) 175 CLR 479; Sydney Southwest Area Health Service & Anor v MD (2009) 260 ALR 702; Bolitho v Hackney Health Authority [1998] AC 232; Reynolds v North Tyneside Health Authority [2002] Lloyds Rep Med 459; Whitehouse v Jordan (1980) 1 ALL ER 267; CAL No. 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; Rosenberg v Percival (2001) 205 CLR 434; EG Jones v Bartlett (2000) 205 CLR 166; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Terry v Leventeris (2011) 109 SASR 538; Dobler v Halverson (2007) 70 NSWLR 151; Tai v Hatzistavrou [1999] NSWCA 306; Kite v Malycha (1998) 71 SASR 321; Irrationality, Evidence-Based Medicine and The Standard of Care, M.Parker (2007) 15 JLM 383, considered.

MOLLOY v EL MASRI
[2014] SADC 53
Contents
Background
Basis of Claim – Issues on the Pleadings
Negligence
Loss
The Defence
Contributory Negligence
Extension of Time

The Evidence
The Applicable Law
Entitlement to Claim
Civil Liability Act 1936
The Exclusion – Section 41(5)
The Statutory Defence
The Defendant’s Duty

The Plaintiffs’ Witnesses
Mrs Molloy
Associate Professor McBride
Dr Kaesehagen
Mr Molloy
Ms Unterweger

The Defendant’s Witnesses
Dr El Masri
Cross-examination
Professor Michael
Cross-examination
Adjunct Associate Professor Watts
Cross-examination
Dr Joyner
Cross-examination

Submissions and Findings
The Consultation
The Need for a History, Examination and Testing
Follow Up Appointment
What was the Arrangement for the Follow Up Appointment?

Contributory Negligence
Conclusion
Background

The plaintiff, Therese Molloy was born on 3 October 1957. Stephen Molloy, the second plaintiff, is her husband. On 13 December 2005, when she was 48 years old, Mrs Molloy consulted her general practitioner, Dr El Masri (‘the defendant’) complaining of symptoms of asthma, tiredness and of having emotional outbursts, and also…

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 Molloy v El Masri

Details

AGLC: Molloy v El Masri [2014] SADC 53
Case: [2014] SADC 53
Decision Date: 4 April 2014

CaseChat Overview and Summary

The case of Molloy v El Masri involved a claim for damages brought by the parents of a child born with trisomy 21. The mother, aged 48, had consulted the defendant, a general practitioner, regarding irregular vaginal bleeding. The doctor advised her to return if the symptoms persisted. Later, it was discovered that the mother was pregnant, but by then it was too late for a therapeutic abortion. The parents argued that the doctor's failure to diagnose the pregnancy and provide timely advice constituted negligence, resulting in significant harm to their child. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether the doctor owed a duty of care to the parents and if this duty was breached, leading to damages that were reasonably foreseeable. A secondary issue was whether the parents had contributed to the harm by not seeking further medical advice sooner, which would have amounted to contributory negligence. The court had to determine if the doctor's advice and actions fell below the standard of care expected of a reasonably competent general practitioner and if this failure directly caused the harm suffered by the child.

The court found that the doctor did owe a duty of care to the parents in advising them about the potential seriousness of the symptoms presented. The failure to diagnose the pregnancy and provide appropriate guidance when the mother returned was a breach of this duty. The harm caused by this negligence was reasonably foreseeable, as the delay in diagnosis precluded the possibility of a therapeutic abortion. The court further determined that there was no contributory negligence on the part of the parents, as they had acted reasonably in relying on the doctor's advice. Consequently, the doctor was held liable for negligence.

The court ordered the defendant to pay damages to the plaintiffs for the harm caused to their child. The specific amount of damages was to be determined in a subsequent assessment.

Orders