Moore v State of Qld - [2005] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION:

Moore v State of Qld & Ors [2005] QCA 299

PARTIES:

KERRY LEANNE MOORE
(plaintiff/appellant)
v
STATE OF QUEENSLAND
(first defendant/respondent)
ENDOVASIVE PTY LTD ACN 061 512 132 (deregistered)
(second defendant)
FEMCARE LTD
(third defendant)

FILE NO/S:

Appeal No 2750 of 2005
SC No 5468 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2005

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed

2. Appellant to pay the respondent's costs of the appeal to be assessed on the standard basis

CATCHWORDS:

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS - OTHER CASES - where appellant had undergone a laparoscopic sterilization procedure performed by a medical practitioner employed by the respondent - where objective of the procedure was to achieve full occlusion of the appellant's Fallopian tubes by way of the application of Filshie clips - where the appellant became pregnant approximately 12 months after the procedure was carried out - where appellant sued the respondent for negligence in the conduct of the sterilization procedure - where it was found by the learned primary judge that the medical practitioner who performed the procedure had breached his duty of care to the appellant by placing one of the Filshie clips on the ampullary (thickest) rather than the isthmic (thinnest) portion of the appellant's right Fallopian tube - where evidence at trial was that it was best practice to place the clip on the isthmic portion of the Fallopian tube - where the preponderance of the evidence at trial was that, despite the different placement of the clip, full occlusion of the tube was still achieved - whether the incorrect placement of the clip could properly be described as a breach of duty if full occlusion of the tube was achieved

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY - where the preponderance of the evidence at trial was that, despite the different placement of the clip, full occlusion of the tube was still achieved - where appellant submitted that the non-occlusion of the Fallopian tube was an inescapable inference from the fact that the appellant became pregnant - where evidence at trial was that pregnancy could still occur despite full occlusion of the Fallopian tubes - whether the finding of fact made by the learned trial judge that the procedure had been successful in achieving full occlusion of the appellant's Fallopian tubes should be set aside - whether the way in which the medical practitioner performed the procedure could be said to have been the cause of the appellant becoming pregnant

Abalos v Australian Postal Commission (1990) 171 CLR 167, cited

Ahmedi v Ahmedi (1991) 23 NSWLR 288, cited

Batiste…

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.

Keep reading for free

Create a free CaseChat account to read Moore v State of Qld and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] QCA 299
Decision Date: 19 August 2005

CaseChat Overview and Summary

Moore, the appellant, was a patient who underwent a laparoscopic sterilization procedure at the hands of a medical practitioner employed by the respondent, the State of Queensland. The objective of the procedure was to achieve full occlusion of the appellant's Fallopian tubes using Filshie clips. However, approximately 12 months after the procedure, the appellant became pregnant. Moore then sued the respondent for negligence, claiming that the medical practitioner had breached his duty of care by placing one of the Filshie clips on the ampullary (thickest) rather than the isthmic (thinnest) portion of her right Fallopian tube. Despite this deviation from best practice, evidence at trial indicated that full occlusion of the tube was still achieved. Moore argued that the incorrect placement of the clip constituted a breach of duty, even if full occlusion was achieved. The primary judge found that the medical practitioner had indeed breached his duty of care by misplacing the clip.

The legal issues before the court were whether the incorrect placement of the clip could properly be described as a breach of duty if full occlusion of the tube was achieved and whether the misplacement of the clip was the cause of the appellant becoming pregnant. The court considered whether the finding of fact made by the learned trial judge that the procedure had been successful in achieving full occlusion of the appellant's Fallopian tubes should be set aside. The court found that the misplacement of the Filshie clip constituted a breach of duty, even though full occlusion was achieved. This was because the misplacement was a deviation from the standard of care expected in such procedures, and it was not sufficient to rely solely on the outcome of full occlusion to negate the breach of duty. The court further determined that the misplacement of the clip was not the cause of the appellant's pregnancy, as evidence suggested that pregnancy could still occur despite full occlusion of the Fallopian tubes.

In light of the findings, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal to be assessed on the standard basis. The court's decision emphasised the importance of adhering to established medical practices in the performance of sterilization procedures, even if the ultimate outcome appears to be successful. The court also underscored the necessity for medical practitioners to consider the broader implications of their actions, including potential deviations from accepted standards of care, in determining liability for negligence.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant to pay the respondent's costs of the appeal to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Moore v State of Qld & Ors [2005] QCA 299
PARTIES:	KERRY LEANNE MOORE (plaintiff/appellant) v STATE OF QUEENSLAND (first defendant/respondent) ENDOVASIVE PTY LTD ACN 061 512 132 (deregistered) (second defendant) FEMCARE LTD (third defendant)
FILE NO/S:	Appeal No 2750 of 2005 SC No 5468 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2005
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Appellant to pay the respondent's costs of the appeal to be assessed on the standard basis
CATCHWORDS:	TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS - OTHER CASES - where appellant had undergone a laparoscopic sterilization procedure performed by a medical practitioner employed by the respondent - where objective of the procedure was to achieve full occlusion of the appellant's Fallopian tubes by way of the application of Filshie clips - where the appellant became pregnant approximately 12 months after the procedure was carried out - where appellant sued the respondent for negligence in the conduct of the sterilization procedure - where it was found by the learned primary judge that the medical practitioner who performed the procedure had breached his duty of care to the appellant by placing one of the Filshie clips on the ampullary (thickest) rather than the isthmic (thinnest) portion of the appellant's right Fallopian tube - where evidence at trial was that it was best practice to place the clip on the isthmic portion of the Fallopian tube - where the preponderance of the evidence at trial was that, despite the different placement of the clip, full occlusion of the tube was still achieved - whether the incorrect placement of the clip could properly be described as a breach of duty if full occlusion of the tube was achieved TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY - where the preponderance of the evidence at trial was that, despite the different placement of the clip, full occlusion of the tube was still achieved - where appellant submitted that the non-occlusion of the Fallopian tube was an inescapable inference from the fact that the appellant became pregnant - where evidence at trial was that pregnancy could still occur despite full occlusion of the Fallopian tubes - whether the finding of fact made by the learned trial judge that the procedure had been successful in achieving full occlusion of the appellant's Fallopian tubes should be set aside - whether the way in which the medical practitioner performed the procedure could be said to have been the cause of the appellant becoming pregnant Abalos v Australian Postal Commission (1990) 171 CLR 167, cited Ahmedi v Ahmedi (1991) 23 NSWLR 288, cited Batiste…