Mules v Ferguson - [2014] QSC 51

SUPREME COURT OF QUEENSLAND

CITATION:

Mules v Ferguson [2014] QSC 51

PARTIES:

NANCY LEANNE MULES
(plaintiff)
v
KAYLENE JOY FERGUSON

(defendant)

FILE NO/S:

SC No 339 of 2011

DIVISION:

Trial

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

25 March 2014

DELIVERED AT:

Mount Isa

HEARING DATE:

9, 10, 11, 12, 13 September 2013; 28, 29, 30, 31 October 2013; 1, 4 November 2013.

JUDGE:

Henry J

ORDERS:

(a) Claim dismissed.

(b) I will hear the parties as to costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE (ALTERNATIVELY FOR BREACH OF CONTRACT) – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where the plaintiff claims damages for injury and loss occasioned by the alleged breach of the defendant’s duty in contract and tort – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis – where her illness was diagnosed and treated in time to save her life but too late to prevent irreversible neurological harm – whether the defendant’s failure to refer the plaintiff for specialist assessment was a breach of her duty to exercise reasonable care and skill in the provision of advice and treatment to the plaintiff – whether specialist referral would have prevented irreversible neurological harm

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE (ALTERNATIVELY FOR BREACH OF CONTRACT) – STANDARD OF CARE – GENERALLY – where the plaintiff sought treatment for sore neck and headaches – where the plaintiff claims she advised her general practitioner, hospital staff and her physiotherapist of dizziness, loss of hearing and sight – whether the defendant was negligent in not conducting a physical manipulation of the plaintiff’s neck

TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINCIPLES – causation and breach – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis – whether the defendant’s failure to refer the plaintiff for timely specialist assessment was causative of her permanent injury

DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – assessment of damages – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis

Civil Liability Act 2003 (Qld) s 9, s 11, s 22, s 51, s 61, s 62
Civil Liability Regulation 2003 (Qld) reg 6, sch 7

Breen v Williams (1996) 186 CLR 71, cited
Heywood v Commercial Electrical Pty Ltd [2013] QCA 270, considered
McNeilly v Imbree [2007] NSWCA 156, cited
Munzer v Johnston & Anor [2008] QSC 162, considered
Rogers v Whitaker (1992) 175 CLR 479, cited
Sharman v Evans (1977) 138 CLR 563, cited
Tobler v Halverson (2007) 70 NSWLR 151, considered

Waller v McGrath & Anor [2009] QSC 158, followed

COUNSEL:

RJ Lynch with AS Katsikalis for the plaintiff

GW Diehm QC with JC Trevino for the defendant

SOLICITORS:

Shine Lawyers on behalf of the plaintiff
K&L Gates on behalf of the defendant

Index

Heading Page

A. Introduction 3

B. Chronological…

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 Mules v Ferguson

Details

AGLC: Mules v Ferguson [2014] QSC 51
Case: [2014] QSC 51
Decision Date: 25 March 2014

CaseChat Overview and Summary

The case of Mules v Ferguson involved the plaintiff, who was blind and deaf as a result of contracting cryptococcal meningitis, suing the defendant for damages. The plaintiff argued that the defendant's failure to refer her for specialist assessment led to her irreversible neurological harm. The case was heard in the Supreme Court of New South Wales.

The central legal issues in the case were whether the defendant's failure to refer the plaintiff for specialist assessment constituted a breach of her duty to exercise reasonable care and skill in the provision of advice and treatment, and whether such a referral would have prevented the plaintiff's irreversible neurological harm. Additionally, the court needed to determine if the defendant was negligent in not conducting a physical manipulation of the plaintiff's neck, despite the plaintiff's communication of her symptoms.

The court found that the plaintiff's meningitis was diagnosed and treated in time to save her life, but the delay in specialist referral was not causative of her permanent injury. The court held that the plaintiff's failure to attend the specialist appointment contributed to the delay in diagnosis, and therefore, the defendant's failure to refer the plaintiff for specialist assessment was not a breach of her duty. The court also found that the plaintiff had not provided sufficient evidence to establish that a timely referral would have prevented her injury.

Consequently, the court dismissed the plaintiff's claim and ordered that the parties would be heard regarding costs. The decision underscores the importance of timely specialist referrals and the need for patients to attend scheduled appointments to ensure appropriate treatment and care.

Orders

Orders of the court

(a) Claim dismissed.

(b) I will hear the parties as to costs.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mules v Ferguson [2014] QSC 51
PARTIES:	NANCY LEANNE MULES (plaintiff) v KAYLENE JOY FERGUSON (defendant)
FILE NO/S:	SC No 339 of 2011
DIVISION:	Trial
PROCEEDING:	Civil
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	25 March 2014
DELIVERED AT:	Mount Isa
HEARING DATE:	9, 10, 11, 12, 13 September 2013; 28, 29, 30, 31 October 2013; 1, 4 November 2013.
JUDGE:	Henry J
ORDERS:	(a) Claim dismissed. (b) I will hear the parties as to costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE (ALTERNATIVELY FOR BREACH OF CONTRACT) – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where the plaintiff claims damages for injury and loss occasioned by the alleged breach of the defendant’s duty in contract and tort – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis – where her illness was diagnosed and treated in time to save her life but too late to prevent irreversible neurological harm – whether the defendant’s failure to refer the plaintiff for specialist assessment was a breach of her duty to exercise reasonable care and skill in the provision of advice and treatment to the plaintiff – whether specialist referral would have prevented irreversible neurological harm TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE (ALTERNATIVELY FOR BREACH OF CONTRACT) – STANDARD OF CARE – GENERALLY – where the plaintiff sought treatment for sore neck and headaches – where the plaintiff claims she advised her general practitioner, hospital staff and her physiotherapist of dizziness, loss of hearing and sight – whether the defendant was negligent in not conducting a physical manipulation of the plaintiff’s neck TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINCIPLES – causation and breach – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis – whether the defendant’s failure to refer the plaintiff for timely specialist assessment was causative of her permanent injury DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – assessment of damages – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis Civil Liability Act 2003 (Qld) s 9, s 11, s 22, s 51, s 61, s 62 Civil Liability Regulation 2003 (Qld) reg 6, sch 7 Breen v Williams (1996) 186 CLR 71, cited Heywood v Commercial Electrical Pty Ltd [2013] QCA 270, considered McNeilly v Imbree [2007] NSWCA 156, cited Munzer v Johnston & Anor [2008] QSC 162, considered Rogers v Whitaker (1992) 175 CLR 479, cited Sharman v Evans (1977) 138 CLR 563, cited Tobler v Halverson (2007) 70 NSWLR 151, considered Waller v McGrath & Anor [2009] QSC 158, followed
COUNSEL:	RJ Lynch with AS Katsikalis for the plaintiff GW Diehm QC with JC Trevino for the defendant
SOLICITORS:	Shine Lawyers on behalf of the plaintiff K&L Gates on behalf of the defendant