Olbourne v Wolf - [2004] NSWCA 141

CITATION: Olbourne v Wolf [2004] NSWCA 141

HEARING DATE(S): 11 March 2004

JUDGMENT DATE:
6 May 2004

JUDGMENT OF: Santow JA at 1; Young CJ in Eq at 2; Stein AJA at 78

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - Medical negligence - Breast reduction surgery followed by subsequent infection and later scarring - Failure to examine patient before discharge and allowing her discharge - Duty to warn as to risks of operation - Nature of warning - Duty of medical officers - General damages - Bullock orders.

CASES CITED: Chappel v Hart (1998) 195 CLR 232
Gould v Vaggelas (1985) 157 CLR 215
McKellar v Blake (NSWCA, 30.10.1998, unreported)
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Rufo v Hosking [2002] NSWSC 1041
Steppke v National Capital Development Commission (1978) 21 ACTR 23

PARTIES :
Dr Norman OLBOURNE (Appellant)
Freya WOLF (Respondent)

FILE NUMBER(S): CA 40549/03

COUNSEL: D L Davies, SC/ G Curtin (Appellant)
R J Burbidge, QC/ B Hull (Respondent)

SOLICITORS: Ebsworth & Ebsworth (Appellant)
Malcolm Johns & Company (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6782/01

LOWER COURT
JUDICIAL OFFICER : Herron ADCJ

CA 40549/03
DC 6782/01

SANTOW JA
YOUNG CJ in EQ
STEIN AJA
6 MAY 2004

NORMAN OLBOURNE v FREYA WOLF

Judgment

1 SANTOW JA: I agree with Young CJ in Eq.

2 YOUNG CJ in EQ: This is an appeal from his Honour Acting Judge Herron of the District Court in a medical negligence case.

3 The appellant in this Court, the defendant in the court below, is a plastic surgeon. The respondent, the plaintiff in the court below, arranged for the appellant to conduct a breast reconstruction operation on her.

4 The appellant performed this operation at the North Shore Private Hospital on Friday 31 March 2000.

5 On Sunday evening, 2 April 2000, the appellant examined the respondent in that hospital and made arrangements to discharge her on the following day. He told her that he would like to see her in his rooms on 6 April.

6 During the night of 2/3 April, the respondent said that she felt very hot and feverish, and at 3.20 am, Dr Jane Barry, then a resident medical officer at the hospital, was called by the nursing staff to attend to the respondent. The respondent's temperature is recorded in the hospital notes as having risen to 38.5 degrees centigrade. Dr Barry could not find any infection upon a relatively superficial examination of the respondent's breasts. She observed that the temperature was indicative of something that was not normal, and gave instructions that the appellant was to be informed this morning. Her note was "Please inform Dr Olbourne this am".

7 At 8.40 am on Monday 3 April 2000, registered nurse Amanda Moody telephoned Dr Olbourne. Nurse Moody could not remember the conversation in detail, but the respondent remembered asking her what were the clinical state of the patient's breasts and being informed that they…

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 Olbourne v Wolf

Details

AGLC: Olbourne v Wolf [2004] NSWCA 141
Case: [2004] NSWCA 141
Decision Date: 6 May 2004

CaseChat Overview and Summary

The Supreme Court of New South Wales Court of Appeal considered a medical negligence claim brought by the appellant, Ms. Olbourne, against the respondent, Dr. Wolf, following breast reduction surgery. Ms. Olbourne alleged that post-operative complications, specifically an infection and subsequent scarring, arose due to Dr. Wolf's negligence.

The central legal issues before the Court of Appeal were whether Dr. Wolf breached his duty of care to Ms. Olbourne. This involved determining whether he failed to adequately examine her before discharge, whether he was negligent in allowing her to be discharged, and whether he provided a sufficient warning regarding the risks associated with the surgery. The Court also considered the assessment of general damages.

The Court of Appeal upheld the primary judge's findings, concluding that Dr. Wolf had not breached his duty of care. The reasoning focused on the adequacy of the post-operative care and the warnings provided. The Court applied the principles of medical negligence, assessing whether the medical practitioner's conduct fell below the standard of a reasonably prudent medical practitioner in the circumstances. The appeal was dismissed, and Ms. Olbourne was ordered to pay the costs of the appeal.

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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CITATION:	Olbourne v Wolf [2004] NSWCA 141
HEARING DATE(S):	11 March 2004
JUDGMENT DATE:	6 May 2004
JUDGMENT OF:	Santow JA at 1; Young CJ in Eq at 2; Stein AJA at 78
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - Medical negligence - Breast reduction surgery followed by subsequent infection and later scarring - Failure to examine patient before discharge and allowing her discharge - Duty to warn as to risks of operation - Nature of warning - Duty of medical officers - General damages - Bullock orders.
CASES CITED:	Chappel v Hart (1998) 195 CLR 232 Gould v Vaggelas (1985) 157 CLR 215 McKellar v Blake (NSWCA, 30.10.1998, unreported) Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Rufo v Hosking [2002] NSWSC 1041 Steppke v National Capital Development Commission (1978) 21 ACTR 23
PARTIES :	Dr Norman OLBOURNE (Appellant) Freya WOLF (Respondent)
FILE NUMBER(S):	CA 40549/03
COUNSEL:	D L Davies, SC/ G Curtin (Appellant) R J Burbidge, QC/ B Hull (Respondent)
SOLICITORS:	Ebsworth & Ebsworth (Appellant) Malcolm Johns & Company (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6782/01
LOWER COURT JUDICIAL OFFICER :	Herron ADCJ