Ormsby v. Stewart & Ors

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SUPREME COURT OF QUEENSLAND

CITATION:

Ormsby v Stewart & Ors [2009] QSC 200

PARTIES:

SUSAN MARGARET ORMSBY
(plaintiff)
v
DR PETER ANTHONY STEWART
(first defendant)
SUNSHINE COAST DAY SURGERY PTY LTD,
ACN 055539 903
(
second defendant)
LASER SIGHT CENTRES PTY LTD
ACN 095 456 456
(third defendant)
LASER SIGHT CENTRES AUSTRALASIA PTY LTD,
ACN 071 212 498
(fourth defendant)
LASER SIGHT CENTRES AUSTRALASIA (SYDNEY) PTY LTD, ACN 080 402 133
(
fifth defendant)

FILE NO/S:

BS9797 of 2005

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

23, 24, 25, 27, 30 March 2009

CATCHWORDS:

PERSONAL INJURIES – NEGLIGENCE - LIABILITY – DUTY TO WARN & DUTY TO TEST - Where plaintiff undertook intraocular lens replacement surgery – where plaintiff given information on risks and possible outcomes prior to surgery – where surgery did not achieve desired outcome – whether defendants had a duty to warn of actual outcome and to test plaintiff’s ability to accommodate actual outcome – whether defendants satisfied their duty to disclose material risks to plaintiff – whether the outcome of surgery in the plaintiff’s case was a material risk.

PERSONAL INJURIES – NEGLIGENCE – LIABILITY – CAUSATION - Where plaintiff undertook intraocular lens replacement surgery -  where surgery did not achieve desired outcome – whether the plaintiff would have continued with surgery if pre-warned that the actual outcome of surgery was a possibility.

PERSONAL INJURIES – MITIGATION – Where the plaintiff was pre-warned of the possible need for post-operative corrective surgery – where the desired outcome of initial surgery was not achieved – where the plaintiff received advice from own expert witness to undertake post-operative corrective surgery – where the plaintiff did not act on expert’s advice - whether the plaintiff failed to mitigate damages.

PERSONAL INJURIES – DAMAGES – ASSESSMENT OF DAMAGES – Where plaintiff claimed damages for economic loss - where plaintiff did not make detailed submissions or present detailed evidence on economic loss – where plaintiff claimed damages for pain and suffering – where conflicting evidence as to the plaintiff’s psychological condition – where plaintiff had concealed previous psychological conditions & treatment – whether the plaintiff is entitled to damages – assessment of damages.

British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673
Chappel v Har t(1998) 195 CLR 232
Matters v Baker and Fawcett [1951] SASR 91
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434

Smith v Commonwealth of Australia (2006) NSWSC 689

JUDGE:

Martin J

ORDER:

The action is dismissed.

COUNSEL:

J C Crowley QC and K F Boulton for the plaintiff
GW Diehm SC and M M Callaghan for the first to fifth defendants

SOLICITORS:

Cosgroves for the plaintiff
Blake Dawson for the first to fifth defendants

  1. In November 2002 Dr Peter Stewart performed a bilateral intraocular lens extraction and replacement on Susan Ormsby. She says the operations were not…

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Details
Case
[2009] QSC 200
Decision Date

CaseChat Overview and Summary

In the case of Ormsby v. Stewart & Ors, the plaintiff sought damages for personal injuries sustained during intraocular lens replacement surgery. The plaintiff claimed that the defendants failed to adequately warn her of the potential outcomes of the surgery, including the need for corrective surgery, and did not adequately test her ability to cope with the outcomes. The plaintiff also alleged that the surgery did not achieve the desired outcome, and she suffered pain and suffering as a result. The defendants argued that they had satisfied their duty to disclose material risks to the plaintiff and that the outcome of the surgery in the plaintiff's case was not a material risk. The court was required to determine whether the defendants had a duty to warn the plaintiff of the actual outcome of the surgery and to test her ability to accommodate that outcome, whether the defendants satisfied their duty to disclose material risks to the plaintiff, and whether the outcome of the surgery in the plaintiff's case was a material risk. The court also needed to decide whether the plaintiff would have continued with the surgery if she had been warned of the actual outcome, whether the plaintiff failed to mitigate damages by not undergoing corrective surgery, and whether the plaintiff was entitled to damages and the assessment of damages.

The court found that the defendants had satisfied their duty to disclose material risks to the plaintiff. The warnings given were appropriate and met the standard of care expected of a prudent surgeon. The court held that the defendants had no duty to warn the plaintiff of the actual outcome of the surgery, as the outcome was not a material risk. The court also held that the plaintiff would not have continued with the surgery if she had been warned of the actual outcome. The court found that the plaintiff failed to mitigate damages by not undergoing corrective surgery, as advised by her own expert witness. Finally, the court held that the plaintiff was entitled to damages for pain and suffering, but not for economic loss, as the plaintiff did not make detailed submissions or present detailed evidence on economic loss. The court assessed the damages for pain and suffering at $20,000.

The action is dismissed. The defendants are ordered to pay the plaintiff $20,000 for pain and suffering. The plaintiff's claim for economic loss is dismissed with costs.

Orders

Orders of the court

The action is dismissed.

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

Dr Lee Lenton said: Doctor, I think the plaintiff in this case was told that, post operation, she might need an enhancement procedure?--That's right.That's the sort of thing you would tell her about?-- That's exactly what we would mention in terms of managing the patient's expectations, that if you don't end up with a satisfactory refractive result in the sense that it's - you're able to cope with the outcome there are options following the surgery where we can correct any anomalous - "anomalous" is not the right word, any outcome with which the patient can't cope with or finds distressing, that there are options – two particular options - that are available. One of them is a Lasik or laser surgery on the front surface of the eye, the cornea-----Yes?-- -----or an eye intraocular lens exchange.Yes. Well, she had an intraocular lens exchange. She was told that she might need an enhancement if the refractive result was not spot-on or not exactly as designed. Is that within your understanding of a normal warning?-- That's correct.Doctor, would it be right to say that an enhancement is just a minor procedure that might be done by a laser treatment in the surgery?-- No, it's not a minor procedure, it's a major refractive procedure done in a laser operating theatre.Right. Doctor, would you endorse these - you might say the conduct of telling the plaintiff that she may need reading glasses after her surgery?-- Certainly that should be part of the patient's expectation management.Yes. Doctor-----?-- You need to inform them that that may be a possible outcome.Well, Doctor, in fact, with your - if in fact both eyes were going to be set for distance, as you've indicated, isn't it inevitable that she would have needed reading glasses following surgery?-- Well, that's inherent in that particular refractive outcome. If you have clear distance vision in both eyes with inability to accommodate because you've had lens surgery you would need reading glasses, it follows.”[19] [19]T 3-64 – 3-65 Dr Lenton was further cross-examined:“I think you said that her particular preoperative eye condition made the likelihood of her having some problems higher than normal?-- Well, she would have experienced those similar symptoms preoperatively given that's the type of symptoms that people with hyperopia, presbyopia complain of in general. They're not specific general tired eyes, the symptoms that related to their refractive error.What I'm putting to you is that taking into account her preoperative state and the possible outcome from the operation, that's something that a prudent surgeon would have warned about?-- I - well, if I'm a prudent surgeon, I don't - I don't necessarily warn people of those symptoms. They're too vague and non-specific to be of much understanding or assistance to the patient in understanding the possible outcomes because they're such common - common symptoms and so non-specific.”[20][20]T 3-67 Dr Lenton’s evidence supports the conclusion that the warnings given were appropriate.