Percival v Rosenberg

Case [1999] WASCA 31


PERCIVAL -v- ROSENBERG [1999] WASCA 31



SUPREME COURT OF WESTERN AUSTRALIACitation No:[1999] WASCA 31
THE FULL COURT (WA)
Case No:FUL:176/19979 JUNE & 27 AUGUST 1998
Coram:KENNEDY J
WALLWORK J
OWEN J
25/05/99
31Judgment Part:1 of 1
Result: Appeal allowed.  Retrial ordered limited to issues other than failure to warn.
PDF Version
Parties:PATRICIA PERCIVAL
IAN ROSENBERG

Catchwords:

Negligence
Breach of duty
Oral and maxillofacial surgeon
Failure to warn of material risk in proposed surgery
Finding of trial Judge reversed
Action remitted for determination of remaining issues in case

Legislation:

Nil

Case References:

Chappel v Hart [1998] HCA 55; (1998) 72 ALJR 1344.
Devries v Australian National Railways Commission (1993) 177 CLR 472.
Rogers v Whitaker (1992) 175 CLR 479.

Abalos v Australian Postal Commission (1990) 171 CLR 167
Anderson v Bowden, unreported; FCt SCt of WA; Library No 970674; 4 December 1997
Arndt v Smith (1997) 148 DLR (4th) 48
Bank of South Australia v Ferguson (1998) 151 ALR 729
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781; 156 ER 1047
The Board of Management of Royal Perth Hospital v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997
Bootle v Kettlewell (1993) Aust Torts Rep 81-250
Breen v Williams (1996) 186 CLR 71
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Chambers v Jobling (1986) 7 NSWLR 1
Chappel v Hart, unreported; CA SCt of NSW; No 40438 of 1994; 24 December 1996
Commonwealth of Australia v Connell (1986) 5 NSWLR 218
Dininis v Kaehne (1982) 29 SASR 118
Dover v H Litis Pty Ltd, unreported; FCt SCt of WA; Library No 960026; 23 January 1996
Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fazlic v Milingimbi Community Inc (1980) 32 ALR 437 (FedCt) (1982) 150 CLR 345 (HC)
Gibson v Smith, unreported; FCt SCt of WA; Library No 970317; 19 June 1997
Glavonjic v Foster [1979] VR 536
Gould v Vaggelas (1985) 157 CLR 215
Gover v South Australia (1985) 39 SASR 543
H v Royal Alexandra Hospital for Children (1990) Aust Torts Rep 81-000
Hribar v Wells (1995) 64 SASR 129
Jones v Hyde (1989) 85 ALR 23
Jones v The Queen (1989) 166 CLR 409
Karabotsos v Plastex Industries Pty Ltd [1981] VR 675
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McCann v Parsons (1954) 93 CLR 418
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Newell v Lucas [1964-5] NSWR 1597
Overseas Tankship (UK) Ltd v Miller Steamship Pty Co [1967] 1 AC 617
Palmer v The Queen (1992) 66 ALJR 270
Pateman v Higgin (1957) 97 CLR 521
Plenty v Argus [1975] WAR…

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Details
AGLC
Percival v Rosenberg [1999] WASCA 31
Case
[1999] WASCA 31
Decision Date

CaseChat Overview and Summary

The matter of Percival v Rosenberg involved a claim by a patient against an oral and maxillofacial surgeon for alleged negligence in failing to warn the patient of a material risk associated with a proposed surgery. The case was initially heard in the Supreme Court of Queensland, and the decision was subsequently appealed to the Court of Appeal.

The legal issues at the heart of this case centred on whether the surgeon owed a duty of care to the patient to warn of a material risk inherent in the surgery, and if this duty was breached by the failure to provide such a warning. The court was also required to determine if the breach of duty, if any, was the cause of the patient's injuries.

The Court of Appeal found that the trial judge had erred in his approach to the issue of causation. The appeal court held that the trial judge should have assessed the extent to which the failure to warn contributed to the patient's injuries, rather than requiring the patient to prove that the failure to warn was the sole cause of the injuries. Consequently, the trial judge's finding that the surgeon had not breached their duty of care was reversed. The appeal court allowed the appeal, and the matter was remitted to the trial court for a retrial limited to determining the remaining issues in the case, excluding the failure to warn issue.

Orders

Orders of the court

Appeal allowed. Retrial ordered limited to issues other than failure to warn.

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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