Read v The Australian Capital Territory - [2023] ACTSC 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Read v The Australian Capital Territory
Citation:	[2023] ACTSC 37
Hearing Dates:	15 and 17 February 2023
DecisionDate:	7 March 2023
Before:	Mossop J
Decision:	See [89]
Catchwords:	APPEAL – NEGLIGENCE – Medical negligence – appeal from Magistrates Court – magistrate found breach of duty arising from delay of the respondent to recognise internal bleeding and rectify with further surgery – whether magistrate erred in assessment of damages – whether magistrate erred in failing to award compensation under s 100 of the Civil Law (Wrongs) Act 2002 (ACT) or under the common law for domestic assistance compensation – whether magistrate erred in failing to find the appellant suffered economic loss – appeal dismissed APPEAL – CROSS-APPEAL – Whether magistrate erred in findings on causation – finding of breach of duty not challenged – whether award of general damages manifestly excessive – no reasons provided by magistrate for award of general damages – cross-appeal allowed
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 45(1), 100
Cases Cited:	Griffiths v Kerkemeyer (1977) 139 CLR 161 John XXIII College v SMA [2022] ACTCA 32 Kars v Kars (1996) 187 CLR 354 Scuderi v Raskurasingham [2017] ACTSC 41 Singh v Cooper [2016] ACTCA 55; 78 MVR 210
Parties:	Kristin Read ( Appellant) The Australian Capital Territory ( Respondent)
Representation:	Counsel D Richards ( Appellant) D Higgs SC ( Respondent)
Solicitors Maliganis Edwards Johnson ( Appellant) ACT Government Solicitor ( Respondent)
File Number:	SCA 12 of 2022
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 14 April 2022 Case Title: Kristin Read v The Australian Capital Territory Citation: [2022] ACTMC 8 Court File Number: CS 196 of 2020

MOSSOP J:

Introduction

This is an appeal from a decision of a magistrate awarding damages for negligence against the Australian Capital Territory. The appellant, who was the plaintiff below, sued the Australian Capital Territory, which runs the Canberra Hospital, for negligence in the treatment which was provided to her related to the birth of her second child.

The appellant’s pregnancy was complicated by the fact that she had vasa praevia and a low‑lying placenta. Because of this condition, an ante partum haemorrhage and the risks posed to her and her baby’s health, she spent 25 days in the Canberra Hospital prior to the birth of her child at just over 34 weeks gestation. Her child was born by emergency caesarean section following some further significant bleeding. During the course of that caesarean operation the appellant lost approximately 3500 mL of blood.

Following that operation, which was completed just before midnight on 26 October 2017, she was transferred at 2am the next day to the birth suite of the hospital. However, she suffered from internal bleeding from her uterine artery. After the possibility of such internal bleeding was recognised, she underwent a laparotomy (the second surgery) in order to investigate and address the source of that bleeding. That commenced at 9:29am…

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.

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Details

Case: [2023] ACTSC 37
Decision Date

CaseChat Overview and Summary

In the case of Read v The Australian Capital Territory, Kristin Read, the appellant, brought an action against the Australian Capital Territory, the respondent, for medical negligence following the birth of her second child. The respondent was found to have breached its duty to the appellant by delaying the recognition of internal bleeding and the subsequent surgery to address it. The appellant claimed damages for loss and damage suffered as a result of the delay. The magistrate awarded $50,000 as general damages and interest on that amount, as well as $2056.85 for out-of-pocket expenses. The appellant appealed against the magistrate’s decision, and the respondent cross-appealed.

The appeal and cross-appeal raised several issues, including whether the magistrate erred in finding a causal relationship between the breach of duty and the majority of the harm, particularly the psychological injury. The court found that the magistrate's findings of fact did not adequately address the relevant comparison between the appellant's position as it occurred and the position she would have been in had there been no breach of duty. The evidence did not establish that the period of delay was a necessary condition for the harm suffered. The court also found that the magistrate erred in the assessment of general damages at $50,000 and did not provide adequate reasons for his decision.

The court concluded that the appellant's appeal must be dismissed, and the respondent's cross-appeal must be allowed. The award of general damages of $50,000 would be substituted with an award of $13,000. No award should be made for out-of-pocket expenses. The court ordered that the respondent pay the appellant's costs and that the appellant pay the respondent's costs of the appeal and cross-appeal.

Orders