Sauer v Pashley - [2000] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION: Sauer v Pashley [2000] QCA 32

PARTIES: TREVOR WILLIAM SAUER
(first defendant/appellant)
v
BRIAN PETER PASHLEY
(plaintiff/respondent)

FILE NO/S: Appeal No 4604 of 1999
DC No 3947 of 1998

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 22 February 2000

DELIVERED AT: Brisbane

HEARING DATE: 14 February 2000

JUDGES: de Jersey CJ, McPherson JA, Byrne J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:
Appeal allowed.

Judgment given in the District Court set aside.
Judgment for the appellant against the respondent entered.
Respondent to pay the appellant’s costs of the action, including the appeal, to be assessed.

CATCHWORDS:
PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – LIABILITY IN TORT

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – artery accidentally severed in course of performing vasectomy causing considerable pain and suffering – whether operation negligently performed – onus of proof – probable time accidental severing occurred – influence of specialist medical witness’ evidence in establishing standard of care

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – APPEAL COSTS FUND – whether applicable – appeal succeeded on a question of fact not law
Appeal Costs Fund Act (Qld)1973, s 15

Rogers v Whitaker (1992) 175 CLR 479
Vella v Larson [1982] QdR 298

COUNSEL: Mr DH Tait for the appellant
Mr K Dorney QC; with him Ms K Philipson for the respondent

SOLICITORS: Flower & Hart for the appellant
Peter Wallace & Co for the respondent

de JERSEY CJ: The evidence given in these proceedings established the procedure by which a vasectomy is ordinarily carried out. With the area under local anesthetic, the doctor, by handling the scrotum, determines the position of the relevant spermatic cord (the vas deferens), near to the skin of the scrotum. The doctor then makes a small incision into the scrotum, and withdraws the cord through that incision. The diameter of the spermatic cord is about 2 millimeters. Adhering to the cord is a small artery, with a diameter about half that, which should desirably then be separated from the cord using forceps, so that it is out of harm’s way as the doctor then proceeds to sever the cord, and tie off or otherwise seal the severed ends. Alternatively, both cord and artery may be severed, with all ends then being sealed. This may be done if it is difficult to separate the cord and artery. The cord and artery are then reinserted into the scrotum through the small incision.

This procedure is followed with respect to each of the two spermatic cords. If the artery is accidentally severed, and bleeds, it may be tied or heat sealed. But bleeding may not occur in such a case (where there has been an accidental severing), because of the effect of the drugs administered in the course of the procedure,…

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 Sauer v Pashley

Details

AGLC: Sauer v Pashley [2000] QCA 32
Case: [2000] QCA 32
Decision Date: 22 February 2000

CaseChat Overview and Summary

The case of Sauer v Pashley involves a claim for damages for negligence against a medical practitioner, Dr Pashley, arising from a vasectomy procedure. The plaintiff, Mr Sauer, alleged that during the operation, an artery was accidentally severed, causing him considerable pain and suffering. The matter proceeded to the District Court, where Mr Sauer was unsuccessful. He then appealed to the court, which was tasked with determining whether the appeal should be dismissed or allowed, and whether the appeal costs fund should apply.

The primary legal issues were whether the operation was negligently performed and, if so, the standard of care required of a medical practitioner in performing such a procedure. The court had to consider the onus of proof and the probable time the accidental severing occurred, along with the influence of specialist medical witness evidence in establishing the standard of care. The appeal was based on the assertion that the District Court erred in its assessment of the evidence and the applicable standard of care.

The court found that the District Court did indeed err in its assessment of the evidence, particularly in relation to the probable time the artery was severed. The appellate court placed significant weight on the specialist medical witness's evidence, which provided a clear standard of care that Dr Pashley had not met. The appeal was allowed on the basis that the District Court had misapplied the evidence, and the judgment was set aside. The court ordered a new judgment in favour of Mr Sauer against Dr Pashley and directed that Dr Pashley pay Mr Sauer's costs of the action, including the appeal. The court determined that the appeal costs fund was applicable as the appeal succeeded on a question of fact rather than law.

Orders

Orders of the court

Appeal allowed.

Judgment given in the District Court set aside.

Judgment for the appellant against the respondent entered.

Respondent to pay the appellant’s costs of the action, including the appeal, to be assessed.

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

Full text does not contain this section.

CITATION:	Sauer v Pashley [2000] QCA 32
PARTIES:	TREVOR WILLIAM SAUER (first defendant/appellant) v BRIAN PETER PASHLEY (plaintiff/respondent)
FILE NO/S:	Appeal No 4604 of 1999 DC No 3947 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 February 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 February 2000
JUDGES:	de Jersey CJ, McPherson JA, Byrne J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Appeal allowed. Judgment given in the District Court set aside. Judgment for the appellant against the respondent entered. Respondent to pay the appellant’s costs of the action, including the appeal, to be assessed.
CATCHWORDS:	PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – LIABILITY IN TORT TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – artery accidentally severed in course of performing vasectomy causing considerable pain and suffering – whether operation negligently performed – onus of proof – probable time accidental severing occurred – influence of specialist medical witness’ evidence in establishing standard of care APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – APPEAL COSTS FUND – whether applicable – appeal succeeded on a question of fact not law Appeal Costs Fund Act (Qld)1973, s 15 Rogers v Whitaker (1992) 175 CLR 479 Vella v Larson [1982] QdR 298
COUNSEL:	Mr DH Tait for the appellant Mr K Dorney QC; with him Ms K Philipson for the respondent
SOLICITORS:	Flower & Hart for the appellant Peter Wallace & Co for the respondent