Snezana Susan Vacic v David Roger Salter

[2012] HCASL 121

SNEZANA SUSAN VACIC

v

DAVID ROGER SALTER

[2012] HCASL 121
B20/2012

1. On 4 December 1992, the respondent, a now retired obstetrician and gynaecologist, performed a total abdominal hysterectomy and left salpingo-oophorectomy on the applicant ("the procedure"), who was his patient from October 1988 until August 1994.  The applicant commenced proceedings in the Supreme Court of Queensland for personal injury and other loss and damage which she claimed she had suffered as a result of the respondent's negligence, breach of contract and/or misleading or deceptive conduct.  The applicant claimed, inter alia, that the respondent had failed to advise her about risks associated with the procedure, performed the hysterectomy unnecessarily, and failed to investigate the nature of the applicant's illness and the availability of alternative treatments.

2. On 29 April 2003, the primary judge (Helman J) gave judgment for the respondent.  His Honour was not satisfied that the respondent was guilty of negligence or breaches of contract or had made misleading or deceptive representations.  The decision to perform the procedure and its performance were competent, and the applicant had been properly advised and her consent properly obtained.  Apart from an infection of no moment, there were no untoward effects of the operation.  There was evidence that the applicant became mentally ill, but this was causally unrelated to the procedure and could not possibly have been foreseen.

3. On 16 March 2012, the Court of Appeal of the Supreme Court of Queensland refused an application for an extension of time in which to appeal against the primary judge's decision.  McMurdo P (with whom Chesterman JA and Margaret Wilson AJA agreed) held that there had been no satisfactory explanation for the eight and a half year delay in filing the application.  Were the extension of time granted, the respondent would suffer real prejudice.  Further, her Honour rejected the applicant's challenges to the primary judge's factual findings and held that the applicant had not demonstrated that an appeal would enjoy any prospects of success. 

4. The applicant's principal contention is that the hysterectomy was unnecessary.  The applicant has not raised any question of law that would justify the grant of special leave to appeal and the interests of justice do not require such a grant.  There is no reason to doubt the correctness of the Court of Appeal's decision. Special leave is refused.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow
15 August 2012 S.M. Kiefel