ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :JENKINS DCJ
Citation  :[2003] WADC 145
File No  :CIV 399 of 2001

Catchwords:

Appeal - Negligence - Medical practitioner - Post operative treatment - Breaching duty of care - Causation - Subsequent negligent administration of antibiotics - Damages

Legislation:

Nil

Result:

The appeal succeeds against both respondents

Category: B

Representation:

Counsel:

Appellant:     Mr C L Zelestis QC & Mr T Lampropoulos
First Respondent           :     Mr J Gilmour QC & Mr E A Panetta
Second Respondent       :     Mr J Gilmour QC & Mr E A Panetta

Solicitors:

Appellant:     Hoffmans
First Respondent           :     Clayton Utz
Second Respondent       :     Clayton Utz

Case(s) referred to in judgment(s):

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Chappel v Hart (1998) 195 CLR 232
Fox v Percy (2003) 214 CLR 118
Halley v Chudleigh [1963] ALR 616
Naxakis v Western General Hospital (1999) 197 CLR 269
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 11
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Sharman v Evans (1977) 138 CLR 563
Tran v Claydon [2003] WASCA 318
Water Board v Moustakas (1988) 180 CLR 491

Case(s) also cited:

Anikin v Sierra (2004) 79 ALJR 452
Hayden v NRMA [2000] NSWCA 374; (2000) 51 NSWLR 1
Jones v Bartlett (2000) 205 CLR 166
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

MALCOLM CJ: I have had the benefit of reading in draft the reasons to be published by McLure JA and Le Miere AJA. The relevant facts and circumstances have been fully set out in those reasons. In particular, I respectfully agree with the summary by McLure JA of the facts and the issues raised in the appeal and the cross‑appeal by the second respondent against the assessment of damages for the negligent administration of the antibiotic gentamicin.
McLure JA has convincingly demonstrated that the learned trial Judge was in error in failing to find that the second respondent was negligent to conclude that the conclusion was chronic rather than acute. The error was the result of the application of the wrong approach to the resolution of the issue. As McLure JA has demonstrated, the evidence did not justify a finding that the appellant suffered from pre‑operative ischaemia or had any cause for ischaemia in his…

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 Strempel v Wood

Details

AGLC: Strempel v Wood [2005] WASCA 163
Case: [2005] WASCA 163
Decision Date: 29 AUGUST 2005

CaseChat Overview and Summary

Strempel v Wood is an appeal against the decision of the Supreme Court of New South Wales, where the plaintiff, Strempel, sought compensation for damages resulting from alleged medical negligence. The dispute concerns the care provided by the defendant, Dr. Wood, a medical practitioner, following a surgical procedure. The plaintiff claims that Dr. Wood breached his duty of care by administering antibiotics negligently, which subsequently led to additional injuries.

The primary legal issues before the court were whether Dr. Wood breached his duty of care to the plaintiff and if such a breach was the cause of the plaintiff's additional injuries. The court had to determine if the antibiotics administered by Dr. Wood were indeed negligent and whether this negligence directly caused the plaintiff's damages. Additionally, the court needed to assess the extent to which the plaintiff's damages could be attributed to Dr. Wood's actions.

In its decision, the court found that Dr. Wood did indeed breach his duty of care by administering the antibiotics negligently. The court held that the administration of the antibiotics was not only a deviation from the standard of care expected but also directly caused the plaintiff's subsequent injuries. The court found that the causation link between the negligent administration of antibiotics and the plaintiff's damages was sufficiently established. The court awarded damages to the plaintiff, reflecting the extent of the harm caused by Dr. Wood's negligence.

Orders