Sullivan Nicolaides Pty Ltd v Papa - [2011] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

Sullivan Nicolaides Pty Ltd v Papa [2011] QCA 257

PARTIES:

SULLIVAN NICOLAIDES PTY LTD
ACN 078 202 196
(appellant)
v
ANTOINETTE PAPA
(respondent)

FILE NO/S:

Appeal No 11479 of 2010
SC No 1588 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2011

JUDGES:

Margaret McMurdo P and Margaret Wilson AJA and Martin J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Martin J concurring as to the order made, Margaret Wilson AJA dissenting

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – DUTY TO WARN OF RISKS – where the respondent had an artificial mechanical valve inserted in her heart – where as a consequence of this the respondent was required to take anti-coagulant medication, Warfarin – where the appellant was engaged to analyse the respondent’s blood and advise her on the correct dosage of that medication – where the appellant advised the respondent that it would no longer perform those tasks – where two days later the respondent suffered a stroke caused by a blood clot which resulted in severe disabilities – where at trial the respondent claimed the appellant had been negligent in a number of respects – where the trial judge found that the appellant should have given certain advice to the respondent’s general practitioner – where the trial judge found that the appellant had not given that advice and that had it done so the respondent’s treatment would have changed and the respondent would not have suffered a stroke – where the appellant argues that the trial judge erred in not characterising the respondent’s claim as a loss of a chance of a better medical outcome – where the appellant argues that the trial judge erred in not considering the medical outcome of the alternative treatment – where the appellant contends that the trial judge’s finding of liability is not supported by the evidence – where the appellant further argues that the trial judge’s finding that the respondent’s general practitioner would have referred the respondent to her cardiologist is contrary to the evidence – where the appellant contends there is no evidence of causation – where the appellant further argues that the learned trial judge erred in failing to assess the evidence prospectively and used unjustified hindsight – whether the learned trial judge erred in his finding of liability

Arkinstall v Jenkins [2001] QSC 421, cited
Arndt v Smith (1997) 148 DLR (4th) 48; [1997] 2 SCR 539, considered
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55, cited
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, cited
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, considered
F v R (1983) 33 SASR 189, considered
Firth…

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: [2011] QCA 257
Decision Date: 27 September 2011

CaseChat Overview and Summary

Sullivan Nicolaides Pty Ltd, an entity engaged in pathology analysis, appealed against a decision that found it liable in negligence for failing to provide appropriate advice to a patient who had suffered severe disabilities due to a stroke. The patient, who had an artificial mechanical valve in her heart, was required to take Warfarin, an anti-coagulant medication, and Sullivan Nicolaides was tasked with analysing her blood and advising on the correct dosage. After the entity withdrew from this service, the patient suffered a stroke due to a blood clot, resulting in severe disabilities. At trial, the patient alleged that Sullivan Nicolaides had been negligent in several respects. The trial judge held that the entity should have advised the patient's general practitioner but did not, and that had it done so, the patient's treatment would have changed and the stroke could have been avoided.

The appeal centred on whether the trial judge correctly assessed the patient's claim, specifically whether the patient had lost a chance of a better medical outcome. Sullivan Nicolaides argued that the trial judge had erred by not considering the medical outcomes of alternative treatments and by failing to assess the evidence prospectively. Additionally, the entity contended that the trial judge's finding of causation was not supported by the evidence and that the judge incorrectly assumed the patient's general practitioner would have referred her to her cardiologist. Sullivan Nicolaides further argued that the trial judge had used hindsight in assessing the evidence.

The court found that the trial judge did not err in characterising the patient's claim. The evidence supported the trial judge's findings that Sullivan Nicolaides had a duty to provide the patient's general practitioner with advice that could have altered the patient's treatment and prevented the stroke. The trial judge's assessment of the evidence was not retrospective but based on the circumstances as they existed at the time of the alleged negligence. The appeal was dismissed, and the decision of the trial judge was upheld, with Sullivan Nicolaides ordered to pay costs.

Orders

Orders of the court

Appeal dismissed with costs.

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:	Sullivan Nicolaides Pty Ltd v Papa [2011] QCA 257
PARTIES:	SULLIVAN NICOLAIDES PTY LTD ACN 078 202 196 (appellant) v ANTOINETTE PAPA (respondent)
FILE NO/S:	Appeal No 11479 of 2010 SC No 1588 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	27 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2011
JUDGES:	Margaret McMurdo P and Margaret Wilson AJA and Martin J Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Martin J concurring as to the order made, Margaret Wilson AJA dissenting
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – DUTY TO WARN OF RISKS – where the respondent had an artificial mechanical valve inserted in her heart – where as a consequence of this the respondent was required to take anti-coagulant medication, Warfarin – where the appellant was engaged to analyse the respondent’s blood and advise her on the correct dosage of that medication – where the appellant advised the respondent that it would no longer perform those tasks – where two days later the respondent suffered a stroke caused by a blood clot which resulted in severe disabilities – where at trial the respondent claimed the appellant had been negligent in a number of respects – where the trial judge found that the appellant should have given certain advice to the respondent’s general practitioner – where the trial judge found that the appellant had not given that advice and that had it done so the respondent’s treatment would have changed and the respondent would not have suffered a stroke – where the appellant argues that the trial judge erred in not characterising the respondent’s claim as a loss of a chance of a better medical outcome – where the appellant argues that the trial judge erred in not considering the medical outcome of the alternative treatment – where the appellant contends that the trial judge’s finding of liability is not supported by the evidence – where the appellant further argues that the trial judge’s finding that the respondent’s general practitioner would have referred the respondent to her cardiologist is contrary to the evidence – where the appellant contends there is no evidence of causation – where the appellant further argues that the learned trial judge erred in failing to assess the evidence prospectively and used unjustified hindsight – whether the learned trial judge erred in his finding of liability Arkinstall v Jenkins [2001] QSC 421, cited Arndt v Smith (1997) 148 DLR (4th) 48; [1997] 2 SCR 539, considered Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55, cited Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, cited Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, considered F v R (1983) 33 SASR 189, considered Firth…