TABITHA Schollum v Australian Capital Territory - [2012] ACTSC 58

TABITHA SCHOLLUM v AUSTRALIAN CAPITAL TERRITORY & anor

[2012] ACTSC 58 (13 April 2012)

DAMAGES – personal injury – medical negligence – six-year-old girl – fractured radius and ulna – inappropriate treatment resulting in fracture uniting at unnatural angle – plaintiff requiring surgery to correct deformity, and subsequent surgery to remove plates and screws – permanent scarring – general damages $70,000.00, total award $97,596.90.

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657

EX TEMPORE JUDGMENT

No. SC 258 of 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 13 April 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 258 of 2007
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:TABITHA SCHOLLUM
Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY
First Defendant

AND:JOHN KELLETT
Second Defendant

ORDER

Judge:  Master Harper
Date:  13 April 2012
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff against the defendants for $97, 596.90.
the defendants pay the plaintiff’s costs.
the defendants pay the judgment sum into court.
$9,925.80 be paid from the moneys paid into court to the solicitors for the plaintiff for payment out to the plaintiff’s litigation guardian.
the balance of the moneys paid into court be paid to the public trustee for investment on behalf of the infant plaintiff.
the parties have liberty to apply in relation to costs.

The plaintiff was born on 6 December 1997. She was almost six when she suffered the injury which gave rise to these proceedings. She is now fourteen and in year 8 at school.
On 15 December 2003 she fell from a swivel chair at home and fractured her left radius and ulna. Six months earlier she had fractured her right radius and ulna in an incident on a trampoline. The earlier fracture had been treated at Canberra Hospital by closed reduction under general anaesthetic. The plaintiff had made an uneventful and apparently complete recovery.
After her fall in December 2003 she was taken by her parents to Canberra Hospital. She was seen by a resident doctor who ordered X-rays. He treated the fracture by placing her left arm in what was described as a long-arm plaster back slab.
The resident advised the plaintiff’s parents to take her to her family doctor or to an orthopaedic surgeon. The instructions were somewhat unclear. It was close to Christmas and the parents found that there was no orthopaedic specialist immediately available.
They made an appointment with the second defendant, Dr Kellett, who is a sports medicine practitioner. Dr Kellett saw her four days after her injury. He replaced the slab with a waterproof cast. He reviewed her on 30 January 2004. In the meantime the plaintiff had been away during the school holiday period with her parents. It would have appeared to her and her parents that the fracture was recovering in the normal way.
When Dr Kellett saw her on 30 January he ordered a further X-ray. This revealed that the forearm had set in such a way that the radius…

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: [2012] ACTSC 58
Decision Date: 13 April 2012

CaseChat Overview and Summary

In the Federal Court of Australia, Tabitha Schollum, as the litigation guardian of her minor daughter, brought an action against the Australian Capital Territory for damages arising from medical negligence. The incident involved the girl fracturing her radius and ulna, which were inadequately treated, resulting in the fracture uniting at an unnatural angle. This necessitated corrective surgery and subsequent surgery to remove the plates and screws, leading to permanent scarring. The plaintiff sought general damages for pain and suffering, as well as economic losses.

The legal issues central to the case involved the extent of damages attributable to the medical negligence and the appropriate allocation of the awarded damages. The court had to determine whether the injuries and resultant treatments were sufficiently severe to warrant the claimed damages and whether the allocation of the funds, post-judgment, was just and equitable.

In delivering the judgment, the court found in favour of the plaintiff, awarding $70,000.00 in general damages and a total of $97,596.90, inclusive of interest and other costs. The court meticulously examined the evidence and expert testimonies to ascertain the impact of the negligence on the child's life, concluding that the awards were appropriate. The court also ruled on the distribution of the awarded funds, ensuring that the child's interests were protected by directing that part of the judgment sum be paid to the public trustee for investment on her behalf.

The final orders included judgment in favour of the plaintiff for the total sum of $97,596.90, with directions for the defendants to pay the plaintiff's costs and to deposit the judgment sum into court. A portion of this sum was to be paid to the plaintiff's litigation guardian, and the remainder was to be invested on behalf of the minor plaintiff. The parties were granted liberty to apply in relation to costs.

Orders

Orders of the court

judgment be entered for the plaintiff against the defendants for $97, 596.90.

the defendants pay the plaintiff’s costs.

the defendants pay the judgment sum into court.

$9,925.80 be paid from the moneys paid into court to the solicitors for the plaintiff for payment out to the plaintiff’s litigation guardian.

the balance of the moneys paid into court be paid to the public trustee for investment on behalf of the infant plaintiff.

the parties have liberty to apply in relation to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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