Talbot & Anor v Lusby - [1995] QSC 143

IN THE SUPREME COURT

OF QUEENSLAND No. 1899 of 1992

[Talbot & Anor. v Lusby]

BETWEEN:
  KERRY ELLEN TALBOT
  First Plaintiff
AND:
  MARK TALBOT
  Second Plaintiff
AND:
  HENRY LINDSAY JOHN LUSBY
  Defendant

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 14th day of July, 1995

Kerry Talbot is dying of cancer. She is only 37. Probably she has but a few months to live, perhaps only a few weeks. The cancer started in her right breast but it spread to her lymph nodes, her spine and her liver. She is undergoing treatment but it is only palliative - to relieve the symptoms. She found out about it in December 1991. At that stage the cancer was already in her lymph nodes and her back. It was already incurable.

She comes to Court alleging that her doctor was negligent. He is the defendant in these proceedings. She says that had he exercised due care from the time in 1989 when she first complained to him of a lump in the breast, it would probably have been diagnosed as cancer and it would have been treated. Had it been treated promptly, she alleges, her prognosis would have been good. She claims she has lost that relatively good chance of survival, has suffered pain and stress and has lost money as a result of his negligence.

Her husband Mark is also a plaintiff in this action. He is claiming damages for loss of consortium: including loss of partnership income; certain economic loss; and (to the extent to which such damages are not allowed as part of Mrs. Talbot's claim) damages for loss of services.

Dr. Lusby is now aged 71. He graduated in medicine in 1947 and from 1960 onwards he was qualified and registered as a general surgeon. From that year until about 1972 he practised in general surgery on Wickham Terrace and was Honorary Visiting General Surgeon at the Mater Hospital. He subsequently commenced general practice at Ascot, and was so engaged in 1989. During his surgical experience, working in big hospitals, he saw some 10-15 cases of breast cancer each year. After giving up surgery he saw one to three such cases per year. He retired in December 1992.

History

Mrs. Talbot had been a patient of Dr. Lusby since at least 1974, when she was 16. He was then her family doctor. After she married in 1978 she continued as his patient, although her husband and children went elsewhere. She attended him for various reasons including pregnancy testing[1], and from time to time he examined her breasts. In 1974 she suffered a mamillary fistula, a discharging spot, on her left breast, and in 1981 a degree of mammary duct ectasia in the same breast. From time to time she had lumps in her breasts: "Just the usual lumps that ladies get around period time."[2]
[1] She has three children: Kate, born 1 November 1985; Ryan, born 3 March 1988; and Jarod, born 9 August 1991.
[2] To use her…

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 Talbot & Anor v Lusby

Details

AGLC: Talbot v Lusby [1995] QSC 143
Case: [1995] QSC 143
Decision Date: 14 July 1995

CaseChat Overview and Summary

The Supreme Court of Queensland heard a case between Kerry Ellen Talbot and her husband Mark Talbot against Henry Lindsay John Lusby, a general practitioner, for medical negligence. Kerry, who was suffering from breast cancer, alleged that Dr. Lusby failed to diagnose her condition in a timely manner, which resulted in delayed treatment and a worsened prognosis. Mark Talbot joined the action as he claimed damages for loss of consortium. Dr. Lusby denied the allegations and argued that he had provided reasonable care and attention to Kerry's condition.

The court found that Dr. Lusby was indeed negligent in his treatment of Kerry, as he failed to investigate her breast lump adequately and did not order further tests when necessary. The court held that if the lump had been detected earlier, there was a 90% chance that Kerry would have had a particularly good prognosis and could have been cured. The court awarded damages to Kerry for pain and suffering, loss of amenities, loss of expectation of life, past and future economic loss, and future costs. The damages were discounted by 15% to reflect the loss of a chance.

Mark Talbot was awarded damages for loss of consortium, which included the loss of services provided by Kerry, as well as the loss of comfort, companionship, and assistance typically provided by a wife in a marriage. The court declined to award damages for the period after Kerry's death, as there was insufficient authority to support such a claim.

The final orders of the court included damages for Kerry in the amount of $389,902.31, and damages for Mark in the amount of $32,339.10. The court also ordered that interest be paid on certain amounts of the awarded damages.

Orders