Tamworth Base Hospital v Durant - [2000] NSWCA 209

CITATION: Tamworth Base Hospital & Anor v Durant [2000] NSWCA 209 revised - 30/04/2007

FILE NUMBER(S): CA 40033/98

HEARING DATE(S): 5/6 October 1999

JUDGMENT DATE:
8 August 2000

PARTIES :

Tamworth Base Hospital, A.W.Oliver and G. Russell as Executors of the Estate of the late Bryant Lewis Bedville v Terence Paul Durant

JUDGMENT OF: Priestley JA at 1; Handley JA at 60; Fitzgerald JA at 167

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : CLD 11919/80

LOWER COURT
JUDICIAL OFFICER : Murray AJ and Master Greenwood

COUNSEL: Appellant - P.L.G. Brereton SC
Respondent - J.D. Hislop QC / R. Stanton

SOLICITORS: Appellant - Blake Dawson Waldron
Respondent - Brock Partners

CATCHWORDS: Professional negligence (medical) - Appeal attacking judge's fact finding

LEGISLATION CITED: Motor Accidents Act

CASES CITED:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 CA
Birkett v James [1978] AC 297
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209
Bourke v MacNeil [2000] NSWCA 144
Bunning v Cross (1978) 141 CLR 54
Commonwealth v Verwayen (1990) 170 CLR 394
Crowley v Glissan (1905) 2 CLR 402
Fowkes v Parker [1999] NSWCA 442
In the Will of Gilbert (1946) 46 SR (NSW) 318
Hitchcock v Cameron [1977] 1 NZLR 85
Karabotsos v Plastex Industries Pty Ltd [1981] VR 675
Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639
Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd (CA, unreported, 5/12/90)
March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506
Meng Leong Development Pte Ltd v Jip Hong Trading Co Pte Ltd
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223
Naxakis v Western General Hospital (1999) 197 CLR 269
Plunkett v Bull (1915) 19 CLR 544
Ramton v Cassin (1995) 38 NSWLR 88
Roebuck v Mungovin [1994] 2 AC 224
Rogers v Whitaker (1992) 175 CLR 479
SRA (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Stollznow v Calvert [1980] 2 NSWLR 749
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
VACC Insurance Ltd v B P Australia Ltd (1999) 47 NSWLR 716
Whittaker v Federal Commissioner of Taxation (1998) 153 ALR 334

DECISION: Appeal allowed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40033/98
CLD 11919/80
PRIESTLEY JA
HANDLEY JA
FITZGERALD JA
Tuesday, 8 August 2000

TAMWORTH BASE HOSPITAL & ANOR v DURANT

PROFESSIONAL NEGLIGENCE (MEDICAL) - APPEAL ATTACKING JUDGE’S FACT FINDING - The respondent’s broken leg was attended to by a general practitioner on call at a country hospital (1978). The leg was later amputated (1983). The respondent claimed the loss of the leg was due to the general practitioner’s (and vicariously the hospital’s) neglect. (He had commenced proceedings in 1980 before the amputation.) In 1994 the Prothonotary refused to dismiss the proceedings for want of prosecution. After a trial in 1997 before a judge alone, the appellants were held liable.
The…

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: [2000] NSWCA 209
Decision Date: 8 August 2000

CaseChat Overview and Summary

Tamworth Base Hospital (appellant) appealed a decision of the Supreme Court of New South Wales concerning a claim of professional negligence brought by Mr Durant (respondent). The dispute centred on the medical treatment provided to Mr Durant at Tamworth Base Hospital.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in their findings of fact regarding the appellant's alleged negligence. Specifically, the appeal questioned the factual basis upon which the finding of negligence was made.

The Court of Appeal allowed the appeal, finding that the primary judge's factual findings were not supported by the evidence. The court determined that the evidence did not establish the necessary elements to prove professional negligence on the part of the Tamworth Base Hospital. Consequently, the appeal was allowed, and the orders of the Supreme Court were set aside.

Orders

Orders of the court

Appeal allowed.

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:	Tamworth Base Hospital & Anor v Durant [2000] NSWCA 209 revised - 30/04/2007
FILE NUMBER(S):	CA 40033/98
HEARING DATE(S):	5/6 October 1999
JUDGMENT DATE:	8 August 2000
PARTIES :	Tamworth Base Hospital, A.W.Oliver and G. Russell as Executors of the Estate of the late Bryant Lewis Bedville v Terence Paul Durant
JUDGMENT OF:	Priestley JA at 1; Handley JA at 60; Fitzgerald JA at 167

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	CLD 11919/80
LOWER COURT JUDICIAL OFFICER :	Murray AJ and Master Greenwood

COUNSEL:	Appellant - P.L.G. Brereton SC Respondent - J.D. Hislop QC / R. Stanton
SOLICITORS:	Appellant - Blake Dawson Waldron Respondent - Brock Partners
CATCHWORDS:	Professional negligence (medical) - Appeal attacking judge's fact finding
LEGISLATION CITED:	Motor Accidents Act
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 CA Birkett v James [1978] AC 297 Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 Bourke v MacNeil [2000] NSWCA 144 Bunning v Cross (1978) 141 CLR 54 Commonwealth v Verwayen (1990) 170 CLR 394 Crowley v Glissan (1905) 2 CLR 402 Fowkes v Parker [1999] NSWCA 442 In the Will of Gilbert (1946) 46 SR (NSW) 318 Hitchcock v Cameron [1977] 1 NZLR 85 Karabotsos v Plastex Industries Pty Ltd [1981] VR 675 Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd (CA, unreported, 5/12/90) March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 Meng Leong Development Pte Ltd v Jip Hong Trading Co Pte Ltd National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 Naxakis v Western General Hospital (1999) 197 CLR 269 Plunkett v Bull (1915) 19 CLR 544 Ramton v Cassin (1995) 38 NSWLR 88 Roebuck v Mungovin [1994] 2 AC 224 Rogers v Whitaker (1992) 175 CLR 479 SRA (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Stollznow v Calvert [1980] 2 NSWLR 749 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 VACC Insurance Ltd v B P Australia Ltd (1999) 47 NSWLR 716 Whittaker v Federal Commissioner of Taxation (1998) 153 ALR 334
DECISION:	Appeal allowed.