Tattoli v Ali No. DCCIV-97-641 - [2000] SADC 143

DOMINIC TATTOLI v SAMSHER ALI
[2000] SADC 143

Judge Lunn
Civil

Background

The defendant was born and raised in Fiji where he obtained his basic medical qualifications. Thereafter, he spent about five years in New Zealand doing post graduate training in general surgery. This included some training and experience in orthopaedic surgery. In 1988 he obtained his Fellowship of the Royal Australian College of Surgeons as a general surgeon. He practised in various places as a general surgeon in some of which he did some, but not a great deal of, orthopaedic work.
In 1991 the defendant obtained a position as a Senior Surgical Registrar in the Colorectal Unit of the Queen Elizabeth Hospital in Adelaide. While there he performed orthopaedic hip surgery on a Mrs Mather. (The written reply of the plaintiff’s counsel asserts that this operation was at Port Pirie, but T953, T954 and T957, while not clear cut, suggest that it was at the Queen Elizabeth Hospital.) She died soon after the operation although the defendant said it was from causes unrelated to the operation. A Dr Shepherd, who had assisted the defendant in the conduct of this operation, made some complaint about the way in which the defendant had conducted this surgery. As a result the defendant had some discussions with Professor Bauze, who was the President of the Association of Orthopaedic Surgeons in South Australia, about the circumstances in which the defendant should perform orthopaedic surgery. Precisely what was communicated by Professor Bauze to the defendant was the subject of dispute and I will return to it later in these reasons.
In late 1991 the defendant took up a position of a general rural surgeon attached to the Port Pirie Hospital (“the Hospital”). The category of general rural surgeon is a relatively new one. It is for surgeons based in rural regional areas and envisages they will carry out a wide range of general surgery within their areas of competence. It encompassed the defendant performing some orthopaedic surgery, particularly of an urgent nature, but in the defendant’s case it was subject to certain conditions which had been arranged with Professor Bauze. The defendant developed a busy general surgical practice in both Port Pirie and other northern towns.
There was an xray facility at the Hospital. Xrays were taken and developed there. Once developed the xrays were available for immediate inspection by the doctor who had ordered them. Copies of the xrays were also sent to a radiologist’s practice in Adelaide. There they were examined by a specialist radiologist who provided a written report on what they disclosed. A copy of that report was sent to the doctor in Port Pirie who had ordered the xrays, but the doctor did not receive it until several days after the xrays had been developed.
In 1995 the defendant was the only surgeon resident in Port Pirie. There was no orthopaedic surgeon there. If any urgent orthopaedic surgery was required which was beyond the capabilities of the defendant, it…

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] SADC 143
Decision Date: 19 December 2000

CaseChat Overview and Summary

The plaintiff, Dominic Tattoli, sought damages from the defendant, Samsher Ali, for medical negligence arising from a fracture dislocation of the plaintiff's left ankle. The defendant performed a closed reduction of the ankle and applied a plaster cast but failed to refer the plaintiff to an orthopaedic surgeon, in breach of an arrangement with the Orthopaedic Association. The trial judge found that the plaintiff suffered a significant permanent residual disability in his left ankle due to the defendant's breach of duty. The judge assessed damages for loss of a valuable chance that the plaintiff's disabilities may have been significantly less if the defendant had fulfilled his duties. Damages were assessed at $57,100, including $8,000 for past economic loss, $15,000 for future economic loss, $10,000 for past non economic loss, $20,000 for future non economic loss, $300 for past special damages, $1,200 for future special damages, $100 for future gratuitous services, and $2,500 for pre-judgment interest. The defendant was also prevented from adducing a second report from Mr Munyard as expert evidence, as it was not obtained within the required time frame.

Orders