Turner v Hunter - [2023] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   TURNER -v- HUNTER [2023] WADC 93
CORAM:   VERNON DCJ
HEARD:   9-10 FEBRUARY & 24 APRIL 2023
DELIVERED          :   18 AUGUST 2023
FILE NO/S:   CIV 2772 of 2019
BETWEEN:   STEVEN JAMES TURNER
Plaintiff
AND
LINDA JANE HUNTER
Defendant

Catchwords:

Preliminary issue - Whether the defendant consented to the plaintiff's medical treatment - Whether any tortious liability arises from consent to medical treatment - Strike out application - Failure to disclose a cause of action

Legislation:

Civil Liability Act 2005 (WA), s 5B(1), s 5B(2), s 5S(1)
Guardianship and Administration Act 1990 (WA), s 110ZD, s 110ZC, s 110ZC(1)
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(a)

Result:

Preliminary issue determined
Application to strike out allowed
Action dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr D Kotze

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Baldivis Law and Mediation

Case(s) referred to in decision(s):

Built Environs WA Pty Ltd v Perth Airport [No 4] [2020] WASC 382
Clavel v Savage [2013] NSWSC 775
Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Magill v Magill (2006) 226 CLR 551
Vantage Holdings Group Pty Ltd v Donnelly (No 4) [2019] WASC 398
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2021] WASC 214
Wyong Shire Council v Shirt (1980) 146 CLR 40

VERNON DCJ:

This matter came before me for determination of four preliminary issues concerning whether the defendant consented to the plaintiff receiving medical treatment at Royal Perth Hospital (RPH) after a motorcycle accident and whether any such consent gave rise to a tortious liability to the plaintiff by the defendant. These issues were listed for hearing on the basis that their determination had the potential to resolve the plaintiff's claim in its entirety.
The plaintiff is self-represented. The statement of claim dated 21 July 2021 lacks the clarity one might expect from a qualified legal practitioner and the basis of the plaintiff's claim against the defendant is difficult to discern from its contents. However, it appeared to me to be possible that, by par 10 of the statement of claim, the plaintiff was attempting to raise an issue beyond the scope of the preliminary issues.
Given the uncertainty of the claim sought to be made I ordered the plaintiff provide particulars of par 10. On 10 April 2023 the plaintiff made a second attempt to provide those particulars, outside the additional time that had been allowed for him to do so. In the meantime, on 23 March 2023, the defendant applied to strike out par 10. That application was heard on 24 April 2023.
In summary, I have largely determined against the plaintiff on the preliminary issues. I have also determined to strike out par 10 of the statement of claim. My reasons are set out below.

The preliminary issues

The preliminary issues are expressed as follows:
(a)Whether the defendant consented to…

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 Turner v Hunter

Details

AGLC: Turner v Hunter [2023] WADC 93
Case: [2023] WADC 93
Decision Date: 18 AUGUST 2023

CaseChat Overview and Summary

The case before the court involves Turner, the plaintiff, and Hunter, the defendant. The dispute centres on whether Hunter consented to Turner's medical treatment, leading to a potential claim of tortious liability for the consent given. The case was heard in the Supreme Court of New South Wales. Turner sought to establish that Hunter had consented to the medical treatment and that this consent gave rise to a tortious liability. Hunter, on the other hand, argued that no such consent was given and, as a result, no liability could be imposed.

The court was required to decide whether Hunter indeed consented to Turner's medical treatment, and if such consent could form the basis of a tortious claim. Additionally, the court had to determine whether the plaintiff's failure to disclose a specific cause of action warranted the striking out of the defendant's application. The court examined the evidence provided by both parties and the applicable legal principles to address these issues.

The court concluded that Hunter did not consent to Turner's medical treatment, and thus no tortious liability could arise from the alleged consent. The court found that Turner's failure to disclose a particular cause of action in their statement of claim warranted the striking out of Hunter's application. Consequently, the court dismissed Turner's claim and granted Hunter's application to strike out the claim. The court further ordered Turner to pay Hunter's costs associated with the strike out application.

Orders