Veitch v Connor

Case [2023] WADC 38


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   VEITCH -v- CONNOR [2023] WADC 38

CORAM:   GETHING DCJ

HEARD:   26-28 APRIL, 17-18 OCTOBER 2022, 27 FEBRUARY, 1 & 3 MARCH 2023

DELIVERED          :   31 MARCH 2023

FILE NO/S:   CIV 2118 of 2018

BETWEEN:   JULIA ANN VEITCH

Plaintiff

AND

DANIEL IGNATIUS CONNOR

Defendant


Catchwords:

Solicitors' negligence - Solicitor allowed the plaintiff's common law claim against a medical practitioner to be dismissed pursuant to District Court Rules 2005 (WA) r 44G - Assessment of the value of the lost opportunity to pursue the dismissed claim - Assessment of past and future medical expenses in a loss of opportunity claim - Whether surgical decisions of an ophthalmologist were outside practices that were widely accepted by the health professional's peers as competent professional practice - Failure to warn of material risks - res ipsa loquitur - Scope of the non-delegable duty of care of a hospital

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C, s 5PB
District Court Rules 2005 (WA), s 44G

Result:

Judgment for the plaintiff in the amount of $4,267.80

Representation:

Counsel:

Plaintiff : Ms R L Sorgiovanni
Defendant : Mr G P Bourhill SC

Solicitors:

Plaintiff : Soul Legal
Defendant : Popperwell & Co

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72

Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229

CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117

Child and Adolescent Health Service v Sunday John Mabior (by his Next Friend Mary Kelei) [2019] WASCA 151

CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1

East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147

Ellis (by his Next Friend Christoper Graham Ellis) v East Metropolitan Health Service [2018] WADC 36

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510

F v R (1983) 33 SASR 189

Falkingham v Hoffmans (a firm) [2014] WASCA 140

Fazio v Fazio [2012] WASCA 72

Finlay v The State of Western Australia [2012] WADC 132

Golden Eagle International Training Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498

Griffiths v Kerkemeyer (1977) 139 CLR 161

Grincelis v House [2000] HCA 42; (2000) 201 CLR 321

Hammond Worthington v Da Silva [2006] WASCA 180

Hodges v Frost (1984) 53 ALR 373

Holtman v Sampson [1985] 2 Qd R 472

Houlahan v Pitchen [2009] WASCA 104

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138

J-Corp Pty Ltd v Thompson [2019] WASCA 173

John James Memorial Hospital Ltd v Keys [1999] FCA 678

Jordan v Lee [2012] WADC 74

Kondis v State Transport Authority (1984) 154 CLR 672

Lawson v Minister for…

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Veitch v Connor [2023] WADC 38
Case
[2023] WADC 38
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CaseChat Overview and Summary

The case of Veitch v Connor involved the plaintiff, Veitch, who sued the defendant, Connor, for professional negligence. The plaintiff alleged that Connor, acting as Veitch's solicitor, failed to properly pursue a common law claim Veitch had against a medical practitioner. As a result, Veitch's claim was dismissed under rule 44G of the District Court Rules 2005 (WA). The court was tasked with assessing the value of the lost opportunity to pursue the dismissed claim, as well as the past and future medical expenses in a loss of opportunity claim. Additionally, the court had to determine whether the surgical decisions of an ophthalmologist were outside practices that were widely accepted by the health professional's peers as competent professional practice, and whether there was a failure to warn of material risks. The case also raised issues regarding the application of res ipsa loquitur and the scope of the non-delegable duty of care of a hospital.

The court examined the standard of care expected of a solicitor in this situation, and whether Connor's actions fell below that standard. The court also considered the extent to which the plaintiff's lost opportunity to pursue the dismissed claim could be valued, and how this related to the assessment of past and future medical expenses. In relation to the ophthalmologist's decisions, the court examined whether they were in line with accepted medical practice, and whether the failure to warn of material risks constituted a breach of duty. The application of res ipsa loquitur and the scope of the non-delegable duty of care of a hospital were also examined in the context of the case.

The court found that Connor had indeed fallen below the standard of care expected of a solicitor, leading to the dismissal of Veitch's claim against the medical practitioner. The court assessed the value of the lost opportunity to pursue the dismissed claim, taking into account the past and future medical expenses. The court determined that the ophthalmologist's decisions were within accepted medical practice, and that there was no failure to warn of material risks. The application of res ipsa loquitur was deemed inapplicable in this case, and the scope of the non-delegable duty of care of a hospital was clarified. The court ruled in favour of Veitch, awarding damages for the solicitor's negligence.

The court ordered Connor to pay Veitch compensation for the losses suffered as a result of the solicitor's negligence. The amount of compensation was determined based on the value of the lost opportunity to pursue the dismissed claim, as well as the past and future medical expenses. The court also provided clarification on the scope of the non-delegable duty of care of a hospital, and the application of res ipsa loquitur in similar cases. The ruling in Veitch v Connor serves as an important reminder of the importance of maintaining a high standard of care in the provision of legal services, as well as the need for medical professionals to adhere to accepted practices and to properly inform patients of material risks.

Orders

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Background to the litigation

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Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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