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Williams v Fraser

Williams v Fraser

Case [2021] NSWSC 416 20 May 2021

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Williams v Fraser [2021] NSWSC 416
Hearing dates: 15-18, 22, 24-26, 29 June, 1 July and 22 September 2020
Date of orders: 20 May 2021
Decision date: 20 May 2021
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Judgment for the defendants.
(2) Costs reserved.

Catchwords:
MEDICAL NEGLIGENCE – 18 year old plaintiff with undiagnosed congenital pars defect – where radiologist failed to report on the existence of the defect in mid-2012 – where radiologist admitted breach of duty – where plaintiff alleges that she complained of symptoms to orthopaedic specialist that were indicative of her congenital condition – where orthopaedic surgeon denies any such complaint – where plaintiff not thereafter treated conservatively – where plaintiff subsequently required spinal surgery in mid-2013 – whether plaintiff’s loss and damage caused by radiologist’s breach – whether conservative management of the condition during intervening 12 months would have avoided deterioration of her condition or the need for surgery with severe consequences or whether the outcome was unavoidable even if correctly treated and managed – standard of proof – whether plaintiff established loss and damage on balance of probabilities or merely a statistical chance that her condition could have been successfully managed without surgery if diagnosed earlier

Legislation Cited:
Civil Liability Act 2002 (NSW), Part 1A, ss 5B, 5D, 5I, 5O

Cases Cited:
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Bergman v Haertsch [2000] NSWSC 528
Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 464
Browne v Dunn (1893) 6 R 67
Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42
Najdovski v Crnojlovic [2008] NSWCA 175
Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403
Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12

Category: Principal judgment
Parties: Hailee Williams (Plaintiff)
John Fraser (First Defendant)
Michael Stening (Second Defendant)
Representation:
Counsel:
J Morris SC with P D'Arcy-King (Plaintiff)
J Downing (First and Second Defendants)
Solicitors:
Gordon Legal (Plaintiff)
HWL Ebsworth (First and Second Defendants)

File Number(s): 2015/153227
Publication restriction: Nil

Judgment

HIS HONOUR: Hailee Williams was born in March 1994. By June 2009, when she was 15, Ms Williams had developed pain in her left hip. She consulted her general practitioner about this who referred her in November that year to Dr Michael Stening. Dr Stening reported on 21 November 2009 that Ms Williams suffered from “iliac apophysitis left anterior superior iliac spine”. Between June 2010 and May 2012, Ms Williams continued to experience, and to complain to her general practitioner of, pain in…

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 Williams v Fraser

Details

AGLC: Williams v Fraser [2021] NSWSC 416
Case: [2021] NSWSC 416
Decision Date: 20 May 2021

CaseChat Overview and Summary

Williams v Fraser involved an 18-year-old plaintiff who alleged that she suffered due to a radiologist's failure to report on a congenital pars defect in mid-2012. The plaintiff claimed that she had complained of symptoms indicative of her condition to an orthopaedic specialist, who denied any such complaint. The plaintiff was not treated conservatively, and she subsequently required spinal surgery in mid-2013. The plaintiff alleged that the radiologist's breach of duty caused her loss and damage, and she sought to establish this on the balance of probabilities.

The legal issues before the court were whether the plaintiff's loss and damage were caused by the radiologist's breach, whether conservative management during the intervening period would have avoided deterioration or the need for surgery, and whether the outcome was unavoidable even with correct treatment. The court also had to consider the standard of proof required to establish that the plaintiff's condition could have been successfully managed without surgery if diagnosed earlier.

The court found that the radiologist had indeed breached their duty of care by failing to report the congenital pars defect. However, the court held that the plaintiff had not established on the balance of probabilities that conservative management during the intervening period would have avoided deterioration or the need for surgery. The court concluded that the outcome was likely unavoidable even if the defect had been correctly diagnosed and managed. Consequently, the court found in favour of the defendant, ruling that the plaintiff had not met the requisite standard of proof to establish that her condition could have been successfully managed without surgery if diagnosed earlier.

The court ordered that the plaintiff's claim be dismissed, and that the defendant was not liable for the plaintiff's loss and damage. The court emphasised the importance of the plaintiff establishing on the balance of probabilities that the outcome would have been different if the defect had been correctly diagnosed and managed.

Orders