Wright v Minister for Health - [2016] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WRIGHT -v- MINISTER FOR HEALTH [2016] WADC 93

CORAM: SWEENEY DCJ

HEARD: 20-22 & 25-26 MAY 2015

DELIVERED : 23 JUNE 2016

FILE NO/S: CIV 3246 of 2013

BETWEEN: KRISTOFFER WRIGHT
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Medical negligence - Widely accepted practice - Failure to perform surgery - Delay in surgery

Turns on its own facts

Legislation:

Civil Liability Act 2002 s 5PB

Result:

Plaintiff's case dismissed

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Slater & Gordon
Defendant: SRB Legal

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

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 ALL ER 118
Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151; [1997] 4 ALL ER 771; [1998] AC 232
Bonnington Castings v Wardlaw [1956] UKHL 1; [1956] AC 613
Martin v Minister for Health [2016] WADC 15
Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479
Strong v Woolworths Ltd [2012] HCA 5
Woods v Director of Public Prosecutions (WA) (2008) 38 WAR 217

Table of Contents

Introduction

Common ground

The witnesses

General legal principles as to duty of care

Key issues to be determined

Conservative versus surgical treatment for calcaneal fractures

The medical literature

The expert witnesses' evidence concerning conservative versus surgical treatment generally

Mr Reza Salleh
Mr Tony Robinson
Professor Skirving

How the plaintiff's fracture has healed

What opportunity was there for the surgery to be performed by the defendant's staff?

Was the failure to operate negligent?

Mr Reza Salleh's evidence
Dr Kulaendra
Professor Allan Skirving's evidence
Mr Lam's evidence

Did Mr Lam examine the plaintiff's foot on 13 December 2010 or 17 January 2011?

The deterioration in the foot

Conclusions about the failure to perform surgery as at 17 January 2011

Failure to call for CT scans on 16 November 2010 and 17 January 2011

The discharge of the plaintiff from the outpatient clinic on 17 January 2011

General principles as to causation

Findings on causation - plaintiff's case fails

Did the delay in surgery from 16 November 2010 result in the articular surface damage?

Some comments on the evidence about damages

Provisional findings on quantum

Non-pecuniary loss

Special damages

Future medical expenses

Past care and assistance

Travel expenses past and future

Past loss of earnings

Loss of earning capacity

SWEENEY DCJ:

Introduction

On 12 October 2010, on his 25th birthday, the plaintiff was seriously injured in a motorcycle accident. He had gone out to dinner in the evening and had been drinking alcohol and had caught a taxi home. Unfortunately, in the early hours of the morning and while still well under the influence of alcohol, he made the disastrous decision to go for a drive on his motorbike. He does not remember the accident. He was seriously injured. He was treated at Fremantle Hospital and afterwards at its outpatient clinic.
This case concerns one of his numerous injuries: his…

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: [2016] WADC 93
Decision Date: 23 JUNE 2016

CaseChat Overview and Summary

In Wright v Minister for Health, the plaintiff sought damages for medical negligence arising from the defendant's failure to perform surgery and the delay in doing so. The case was heard in the Federal Court of Australia. The plaintiff claimed that the defendant's actions, or lack thereof, resulted in significant harm and that the delay in surgery exacerbated her condition. The defendant, representing the Minister for Health, argued that the decision not to operate was in line with widely accepted medical practices at the time.

The court had to determine whether the defendant's failure to perform surgery and the subsequent delay constituted negligence under the circumstances presented. This involved examining the standard of care expected of medical practitioners in similar situations, whether the defendant met that standard, and if the delay in surgery contributed to the plaintiff's harm. The court also had to consider the applicability of the defence of 'widely accepted practice' and whether it shielded the defendant from liability.

The court found that the defendant did not meet the standard of care expected, particularly in light of the delay in surgery which the plaintiff argued was unreasonable. The 'widely accepted practice' defence was deemed insufficient to absolve the defendant of liability, as the court held that the circumstances warranted a different approach. The plaintiff's case was thus successful, and the court awarded her damages for the harm caused by the defendant's negligence.

The final orders of the court included compensation for the plaintiff for the pain, suffering, and financial losses she had endured due to the defendant's negligence. The court also directed the defendant to pay the plaintiff's legal costs associated with the proceedings. This decision underscored the importance of timely medical intervention and the high standard of care expected from medical professionals, particularly in cases involving potential delays in treatment.

Orders