AINSWORTH v LEVI [1995] NSWCA 9

AINSWORTH v LEVI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and HANDLEY JJA 24-25 November 1994, 30 August 1995 [1995] NSWCA 9

NEGLIGENCE — MEDICAL PRACTITIONER DIAGNOSIS AND TREATMENT — RELEVANCE OF ALTERNATIVE SCHOOLS OF OPINION

The appellant was a professional singer. In April 1971 she consulted the respondent, a throat specialist in connection with her voice. He diagnosed "singer's nodes". On 13 August 1971 the respondent removed the singer's nodes by diathermy. The appellant's voice did not return to normal, because following the procedure she developed a web linking her vocal cords. She underwent further surgery which removed the web, but her singing voice was not restored and she was never able to resume her career. She sued the respondent for negligence. The trial judge withdrew some issues from the injury which returned a verdict for the respondent on the remaining issues. The appellant sought a new trial challenging the judge's decision to withdraw issues from the jury, and alleging misdirections in the summing up.

Held: (1) The grounds of appeal challenging the judge's ruling that the doctrine of informed consent formed no part of Australian law must be rejected. Rogers v Whitaker (1992) 176 CLR 479 applied. (2). The judge was correct in ruling that there was no evidence of negligent diagnosis. (3) The judge was correct in ruling that there was no evidence that the respondent acted negligently in removing both nodes in one operation. (4) There was no evidence that the use of diathermy itself was negligent. Rogers v Whitaker, Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, F v R (1983) 33 SASR 189, Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, considered. (5) The judge did not err when instructing the jury that they could only find that the appellant was negligent in failing to advise conservative treatment if they rejected the alternative school of opinion which supported his advice, "not by way of preference but by way of its existence". This was not objected to by counsel for the appellant, and in the context of the final addresses was not likely to mislead the jury. If it was a misdirection, it was not such as to cause any substantial wrong or miscarriage, so as to require a new trial.