BUSTOS v HAIR TRANSPLANT PTY LTD AND ANOR [1997] NSWCA 55

BUSTOS v HAIR TRANSPLANT PTY LTD & ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, POWELL and BEAZLEY JJA Wednesday 12 March 1997, 15 April 1997 [1997] NSWCA 55

APPEAL — MEDICAL NEGLIGENCE — Alleged failure to warn of material risks of operation — No error in findings of trial judge — Appeal dismissed — Rogers v Whitaker (1992) 175 CLR 479 applied.

Gleeson CJ The appellant sued the respondent, Dr Wearne, a medical practitioner, in the District Court, claiming damages for negligence. (There was also another defendant, a company, which has taken no active part in the proceedings). Cooper DCJ found in favour of the appellant in respect of a relatively small part of the claim, and in favour of the respondent in respect of the major part of the claim. He assessed general damages in the sum of $2,000, and that amount, together with interest, made up a total judgment of $2,969.23.

The background to the litigation may be summarised as follows.

The alleged negligence related to hair transplant operations performed upon the appellant by the respondent in October and November 1982. The appellant's action was commenced in 1986, and was not brought on for hearing until late 1994.

In early 1982, when he was aged 33, the appellant was concerned about his receding hairline. He was exhibiting signs of baldness, and was extremely sensitive about his condition. The appellant, who had been born in Argentina, but had subsequently come to live in Australia, returned to Argentina on a holiday. He was impressed by the results of a hair transplant operation which had been performed upon one of his uncles in Argentina. The uncle's hair transplant had involved a procedure known as the Juri flap; a technique which had been developed by an Argentinian, Dr Juri.

When the appellant returned to Australia, he contacted an organization which carried out hair transplants. The respondent's services were used in the course of that business. The appellant enquired whether the Juri flap technique was known to the respondent. He was told that it was, and that the respondent could conduct such an operation upon him. The procedure was to be conducted in two stages, under local anaesthetic. It involved removing skin from the side of the skull, where it bore hair, and bringing it forwards across the front of the scalp.