JONES v HARRIS and ANOR [1997] NSWCA 169

JONES v HARRIS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and STEIN JJA, and GROVE AJA

16 April 1997, 10 December 1997

[1997] NSWCA 169

MEDICINE — negligence — no question of principle

The appellant, a married woman, underwent dilation, curettage and tubal ligation at Mudgee Hospital on 24 July 1987. Dr Harris, her general practitioner, examined the plaintiff and conducted a pregnancy test on 2 July. He informed her that she was not pregnant Dr Solomon, the specialist gynaecologist who performed the procedure on 24 July, also took the plaintiff's history and conducted an internal examination. She had missed two periods prior to the operation. On 6 August she suffered a spontaneous abortion, discharging an undeveloped foetus. She then had a further dilation and curettage at Newcastle Hospital.

Professor Russell examined the pathology specimens obtained from the Mudgee and Newcastle operations and concluded that the foetus was approximately 3/2 weeks old at the time of the Mudgee operation when it probably died. It conceded that if the foetus was than less than six weeks old, it would not have been possible to identify the pregnancy and the defendants were not negligent. The trial Judge accepted Professor Russell's evidence and found for the defendants.

HELD: The trial Judge found the Professor to be and impressive witness and there was a firm basis for accepting his evidence. The findings made by the trial Judge were not inconsistent with facts incontrovertibly established by the evidence.

Devries v Australian National Railways Commission (1993) 177 CLR 472 applied.

Handley JA This is an appeal by a plaintiff from the judgement entered form the defendants by Smyth DCJ in an action for professional negligence against doctors. On 24 July 1987 the appellant, a married woman, then aged 24, underwent dilation, curettage and tubal ligation at Mudgee District Hospital. The respondent, Dr John Solomon, was the specialist Gynaecologist, and the respondent, Dr John Harris, was the referring general practitioner and anaesthetist.