AUSTRALIAN CAPITAL HEALTH AUTHORITY v MOORBY [1997] NSWCA 32

AUSTRALIAN CAPITAL HEALTH AUTHORITY v MOORBY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and BEAZLEY JJA, and DUNFORD AJA 13 February 1997, 25 June 1997

[1997] NSWCA 32

NEGLIGENCE — res ipsa loquitor — medical negligence — when inference of negligence can be drawn from expert evidence

NEGLIGENCE — RES IPSA LOQUITUR — respondent sought contribution from appellant for damages due to injured party — Master found appellant's employee negligent and appellant liable — Master based his decision on res ipsa loquitur — On appeal: the appellant submitted that the Master erred in his interpretation of res ipsa loquitur and in his application of it to the evidence before him.

(1) When a judge is sitting without a jury, and the judge thinks that a particular occurrence is not likely to occur in the ordinary experience of mankind without the want of due care then the judge, in deciding the case, is entitled to take the view so formed as material upon which an inference of negligence may, not must, be drawn. Further, it must follow that if a tribunal of fact is entitled to act on that footing in regard to an event within the tribunal of fact's own experience, and without evidence on the point, then when the occurrence is outside the ordinary experience of the tribunal of fact but within the ordinary expert knowledge of qualified professional witnesses who give evidence to that effect, the tribunal must be able to take that expert evidence into account in the same way as it may rely on its own lay opinion regarding matters within its own experience.

(2) The Master was entitled to come to the conclusion that he did.

Mahon v Osborne (1939) 2 KB 14 Anchor Products Ltd v Hedges (1966) 115 CLR 493 Nominal Defendant v Halsbauer (1967) 117 CLR 448 Peining v Wanless (1968) 117 CLR 498 Government Insurance Office of NSW v Fredrichherg (1968) 118 CLR 403