YELAVICH v WILLCOCKS and ANOR [1998] NSWCA 271

YELAVICH v WILLCOCKS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL JJA and FITZGERALD AJA 9 November 1998, 9 November 1998

[1998] NSWCA 271

MEDICAL NEGLIGENCE — PLAINTIFF'S APPEAL AGAINST VERDICT FOR DEFENDANTS

Priestley JA This is an appeal by a plaintiff whose District Court negligence case against a doctor and a hospital was dismissed by Acting District Court Judge Dodd. The sequence of events leading to the court proceedings was as follows.

The plaintiff and his family lived on a banana plantation not far from Macksville. On 3 February 1991 the plaintiff dropped a heavy tool box on his left foot and cut it to an extent which together with the disability he felt as a result of the accident led him to go to the Macksville District Hospital. There he was examined by Dr Willcocks who according to his own evidence and as accepted at the trial thoroughly examined the plaintiff, came to the conclusion that he had not suffered any severance of tendons and prescribed treatment appropriate for what he thought the plaintiff had suffered. After the examination and as the plaintiff was on his way out of the hospital he collapsed and complained of extreme pain from the injured ankle.

Dr Willcocks was engaged by this time in treating another patient and did not consider that any further examination of the plaintiff was required.

Two days later the plaintiff attended on Dr Adams, his foot was swollen and he was still suffering pain. Dr Adams was unable either to diagnose with any certainty what was the cause of the plaintiffs problem. He asked the patient to attend again, which he did on 18 February, when once more Dr Adams apparently, judging by the patient card which was in evidence, felt himself unable to diagnose the plaintiff but referred him to Dr Grech, a surgeon at Kempsey. Dr Grech diagnosed the plaintiff as having two severed tendons and operated on him on 25 February 1991. Dr Grech was concerned at the time of the operation that the interval between the rupture and the suture of the tendons might lead to the operation not being completely successful. However, somewhat to his surprise as the correspondence shows and also clearly to his pleasure, in his view the operation turned out to be quite successful without any adverse consequences from the delay in the diagnosis of the rupture.