WALTON-TAYLOR v WILSON AND ANOR [1998] NSWCA 253

WALTON-TAYLOR v WILSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and STEIN JJA 29-30 September 1997, 1 October 1997, 26 March 1998

[1998] NSWCA 253

MEDICAL NEGLIGENCE — EXPERT EVIDENCE — plaintiff (appellant) experiences abdominal pains in late pregnancy — first defendant (first respondent) a general practitioner causes induction of early birth — child safely delivered — shortly after birth plaintiff experiences further abdominal pain — appendicitis now first diagnosed — three subsequent operations including appendectomy and sub-total hysterectomy — plaintiff alleges negligence against first defendant in his not obtaining advice from a specialist obstetrician or surgeon before inducing early birth — plaintiff alleges if such advice obtained appendicitis would have been diagnosed in time for removal without need for subsequent operations which caused her damage — division of expert opinion — experts agree that in late pregnancy treatment differs for acute appendicitis and appendiceal abscess — judge

relies on one expert medical witness in finding (a) first defendant not negligent in not calling in specialist, (b) in any event, "on the balance of probabilities", the plaintiff at time of alleged negligence suffered abscess formation and it would have been then unsafe to operate.

On appeal the appellant (plaintiff) submitted Ireland J:

1. erred in accepting one expert's opinions because when forming his opinions that witness had not taken into account all the evidence in the case;

2. erred when finding, based on the materials before him that the first defendant was not negligent when he did not consult a specialist;

3. erred when finding an abscess formation had already occurred at the time that it was said that the first defendant should have obtained specialist advice; further, the expert's evidence, upon which Ireland J relied, did not support the trial judge's view on abscess formation;