Hawes v Holley [2008] NSWDC 147

New South Wales District Court

CITATION: Hawes v Holley [2008] NSWDC 147

HEARING DATE(S): 7-11 April 2008, 16 May 2008 and 7-8 July 2008

JUDGMENT DATE: 22 August 2008

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To extent necessary, if liability in negligence of first defendant had been found, damages quantified in amount of $95,005.18. Action settled as between plaintiff and second defendant.

CATCHWORDS: TORTS - Professional negligence - Medical practitioner - Failure to treat patient by pharmacological means to avoid need for abdominal surgery - Pseudo obstruction in bowel secondary to spinal surgery - Complications from abdominal surgery - Whether diagnosis wrong as leading to mismanagement of patient - Whether treatment in accordance with acceptable professional standards of competent medical practice - Defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice - Whether differing peer professional opinions - Quantification of damages

Civil Liability Act 2002, ss 5O, 13 and 16 (2) LEGISLATION CITED: Civil Liability Amendment (Personal Responsibility) Act 2002 Workers Compensation Act 1987, s 151Z

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bruce v Kaye [2004] NSWSC 277 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 CASES CITED: Dobler v Kenneth Halverson [2007] NSWCA 335 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Rogers v Whitaker (1992) 175 CLR 479 Rooty Hill Medical Centre v Gunther [2002] NSWCA 60