Clothier v Dr Fenn & Greater Southern Area Health Service [2010] NSWDC 96

New South Wales District Court

CITATION: Clothier v Dr Fenn & Greater Southern Area Health Service [2010] NSWDC 96

HEARING DATE(S): 9,10,11/11/09, 11/12/09

JUDGMENT DATE: 1 June 2010

JURISDICTION: Civil

JUDGMENT OF: Williams DCJ at 1

DECISION: Verdict for each defendant against the plaintiff. Plaintiff to pay the defendants costs. Application for indemnity costs for first defendant refused.

CATCHWORDS: Catchwords:- Negligence – professional negligence – causation – PTSD – hypernatremia – alleged failure to diagnose and treat – negligent treatment by hospital – relationship of any negligent act to damage sustained.

LEGISLATION CITED: Civil Liability Act

Tabet v Gett [2010] HCA 12, CASES CITED: Adeels Palace Pty Ltd v Moubarak & Bou Najem; [2009] HCA 48 Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211 Gett v Tabet (2009) NSWCA 76

Kimberley Clothier PARTIES: Dr Christopher Fenn The Greater Southern Area Health Service

FILE NUMBER(S): Bega: 2/2008

For the plaintiff:- Mr G Little SC with Ms T Moisidis COUNSEL: For the first defendant:- Mr M Windsor SC For the second defendant:- Ms J Sandford

Beston, Macken McManis SOLICITORS: Avant Law Pty Ltd General Insurance Law Department

Preliminary facts:-

1 On 7/1/2006, Ms Clothier was participating in the final leg of the George Bass Classic, an ocean lifeboat race held bi-annually. She had participated in each of the five earlier stages of the race which began on 2/1/2006 although the women's race had a rest day on 6/1/2006 when no women's teams competed. On 7/1/2006, after completing the race and after their lifeboat had beached at Pambula, Ms Clothier began to feel unwell. She went to Merimbula where people were camping for the night, but her condition worsened. Dr Fenn, the race doctor, was called and he arrived and commenced treating her, eventually placing her on a drip. He contacted the ambulance when her condition worsened and she was taken to Pambula Hospital where further treatment was commenced.