Mansfield v Heather [2000] NSWCA 36

New South Wales Court of Appeal

CITATION : Mansfield v Heather [2000] NSWCA 36 FILE NUMBER(S) : CA 40033/99 HEARING DATE(S) : 22 February 2000 JUDGMENT DATE : 17 March 2000

Appellant: Dr Colin Mansfield PARTIES : Respondent: Marilyn Anne Heather 2nd Respondent: Dr Hari Misra JUDGMENT OF : Meagher JA at 1; Handley JA at 14; Stein JA at 15

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9167/97 FILE NUMBER(S) : LOWER COURT Murrell DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: JA Woods Respondent: JS Drummond Appellant: Blake Dawson Waldron SOLICITORS : Respondent: Bateman Battersby 2nd Respondent: Louise Margaret Mallon CATCHWORDS : Medical Negligence - Failure to detect malignant melanoma - Joinder - Vicarious liability - Where original test result did not indicate malignancy DECISION : 1. Appeal allowed.; 2. That the notice of motion be dismissed.; 3. That the first respondent pay the appellant's costs of the proceedings before Her Honour District Court Judge Murrell.; That the first respondent pay the appellant's costs of this appeal, but have an order made under the Suitors' Fund Act.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40033/98

MEAGHER JA HANDLEY JA STEIN JA

17 MARCH 2000

Dr COLIN MANSFIELD v MARILYN HEATHER & ANOR

MEDICAL NEGLIGENCE-FAILURE TO DETECT MALIGNANT MELANOMA-JOINDER-VICARIOUS LIABILITY-WHERE ORIGINAL TEST RESULT DID NOT INDICATE MALIGNANCY

Facts: In 1984 Mrs Heather attended her local General Practitioner, Dr Misra to have a small growth on her shoulder removed. The lesion was found to be benign by a pathologist, Dr Matthews. In 1994 Mrs Heather developed another growth on the same shoulder. A biopsy revealed this growth to be malignant. Mrs Heather sued Dr Misra in negligence. She then sought to have Dr Mansfield joined as second defendant, as Dr Matthew's employer. The issue on appeal was whether the trial judge erred in allowing the joinder of Dr Mansfield. An alternative claim was that Dr Matthews was negligent in failing to report the possibility of the lesion not being entirely removed.