Supreme Court of SA|2001-07-04

ZALTRON v RAPTIS AND ANOR No. SCCIV-00-681 [2001] SASC 209 (4 July 2001)

PROFESSIONS AND TRADES --- MEDICAL AND RELATED PROFESSIONS --- MEDICAL PRACTITIONERS --- LIABILITY IN TORT

Plaintiff sought treatment of soreness in her right calf and toes - assisted by the second defendant, the first defendant performed a balloon angioplasty and then a by-pass graft - approximately one month after the procedure amputation of three of the plaintiff's toes was required. Whether the first defendant's diagnosis and choice of treatment were negligent - consideration of the standard of care owed by the first defendant to the plaintiff - adequacy of advice and information - duty to warn of material risks associated with treatment - whether the first defendant ought to have canvassed alternative diagnosis and treatment with the plaintiff - whether there was a negligent delay in the first defendant's treatment of the plaintiff's condition - whether any delay resulted in damage to the plaintiff - whether there is a duty to advise patient to contact doctor in the event of complications - consideration of the content of the duty owed to the plaintiff by the second defendant as assisting surgeon.

TORTS --- NEGLIGENCE --- ESSENTIALS OF AN ACTION FOR NEGLIGENCE --- DUTY OF CARE --- RELATIONSHIPS OF PROXIMITY --- DAMAGE --- CAUSATION NEGLIGENCE --- PROOF OF NEGLIGENCE --- ONUS OF PROOF

Causation in cases of medical negligence founded on an omission - whether plaintiff would have refused the treatment if warned of its risks - shifting evidentiary onus where prima facie case established - where risk of the kind which ought to have been warned of eventuates, defendant bears evidentiary onus of disproving causation - whether incumbent on the plaintiff to lead some evidence that she would not have had the operation if warned of the material risks involved.

APPLICATION OF STATUTE OF LIMITATIONS Whether exercise of trial judge's discretion in refusing extension of time within which to institute proceedings against the second defendant miscarried - whether material facts which came to light after the statutory period of limitation had expired were relevant to the issues to be proved and of sufficient importance to be likely to have a bearing on the case against the second defendant. Held: Appeal dismissed.

Limitation of Actions Act 1936 , referred to.

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479;

F v R (1983) 33 SASR 189;

Chappel v Hart (1998) 195 CLR 233;

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408;

Naxakis v Western General Hospital (1999) 162 ALR 540, applied.

Duyvelshaff v Cathcart and Ritchie Ltd (1973) 47 ALJR 410;

Quigley v The Commonwealth (1981) 55 ALJR 579;

Wilsher v Essex Area Health Authority [1987] UKHL 11; [1988] AC 1074;

McGhee v National Coal Board [1972] UKHL 7; [1973] 1 WLR 1;

Rosenberg v Percival [2001] HCA 18; (2001) 178 ALR 577;

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164;

Sola Optical (Australia) Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628, considered.

Counsel: MR D PEEK QC WITH HIM MR M SAIES - Solicitors: ANGELA BENTLEY & ASSOCIATES

Counsel: MR S WALSH QC WITH HIM MR R CAMERON - Solicitors: WALLMANS

Judgment No. [2001] SASC 209

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE NOBLET)

Ground 1.1 - Adequacy of Advice and Information 3

Provision of Information to Plaintiff ("Duty to Advise") 8

Causation - Did the Risks Come to Fruition? 15

Causation - Consequences of Failure to Advise 17

Ground 1.4 - Credit of Dr Raptis and Dr Benveniste 34

Ground 2 - Dr Benveniste - Extension of Time 35

Limitation of Actions Act 1936

ZALTRON v RAPTIS AND ANOR No. SCCIV-00-681 [2001] SASC 209

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ZALTRON v RAPTIS AND ANOR No. SCCIV-00-681 [2001] SASC 209 (4 July 2001)

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Legislation Cited (2)

Cases Cited (10)