Wighton v Arnot [2005] NSWSC 637

Wighton v Arnot [2005] NSWSC 637

Because the defendant suspected during surgery that he may have divided the plaintiff's accessory nerve, due care required him to carry out sufficient post-operative and follow-up examinations, inform the plaintiff of the suspected severance, and advise referral for surgical repair by a suitably qualified specialist. He failed to do so. The plaintiff did attend the post-discharge consultation and was not contributorily negligent. The defendant's negligence caused the plaintiff to lose the opportunity for timely repair surgery, which would probably have restored reasonable, though not normal, function, and damages were assessed at $758,910.36.

Jurisdiction
Australia
Judgment Date
01 July 2005
Procedural Posture
Negligence Claim for Damages in the Common Law Division, Professional Negligence List / Trial Judgment
Outcome
Negligence proved; contributory negligence not proved; damages assessed in the sum of $758,910.36; costs and interest reserved pending further submissions.
Legal Topics
['suspected Severance of Accessory Nerve During Surgery' 'post Operative Duty of Surgeon to Patient' 'failure to Inform Patient' 'failure to Conduct Appropriate Post Operative Examination' 'failure to Refer for Timely Remedial Surgery' 'contributory Negligence' 'assessment of Damages Under the Civil Liability Act 2002']
['negligence' 'professional Negligence' 'damages'] ['suspected Severance of Accessory Nerve During Surgery' 'post Operative Duty of Surgeon to Patient' 'failure to Inform Patient' 'failure to Conduct Appropriate Post Operative Examination' 'failure to Refer for Timely Remedial Surgery' 'contributory Negligence' 'assessment of Damages Under the Civil Liability Act 2002']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Negligence Claim for Damages in the Common Law Division, Professional Negligence List / Trial Judgment

Legal Issues

  1. 1 ["Whether the defendant breached his duty of care after suspecting during surgery that he had divided the plaintiff's right spinal accessory nerve." 'Whether the defendant failed to inform the plaintiff of the suspected severance of the nerve.' 'Whether the defendant failed to carry out sufficient post-operative and follow-up examinations to determine whether the nerve had been severed.' 'Whether the defendant failed to advise the plaintiff of the need for surgical repair by a suitably qualified specialist.' 'Whether any negligence caused the plaintiff to lose the opportunity for timely repair surgery and caused compensable loss.' 'Whether the plaintiff was guilty of contributory negligence.' 'How damages should be assessed, including non-economic loss, economic loss, gratuitous care, future care, medical care and the application of the Civil Liability Act 2002.']

Ratio Decidendi

Because the defendant suspected during surgery that he may have divided the plaintiff's accessory nerve, due care required him to carry out sufficient post-operative and follow-up examinations, inform the plaintiff of the suspected severance, and advise referral for surgical repair by a suitably qualified specialist. He failed to do so. The plaintiff did attend the post-discharge consultation and was not contributorily negligent. The defendant's negligence caused the plaintiff to lose the opportunity for timely repair surgery, which would probably have restored reasonable, though not normal, function, and damages were assessed at $758,910.36.

Court Disposition

Negligence proved; contributory negligence not proved; damages assessed in the sum of $758,910.36; costs and interest reserved pending further submissions.

Orders

  • ['I find negligence to have been proved.' 'I do not find the plaintiff to have been guilty of contributory negligence.' 'I assess damages in the sum of $758,910.36.' 'The issues of costs and the awarding of interest, if appropriate, are reserved pending further submissions. A date for the purpose of hearing such...