McLennan v McCallum

[2010] WASCA 45

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Medical negligence
3. › Obstetric care
4. › Standard of care in 1997
5. › Whether vaginal delivery of flexed/complete breech negligent
6. › Whether monitoring during labour adequate
7. › Whether nursing staff negligent in failing to notify obstetrician
1. Tort
2. › Medical negligence
3. › Causation
4. › Whether cerebral palsy caused by intrapartum hypoxic event
5. › Whether antenatal neuropathology the cause
6. › International Consensus Statement criteria
1. Appeal
2. › New case on appeal
3. › Whether appellant permitted to advance case not litigated at trial
4. › Whether re-amendment of statement of claim permitted on appeal
5. › Whether re-trial should be ordered
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Advantage of trial judge in assessing expert witnesses
5. › Whether findings reasonably open on the evidence

Quick Take

An appellant in a medical negligence case cannot advance on appeal a materially different case from that litigated at trial, even where the claim involves a severely disabled child and substantial damages. The trial judge's advantage in assessing expert witnesses is particularly significant in medical negligence cases involving conflicting expert opinion on causation of cerebral palsy. Where issues were not fairly litigated at trial (including where critical propositions were not put to witnesses in cross-examination), the appellate court will not permit those issues to be raised on appeal.