Read v The Australian Capital Territory [2023] ACTSC 37 (on JADE).
The appellant / plaintiff had brought proceedings in tort against the respondent, the Australian Capital Territory (as operator of the Canberra Hospital). In the Magistrates Court, the respondent was found to have breached its duty to the appellant by reason of a delay in recognising that the appellant was suffering from internal bleeding and take steps to quickly remedy the situation by further surgery. The magistrate awarded damages to compensate the appellant for loss and damage that she suffered as a result of an approximate three‑hour delay in returning her for the second surgery in order to address the internal bleeding.
The appeal concerned the adequacy of the award for general damages ($50,000), for economic loss and the lack of an award for domestic assistance.
The cross appeal focused on causation and whether the award of general damages was manifestly excessive. The essential contention of the respondent on causation was that the appellant did not establish on the balance of probabilities that she had suffered any additional significant harm as a result of the delay in treatment beyond that which she would have suffered in any event as a result of the caesarean operation and the second surgery, neither of which arose because of any breach of duty on the part of the respondent.
In relation to the causation cross appeal the court held ([64]):
Having regard to the evidence given by the plaintiff and the expert evidence of Dr Knox, it is not possible to reach the conclusion, required by s 45(1) of the CLW Act that the breach of duty “was a necessary condition of the happening” of the PTSD diagnosed by Dr Knox. Even without a period of delay it is likely that the combination of 32 days in hospital including significant ante partum bleeding, an emergency caesarean followed by internal bleeding, followed by a second surgery in order to correct the internal bleeding and a period in the ICU would have caused equivalent intrusive thoughts about, and memories of, her experiences. That is not to deny that the appellant is entitled to compensation for the anxiety and discomfort suffered during the period of delay when she continued to bleed internally and have an elevated heart rate, and any additional consequences that can be proved to have flowed from the additional loss of blood but that is distinct from the claim for PTSD said to arise generally out of the hospital experience.
Given the causation finding on appeal, it was necessary to reconsider the general damages award, which was reduced to $13,000 ([73]).
No error was disclosed in the failure to make an award for economic loss ([87]).
The court also held that the evidence of the plaintiff and the other evidence in the case did not establish that the inability to perform domestic services for her family or the need for gratuitous assistance from her family was any greater than would have been the case without the breach of duty that led to the three-hour delay in her treatment. ([81]).
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