‘Lack Of Warning Was Negligence’

Press, Volume CIII, Issue 30561, 2 October 1964, Page 3

‘Lack Of Warning Was Negligence’

(N.Z. Press Association) WELLINGTON, October 1. The Court of Appeal today allowed the appeal of John William Smith, an engineer, of Auckland, against a decision of Mr Justice Woodhouse in which he set aside a jury’s verdict for Smith on an issue of negligence in an action brought against the Auckland Hospital Board. Mr Justice Turner in his judgment said Smith had entered Greenlane Hospital, for examination and, if necessary for surgical treatment I for a suspected aortic aneur-

lism. In the course of the I proper preliminary investigations he was subjected to a procedure known as aortography, wherein a catheter is inserted into the femoral artery and guided upwards through the arterial passage towards the aorta into which an opaque fluid is injected enabling the aorta to be outlined satisfactorily for X-ray photography. In the course of this procedure Smith suffered a surgical mishap through the catheter accidentally dislodging a plaque of athermatous material from the interior wall of the artery. A condition of clotting supervened and notwith- ; standing all due efforts by the I surgeons. Smith’s right leg , degenerated into a gangren- ■ ous condition and ultimately: : had to be amputated below I ■ the knee. 1

i Negligence was pleaded in ■ a number of respects, but the i jury found for the defence on all these issues. But it was ; also alleged that the risk of the mishap, being a reason- ; ably foreseeable one, although mishaps occurred in a low percentage of cases, it should have been the subject of a warning to the patient in the circumstances of this case. Mr Justice Turner said Smith gave evidence which was uncontradicted, that he had made a specific inquiry as to the risk involved and the answer given was equivalent to an assurance that there was none. It was contended on ■ Smith’s behalf that these I facts gave rise to a cause of i action in negligence and an ] i issue was put to the jury . accordingly. The jury found 1 •in favour of Smith. !

i However, Mr Justice Wood- > house found there was no i evidence on which the jury ; could find any breach of ' duty, and, alternatively, that even if there had been such evidence, the answer given by the surgeon could not reasonably be found causative of the : damage suffered by Smith and he gave judgment for the Hospital Board. After a long review of the legal aspects of the case Mr Justice Turner concluded that he was of the opinion that judgment must be given for Smith in accordance with the verdict of the jury. Assenting judgments were also given by the other members of the Court of Appeal, the Chief Justice (Sir Harold Barrowclough), Mr Justice McGregor, Mr Justice Hutchison, and Mr Justice Gresson.