Australia: Damages awarded for unacceptable delay in diagnosis and treatment of medical condition

Last Updated: 2 February 2017
Article by Vidal Hockless

This paper is co-authored by Daniel Coster, Lawyer


In East Metropolitan Health Service v Martin [2017] WASCA 7 the WA Court of Appeal was required to consider whether limitations in the availability of services in the public hospital system was a justification for delayed diagnosis and treatment and in doing so, reiterated the standard of care to which all patients should be entitled.


On 20 November 2012, the Respondent attended the Armadale Hospital ED, where he was diagnosed with septic arthritis of the L5/S1 facet joint (lower spine).

He was admitted for treatment and, on 23 November, was taken to theatre for the insertion of a catheter line via his arm. Attempts were made to insert the catheter (unsuccessfully) in each arm, and a subsequent attempt caused such pain that the attempts were abandoned.

On 25 November, the Respondent reported pain from the failed catheter attempt and advised he did not want to undergo it again. On 26 November he was convinced to allow another attempt, which was successful.

The Respondent continued to report pain in the right arm from the initial attempted catheterization. On 1 December he reported difficulty with fine motor skills, and on 2 and 3 December he complained of numbness in his right hand and fingers, with tingling.

The Respondent was discharged on 6 December, as his other complaints were largely under control. Between 7 and 23 December he attended the clinic at Fremantle Hospital on four occasions, and was seen at home by a nurse each day. He reported the pain to the nurse.

On 19 December, the Respondent attended Fremantle Hospital for the results of an EMG he obtained as a private patient. The EMG demonstrated a median nerve palsy and he was referred to the plastic surgery department. On 10 January 2013, the Respondent attended the plastic surgeon. An ultrasound carried out on 24 January demonstrated a large haematoma in the forearm immediately adjacent to the brachial artery and compressing the adjacent vein and median nerve.

The Respondent underwent surgery on 28 February for drainage of the haematoma and decompression of the right median nerve. Post-operatively, the Respondent's pain ceased. However, he was left with limited movement and some discomfort, requiring a period of hand therapy twice weekly.

The Respondent made a claim for damages against the East Metropolitan Health Service and, ultimately, commenced proceedings for damages on the grounds that the residual problems he was experiencing were due to unreasonable delay in his medical treatment.

Decision at first instance

The trial Judge found in favour of the Respondent, holding that the Appellant had been negligent in its failure to arrange earlier investigation of the Respondent's complaints.

Issues on appeal


The Appellant raised three appeal grounds in relation to causation, essentially taking issue with the finding that the delay in treatment caused the residual disability, that surgery could or should have been performed by 6 or 7 December, and stating that the evidence did not show the extent to which the disability would have been improved with earlier intervention.

In particular, the Appellant alleged that an EMG was not possible within two to three months in the public health system, even in an emergency.


The Appellant also raised six appeal grounds regarding the assessment of quantum. The most relevant being that the trial Judge erred in allowing general damages in the amount of $50,000, by failing to apply s9(2) of the Civil Liability Act (and deducting 'Amount A', the statutory deduction).

The Appellant also submitted that the trial Judge erred in the award of economic loss, having regard to the Respondent's work history (which included substantial variation in earnings, and depression in 2003-2006).

Court of Appeal decision


The Court of Appeal observed the expert evidence was that earlier investigation, at least by ultrasound, ought to have been performed within 10 days of the failed catheter attempt, which would have demonstrated the need for timely surgery.

In relation to the argument that surgery could not have been performed by 6-7 December in the public health system (on the basis of the lack of EMG availability), the Court noted that whilst evidence had been led that an EMG could not have been performed within two to three months, even on an urgent basis, an ultrasound could have been carried out at any time, and it was uncontested this would have detected the haematoma. The limited availability of an EMG was therefore irrelevant.

The Court observed that the expert evidence led at trial was that surgery ought to have been performed within two weeks, and that surgery could in fact have occurred within days.

The Court further noted that the expert evidence supported the view that the likelihood was treatment without delay would have left the Respondent with no disability.


The Court also dismissed the Appellant's appeal grounds in relation to quantum, save as to general damages.

The Court considered that the trial Judge's reasoning was not clear with regard to the assessment of non-pecuniary loss, with it being possible that his Honour had either awarded $50,000 and then failed to make the relevant statutory discount or had reached the figure of $50,000 by awarding a higher figure and then making the discount (though no mention of this was made in his Honour's reasons).

The Court held that the trial Judge erred in failing to apply the statutory discount to the award and upheld this appeal ground (deducting $20,000 for the amount awarded).

With respect to economic loss, the Court noted that the trial Judge did not overlook the Respondent's difficult work history, but considered there was no reason to suppose such difficulties would result in any long-term loss of earning capacity.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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