This case concerned an appeal against a decision of the District
Court, dismissing the appellant (Marlene Joyce Davy) claim in
negligence against the respondent, the Minister of Health. Ms Davy
argued that employees of the respondent at Sir Charles Gardiner
Hospital (SCGH) were negligent in failing to arrange an urgent
review by an orthopaedic surgeon of a lump that developed on her
knee approximately 18 months after a total knee replacement.
According to Ms Davy, staff at SCGH failed to contact her to
arrange a timely appointment, ignoring a request from her general
practitioner, Dr Hewett, and her telephoning the hospital on at
least ten separate occasions. The appellant became ill on 4 August
2005 and was admitted to SCGH through its emergency department were
she received prolonged treatment for a severe and uncontrolled
infection in her left knee. Ms Davy subsequently underwent complete
knee replacement revision surgery and the fitting of a replacement
prosthesis and claimed she suffered pain, injury and permanent
disability as a result.
The trial judge dismissed Ms Davy's claim, finding that the
respondent's employees had not been informed that Ms Davy's
knee needed to be reviewed as a matter of urgency. Ms Davy appealed
the matter to the Court of Appeal.
The Court of Appeal dismissed the appeal citing a number of
factors, including a general lack of evidence to suggest that it
was communicated that the appellant's medical problem required
urgent attention, the lack of weight that ought to be accorded to
the contents of Dr Hewett's letters due to the fact they
contained a number of errors and were not contemporaneous and the
discrepancies and inconsistencies in the appellant's evidence
caused by the combined effect of health problems, stress and
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