Delayed surgery claim: Heel fracture

Wright v Minister for Health [2016] WADC 93 saw the claimant suffer a calcaneal (heel) fracture in a motorcycle accident. He claimed that the severe fracture he suffered, which was treated conservatively, had warranted surgical intervention. The defendant said that conservative treatment was in accordance with widely accepted practice, by reference to section 5PB of the Western Australian civil liability legislation.

Section 5PB is phrased somewhat differently to equivalent sections in other jurisdictions. The court held that the plaintiff was required to disprove the defendant’s contention that there was a widely accepted practice: [68].

The court noted and discusssed some tension in the drafting of section 5PB, as noted in an article by Catherine Mah: [71] – [87].

The judgment is quite long (194 pages) and includes a review of the literature on calcaneal fracture treatment was conducted. Ultimately the court found one act of negligence (the failure to perform another CT scan), but was not satisfied that it caused harm to the plaintiff: [837].

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