Inferences, burden of proof and causation

With thanks to Awash Prasad for drawing attention to a recent appellate decision from Western Australia: East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the Will of Emil Popovic [2019] WASCA 18.

East Metropolitan did not challenge the finding that it was liable in negligence. Rather its appeal concerned the potential liability of the neurosurgeon Dr Popovic.

As stated at [5]:

…East Metropolitan’s case on breach was and is founded on a telephone conversation between Mr Panagoulias and Mr Popovic. It was and is common ground that Mr Popovic’s duty of care required him to give certain advice to Mr Panagoulias during that conversation. There was no direct evidence of the content of the telephone conversation from either of the parties to it. The issue as to breach was and is whether an inference could be drawn that Mr Popovic failed to give the required advice.

The hospital’s appeal failed on the breach of duty inference and in relation to causation.

The causation issue focused on the time at which Mr Panagoulias would have arrived at the hospital (if given certain advice) and the time at which antibiotics would then have been administered.