Historical Busselton Regional Hospital negligence case to go to retrial after second appeal

A man suing the Busselton Regional Hospital for negligence, claiming it caused him “a number of residual disabilities”, has been awarded a retrial three years after having his initial appeal rejected.

Jeshua Chester first took BRH to trial in 2019 alleging “a variety of failures on the part of the hospital” after he attended the emergency department in 2009, having dislocated his left acromioclavicular joint.

According to court transcripts, he claimed that had the hospital not been negligent in its initial treatment, he would have “undergone early reduction surgery and . . . had a better outcome”.

The matter was initially dismissed by Auxiliary Judge Bruce Goetze, with a further appeal also rejected.

However, last Thursday, on June 2, the WA Court of Appeal granted a retrial following an appeal of the previous 2019 appeal.

The court ruled an ‘appellant error’ in their prior decision to reject the first appeal, court transcripts stating it was “tolerably clear” the judge “failed to give adequate reasons for rejecting Mr Chester’s case” in 2019.

The trial centres on the two major claims that the hospital firstly failed to treat Mr Chester as having suffered a dislocation of the AC joint and secondly, failed to make or recommend an urgent review by an orthopaedic surgeon.

As a result, the trial will seek to determine whether or not, if Mr Chester had been referred to an orthopaedic surgeon, he would have undergone early reduction surgery and whether, following such surgery, he would have been in a better position.

Back in 2019, the case was dismissed upon the judge’s conclusion that expert orthopaedic surgeon evidence called on by the complainant was “not persuasive of a finding it more probable than not” that Mr Chester’s ongoing shoulder pain was caused by a failure to proceed with early surgery.

It is also stated as part of the hospital’s written submissions that the judge “did not discuss the principles of duty of care or breach of duty and did not find that the hospital breached a duty of care owed to Mr Chester,” another reason for the matter to go to retrial.