In the recent matter of Toon v Central Adelaide Local Health Network [2025] SADC 98, the plaintiff (Mr Judah Toon) commenced a medical negligence compensation claim against the defendant, Central Adelaide Local Health Network (Queen Elizabeth Hospital).
The plaintiff is a young man, who has suffered much hardship in his life. At times, he turned to various illicit and legal substances to cope and for periods of time engaged in poly‑substance abuse. He struggled with his studies, work life and relationships. On 19 April 2017 at approximately 5:15am the plaintiff woke up on the floor, lying on top of his left arm. He was between the left side of his bed and a bedside table. The plaintiff does not know for how long he was asleep/unconscious in that position. He does not know how he found his way to the floor. His last memory was exchanging in Facebook messaging with a friend at approximately 10:00am on 18 April. When the plaintiff woke, he had numbness and a significant pain sensation in his left arm. He could not move his left arm from his shoulder to his wrist. The plaintiff called an ambulance and was taken to the Queen Elizabeth Hospital (QEH). He arrived at approximately 6:00am. The plaintiff underwent an initial surgical procedure at the QEH on 19 April. This was performed by Dr Chan, a Plastic Surgery Registrar (Dr Chan) employed by the respondent. The procedure was performed to relieve swelling in the left forearm by reducing pressure in the forearm compartments. This surgery was undertaken to reduce the risk of damage to the nerves and blood vessels of the left arm and hand. Further surgery was required on 20 April 2017 as a result of ongoing swelling in the plaintiff’s left forearm. This surgery performed by Dr Chan, involved longer skin incisions along the dorsal and volar aspects of the forearm, and the removal of necrotic tissue. The plaintiff’s recovery was long and complicated. He required several further surgeries. He has not recovered full use of his left hand and forearm, having suffered significant muscle loss, and nerve damage.
The plaintiff seeks damages in negligence alleging that the first surgery performed on 19 April 2017 (the first operation) was not performed in a timely manner, and did not involve extensive skin incisions of his left forearm as was required by his symptoms and presentation. He also pleads that a tourniquet should not have been used during the first operation, and that its use contributed to a poor surgical outcome. The plaintiff claims that he has suffered significant muscle loss and damage, including nerve damage, in his left forearm as a result of Dr Chan’s negligence, in the manner in which the first operation was performed. The damage to his left forearm has not recovered, and has led to loss of function in his left arm and hand.
The defendant denied the allegations and sought to rely on the defence of peer professional opinion as set out in section 41 of the Civil Liability Act 1936 (SA) (“the CLA”).
The Court dismissed the applicant’s claim as, in applying the standard as set out in section 40 of the CLA, it found that QEH had not breached its professional duty.
The Court held that the treatment in question met the professional standard set out in section 40 of the CLA, and it also accepted the defence of peer professional opinion, finding that the treatment of the arm (including the timing of the same and the use of a tourniquet) was consistent with widely accepted practice. Critically, the Court accepted that whilst other medical professionals may have approached the applicant’s treatment differently, this of itself did not mean that treatment fell below the standard of care required by a medical professional in the circumstances.
Further, the Court found that by the time of presentation to QEH, the arm had already incurred irreversible damage and accepted evidence that even immediate and more invasive surgical measures would not have prevented permanent impairment to the arm. Consequently, even if the applicant established a breach of professional duty, he would not have successfully established causation.
Specifically, the Court provided at [609] to [612] as follows:
As I have set out in my review of what occurred on 19 April, my conclusion is that the respondent’s medical team, including Dr Chan, in all respects, performed a full forearm fasciotomy in a manner which was widely accepted in Australia, by other medical practitioners, as competent professional practice. I base this finding upon my preference for the evidence of Mr Berger, Mr Westcott and Dr Chan.
I find that the respondent did not breach ss 40 and 41 of the CLA in the treatment of Mr Toon. Whilst Dr Tomlinson and Professor Lane may have approached Mr Toon’s fasciotomy surgery in a different way, I am not persuaded, nor satisfied, that the first and/or the second operation was performed by Dr Chan in a manner that in any respect, fell below the standard of care required by medical practitioners as set out by s 41 of the CLA.
I have set out in these reasons the claims made by Mr Toon regarding Dr Chan’s medical treatment of him. Those claims rely on me preferring the opinions of Dr Tomlinson and Professor Lane. I do not. I found the evidence of Mr Berger and Mr Wescott to be more persuasive and I accept their opinions on what occurred medically on 19 and 20 April 2017, and their conclusions on what led to Mr Toon’s poor outcome.
I therefore dismiss Mr Toon’s claim upon finding there was no breach of the required duty of care by the respondent.
At [694] to [710], the Court assessed damages, if the plaintiff had been successful, as follows:
General Damages – $83,200.00
Past economic loss – $47,648.75
Past superannuation – $7,648.75
Future economic loss – To be determined
Past care / services equipment – Nil
Future equipment needs – $32,000.00
Future gratuitous / paid services – $88,938.18
Future medical expenses – $27,651.20
Totalling $287,086.88
Ultimately, on 30 July 2025, the District Court of South Australia ordered at [711] as follows:
Based upon the reasons I have set out, I dismiss Mr Toon’s claim.
Our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, including a medical negligence claim, please reach out to Littles Lawyers today.
Further blogs in relation to medical negligence and personal injury claims can be found on our website.
