Key issues

  • In this case, the Court of Appeal was required to determine whether the trial judge had erred in finding that hospital’s medical practitioners had requisite expertise to provide treatment advice; in finding loss was no more than loss of a mere chance of better medical outcome; and in weight given to evidence as to usual practice.


The Applicant had sustained serious fractures to the calcaneal bones in each of his ankles after jumping from a second storey balcony.

He was conveyed by ambulance to Royal Melbourne Hospital where he was treated conservatively. Subsequently, he consulted an orthopaedic surgeon and underwent successful surgery to his left ankle. However, he was left with ongoing pain and symptoms in his right ankle.

In the initial proceedings, the applicant claimed the Hospital never informed him of the option of surgical treatment for his calcaneal fractures. He further claimed that if he had been given that advice, he would have undergone an operation to his right ankle within the necessary time period, and if he had done so, he would have had a better outcome in respect of his right ankle.

In response, the doctors who had treated the applicant at the hospital, did not have any recollection of the applicant. However, by relying on the clinical notes and their usual practice, they gave evidence that appropriate advice as to the surgical option would have been given.

The trial judge held that the applicant had failed to prove, on balance of probabilities, that he was not given appropriate advice as to the option of surgical treatment while he was an inpatient. The judge also was not satisfied that surgery would have been performed on his right ankle in any event, and that he would have achieved a better outcome than his current condition. Accordingly, the claimwas dismissed.

The Applicant sought leave to appeal the decision.


The Applicant failed to succeed on any of the proposed grounds of appeal.

  • In so far as it was contended that the judge erred in failing to find that the Hospital negligently failed to give the applicant adequate advice about his surgical options, this ground was not made out [110].
  • The contention that the judge should have found that the Hospital should have referred the Applicant to a specialist foot surgeon was also found to be without substance [121].
  • Further, the Applicant failed to demonstrate that the judge erred in concluding that, if he had undergone such surgery, he would have achieved a better outcome in his right foot than is presently the case. At best, the Applicant had lost no more than a mere chance or possibility to have achieved a better outcome, which is insufficient to establish, on the balance of probabilities, a claim for damages in breach of negligence [140].

To read the decision in Phelan v Melbourne Health [2019] VCC 241, click here.