Alirezai v Smith

[2001] NSWCA 60

CITATION:	Alirezai v Smith [2001] NSWCA 60
FILE NUMBER(S):	CA 40814/99
HEARING DATE(S):	23 February 2001
JUDGMENT DATE:	22 March 2001
PARTIES :	Mohsen Alirezai (Appellant) Dr Anthony Smith (Respondent)
JUDGMENT OF:	Giles JA at 1; Fitzgerald JA at 2; Heydon JA at 11

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2044/98
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	Mr M G Lynch (Appellant) Mr S D Kalfas (Respondent)
SOLICITORS:	Horowitz & Bilinsky (Appellant) Yeldham & Associates (Respondent)
CATCHWORDS:	Tort - Negligence - Medical Negligence - Causation - Breach of duty to adequately warn of risks of procedure - Whether failure to warn of specific risks of procedure caused loss - Likelihood of patient having undergone procedure if warned of specific risks - Distinction between risk of harm and risk of no improvement - Causative significance of failure to warn of risk of no improvement - Effect of patient’s consent to previous procedures by same doctor - Effect of relationship of trust between patient and doctor - Relevance and effect of past warnings by another doctor - Court of Appeal - Orders - New trial - Order for new trial sought - grounds for - whether "substantial wrong or miscarriage" - Supreme Court Rules 1970 (NSW) Pt 51 R 23 - ND
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40814/99
DC 2044/98

GILES JA
FITZGERALD JA
HEYDON JA

Thursday, 22 March 2001

ALIREZAI v SMITH
JUDGMENT

1    GILES JA: I agree with Heydon JA.

2    FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Heydon JA.

3    The appellant is confronted with the usual problem which arises when exaggerated claims are rejected. The trial judge did not accept the appellant’s evidence that he would not have undergone the surgery if he had received any warning. Her Honour found that the appellant was warned before he underwent the surgery but that he was not given an adequate warning. That left the hypothetical question whether the appellant would have had the operation if he had been adequately warned. Because of the appellant’s exaggeration, there is no direct evidence on that issue. In any event, the trial judge plainly considered the appellant’s evidence unreliable.

4    The respondent should have warned the appellant not only that the surgery might not improve his condition but also that it might worsen his condition and provided him with appropriate information concerning the possible consequences.

5    The trial judge rejected the appellant’s claim because she was “… not satisfied that the [appellant] on the balance of probabilities had he been given a warning in adequate terms would have rejected the option of surgical intervention in favour of learning to live with his condition.” That conclusion was based upon a number of factors, one of which was “… the issue of the extent of the risk.” In dealing with that issue, the trial judge said: