Biggs v George - [2016] NSWCA 113

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Biggs v George [2016] NSWCA 113
Hearing dates: 1 and 2 December 2015
Decision date: 17 May 2016
Before: Basten JA at [1];
Ward JA at [165];
Payne JA at [166]
Decision:
(1)   Allow the appeal and set aside the judgment for the plaintiff with costs, given in the District Court, including orders 1 and 2 made and entered on 24 February 2015.

(2)   In lieu of those orders order that:
(a)   the proceedings in the District Court be dismissed;
(b)   the plaintiff pay the defendants’ costs in that Court.

(3)   With respect to the judgment given and the orders made on 17 April 2015 and entered on 23 June 2015:

(a)   set aside orders 3 and 4;
(b)   in place of order 3 order that the defendants pay to Dr Havas an amount of $3,950 for compliance with a subpoena to attend and give evidence on 23 October 2014;
(c)   order that the plaintiff pay the costs of her motion dated 30 March 2015 seeking an order that the defendants pay the witness expenses charged by Dr Havas.

(4)   Order that the first respondent pay the appellants’ costs of the proceedings in this Court.
(5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW)
Catchwords:
TORTS – negligence – medical negligence – failure to warn – duty to warn patient of material risks of surgical procedure with reasonable care – non-English speaking patient – scope of duty of care where effective communication reliant on translation – whether failure to warn of potential risks of surgery which eventuated

TORTS – causation – whether alleged failure to warn of material risks affected decision to undergo surgery – decision of patient based on misunderstanding for which defendants not responsible – Civil Liability Act 2002 (NSW), s 5D

EVIDENCE – expert – medical practitioners – evidence of usual practice – supported by notes – unsupported by notes – patient’s denial of any warning of relevant material risk – limited cross-examination of experts – whether evidence properly assessed
CIVIL PROCEDURE – expert witness’ expenses – reasonable expenses of expert witness procured for cross-examination under subpoena – liability for loss incurred in reviewing evidence given for instructing party – liability for loss incurred in relation to attendance on a date when not required where instructing party in control of case – calculation of loss where no direct evidence
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Civil Procedure Act 2005 (NSW), ss 3, 98; Pt 7, Div 2
Supreme Court Act 1970 (NSW), s 45AA
Uniform Civil Procedure Rules 2005 (NSW), rr 31.27, 31.28, 31.29, 31.30, 33.1, 33.11, 42.1; Sch 11, cl 22
Cases Cited: Bank of New South Wales v Withers (1981) 52 FLR 207
Deposit & Investment Co Ltd (Receivers appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
Foyster v Foyster Holdings [2003] NSWSC 881
Rogers v Whitaker (1992) 175 CLR 479

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Biggs v George

Details

AGLC: Biggs v George [2016] NSWCA 113
Case: [2016] NSWCA 113
Decision Date: 17 May 2016

CaseChat Overview and Summary

In *Biggs v George*, the New South Wales Court of Appeal considered a medical negligence claim brought by a non-English speaking patient against medical practitioners. The patient alleged a failure to warn of material risks associated with a surgical procedure, which risks subsequently eventuated. The core of the dispute revolved around the adequacy of the warning provided, particularly in circumstances where effective communication relied on translation.

The legal issues before the Court of Appeal included whether the defendants owed a duty to warn the patient of material risks of the surgery with reasonable care, and the scope of that duty in the context of a patient with limited English proficiency. The court also had to determine whether any alleged failure to warn caused the patient to undergo the surgery, considering whether the patient's decision was based on a misunderstanding for which the defendants were not responsible, as per section 5D of the *Civil Liability Act 2002* (NSW). Furthermore, the assessment of expert evidence, including the weight given to usual practice supported or unsupported by notes, and the plaintiff's denial of any warning, were central to the appeal.

The Court of Appeal found that the trial judge had erred in assessing the evidence. It was held that the plaintiff's decision to undergo surgery was not demonstrably affected by a failure to warn of material risks by the defendants. Instead, the evidence suggested the patient's decision was based on a misunderstanding for which the defendants were not responsible. The court applied principles relating to the duty to warn in medical negligence cases, emphasizing the need for effective communication of material risks, and the principles of causation under the *Civil Liability Act 2002* (NSW). The court also considered the proper assessment of expert evidence and the reasonableness of expert witness expenses.

Consequently, the Court of Appeal allowed the appeal, setting aside the judgment for the plaintiff and ordering that the proceedings in the District Court be dismissed. The plaintiff was ordered to pay the defendants' costs in the District Court. The court also made specific orders regarding the costs of a motion concerning witness expenses and ordered the plaintiff to pay the appellants' costs of the proceedings in the Court of Appeal, granting the first respondent a certificate under the *Suitors’ Fund Act 1951* (NSW).

Orders

Orders of the court

(1) Allow the appeal and set aside the judgment for the plaintiff with costs, given in the District Court, including orders 1 and 2 made and entered on 24 February 2015.

(2) In lieu of those orders order that:

(a) the proceedings in the District Court be dismissed;

(b) the plaintiff pay the defendants’ costs in that Court.

(3) With respect to the judgment given and the orders made on 17 April 2015 and entered on 23 June 2015:

(a) set aside orders 3 and 4;

(b) in place of order 3 order that the defendants pay to Dr Havas an amount of $3,950 for compliance with a subpoena to attend and give evidence on 23 October 2014;

(c) order that the plaintiff pay the costs of her motion dated 30 March 2015 seeking an order that the defendants pay the witness expenses charged by Dr Havas.

(4) Order that the first respondent pay the appellants’ costs of the proceedings in this Court.

(5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Biggs v George [2016] NSWCA 113
Hearing dates:	1 and 2 December 2015
Decision date:	17 May 2016
Before:	Basten JA at [1]; Ward JA at [165]; Payne JA at [166]
Decision:	(1) Allow the appeal and set aside the judgment for the plaintiff with costs, given in the District Court, including orders 1 and 2 made and entered on 24 February 2015. (2) In lieu of those orders order that: (a) the proceedings in the District Court be dismissed; (b) the plaintiff pay the defendants’ costs in that Court. (3) With respect to the judgment given and the orders made on 17 April 2015 and entered on 23 June 2015: (a) set aside orders 3 and 4; (b) in place of order 3 order that the defendants pay to Dr Havas an amount of $3,950 for compliance with a subpoena to attend and give evidence on 23 October 2014; (c) order that the plaintiff pay the costs of her motion dated 30 March 2015 seeking an order that the defendants pay the witness expenses charged by Dr Havas. (4) Order that the first respondent pay the appellants’ costs of the proceedings in this Court. (5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW)
Catchwords:	TORTS – negligence – medical negligence – failure to warn – duty to warn patient of material risks of surgical procedure with reasonable care – non-English speaking patient – scope of duty of care where effective communication reliant on translation – whether failure to warn of potential risks of surgery which eventuated TORTS – causation – whether alleged failure to warn of material risks affected decision to undergo surgery – decision of patient based on misunderstanding for which defendants not responsible – Civil Liability Act 2002 (NSW), s 5D EVIDENCE – expert – medical practitioners – evidence of usual practice – supported by notes – unsupported by notes – patient’s denial of any warning of relevant material risk – limited cross-examination of experts – whether evidence properly assessed CIVIL PROCEDURE – expert witness’ expenses – reasonable expenses of expert witness procured for cross-examination under subpoena – liability for loss incurred in reviewing evidence given for instructing party – liability for loss incurred in relation to attendance on a date when not required where instructing party in control of case – calculation of loss where no direct evidence
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D Civil Procedure Act 2005 (NSW), ss 3, 98; Pt 7, Div 2 Supreme Court Act 1970 (NSW), s 45AA Uniform Civil Procedure Rules 2005 (NSW), rr 31.27, 31.28, 31.29, 31.30, 33.1, 33.11, 42.1; Sch 11, cl 22
Cases Cited:	Bank of New South Wales v Withers (1981) 52 FLR 207 Deposit & Investment Co Ltd (Receivers appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267 Foyster v Foyster Holdings [2003] NSWSC 881 Rogers v Whitaker (1992) 175 CLR 479