Biggs v George

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).