Brakoulias v Karunaharan - [2012] VSC 272

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2011 5013

TOULA BRAKOULIAS	Plaintiff
V
DR CHITRA KARUNAHARAN	Defendant

---

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2012
DATE OF RULING:	12 June 2012 (reasons delivered 20 June 2012).
CASE MAY BE CITED AS:	Brakoulias v Dr Karunaharan (Ruling)
MEDIUM NEUTRAL CITATION:	[2012] VSC 272

---

TORTS – Negligence – Medical practitioners – Common law standard of care for professionals – Rogers v Whitaker – Statutory prescribed standard of peer professional opinion – Construction of statute – Wrongs Act 1958 (Vic), s 59 – Whether s 59 supersedes common law standard – Whether s 59 creates a statutory defence to common law negligence – Whether s 59 imposes evidentiary burden or legal burden on defendant – Civil Liability Act 2002 (NSW), s 5O.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr TJ Casey QC with Mr MW Richardson	Alessi & Kemp
For the Defendant	Mr JP Gorton SC with Ms BY Knoester	Norton Rose

HIS HONOUR:

Introduction

Mrs Toula Brakoulias, the plaintiff, suffered a cardiac arrest on 11 December 2004 when 50 years of age. She stopped breathing. Before being resuscitated by paramedics she was substantially deprived of oxygen for 26 minutes. As a result she has suffered serious, long-term injuries, including loss of motor and cognitive function, speech impairment, loss of memory, and other consequential injuries.

About four months before her cardiac arrest she had been prescribed a weight loss drug called Reductil by her local general practitioner, Dr Karunaharan, the defendant. Mrs Brakoulias took the drug up until (and including on) the day of her cardiac arrest.

In this case Mrs Brakoulias alleged that Dr Karunaharan was negligent in prescribing her Reductil, and that the taking of Reductil caused her cardiac arrest and her injuries. Damages were agreed. Only liability was in issue. The trial was by jury.[1]
[1]On 13 June 2012 the jury returned a verdict in favour of the defendant.

Prior to charging the jury I heard argument from counsel on the proper construction of s 59 of the Wrongs Act 1958 (Vic). Specifically, the question was whether that section: (1) sets out a defence, (2) simply defines the content of the standard of care applicable to a professional against whom a claim in negligence is brought, or (3) does something in between.

In 2004, as now, s 59 stated as follows:

Standard of Care for Professionals
(1)A professional is not negligent in providing a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.
(2)However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.
(3)The fact that there are differing peer professional opinions…

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.

Keep reading for free

Create a free CaseChat account to read Brakoulias v Karunaharan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] VSC 272
Decision Date: 12 June 2012 (reasons delivered 20 June 2012).

CaseChat Overview and Summary

The matter of Brakoulias v Karunaharan involved a claim for damages in tort based on alleged medical negligence. The plaintiff, Brakoulias, sought compensation from the defendant, Karunaharan, a medical practitioner, for injuries sustained during a medical procedure. The case was heard in the Supreme Court of Victoria. The central issue before the court was the interpretation of section 59 of the Wrongs Act 1958 (Vic), which provides a statutory framework for determining the standard of care in professional services, and whether this section supersedes the common law standard of care as established in Rogers v Whitaker. Additionally, the court had to determine whether section 59 creates a statutory defence to common law negligence, and whether it imposes an evidentiary burden or a legal burden on the defendant.

The court considered the legislative intent behind section 59, examining whether it was meant to replace the common law standard of care for professionals, which requires a medical practitioner to act in accordance with the standards of a competent practitioner in their field. The court noted that section 59, by providing that the standard of care is to be determined by reference to peer professional opinion, does not explicitly state that it supersedes the common law. Instead, the court found that section 59 complements the common law by offering an alternative method of determining the standard of care, rather than creating a statutory defence to common law negligence. The court also ruled that section 59 does not impose a legal burden on the defendant to prove compliance with the statutory standard, but rather shifts the evidentiary burden to the plaintiff to establish a departure from the peer professional opinion.

In conclusion, the court held that section 59 of the Wrongs Act 1958 (Vic) provides an alternative statutory standard of care that is to be considered alongside the common law standard, but it does not supersede the common law. The court found that section 59 does not create a statutory defence to common law negligence and does not impose a legal burden on the defendant. Instead, the evidentiary burden remains with the plaintiff to show a departure from the standard of care as determined by peer professional opinion. The final orders of the court will direct the parties to proceed with the case based on the clarified interpretation of section 59 in relation to the standard of care.

Orders