Breheny v Cairncross - [2002] NSWCA 69

CITATION: Breheny (by his Tutor Gary Breheny) v Cairncross & 2 Ors [2002] NSWCA 69

FILE NUMBER(S): CA 40240 of 2001

HEARING DATE(S): 06/03/02

JUDGMENT DATE:
6 March 2002

PARTIES :

Christopher Breheny (by his Tutor Gary Breheny)
v
David John Cairncross
Gordon Vincent Oxenham
Lachlan Area Health Service

JUDGMENT OF: Meagher JA at 1, 8; Handley JA at 6; Hodgson JA at 7

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : 6218 of 1998

LOWER COURT
JUDICIAL OFFICER : Bell J

COUNSEL: A: H G Shore
R (1&2): M I Bozic SC

SOLICITORS: A: Graham Jones Lawyers
R (1&2): Tress Cocks & Maddox
R (3): Lyn Boyd Solicitor

CATCHWORDS: Medical Negligence - Natural Justice - appellant sued hospital and two doctors for intellectual disabilities allegedly caused by their negligent treatment in relation to his birth - appeal against order under Pt 13 r 5 Supreme Court Rules summarily dismissing claim against doctors - whether trial judge erred in failing to apply principle in Wickstead v Browne - appeal allowed.

CASES CITED:
Wickstead v Browne [1992] 30 NSWLR p1.

DECISION: 1. The appeal be allowed, the judgment in the Court below be set aside; 2. In lieu thereof there be an order dismissing the motion; 3. An order that the present respondents pay the appellant costs of the appeal and of the application to appeal; and 4. An order that the costs of the motion be costs in the cause; 5. The respondents to have the certificate under the Suitor's Fund Act in respect of the costs of the appeal.

- 3 -IN THE SUPREME COURT

CA 40240 of 2001

MEAGHER JA
HANDLEY JA
HODGSON JA
Wednesday, 6 March 2002

CHRISTOPHER BREHENY (BY HIS TUTOR GARY BREHENY)

DAVID JOHN CAIRNCROSS & 2 ORS

Judgment

1 MEAGHER JA: In this matter the plaintiff, Mr Christopher Breheny, is suing three defendants, the Lachlan Health Service (which is a hospital) and two doctors, namely Dr Cairncross and Dr Oxenham. The matter has been noticeable for the extremely slow progress at an interlocutory stage as apparently order after order made as for the filing of expert evidence and the like has been disregarded.

2 The result of this was that an application was brought by the two doctors, the second and third defendants, initially under Pt 33 r 6 of the Supreme Court rules for the case against them to be struck out for want of a prosecution. That application was filed on 17 December and came before the court but not adjudicated upon until 16 March when its nature was changed to be an application under Pt 13 r 5 of the rules for an order dismissing the proceedings generally, again, against those two defendants. At no stage did the hospital, the first defendant, take part in any of the notices of motion. It neither supported nor objected to the motion of the other two defendants, they being as I have said doctors.

3 The change of application from…

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 Breheny v Cairncross

Details

AGLC: Breheny v Cairncross [2002] NSWCA 69
Case: [2002] NSWCA 69
Decision Date: 6 March 2002

CaseChat Overview and Summary

Breheny (the appellant) brought proceedings against a hospital and two doctors (the respondents) alleging intellectual disabilities caused by their negligent treatment during his birth. The appeal concerned an order made under Part 13 rule 5 of the Supreme Court Rules, which summarily dismissed the appellant's claim against the doctors. The appeal was heard by Meagher, Handley and Hodgson JJA.

The central legal issue before the Court of Appeal was whether the trial judge erred in summarily dismissing the appellant's claim against the doctors, specifically in failing to apply the principle established in *Wickstead v Browne*. This principle relates to the circumstances under which a claim, particularly one involving allegations of medical negligence, can be summarily dismissed.

The Court of Appeal allowed the appeal, finding that the trial judge had erred in dismissing the claim. The reasoning focused on the application of *Wickstead v Browne*, which generally requires a high threshold to be met before a claim can be struck out summarily, especially in complex matters like medical negligence where expert evidence is often required. The Court determined that the appellant's case should not have been dismissed at that preliminary stage.

Consequently, the Court of Appeal set aside the judgment of the court below and ordered that the motion to dismiss the claim be dismissed. The respondents were ordered to pay the appellant's costs of the appeal and the application for leave to appeal, with the costs of the motion to be costs in the cause. The respondents were also granted a certificate under the Suitor's Fund Act in respect of the costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed, the judgment in the Court below be set aside; 2. In lieu thereof there be an order dismissing the motion; 3. An order that the present respondents pay the appellant costs of the appeal and of the application to appeal; and 4. An order that the costs of the motion be costs in the cause; 5. The respondents to have the certificate under the Suitor's Fund Act in respect of the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Breheny (by his Tutor Gary Breheny) v Cairncross & 2 Ors [2002] NSWCA 69
FILE NUMBER(S):	CA 40240 of 2001
HEARING DATE(S):	06/03/02
JUDGMENT DATE:	6 March 2002
PARTIES :	Christopher Breheny (by his Tutor Gary Breheny) v David John Cairncross Gordon Vincent Oxenham Lachlan Area Health Service
JUDGMENT OF:	Meagher JA at 1, 8; Handley JA at 6; Hodgson JA at 7

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	6218 of 1998
LOWER COURT JUDICIAL OFFICER :	Bell J

COUNSEL:	A: H G Shore R (1&2): M I Bozic SC
SOLICITORS:	A: Graham Jones Lawyers R (1&2): Tress Cocks & Maddox R (3): Lyn Boyd Solicitor
CATCHWORDS:	Medical Negligence - Natural Justice - appellant sued hospital and two doctors for intellectual disabilities allegedly caused by their negligent treatment in relation to his birth - appeal against order under Pt 13 r 5 Supreme Court Rules summarily dismissing claim against doctors - whether trial judge erred in failing to apply principle in Wickstead v Browne - appeal allowed.
CASES CITED:	Wickstead v Browne [1992] 30 NSWLR p1.
DECISION:	1. The appeal be allowed, the judgment in the Court below be set aside; 2. In lieu thereof there be an order dismissing the motion; 3. An order that the present respondents pay the appellant costs of the appeal and of the application to appeal; and 4. An order that the costs of the motion be costs in the cause; 5. The respondents to have the certificate under the Suitor's Fund Act in respect of the costs of the appeal.