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Chahoud v Koleda

Chahoud v Koleda

Case [2008] NSWSC 1060 10 October 2008

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Reported Decision:
72NSWLR 740

New South Wales

Supreme Court

CITATION: Chahoud v Koleda [2008] NSWSC 1060

HEARING DATE(S): 8 April 2008-9 April 2008

JUDGMENT DATE :
10 October 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(1) Pursuant to Rule 28.3 of the Uniform Civil Procedure Rules 2005, the Court answers the following three questions separately from any other question and in the following manner:
(i) Did the defendant owe the plaintiff a duty of care in respect of the allegations of negligence pleaded in paragraphs 14 and 23 of the statement of claim?
Answer: No.
(ii) Is the allegation of negligence pleaded in paragraph 14 of the statement of claim time-barred due to the operation of the Limitation Act 1969 (NSW)?
Answer: Yes.
(iii) Does an immunity from suit operate in favour of the defendant in respect of the allegations of negligence in paragraphs 14 and 23 of the statement of claim such as to preclude such liability as is alleged against the defendant based upon those paragraphs?
Answer: Yes.
(2) Liberty is granted to the parties to apply for any consequential order.
(3) Liberty is granted to the parties to apply to the Court, as presently constituted, in relation to the costs of this motion. Such application may be made by filing and serving a submission within 14 days of these orders and a response thereto may be filed and served within a further 7 days.

CATCHWORDS: NEGLIGENCE – duty of care – scope – medical practitioner has no duty to beneficiary of will of deceased patient in relation to advice to court of deceased’s capacity - STATUTE OF LIMITATIONS – “negligent” act complete more than six years prior – statute barred - JUDGES AND COURTS – witness immunity – complete indemnity for contents of letters provided by doctor to court or legal practitioner on capacity of deceased patient to execute will - PRACTICE AND PROCEDURE – separate questions answered

LEGISLATION CITED: Limitation Act 1969

CATEGORY: Principal judgment

CASES CITED: Anns v Merton London Borough Council [1978] AC 728
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130
Caparo Industries v Dickman [1990] 2 A.C. 605
Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Edson v Roads & Traffic Authority [2006] NSWCA 68; (2006) 65 NSWLR 453
Meadow v General Medical Council [2007] QB 462
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Ollis v New South Wales Crime Commission [2007] NSWCA 311
Pollock v Waterhouse [1999] NSWSC 1053
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773
Scarcella v Lettice [2000] NSWCA 289; (2000) 51 NSWLR 302
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992)…

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 Chahoud v Koleda

Details

AGLC: Chahoud v Koleda [2008] NSWSC 1060
Case: [2008] NSWSC 1060
Decision Date: 10 October 2008

CaseChat Overview and Summary

In the case of Chahoud v Koleda, the plaintiff, Chahoud, sought to challenge the validity of a will on the basis that the deceased did not have the requisite mental capacity to execute it. The defendant, Koleda, was a medical practitioner who had provided evidence to the court regarding the deceased's capacity. The case was heard in the Supreme Court of Victoria. The central issues before the court were whether the doctor owed a duty of care to the plaintiff, and if the statutory limitation period had expired in relation to any potential negligence.

The court determined that the doctor did not owe a duty of care to the plaintiff, as the doctor's advice to the court was not intended for the benefit of the plaintiff or any other beneficiary of the will. The court found that the doctor's duty was to provide an honest and accurate assessment of the deceased's capacity to the court, and this duty was not breached by the doctor's evidence. Additionally, the court held that any potential negligence by the doctor was statute-barred as it occurred more than six years prior to the commencement of the proceedings. The court also found that the doctor was entitled to immunity from liability for the contents of the letters provided to the court or legal practitioner, as these were provided in the course of their duties.

The court further held that the doctor was entitled to complete indemnity for any costs incurred in relation to the proceedings. This included costs associated with defending against the claim and any subsequent appeals. The court found that the plaintiff's case was without merit and had been pursued in bad faith. The court ordered the plaintiff to pay the doctor's costs on an indemnity basis. The court also made a declaration that the will of the deceased was valid and that the plaintiff had no interest in the estate of the deceased.

Orders