Dean v Pope

Case [2022] NSWCA 260


Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Dean v Pope [2022] NSWCA 260
Hearing dates: 30 August 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Before: Ward P at [1];
Macfarlan JA at [254];
Meagher JA at [258];
White JA at [259];
Brereton JA at [270]
Decision:

1.   Time for filing the Notice of Appeal be extended until 14 March 2022.

2.   Appeal dismissed.

3.   Cross-appeal be dismissed.

4.   The appellant/cross-respondent to pay the cross-appellant/respondent’s costs of the appeal and cross-appeal.

Catchwords:

NEGLIGENCE — Breach — Standard of care — Professional negligence — Where respondent neurosurgeon performed lumbar surgery on the appellant on the basis that MRI scans showed nerve root compression in the lumbar spine — Where appellant’s lumbar disc herniation caused leakage of the nucleus pulposis and associated irritation — Where appellant suffered from an undiagnosed lesion in the thoracic spine — Whether preoperative diagnostic assessment inadequate — Whether lumbar surgery unnecessary — Whether respondent breached duty of care owed to the appellant — Whether respondent acted in a manner widely supported by peer professional opinion as competent professional practice

NEGLIGENCE — General principles — Professional negligence — Section 5O of the Civil Liability Act 2002 (NSW) — Whether the interpretation of s 5O in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 ought to be overturned

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5O, 5P, 13

Wrongs Act 1958 (Vic), s 59

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; [1987] HCA 19

Belknap v Meakes (1989) 64 DLR (4th) 452

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582

Boxell v Peninsula Health [2019] VSC 830

Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336; [1981] HCA 4

Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335

Dunne v National Maternity Hospital [1989] IR 91

Ellis v Wallsend (1989) 17 NSWLR 553

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Frangie v South Western Sydney Local Health District trading as Liverpool Hospital (2019) 29 DCLR(NSW) 346; [2019] NSWDC 42

Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76

Gover v South Australia (1985) 39 SASR 543

Grinham v Tabro Meats Pty Ltd; Victorian WorkCover Authority v Murray [2012] VSC 491

Heyman v Board of Management of Royal Perth Hospital (1995) 14 SR (WA) 14

Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44

Jones v Braund (No 2) [2020] NSWDC 54

Kaban v Sett [1994] 1 WWR 476

Liprini v McIntyre [2019] NSWSC 355

Lowns v Woods (1996) Aust Tort Reports 81-376

Makaroff v…

Continue reading Dean v Pope

Sign in free to access the full text

Details
AGLC
Dean v Pope [2022] NSWCA 260
Case
[2022] NSWCA 260
Decision Date

CaseChat Overview and Summary

In *Dean v Pope*, the appellant, who had undergone lumbar surgery performed by the respondent neurosurgeon, appealed to the New South Wales Court of Appeal against a decision that had dismissed her claim for professional negligence. The appellant alleged that the respondent's preoperative diagnostic assessment was inadequate and that the lumbar surgery was unnecessary, leading to her suffering from an undiagnosed lesion in her thoracic spine.

The central legal issues before the Court of Appeal were whether the respondent neurosurgeon had breached the duty of care owed to the appellant and, in particular, whether the respondent's actions in performing the lumbar surgery were consistent with competent professional practice, as contemplated by section 5O of the *Civil Liability Act 2002* (NSW). The Court was also asked to consider whether its previous interpretation of section 5O in *McKenna v Hunter and New England Local Health District* [2013] NSWCA 476 should be overturned.

The Court of Appeal, applying the principles established in *McKenna*, found that the respondent's conduct was widely supported by peer professional opinion as competent professional practice. The Court held that the diagnostic assessment undertaken by the respondent was adequate in the circumstances and that the lumbar surgery was a reasonable course of action based on the information available at the time. Consequently, the Court concluded that the respondent had not breached the standard of care owed to the appellant.

The Court of Appeal ordered that time for filing the Notice of Appeal be extended, but ultimately dismissed both the appeal and the cross-appeal. The appellant was ordered to pay the respondent's costs of the appeal and cross-appeal.

Orders

Orders of the court

1. Time for filing the Notice of Appeal be extended until 14 March 2022.

2. Appeal dismissed.

3. Cross-appeal be dismissed.

4. The appellant/cross-respondent to pay the cross-appellant/respondent’s costs of the appeal and cross-appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.