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
[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 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.