Dean v Pope

Case [2021] NSWDC 670

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Dean v Pope [2021] NSWDC 670
Hearing dates: 22, 23, 24 & 25 June, 16 & 23 July, 7 August, 4, 11 & 17 September, 3 & 11 December 2020; 10 March 2021
Date of orders: 13 December 2021
Decision date: 13 December 2021
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

1. Verdict and judgment for the defendant;

2. The plaintiff is to pay the defendant’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – medical treatment – neurosurgery – finding that treating neurosurgeon acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice – defence established pursuant to s 5O of Civil Liability Act 20021 – claim of negligence not proven – claim of causation not proven; DAMAGES – damages assessed at $611,850 – failure of plaintiff’s solicitor to prove claim for out-of-pocket expenses

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5O, s 13, s 16

Uniform Civil Procedure Rules 2005 (NSW), Sch 7

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

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

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

Glen v Sullivan [2015] NSWCA 191

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Leotta v Public Transport Commission of NSW (1976) 9 ALR 437; 50 ALJR 666

Lowns v Woods (1996) Aust Torts Reports 81 – 376

McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Paff v Speed (1961) 105 CLR 549

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

Penrith City Council v Parks [2004] NSWCA 201

Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18

Sparks v Hobson [2018] NSWCA 29

State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Sydney South West Area Health Service v MD [2009] NSWCA 343

Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Watson v Foxman & Ors (2000) 49 NSWLR 315

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category:Principal judgment
Parties: Paul Rory Dean (Plaintiff)
Raoul Pope (Defendant)
Representation:

Counsel:
Mr M Cranitch SC with Mr A Campbell (Plaintiff)
Mr…

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AGLC
Dean v Pope [2021] NSWDC 670
Case
[2021] NSWDC 670
Decision Date

CaseChat Overview and Summary

In the matter of Dean v Pope, the plaintiff, Dean, brought an action against the defendant, Pope, a neurosurgeon, alleging that he had been negligent in the provision of medical treatment and that this negligence had caused him harm. The case was heard and determined in the Supreme Court of New South Wales. The central issue before the Court was whether the defendant had breached his duty of care owed to the plaintiff by providing treatment that fell below the standard expected of a reasonably competent neurosurgeon. Additionally, the Court had to determine whether any such breach caused the plaintiff’s alleged injuries.

The Court found that the defendant had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. This finding was pivotal, as it established the defence of professional negligence under section 5O of the Civil Liability Act 2002. The Court held that the plaintiff had not discharged the onus of proving, on the balance of probabilities, that the defendant's actions were negligent and that such negligence caused his injuries. Furthermore, the Court ruled that the plaintiff had failed to prove his claim for out-of-pocket expenses, resulting in a significantly reduced damages assessment of $611,850.

Consequently, the Court delivered a verdict and judgment in favour of the defendant, Pope. The plaintiff was ordered to pay the defendant’s costs on the ordinary basis, unless otherwise directed. The exhibits were to be returned to the parties, and the plaintiff was granted liberty to apply for further or other orders within seven days’ notice. This decision underscores the importance of meeting the burden of proof in medical negligence cases and the impact of peer professional opinion on such determinations.

Orders

Orders of the court

1. Verdict and judgment for the defendant;

2. The plaintiff is to pay the defendant’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

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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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