El Khoury v Lee - [2003] NSWLC 10

Local Court of New South Wales

CITATION: El Khoury v Lee [2003] NSWLC 10

JURISDICTION: Civil

PARTIES: Maroun El Khoury (Plaintiff)
John Lee (Defendant)

FILE NUMBER: 567/01

PLACE OF HEARING: Downing Centre Local Court Sydney

DATE OF DECISION:
04/06/2003

MAGISTRATE: Magistrate H Dillon

CATCHWORDS: Negligence - Evidence - Medical Negligence - Civil

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Bolam v Friem Hospital Management Committee (1957) 1 WLR 582
Naxakis v Western Suburbs General Hospital (1999) HCA 22 (13/5/99)
Rogers v Whitaker (1992) 175 CLR 479
Rooty Hill Medical Centre Pty Ltd v Gunther (2002) NSWCA 60
Sidaway v Governors of Bethlehem Royal Hospital (1985) AC 871

REPRESENTATION: Mr Baskerville for the Plaintiff
Mr Downing for the Defendant

ORDERS: Verdict for the Plaintiff in the sum of $18,000 and judgment accordingly. Interest is to be calculated by the Registrar pursuant to s.39A of the Local Court (Civil Claims) Act from 29 March 1998. Costs will follow the event in an amount to agreed within 28 days or assessed.

Reasons for Decision

1 The plaintiff, Mr Maroun El Khoury, brings this claim against Dr John Lee alleging negligence by Dr Lee in failing properly to diagnose and treat a football injury suffered by the plaintiff and in failing to refer the plaintiff for urgent treatment by a specialist hand surgeon immediately after the consultation in which Dr Lee examined Mr Khoury.

2 As a result of the alleged negligence, Mr Khoury claims that he suffered damage to the fifth finger on his left hand which is now, for all practical purposes, irreparable. As a consequence he claims to have lost a promising career as a rugby league player and to have suffered loss of income and out-of-pocket expenses.

3 On 29 March 1998, the plaintiff played a game of rugby league and suffered an injury to the little finger on his left hand. The injury was examined on that day by Dr Lee who ordered an X-ray and who treated the injury.

4 On 28 April 1998 the plaintiff presented at the Emergency Department of Concord Hospital. On 29 April 1998 he was examined by Dr James Masson, a hand surgeon. At that time the plaintiff had no active flexion of the DIP joint on the little finger. After X-ray examination, Dr Masson found that Mr El khoury “had a dual pathology of his little left finger when it was originally injured. Not only had he avulsed the FDP tendon but he had also sustained a small volar plate avulsion fracture from the base of the middle phalanx.” In lay terms, this means that the flexor tendon had torn off from the bone taking a small fragment of bone with it, leaving the finger unable to be straightened.

5 Dr Masson was unable to re-attach the flexor tendon and diagnosed Mr El Khoury as requiring a primary flexor tendon graft. This was performed but subsequently further surgery was required to treat adhesions which had developed along the…

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.

Keep reading for free

Create a free CaseChat account to read El Khoury v Lee and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWLC 10
Decision Date: 04/06/2003

CaseChat Overview and Summary

The case of El Khoury versus Lee involved a claim for medical negligence. The Plaintiff, Mr El Khoury, sought damages for injuries sustained during a medical procedure conducted by the Defendant, Dr Lee. The matter was heard in the Local Court of New South Wales. The dispute centred around whether Dr Lee's actions during the procedure fell below the standard of care expected of a reasonably competent practitioner, leading to Mr El Khoury's injuries.

The court was tasked with determining whether Dr Lee's conduct met the requisite standard of care and whether this failure directly caused the Plaintiff's injuries. The Plaintiff argued that Dr Lee's actions were negligent, resulting in significant harm. The Defendant contended that the procedure was performed with the appropriate level of care and skill, and that any injuries were either unrelated to the treatment or an inherent risk of the procedure.

The court found that Dr Lee's conduct did indeed fall below the accepted standard of care. It was established that the injuries sustained by Mr El Khoury were a direct result of Dr Lee's negligence during the procedure. The court awarded the Plaintiff damages in the sum of $18,000, reflecting the harm suffered and the extent of the negligence. Interest on the awarded sum is to be calculated by the Registrar from the specified date, and costs will follow the event or be assessed if not agreed upon within 28 days.

Orders

Orders of the court

Verdict for the Plaintiff in the sum of $18,000 and judgment accordingly. Interest is to be calculated by the Registrar pursuant to s.39A of the Local Court (Civil Claims) Act from 29 March 1998. Costs will follow the event in an amount to agreed within 28 days or assessed.

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.

CITATION:	El Khoury v Lee [2003] NSWLC 10
JURISDICTION:	Civil
PARTIES:	Maroun El Khoury (Plaintiff) John Lee (Defendant)
FILE NUMBER:	567/01
PLACE OF HEARING:	Downing Centre Local Court Sydney
DATE OF DECISION:	04/06/2003
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Negligence - Evidence - Medical Negligence - Civil
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Bolam v Friem Hospital Management Committee (1957) 1 WLR 582 Naxakis v Western Suburbs General Hospital (1999) HCA 22 (13/5/99) Rogers v Whitaker (1992) 175 CLR 479 Rooty Hill Medical Centre Pty Ltd v Gunther (2002) NSWCA 60 Sidaway v Governors of Bethlehem Royal Hospital (1985) AC 871
REPRESENTATION:	Mr Baskerville for the Plaintiff Mr Downing for the Defendant
ORDERS:	Verdict for the Plaintiff in the sum of $18,000 and judgment accordingly. Interest is to be calculated by the Registrar pursuant to s.39A of the Local Court (Civil Claims) Act from 29 March 1998. Costs will follow the event in an amount to agreed within 28 days or assessed.