New South Wales
Court of Appeal
CITATION: ELBOURNE v GIBBS [2006] NSWCA 127 HEARING DATE(S): 4 April 2006
JUDGMENT DATE:
24 May 2006JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Basten JA at 34 DECISION: Appeal dismissed with costs CATCHWORDS: NEGLIGENCE – duty of care owed by doctor to patient – doctor failed to warn patient of material risks in operation – risks materialised – whether doctor had duty to warn patient of risks. - NEGLIGENCE – causation – whether trial judge made finding in relation to causation – whether breach of duty by failure to warn caused injury – whether the plaintiff needed to only establish a prima facie case of causation in the absence of a more plausible contrary inference. LEGISLATION CITED: Civil Liability Act 2002 (NSW), s5D CASES CITED: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Chapel v Hart (1998) 195 CLR 232
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
CSR Limited v Della Maddalena (2006) 224 ALR 1
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation, Berhad (1999) 196 CLR 161
Henville v Walker (2001) 206 CLR 459
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579
Naxakis v Western General Hospital (1999) 197 CLR 269; (1999) 73 ALJR 782
Purvis v New South Wales (2003) 217 CLR 92
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shead v Hooley [2000] NSWCA 362
TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380
The Waterways Authority v Fitzgibbon (2005) 221 ALR 402
Travel Compensation Fund v Tambree T/as Tambree and Associates (2005) 80 ALJR 183
Zaltron v Raptis [2001] SASC 209PARTIES: Dr Ian Elbourne - Appellant
Rodney Gibbs - RespondentFILE NUMBER(S): CA 40686/05 COUNSEL: M. Bozic SC/K. Burke - Appellant
P. Menzies QC/P.R. Sternberg - RespondentSOLICITORS: Tresscox, Sydney - Appellant
Pike & Associates, Bathurst - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 3999 of 2004 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 10/08/05
CA 40686/05
DC 3999/0424 May 2006BEAZLEY JA
IPP JA
BASTEN JA
ELBOURNE v GIBBS
This is an appeal from a decision of the District Court awarding damages to Mr Gibbs for injuries suffered as a result of the negligence of Dr Elbourne.
Dr Elbourne performed an operation on Mr Gibbs to repair bilateral inguinal hernias. Mr Gibbs had a history of significant health problems prior to the operation. Mr Gibbs suffered a number of adverse effects from the…
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- AGLC
- Elbourne v Gibbs [2006] NSWCA 127
- Case
- [2006] NSWCA 127
- Decision Date
CaseChat Overview and Summary
The case of *Elbourne v Gibbs* concerned an appeal to the New South Wales Court of Appeal regarding a doctor's alleged failure to warn a patient of material risks associated with an operation. The patient suffered injury when those risks materialised.
The central legal issues before the Court of Appeal were whether the doctor owed a duty of care to warn the patient of material risks associated with the operation, and if so, whether the failure to warn caused the patient's injury. The Court also considered whether, in the absence of a more plausible contrary inference, the plaintiff needed only to establish a prima facie case of causation.
The Court of Appeal upheld the trial judge's findings. It was held that a doctor has a duty to warn a patient of risks that a reasonable person in the patient's position would consider material to their decision to undergo the surgery. The Court affirmed that causation in such cases requires proof that the patient would not have undergone the procedure had they been properly warned, and that the risk that materialised was one of the risks that would have deterred them. The Court found that the trial judge had made sufficient findings on causation.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
The central legal issues before the Court of Appeal were whether the doctor owed a duty of care to warn the patient of material risks associated with the operation, and if so, whether the failure to warn caused the patient's injury. The Court also considered whether, in the absence of a more plausible contrary inference, the plaintiff needed only to establish a prima facie case of causation.
The Court of Appeal upheld the trial judge's findings. It was held that a doctor has a duty to warn a patient of risks that a reasonable person in the patient's position would consider material to their decision to undergo the surgery. The Court affirmed that causation in such cases requires proof that the patient would not have undergone the procedure had they been properly warned, and that the risk that materialised was one of the risks that would have deterred them. The Court found that the trial judge had made sufficient findings on causation.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs
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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