Fan v South Eastern Sydney Local Health District

The Court of Appeal of New South Wales heard an appeal concerning allegations of medical negligence brought by the appellant, Ms Fan, against the respondent, South Eastern Sydney Local Health District. Ms Fan alleged that a misdiagnosis and an unreasonable delay in performing a cholecystectomy led to further medical conditions and disabilities.

The central legal issues before the Court were whether the trial judge erred in finding that the appellant had failed to establish her claims of negligence, particularly in relation to the alleged misdiagnosis and the delay in surgery. The Court also considered the function of an appellate court in reviewing a trial judge's findings of fact, especially when faced with conflicting statements in written records and the importance of expert evidence, including joint reports and evidence given in conclave.

The Court of Appeal affirmed the trial judge's findings, holding that the appellant had not adduced sufficient expert evidence to support her claims that the diagnosis was negligent or that the delay in performing the cholecystectomy caused her further harm. The Court emphasised that appellate interference with a trial judge's findings of fact is limited and requires more than a selective reading of the evidence or the identification of conflicting statements in medical records. The Court found that the trial judge had properly considered the entirety of the evidence, including the joint expert report, and that there was no basis to overturn the findings that the respondent had not breached its duty of care.

The appeals were dismissed, and the appellant was ordered to pay the respondent’s costs in the Court of Appeal.