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Garling v Patiniotis

Garling v Patiniotis

Case [2024] TASSC 29 17 June 2024

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[2024] TASSC 29

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Garling v Patiniotis [2024] TASSC 29
PARTIES:	GARLING, Ann Marise
v
PATINIOTIS, Tony
FILE NO:	748/2019
DELIVERED ON:	17 June 2024
DELIVERED AT:	Hobart
HEARING DATES:	5, 6, 7, 8, 9 September 2022, 1, 4 November 2022
JUDGMENT OF:	Brett J
CATCHWORDS:

Negligence – Generally – Procedure and evidence – Evidence – Circumstantial evidence – Defendant performed hemorrhoidectomy on plaintiff – Plaintiff alleged procedure was performed negligently – Claimed impact of negligence is permanent and productive of severe disability - Whether court can draw inference from location of staple line that defendant negligently performed procedure – Defendant breached duty of care in performance of procedure.

Aust Dig Torts [1365]

Damages – Particular awards of general damages – Tasmania – Surgeon negligently performed hemorrhoidectomy procedure – Breach of duty of care.

Aust Dig Damages [1173]

Cases:
Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4
Circular Head Fencing Pty Ltd v Motor Accidents Insurance Board [2017] TASFC 6
French v NSW [1999] NSWCA 175
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18
Malec v JC Hutton Pty Ltd [1990] HCA 20, 1991 69 CLR 638
Rogers v Whitaker [1992] HCA, (1992) 175 CLR 479.
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3

Legislation:
Civil Liability Act 2002, s22, s13(1)
Evidence Act 2000, s 69(2).
Supreme Court Civil Procedure Act 1932, s35A

REPRESENTATION:

Counsel:

Plaintiff: B McTaggart SC/ R O'Keefe SC
Defendant: K Read SC/ A Darcey

Solicitors:

Plaintiff: LHD Lawyers
Defendant: HWL Ebsworth

Judgment Number:	[2024] TASSC 29
Number of paragraphs:	162

Serial No 29/2024 File No 748/2019

ANN MARISE GARLING v TONY PATINIOTIS

REASONS FOR JUDGMENT

BRETT J
17 June 2024

1 In 2013, the plaintiff, who was then aged 58 years, sought medical advice in relation to some episodes of anal bleeding. She was referred to the defendant who then and still does practice as a general surgeon. His practice at that time included colorectal surgery. After conducting some investigations, the defendant determined that the bleeding was caused by internal haemorrhoids, and recommended a surgical procedure known as a stapled haemorrhoidectomy. He conducted that procedure with the plaintiff's consent at Hobart Private Hospital on 24 September 2013.
2 No issue is taken with the defendant's recommendation of the stapled haemorrhoidectomy as the appropriate procedure to deal with the plaintiff's haemorrhoids. However, the plaintiff claims that the defendant negligently performed the procedure, and as a result she has been left with permanent and disabling injury, with ongoing symptoms causing pain and affecting the operation of her bowels and gastrointestinal system. She has required a further operative procedure to deal with the impact of her bowel function, namely a loop ileostomy, and this has had its…

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.

Continue reading Garling v Patiniotis

Details

AGLC: Garling v Patiniotis [2024] TASSC 29
Case: [2024] TASSC 29
Decision Date: 17 June 2024

CaseChat Overview and Summary

In the matter of Garling v Patiniotis, the parties involved were Garling, the plaintiff, and Patiniotis, the defendant. The dispute centred around allegations of negligence in the performance of a medical procedure. The plaintiff alleged that the defendant, a surgeon, negligently performed a hemorrhoidectomy, resulting in severe and permanent disability. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court was required to decide were whether the plaintiff had established a case of negligence on the part of the defendant and, if so, whether the plaintiff's injury was a direct result of the defendant's negligence. The court also had to consider whether the evidence presented was sufficient to draw an inference that the defendant had indeed been negligent in performing the procedure. In particular, the court was tasked with determining whether the location of the staple line could be used as circumstantial evidence of the defendant's negligence.

The court concluded that the plaintiff had established a case of negligence on the part of the defendant. The judge found that the evidence, including the location of the staple line, was sufficient to draw the inference that the defendant had been negligent in performing the procedure. The court held that the defendant had breached their duty of care, and the plaintiff's severe and permanent disability was a direct result of this breach. The court found in favour of the plaintiff and awarded damages.

The final orders of the court were that the defendant pay the plaintiff compensation for the injuries suffered as a result of the defendant's negligence. The exact amount of damages was determined by the court based on the evidence presented and the severity of the plaintiff's injuries.

Orders