21, 22, 23, 27, 28, 29, 30, 31 October, 3, 4, 20 & 21 November, 5, 9, 10 & 17 December 2014; close of submissions 2 February 2015
Decision date:
24 February 2015
Jurisdiction:
Civil
Before:
Levy SC DCJ
Decision:
1.Verdict and judgment for the plaintiff in the sum of $330,999.85;
2.The defendants are to pay the plaintiff’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.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
TORTS –negligence – medical treatment – whether consent properly obtained for neuro-otologic surgery for removal of a right sided acoustic neuroma of the 8th cranial or vestibular nerve – inadvertent intra-operative division of adjacent right 7th cranial or facial nerve causing right-sided facial paralysis – whether relevant failure to provide plaintiff with adequate information, advice and warning of potential adverse result – non-English speaking patient – role of interpreters in health care setting – interpreters not called to give evidence – whether plaintiff’s facial nerve palsy was relevantly caused by a departure from required standard of care – utility of evidence of usual professional practice absent relevant recollection on the part of the practitioners concerned and absent complete clinical records – resolution of divergent expert opinions where some experts were not called – consideration of defence of alleged materialisation of an inherent risk pursuant to s 5I of the Civil Liability Act 2002 – consideration of whether treatment provided to plaintiff was in accordance with contemporary peer professional practice in Australia pursuant to s 5O of the Civil Liability Act 2002
PRACTICE & PROCEDURE – amendment of pleadings after close of evidence
[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.
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Details
AGLC
George v Biggs [2015] NSWDC 11
Case
[2015] NSWDC 11
Decision Date
CaseChat Overview and Summary
In the matter of George v Biggs, the plaintiff sought damages for medical negligence after undergoing neuro-otologic surgery for the removal of a right-sided acoustic neuroma. The surgery inadvertently caused division of the right 7th cranial or facial nerve, resulting in right-sided facial paralysis. The dispute centred on whether the surgeon had properly obtained consent, given the plaintiff was non-English speaking and required an interpreter. The case was heard in the Supreme Court of New South Wales.
The legal issues before the court included whether the plaintiff was adequately informed of the potential risks and complications of the surgery, particularly in light of the plaintiff's limited English proficiency. The court had to determine whether the failure to provide adequate information, advice, and warning constituted a departure from the standard of care owed by the defendants. Additionally, the court examined whether the plaintiff’s facial nerve palsy was caused by the defendants' breach of duty and considered the applicability of statutory defences under the Civil Liability Act 2002.
The court found that the defendants failed to provide the plaintiff with adequate information and warnings regarding the risks, including the potential for facial nerve damage, which was compounded by the lack of a properly functioning interpreter during the consent process. The court concluded that the plaintiff’s facial nerve palsy was directly caused by the defendants' departure from the required standard of care. The evidence of usual professional practice, despite the absence of complete clinical records and the failure to call certain experts, was sufficient to establish the breach. The court rejected the defence of materialisation of an inherent risk, holding that the treatment did not conform to contemporary peer professional practice.
The court awarded the plaintiff damages in the sum of $330,999.85, ordered the defendants to pay the plaintiff's costs on the ordinary basis unless otherwise ordered, and permitted the exhibits to be returned. The court reserved the right to make further orders if necessary.
Orders
Orders of the court
1.Verdict and judgment for the plaintiff in the sum of $330,999.85;
2.The defendants are to pay the plaintiff’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.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]