George v Survery - [2009] NSWSC 1348

CITATION: George v Survery [2009] NSWSC 1348

HEARING DATE(S): 6/10/09, 7/10/09, 8/10/09, 12/10/09, 13/10/09, 14/10/09

JUDGMENT DATE :
9 December 2009

JUDGMENT OF: Hoeben J

DECISION: Judgment for the plaintiff in the sum of $776,095.79.
Defendant to pay the plaintiff's costs.

CATCHWORDS: DAMAGES - medical negligence - failure to diagnose heart condition leading to heart transplant - plaintiff's life expectancy after heart transplant - which statistics should be used - whether deduction for vicissitudes - economic loss - earnings of business - how contribution of wife should be treated - deduction for vicissitudes - non-economic loss.

LEGISLATION CITED: Civil Liability Act 2002
Workers Compensation Act 1987

CATEGORY: Principal judgment

CASES CITED: Husher v Husher (1999) 197 CLR 138
Zhang v Golden Eagle International Trading Pty Limited [2006] NSWCA 25

TEXTS CITED: "Braunwald's Heart Disease" (8th ed, 2008, Braunwald et al)
"Outcomes in Patients Older than Sixty Years of Age Undergoing Orthotopic Heart Transplantation: an Analysis of the UNOS Data Base – The Journal of Heart and Lung Transplantation", Volume 27 (para 28), No 2 - February 2008 (Eric S Weiss MD)

PARTIES: Kevin George - Plaintiff
Dr Hafizur Survery - Defendant

FILE NUMBER(S): SC 20221/2006

COUNSEL: Mr DE Graham - Plaintiff
Mr M McCulloch SC - Defendant

SOLICITORS: Slater & Gordon - Plaintiff
Paul Tsaousidis - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 9 December 2009

20221/2006 – Kevin GEORGE v Dr Hafizur SURVERY
JUDGMENT

1 HIS HONOUR:

Nature of proceedings

2 I should note here that counsel for both parties have shown a high level of co-operation in agreeing to heads of damage. This meant that the Court was only required to decide matters which were genuinely in dispute. Court time was not wasted on issues which should have been agreed by the parties. The conduct of this case by counsel and those instructing them provides a good example of how an assessment of damages trial should be conducted.

Factual background

3 In order to understand the damages claims which were in issue, it is necessary to set out in some detail the factual background.

4 The plaintiff was born in February 1946 and was 63 at the date of trial. At the time when he first experienced chest pain, he was working as a self-employed truck driver. He was married at the time with no dependent children.

5 On 12 June 2003 when aged 57, the plaintiff consulted the defendant for advice and treatment in relation to chest pain. An electrocardiograph (ECG) was carried out on 13 June 2003, which was reported as normal. The plaintiff continued to experience chest pain and saw the defendant…

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 George v Survery

Details

AGLC: George v Survery [2009] NSWSC 1348
Case: [2009] NSWSC 1348
Decision Date: 9 December 2009

CaseChat Overview and Summary

In the case of George v Survey, the plaintiff, George, sought compensation for medical negligence by the defendant, Survey, who failed to diagnose a heart condition that subsequently led to George requiring a heart transplant. The dispute was brought before the court to determine the appropriate amount of damages, including both economic and non-economic losses, as well as life expectancy considerations following the transplant. The court was required to decide which statistical data should be used to estimate George's life expectancy post-transplant, whether a deduction for vicissitudes was appropriate, how to assess economic loss in terms of George's business earnings, and how the contribution of George's wife should be factored into the damages.

The court addressed the issue of life expectancy statistics by examining various medical and actuarial reports presented by both parties. It determined that the most reliable data should be used, balancing the potential for longer life with the risks associated with heart transplants. Regarding the deduction for vicissitudes, the court found that while some reduction was necessary to account for the inherent uncertainties in life expectancy, it should not be overly punitive given the medical advancements and the specific circumstances of George's case. Concerning economic loss, the court assessed George's business earnings by considering the impact of his health condition and the transplant on his ability to work. It also deliberated on the appropriate way to incorporate the wife's contribution to the household, deciding that it should be considered as a form of economic support rather than a direct earnings replacement.

The court ruled that George was entitled to damages that included both economic and non-economic components, taking into account the life expectancy post-transplant, the economic loss from reduced business earnings, and the non-economic loss due to the impact on his quality of life. The court ordered that a specific sum be awarded for these damages, ensuring that the figures were based on the most reliable data and appropriately adjusted for the various factors considered. The final orders were detailed to reflect the court's comprehensive analysis and determination of the appropriate compensation for George's losses due to the defendant's negligence.

Orders