Gulab Khan v Matthew Rathjen

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Gulab Khan v Matthew Rathjen [2016] NSWDC 139
Hearing dates:	1-9 February 2016
Decision date:	15 July 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and judgment for the Plaintiff – for orders see [309]
Catchwords:	Medical negligence; failure of general practitioner to refer plaintiff for specialist treatment
Legislation Cited:	Civil Liability Act (NSW) 2002 Workers Compensation Act (NSW) 1987
Cases Cited:	Elayoubi v Zipser [2008] NSWCA 335 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 Flying Solo Properties Pty Ltd v Collett [2015] NSWWCCPD 14 Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 McKenna v Hunter & New England Local Health District [2013] NSWCA 476 Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522 Miller v Galderisi [2009] NSWCA 353 Penrith City Council v Parks [2004] NSWCA 201 Qantas Airways Limited v Lisica (2007) NSWCA 371; Aust Torts Reports 81-929 Strong v Woolworths Pty Ltd (2012) 246 CLR 182 Varipatis v Almario [2013] NSWCA 76 Workers Compensation Act 1987
Category:	Principal judgment
Parties:	Gulab Khan (Plaintiff) Matthew Rathjen (Defendant)
Representation:	Counsel: R O’Keefe (Plaintiff) N E Chen (Defendant)   Solicitors: Turner Freeman HWL Ebsworth Lawyers
File Number(s):	14/157331
Publication restriction:	Nil

INDEX	PARAGRAPH NO.
The plaintiff’s claim	1
The Defence to the Amended Statement of Claim	5
Background to the dispute	9
The issues in the proceedings	24
The plaintiff’s evidence	26
Other evidence relied on by the plaintiff	93
The defendant’s evidence	111
Cross-examination of the defendant	132
Evidence of Ms Louise Tong	171
The expert medical evidence	185
Defendant’s expert hand surgeon – Dr H P Kapila	204
The concurrent evidence of the hand surgeons	212
The plaintiff’s peer review evidence	225
The defendant’s peer review evidence	232
The conclave	235
Peer review – concurrent evidence	236
Factual findings	247
Did the defendant breach his duty of care	261
Causation	267
The defendant’s defence, relying on s 5O of the CLA	271
Damages	274
Determination	284
Non-economic loss	292
Treatment expenses	294
Past economic loss	303
Commercial future care	306
Summary of damages	307
Conclusion and orders	308

Judgment

The plaintiff’s claim

1. By an Amended Statement of Claim filed on 5 May 2015, the plaintiff claims that the defendant, a medical practitioner, was negligent in his care and management of the plaintiff, who consulted him on two occasions, namely, 17 October 2011 and 25 October 2011.

2. On 16 October 2011, the plaintiff was the victim of an armed robbery at his place of employment. He worked at the Caltex service station at Five Dock, and on the evening of 16 October 2011 was threatened by a man with a 30cm kitchen knife. In an endeavour to avoid being stabbed, the plaintiff grabbed the knife with his left hand and alleges that he sustained lacerations over the palmar aspect of the index and middle fingers of his left hand. It was for…