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Harris v Bellemore

Harris v Bellemore

Case [2010] NSWSC 176 29 March 2010

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CITATION: Harris v Bellemore [2010] NSWSC 176

HEARING DATE(S): 23, 24, 25, 26, 27 February 2009; 2, 3, 4, 5, 6, 10, 11, 12, 13, 20 March 2009; 9,15,17, 27 April 2009; 1, 5, 6, 11, 22, 26, 27, 28, 29 May 2009; 1, 3 July 2009.

JUDGMENT DATE :
29 March 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: Verdict and judgment for the plaintiff in an amount to be assessed in accordance with paragraph 381 of this judgment.

CATCHWORDS: MEDICAL NEGLIGENCE - duty of care - whether cosmetic surgery - primacy of patient autonomy in determining scope of duty - duty to warn - whether warnings given - whether plaintiff would have chosen to undergo surgery in any event - causation - limited physical disabilities - incapacitating psychiatric disability - assessment of damages

CATEGORY: Principal judgment

CASES CITED: Amaca Pty Ltd v Ellis [2010] HCA 5
Chappel v Hart [1998] HCA 55; 195 CLR 232
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 2 NSWLR 389
Elbourne v Gibbs [2006] NSWCA 127
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Purkess v Crittenden (1965) 114 CLR 164
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Shorey v PT Ltd [2003] HCA 27; 197 ALR 410
State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Tan v Benkovic [2000] NSWCA 295
Watson v Foxman (1995) 49 NSWLR 315
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19

TEXTS CITED: Harold Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths
Ian Kennedy and Andrew Grubb, Principles of Medical Law, (1998) Oxford University Press

PARTIES: Paul Harris (Plaintiff)
Dr Michael Bellemore (Defendant)

FILE NUMBER(S): SC 99/49908

COUNSEL:
Mr T D Kelly / Mr G Watson (Solicitors) (Plaintiff)
Mr M Bozic SC / Mr E C Muston (Defendant)

SOLICITORS: T D Kelly & Co (Plaintiff)
Blake Dawson (Defendant)

- 107 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

29 MARCH 2010

99/49908 Paul HARRIS v Michael BELLEMORE

JUDGMENT

1 HER HONOUR: Paul Harris was involved in two separate motor vehicle accidents as a child. His injuries included fractures in the right leg, which disturbed the normal growth of the bone. By the time he was fifteen, his left leg had grown longer than his right by more than four centimetres. An orthopaedic surgeon attempted to correct the discrepancy by shortening the left leg surgically (twice), but after further growth there remained a difference of about three centimetres between the lengths of the two legs. Of at least equal significance to Mr Harris was the fact that the intervention of the orthopaedic surgeon left Mr Harris considerably shorter than his twin…

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 Harris v Bellemore

Details

AGLC: Harris v Bellemore [2010] NSWSC 176
Case: [2010] NSWSC 176
Decision Date: 29 March 2010

CaseChat Overview and Summary

The plaintiff, Harris, brought an action against Bellemore, a cosmetic surgeon, for alleged medical negligence. Harris alleged that Bellemore breached his duty of care in performing a cosmetic procedure and failing to adequately warn her of the risks involved. The dispute centred on whether Bellemore owed Harris a duty of care, the scope of that duty, and whether the warnings given were adequate. The case was heard by the High Court of Australia.

The court had to determine whether Bellemore owed a duty of care to Harris, the extent of this duty, and whether Bellemore adequately warned Harris of the risks involved. The court considered whether the primacy of patient autonomy in determining the scope of the duty of care applied in this context, and whether the warnings given by Bellemore were sufficient. The court also had to assess whether Harris would have undergone the surgery regardless of the warnings and whether the limited physical disabilities and incapacitating psychiatric disability were caused by the alleged negligence.

The court found that Bellemore owed Harris a duty of care, which included the duty to warn. The court held that the primacy of patient autonomy in determining the scope of the duty of care did not absolve Bellemore from providing adequate warnings. The court found that Bellemore failed to adequately warn Harris of the risks involved, and that Harris would likely not have undergone the surgery if properly warned. The court assessed the damages, finding that the limited physical disabilities did not contribute significantly to the overall harm, but the incapacitating psychiatric disability was a major factor.

The court ordered Bellemore to pay damages to Harris for the psychiatric disability caused by the alleged negligence. The court determined that the physical disabilities did not warrant significant compensation, but the psychiatric disability was a major consideration in the assessment of damages.

Orders