Hope v Hunter and New England Area Health Service

The plaintiff, Hope, brought a claim against the defendant, Hunter and New England Area Health Service, following a neurovascular injury that occurred during a surgical procedure to remove a retinacular ganglion on the volar aspect of the middle finger of his non-dominant hand. The claim was heard in the Supreme Court of New South Wales. The plaintiff alleged that the injury was the result of negligence on the part of the defendant's medical staff and sought compensation for various heads of damage.

The court had to decide whether the defendant breached their duty of care by causing the injury, and if so, whether the breach was avoidable. The court also had to determine if the defendant could rely on the defence under section 5O of the Civil Liability Act 2002, which pertains to widely accepted peer professional practice in Australia. Additionally, the court had to consider the assessment of damages under the Civil Liability Act 2002, the manner of proof of peer practice, the circumstances in which hearsay is permitted, and the necessity of notice and credit issues. The court also needed to consider whether the obligation to observe the rule in Browne v Dunn was applicable, and the obligation of experts to provide reasons for their opinions under Schedule 7 clause 5(c) of the Uniform Civil Procedure Rules 2005.

The court found that the defendant breached their duty of care by causing the neurovascular injury to the plaintiff, and that the breach was not avoidable. The court also found that the defendant could not rely on the defence under section 5O of the Civil Liability Act 2002, as the suggested opinion concerning widely accepted peer professional practice in Australia was not rational. The court assessed the damages under the Civil Liability Act 2002 and awarded the plaintiff $525,511 in compensation. The court also found that the plaintiff had provided sufficient evidence to prove the peer practice and that the hearsay evidence was admissible. The court concluded that the obligation to observe the rule in Browne v Dunn was not applicable in this case, and that the experts had provided adequate reasons for their opinions.

The final orders of the court were that the verdict and judgment be in the sum of $525,511 in favour of the plaintiff, and that the defendant pay the plaintiff’s costs.