Jener Daluz v John McMahon - [2016] NSWSC 202

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jener Daluz v John McMahon [2016] NSWSC 202
Hearing dates: 14 October 2015
Date of orders: 10 March 2016
Decision date: 10 March 2016
Jurisdiction: Common Law
Before: Hidden J
Decision:
Motion for summary dismissal dismissed.

Catchwords: PROCEEDINGS FOR DAMAGES – Application for summary dismissal of medical negligence proceedings relating to treatment of injuries said to have been sustained by the plaintiff in a motor vehicle accident – settlement of separate proceedings relating to the accident itself – whether consent judgment in those proceedings concluded the issue of damage in the medical negligence proceedings – issues of res judicata, estoppel, abuse of process and double satisfaction
Legislation Cited: Area Health Services Act 1986,
Health Administration Act 1982
Health Services Act 1997
Motor Accidents Compensation Act 1999
The Law Reform (Miscellaneous Provisions) Act 1946
Uniform Civil Procedure Rules 2005
Cases Cited: Baxter v Obacelo Pty Ltd [2001] HCA 66, 205 CLR 635
Benton v QBE Workers Compensation (NSW) Ltd [2015] NSWCA 101
Blair v Currin (1939) 62 CLR 464
Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited [1993] FCA 342, [1993] FCR 510
Liao v State of New South Wales: Zhang v State of
New South Wales [2014] NSWCA 71
Mounsey v Findlay (1993) 32 NSWLR 1
Ramsay v Pigram (1967) 118 CLR 271
Walton v Gardiner (1993) 177 CLR 378
Category: Principal judgment
Parties: Jener Daluz (plaintiff)
Dr John McMahon (1st defendant)
South Western Sydney Local Health District (2nd defendant)
Representation:
Counsel:
R Sheldon SC with P Khandhar (plaintiff / respondent)
M Hutchings (defendant / applicant)
Solicitors:
Brydens Lawyers Pty Limited (plaintiff)
Avant Law Pty Ltd (1st defendant)
Curwoods legal Services Pty Ltd (2nd defendant)

File Number(s): 2013/115686

Judgment

HIS HONOUR: These are medical negligence proceedings brought by the plaintiff, Jener Daluz, against the 1st defendant, Dr John McMahon, and the 2nd defendant, the South Western Sydney Local Health District. The proceedings arise from the treatment of the plaintiff for injuries said to have been sustained in a motor vehicle accident. Before me is a motion by the 2nd defendant for the summary dismissal of the proceedings, pursuant to UCPR r 13.4. That rule provides for the dismissal of proceedings which are frivolous or vexatious, or which are an abuse of the process of the Court. The basis of the motion is that the plaintiff has previously been awarded damages for his injuries in proceedings brought against those bearing liability for the motor vehicle accident. I shall refer to these as the “MVA proceedings.”
The accident occurred on 12 December 2008 on Hospital Road, Concord. Mr Grahame Reeves was reversing a car onto that road when it collided with a car driven by the plaintiff. The car was owned by Mr Reeves’ employer, the Health Administration Corporation. The MVA proceedings were brought against Mr Reeves and that Corporation, initially by statement of claim filed in the District Court on 21 December 2012. On 27 November…

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.

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Details

Case: [2016] NSWSC 202
Decision Date: 10 March 2016

CaseChat Overview and Summary

In the Federal Court, Daluz sued McMahon, a medical professional, for damages arising from alleged medical negligence during treatment of injuries sustained in a motor vehicle accident. The plaintiff contended that the defendant's treatment had exacerbated his injuries, while the defendant argued that any deterioration in the plaintiff's condition was due to the original accident and not the treatment provided. The court was tasked with determining whether the consent judgment in the separate proceedings concluded the issue of damages in the medical negligence case, and if so, whether this would prevent the plaintiff from proceeding with his claim on the basis of res judicata, estoppel, abuse of process, and double satisfaction.

The court considered the legal principles surrounding the concepts of res judicata, estoppel, abuse of process, and double satisfaction. It examined whether the consent judgment in the accident proceedings concluded the issue of damages in the medical negligence proceedings, and if so, whether this precluded the plaintiff from pursuing his claim. The court also considered whether the defendant's conduct in the medical negligence proceedings constituted an abuse of process and whether the plaintiff's claim would result in double satisfaction.

The court held that the consent judgment in the accident proceedings did not conclude the issue of damages in the medical negligence case, as the issues in the two sets of proceedings were distinct. The court found that the plaintiff was not estopped from pursuing his medical negligence claim, and that the defendant's conduct did not amount to an abuse of process. The court also determined that the plaintiff's claim would not result in double satisfaction. Consequently, the defendant's application for summary dismissal was dismissed.

The court ordered that the defendant pay the plaintiff's costs of the application. The plaintiff was permitted to proceed with his medical negligence claim.

Orders