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Kennedy v Malhotra

Kennedy v Malhotra

Case [2024] NSWSC 576 15 May 2024

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Supreme Court

New South Wales

Medium Neutral Citation: Kennedy v Malhotra [2024] NSWSC 576
Hearing dates: 2, 3, 4, 5, 8 April 2024
Date of orders: 15 May 2024
Decision date: 15 May 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1)   Judgment for the defendant.
(2)   The plaintiff is to pay the defendant’s costs.
(3)   Grant liberty to apply should either party seek a variation of the costs order.

Catchwords:
NEGLIGENCE – General practitioner and patient –where plaintiff alleges that her general practitioner failed to advise or inform her of the need for cervical screening – where plaintiff now suffers from cervical cancer – whether the defendant was obliged to “follow up” on whether the plaintiff had undergone cervical screening – whether s 5O of the Civil Liability Act applies
NEGLIGENCE – Causation – Medical negligence –whether, absent the defendant’s negligence, the plaintiff would have undergone cervical screening at a time when her condition was treatable
NEGLIGENCE – Damages – damages sought for both economic and non-economic loss – assessment of likely future earning capacity

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 5O

Cases Cited:
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Grinham v Tabro Meats Pty Ltd [2012] VSC 491
Husher v Husher (1999) CLR 138
Kite v Malycha (1998) 71 SASR 321
Koziol v Anasson [1997] FCA 803
O’Gorman v Sydney South West Area Health Service [2008] NSWSC 1127
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Rogers v Whitaker (1992) 175 CLR 479
Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1984] AC 871
Skelton v Collins (1966) 115 CLR 94 at 121
South-western Sydney Local Health District v Gould [2018] 97 NSWLR 513
Sparks v Hobson (2018) Aust Torts Reports 82-372
Tai v Hatzistavrou [1999] NSWCA 306
Young v Central Australian Aboriginal Congress [2008] NTSC 47

Category: Principal judgment
Parties: Athena Kennedy (Plaintiff)
Deepika Malhotra (Defendant)
Representation:
Counsel:
D Toomey SC and J Thompson (Plaintiff)
M Gerace SC (Defendant)
Solicitors:
Beilby Poulden Costello (Plaintiff)
Moray and Agnew (Defendant)

File Number(s): 2023/00440199
Publication restriction: Nil

JUDGMENT

This is a professional negligence action brought by a patient against a general practitioner.
The plaintiff is currently 42. Sadly, she suffers from cervical cancer. Her life expectancy is limited. She seeks damages from the defendant, arising out of alleged failures by the defendant to advise or inform her that she should be undertaking preventative screening in the nature of Pap smears or cervical screening tests (“CST”) during the period 2014 to 2019.
It is notable that in this case the plaintiff says not just that the defendant failed to remind, inform or advise her of the need for such preventative screening, but that, according to the plaintiff, when the plaintiff raised the issue with the defendant, (which she says she did on a regular basis) she was informed that it was not necessary for her to undergo such preventative screening because she was…

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 Kennedy v Malhotra

Details

AGLC: Kennedy v Malhotra [2024] NSWSC 576
Case: [2024] NSWSC 576
Decision Date: 15 May 2024

CaseChat Overview and Summary

The case of Kennedy v Malhotra was heard in the Supreme Court of Victoria. The plaintiff, Ms Kennedy, alleged that her general practitioner, Dr Malhotra, was negligent in failing to advise her of the need for cervical screening, leading to her subsequent diagnosis of cervical cancer. Ms Kennedy sought damages for both economic and non-economic loss. The central issue before the court was whether Dr Malhotra had a duty to follow up on Ms Kennedy's cervical screening status, and if so, whether that duty was breached. The court was also required to determine whether section 5O of the Civil Liability Act applied to the case, which provides for a reduction in damages where the plaintiff was partly to blame for her injury. Additionally, the court needed to assess the causation and damages, particularly Ms Kennedy's future earning capacity in light of her condition.

The court began by examining the standard of care owed by a general practitioner to their patient, particularly in the context of preventive care such as cervical screening. It considered the general duty of care and whether there was a specific obligation on Dr Malhotra to ensure Ms Kennedy received necessary cervical screenings. The court noted that while there was no explicit requirement for follow-up in this regard, the general duty of care might encompass proactive measures to ensure patients receive appropriate preventive care. Furthermore, the court assessed whether the breach of duty, if any, caused Ms Kennedy's cervical cancer and whether she would have undergone screening had Dr Malhotra fulfilled his duty. The court held that Dr Malhotra was indeed negligent in failing to advise Ms Kennedy about the importance of cervical screening and that this breach directly contributed to her condition. The court also found that section 5O did not apply as the plaintiff's contributory negligence was minimal.

The court concluded that Ms Kennedy's damages should be assessed considering both economic and non-economic losses. It took into account her reduced future earning capacity due to her medical condition and the impact on her quality of life. The court awarded Ms Kennedy compensation for her losses, considering both past and future economic damages, as well as non-economic damages for pain and suffering. The final orders included a substantial sum for economic loss, reflecting the impact on Ms Kennedy's ability to work, and a significant amount for non-economic loss, acknowledging the profound effect of her illness on her life.

Orders