Khan v Polyzois

[2006] NSWCA 59

New South Wales

Court of Appeal

CITATION:	Khan v Polyzois [2006] NSWCA 59
HEARING DATE(S):	20/02/2006
JUDGMENT DATE:	12 April 2006
JUDGMENT OF:	Mason P at 1; Hislop J at 2
DECISION:	1) Appeal upheld; 2) Judgment for the respondent be set aside and in lieu thereof there be judgment for the appellant; 3) The judgment monies of $86,204.00 paid into the District Court on behalf of the appellant on 5 October 2004 pursuant to order of Judge Twigg made on 20 September 2004 together with any interest that has accumulated thereon be repaid; 4) The respondent pay the appellant’s costs of the appeal and in court below and is to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.
CATCHWORDS:	Medical negligence - Damages - Civil Liability Act 2002
LEGISLATION CITED:	Civil Liability Act 2002 - ss 13, 16, Part 2 Workers Compensation Act 1987 - ss 66, 67, 151Z
CASES CITED:	Medlin v State Government Insurance Commission (1995) 182 CLR 1 Penrith City Council v Parks [2004] NSWCA 201 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Precision Plastics Pty Limited v Demir (1975) 49 ALJR 281
PARTIES:	Applicant - Hamid Khan Respondent - John Polyzois
FILE NUMBER(S):	CA 40755/04
COUNSEL:	Applicant - Mr S.D. Kalfas SC Respondent - Ms S. Norton SC with Ms L. Goodchild
SOLICITORS:	Applicant - Australasian Medical Insurance Ltd Respondent - Brydens Law Office LP
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2988/03
LOWER COURT JUDICIAL OFFICER:	Twigg ADCJ

- 1 -

CA 40755/04

MASON P
HISLOP J

12 April 2006

Hamid KHAN v John POLYZOIS

JUDGMENT

1 MASON P: I agree with Hislop J.

:

Introduction

2 On 8 September 2001, the respondent, in the course of his employment with Target Australia Pty Limited (“Target”), sustained injury whilst lifting a table. The injury resulted in torsion of the respondent’s left testicle. On 9 September 2001 the respondent consulted the appellant, a general medical practitioner, in respect of his injury. The appellant failed to diagnose the testicular injury.

3 On the following day the respondent consulted another general practitioner who correctly diagnosed the injury and arranged for the respondent’s urgent admission to hospital. Unfortunately, due to the delay in diagnosis, the testicle had become necrotic and had to be removed.

4 The respondent recovered damages from the appellant in the District Court on the basis the appellant had been negligent in failing to diagnose the injury.

5 The damages were assessed by the Court at $86,622.70 comprising:

Non economic loss (30% of a most extreme case)	$88,500.00
Past out of pocket expenses (agreed)	$418.70
Past wage loss	$2,704.00
Future economic loss	$30,000.00
TOTAL	$121,622.70
Deduct Workers Compensation lump sum	$35,000.00
NET TOTAL	$86,622.70

6 The damages were calculated pursuant to the provisions of Part 2 of the Civil Liability Act 2002 (“the Act”). A credit was allowed for the $418.70 past out of pocket expenses as they had been paid by Target.

7 The…