Krommydas v Sydney West Area Health Service - [2006] NSWSC 901

CITATION: Krommydas v Sydney West Area Health Service [2006] NSWSC 901

HEARING DATE(S): 18 August 2006

JUDGMENT DATE :
18 August 2006

JUDGMENT OF: Sully J at 1

DECISION: Declaration in accordance with para 1, order in accordance with para 2, and declaration in accordance with para 3 of short minutes of order. No order as to costs.

LEGISLATION CITED: Human Tissue Act 1983 (NSW)

CASES CITED: Mesahi v South-East Area Health Service [2004] NSWLR

PARTIES: Dennis Krommydas
Sydney West Area Health Service

FILE NUMBER(S): SC 2006/4304

COUNSEL: T. L. Lee (Solicitor) - Plaintiff
J. Maconachie QC/J. Emmett - Defendant

SOLICITORS: T. L. Lee - Plaintiff
Blake Dawson Waldron - Defendant

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SULLY J

18 August 2006

2006/4304 – DENNIS KROMMYDAS v SYDNEY WEST AREA HEALTH SERVICE

1 HIS HONOUR: A gentleman named Mr Dennis Krommydas is at present a patient in the intensive care unit at the Westmead Hospital. In connection with his treatment in that unit there is current an injunction made by Mr Justice Windeyer on the 16th of this month. So far as is relevant, the terms of the injunction require that up to and including 21 August 2006, and while ever Mr Krommydas remains in a hospital or other institution within the area and under the control of the Sydney West Area Health Service, the defendant in the proceedings before his Honour, he be provided with necessary and appropriate medical treatment directed towards the preserving of his life and the promoting of his good health and welfare.

2 The Health Service moves by learned senior counsel for an order dissolving the injunction. The Health Service seeks, more particularly, a declaration that Mr Krommydas has died in the sense contemplated by s 33 of the Human Tissue Act 1983 (NSW), and seeks, consequent upon the making of such declaration, orders that the injunction and other orders made on 16 August be vacated; and for certain other ancillary orders which are, in fact, cast in the terms of additional declarations. I am not sure that if the declaration in connection with s 33 were to be made and there we to be appended to it, a consequential order appended to it vacating all of the orders made on 16 August that there would be any need for additional orders.

3 It is not necessary, I think, to canvass in fine detail the present condition of Mr Krommydas. It is on any view a profoundly sad even tragic condition. It is, if I may say so, entirely understandable that the immediate members of his family are concerned to do anything possible to prolong any aspect of his treatment that might offer any possibility, however slight, of any improvement, however slight, to Mr Krommydas's demonstrated present condition.

4 That understandable concern of the members of his immediate family adds its own dimension of sadness to the overall situation with which the Court is called upon…

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 Krommydas v Sydney West Area Health Service

Details

AGLC: Krommydas v Sydney West Area Health Service [2006] NSWSC 901
Case: [2006] NSWSC 901
Decision Date: 18 August 2006

CaseChat Overview and Summary

The case of Krommydas v Sydney West Area Health Service involved Dennis Krommydas, a patient in the intensive care unit at Westmead Hospital, and the Sydney West Area Health Service. The Health Service sought to dissolve an injunction requiring them to provide necessary medical treatment to Mr Krommydas. They sought a declaration that Mr Krommydas had died according to s 33 of the Human Tissue Act 1983 (NSW), which would result in the cessation of life-preserving treatment. The primary legal issue was whether Mr Krommydas had died under the statutory definition, and if so, whether the court should vacate the injunction and other orders made previously. The court was also asked to consider whether there should be any additional orders beyond those sought by the Health Service.

The court found that the evidence demonstrated an irreversible cessation of all functions of Mr Krommydas' brain, satisfying the criteria for death under s 33 of the Human Tissue Act. The testimony of Dr Mudallar, the Medical Director of the Intensive Care Unit, was accepted as credible and sufficient to conclude that Mr Krommydas had indeed died. Consequently, the court determined that there was no discretion to refuse the orders sought by the Health Service. The court also noted that, had the situation been otherwise, the analysis in Mesahi v South-East Area Health Service [2004] NSWLR would have led to the same outcome. The court made a declaration in accordance with the requested paragraphs and ordered the injunction and related orders vacated. No costs were ordered.

Orders