Melissa Reis v Emil Gayed - [2024] NSWDC 269

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Melissa Reis v Emil Gayed [2024] NSWDC 269
Hearing dates: 24-27 June 2024
Date of orders: 5 July 2024
Decision date: 05 July 2024
Jurisdiction: Civil
Before: Newlinds SC DCJ
Decision:
(1)   Judgment for the Plaintiff in an amount to be agreed or assessed consistent with these reasons.
(2)   Order the Defendant pay the Plaintiff's costs.
(3)   Direct the parties to bring in short minutes as to the quantification of the judgment consistent with these reasons, and if they cannot agree I shall hear further argument.

Catchwords:
TORTS – Medical negligence – Claim under Civil Liability Act – Alternate claim under Common Law based on operation of s 3B of Civil Liability Act – Intentional act – Causation – Meaning of “intention to injure” in medical context – Limitations defence s 50D Limitation Act – Discoverability – Subjective and objective – Damages

Legislation Cited:
Civil Liability Act 2002 (NSW) s 3B; s 5D; s 17A
Limitation Act 1969 (NSW) s 50A; s 50C; s 50D

Cases Cited:
Baker-Morrison v New South Wales [2009] NSWCA 35
Best v Rosamond [2020] NSWCA 90
Dean v Phung [2012] NSWCA 223
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
Irlam v Byrnes [2022] NSWCA 81
New South Wales v Gillett [2012] NSWCA 83
Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27
Waine v Carnival plc (t/as P&O Cruises Australia) [2022] NSWDC 650
White v Johnson [2015] NSWCA 18

Category: Principal judgment
Parties: Melissa Reis (Plaintiff)
Emil Gayed (Defendant)
Representation:
Counsel:
Mr S Grey (Plaintiff)
Ms K Oldfield (Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
Avant Law (Defendant)

File Number(s): 2023/150958
Publication restriction: Nil

JUDGMENT

Overview

In 2014, the Plaintiff, who was then 46 years old, underwent a routine Pap smear on the recommendation of her general practitioner (“GP”) which returned an abnormal result.
The GP referred the Plaintiff to a gynaecologist, the Defendant (“Dr Gayed”), whom she consulted.
Dr Gayed, presumably after reviewing the report of the Pap smear, took a history from the Plaintiff which included that she had experienced one bout of heavy menstrual bleeding. Dr Gayed organised an ultrasound scan of the Plaintiff's pelvis, from which he said he could identify a significantly thickened endometrium.
On 17 July 2014, Dr Gayed recommended to the Plaintiff that she undergo a hysteroscopy with dilation and curette (“D&C”), together with a cervical diathermy.
Based on Dr Gayed's recommendation, the Plaintiff signed a consent form for that procedure, which was performed by Dr Gayed on 18 July 2014 at the Mayo Private Hospital in Taree (“the First Procedure”).
As part of the First Procedure, Dr Gayed performed a radical ablation of the Plaintiff’s cervix with a diathermy device.
Post-operatively, the Plaintiff did well.
On 25 September 2014, the Plaintiff saw Dr Gayed at his rooms, as had been arranged prior to the First Procedure.
During that consultation, Dr Gayed told the Plaintiff there was nothing to…

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 Melissa Reis v Emil Gayed

Details

AGLC: Melissa Reis v Emil Gayed [2024] NSWDC 269
Case: [2024] NSWDC 269
Decision Date: 05 July 2024

CaseChat Overview and Summary

Melissa Reis brought a claim against Emil Gayed, a medical practitioner, alleging medical negligence. The case was heard in the Supreme Court of New South Wales. The primary issue was whether Dr Gayed’s actions constituted an intentional act for the purposes of triggering the limitations period under the Civil Liability Act 2002 (NSW). The plaintiff argued that the doctor’s actions were intentional, which would limit the time to commence proceedings to three years from the date of the act. Conversely, the doctor contended that his actions were not intentional but rather a result of medical error.

The court considered whether the term “intention to injure” in a medical context should be interpreted narrowly to require a subjective intent to cause harm, or more broadly to include objective recklessness or gross negligence. The court held that the term “intention to injure” in this context required a subjective intent to cause harm. Dr Gayed’s actions, while negligent, did not meet the threshold of intentional harm as required by the statute. The court further found that the discoverability rule did not apply to extend the limitation period. The court concluded that the plaintiff’s claim was not statute-barred and that the doctor’s actions were not intentional.

The court ordered judgment for the plaintiff in an amount to be agreed or assessed, and directed the parties to bring in short minutes regarding the quantification of the judgment. If the parties could not agree, the court would hear further argument. The court also ordered the defendant to pay the plaintiff’s costs.

Orders

Orders of the court

(1) Judgment for the Plaintiff in an amount to be agreed or assessed consistent with these reasons.

(2) Order the Defendant pay the Plaintiff's costs.

(3) Direct the parties to bring in short minutes as to the quantification of the judgment consistent with these reasons, and if they cannot agree I shall hear further argument.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Melissa Reis v Emil Gayed [2024] NSWDC 269
Hearing dates:	24-27 June 2024
Date of orders:	5 July 2024
Decision date:	05 July 2024
Jurisdiction:	Civil
Before:	Newlinds SC DCJ
Decision:	(1) Judgment for the Plaintiff in an amount to be agreed or assessed consistent with these reasons. (2) Order the Defendant pay the Plaintiff's costs. (3) Direct the parties to bring in short minutes as to the quantification of the judgment consistent with these reasons, and if they cannot agree I shall hear further argument.
Catchwords:	TORTS – Medical negligence – Claim under Civil Liability Act – Alternate claim under Common Law based on operation of s 3B of Civil Liability Act – Intentional act – Causation – Meaning of “intention to injure” in medical context – Limitations defence s 50D Limitation Act – Discoverability – Subjective and objective – Damages
Legislation Cited:	Civil Liability Act 2002 (NSW) s 3B; s 5D; s 17A Limitation Act 1969 (NSW) s 50A; s 50C; s 50D
Cases Cited:	Baker-Morrison v New South Wales [2009] NSWCA 35 Best v Rosamond [2020] NSWCA 90 Dean v Phung [2012] NSWCA 223 Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 Irlam v Byrnes [2022] NSWCA 81 New South Wales v Gillett [2012] NSWCA 83 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 Waine v Carnival plc (t/as P&O Cruises Australia) [2022] NSWDC 650 White v Johnson [2015] NSWCA 18
Category:	Principal judgment
Parties:	Melissa Reis (Plaintiff) Emil Gayed (Defendant)
Representation:	Counsel: Mr S Grey (Plaintiff) Ms K Oldfield (Defendant) Solicitors: Slater & Gordon (Plaintiff) Avant Law (Defendant)
File Number(s):	2023/150958
Publication restriction:	Nil