Melissa Reis v Emil Gayed

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.