Miller v Jones (No. 6) - [2020] NSWSC 736

Supreme Court

New South Wales

Medium Neutral Citation: Miller v Jones (No. 6) [2020] NSWSC 736
Hearing dates: 21, 22, 23, 24 and 25 October 2019
Date of orders: 17 June 2020
Decision date: 17 June 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1)   I enter a verdict in favour of the plaintiff.

(2)   I direct the parties to bring in Short Minutes of Order calculating the final judgment sum in accordance with this judgment.

(3)   I stand the matter over for further directions before me until 10 July 2020 at 9:30am.
(4)   I reserve all questions of costs pending further submissions from the parties.
Catchwords:
TORTS – Negligence by medical practitioner – Breach of duty – Where plaintiff suffered an injury to the anterior cruciate ligament of his right knee in the course of playing professional rugby league – Where the defendant was an orthopaedic surgeon who performed a reconstruction of the plaintiff’s anterior cruciate ligament – Where the plaintiff alleged the defendant breached his duty of care by performing the surgery in a suboptimal manner because of malpositioning of the graft – Standard of care expected of a reasonably competent orthopaedic surgeon – Breach of duty established

TORTS – Medical negligence – Causation – Whether the breach of duty caused the plaintiff’s ongoing disabilities – Whether the breach of duty caused the plaintiff to lose an opportunity to pursue a career as a professional rugby league player – Whether an infection also contributed to the plaintiff’s ongoing disabilities

TORTS – Negligence – Damages – Where damages were to be determined according to the law of France – Where the plaintiff lost an opportunity to pursue a career as a rugby league footballer – Where the plaintiff suffered non-financial losses – Where the plaintiff lost the opportunity to pursue a career in the mining industry
PRIVATE INTERNATIONAL LAW – Torts – Where action brought in the Supreme Court of NSW arising out of an allegation of negligence which arose in the course of a surgical procedure carried out by the defendant in France – Consequent necessity to apply the law of France to both issues of breach of duty of care and assessment of damages
Legislation Cited: Civil Liability Act (2002) (NSW)
Cases Cited: Miller v Jones (No 3) [2019] NSWSC 1444
Miller v Jones (No 5) [2019] NSWSC 1448
Category: Principal judgment
Parties: Lucas Anthony Miller – Plaintiff
Dr David Jones - Defendant
Representation:
Counsel:
B Dooley SC and J Lee – Plaintiff
A Bartley SC and J Layani-Ellis – Defendant
Solicitors:
Carroll and O’Dea Lawyers – Plaintiff
Ken Cush and Associates – Defendant

File Number(s): 2015/124172
Publication restriction: Nil

Judgment

INTRODUCTION

On 6 December 2010 Lucas Anthony Miller (the plaintiff) was participating in a rugby league match in France when he suffered an injury to the anterior cruciate ligament (ACL) of his right knee. He subsequently consulted Dr David Jones (the defendant), an orthopaedic surgeon who, on 3 January 2011, performed a reconstruction of the ACL.…

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.

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Details

Case: [2020] NSWSC 736
Decision Date: 17 June 2020

CaseChat Overview and Summary

In the case of Miller v Jones (No. 6), the plaintiff, a professional rugby league player, brought an action against the defendant, an orthopaedic surgeon, alleging negligence in the course of surgery to reconstruct the anterior cruciate ligament (ACL) in the plaintiff's right knee. The plaintiff contended that the defendant's malpositioning of the graft during the surgery caused him to suffer ongoing disabilities, ultimately preventing him from continuing his career as a professional rugby league player. The Supreme Court of New South Wales was tasked with determining the issues of duty of care, causation, and damages, as well as the applicable law.

The court was required to ascertain whether the defendant breached the standard of care expected of a reasonably competent orthopaedic surgeon and whether this breach caused the plaintiff's ongoing disabilities and his loss of career opportunity. Additionally, the court needed to determine whether an infection contributed to the plaintiff's disabilities and the extent to which the plaintiff's non-financial losses and lost career opportunities were recoverable under French law, as the incident occurred in France. Finally, the court had to consider the application of French law to the issues of duty of care and damages due to the cross-border nature of the dispute.

The court found that the defendant breached his duty of care by malpositioning the graft, which led to the plaintiff's ongoing disabilities. The court also determined that the breach of duty caused the plaintiff to lose his opportunity to pursue a career as a professional rugby league player. While an infection did contribute to the plaintiff's disabilities, the court held that the defendant's negligence was the primary cause. As for damages, the court applied French law, which allowed for recovery of non-financial losses and lost career opportunities. The court also held that the plaintiff could recover damages for the lost opportunity to pursue a career in the mining industry, as this opportunity was reasonably foreseeable at the time of the surgery.

The court ordered the defendant to compensate the plaintiff for his non-financial losses and lost career opportunities, as determined under French law. The court also directed that the defendant pay damages for the plaintiff's lost opportunity to pursue a career in the mining industry. The precise amount of damages was to be determined in accordance with the law of France.

Orders