Morocz v Marshman

[2016] NSWCA 202

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Morocz v Marshman [2016] NSWCA 202

Hearing dates:

31 May 2016

Decision date:

11 August 2016

Before:

Macfarlan JA at [1];
Payne JA at [2];
Emmett AJA at [197].

Decision:

(1)   Notices of motion dated 20 August 2015 and 4 September 2015 dismissed.
(2)   Appeal dismissed.
(3)   The appellant pay the respondent’s costs of the appeal on a party‑party basis as agreed or assessed.

Catchwords:

TORTS – negligence – medical negligence – failure to warn – duty to warn patient of material risks of procedure – whether warnings given were adequate – whether certain risks were “material”

 

EVIDENCE – expert – admissibility under s 79

  CIVIL PROCEDURE – application to lead fresh evidence on appeal

Legislation Cited:

Civil Liability Act 2002 (NSW) ss 5O and 5P
Evidence Act 1995 (NSW) ss 76 and 79
Supreme Court Act 1970 (NSW) s 75A

Cases Cited:

Akins v National Australia Bank (1994) 34 NSWLR 155
Bott v Carter [2012] NSWCA 89
Coffs Harbour City Council v McLeod [2016] NSWCA 94
Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
F v R (1983) 33 SASR 189
Lawrence v Gunner (No 3) [2016] NSWCA 18
Rogers v Whitaker [1992] HCA 58; 175 CLR 479
Tjiong v Tjiong [2012] NSWCA 201
Wallace v Kam [2013] HCA 19; 250 CLR 375
Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598

Category:

Principal judgment

Parties:

Maria Morocz (Appellant)
Dr David Marshman (Respondent)

Representation:

Counsel:
Appellant (Self-represented)
K Burke (Respondent)

  Solicitors:
TressCox Lawyers (Respondent)

File Number(s):

2015/121734

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 149
[2015] NSWSC 325
[2015] NSWSC 612

Date of Decision:

6 March 2015
17 April 2015
29 May 2015

Before:

Harrison J

File Number(s):

2010/32578

Judgment

1. MACFARLAN JA: I agree with Payne JA.

2. PAYNE JA: On 3 August 2006, the appellant, Ms Morocz, consulted the respondent, Dr Marshman, about a condition she suffered from known as hyperhidrosis or what is commonly called sweaty palms. At this consultation the appellant was given a brochure produced by the Society of Thoracic Surgeons about bilateral endoscopic thoracic sympathectomy (“the STS Brochure”), which described the risks of that procedure. She also discussed the risks of the procedure with the respondent during this consultation. The extent and nature of warnings conveyed to the appellant by the STS Brochure and Dr Marshman during this consultation were key issues at the trial.

3. On the morning of 6 February 2007, the respondent performed a bilateral endoscopic thoracic sympathectomy (“the sympathectomy”) on the appellant at Royal North Shore Hospital. Following that surgery the appellant complained of a number of health problems and side effects which did not improve over time.

4. In February 2010, the appellant commenced proceedings against the respondent, in which she claimed damages against the respondent…