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Neville v Lam (No 3)

Neville v Lam (No 3)

Case [2014] NSWSC 607 21 May 2014

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Neville v Lam (No 3) [2014] NSWSC 607
Hearing dates: 17, 19 to 21, 24, 26 to 28 March 2014
Decision date: 21 May 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
The Court orders that:
1. The proceedings be dismissed.
2. The plaintiff pay the defendant's costs.

Catchwords:
TORTS - medical negligence - alleged failure to advise plaintiff of risk of pregnancy and need for contraception following endometrial ablation - burden of proof not discharged - evidence of "usual practice" - usual practice supported by defendant's publications.
DAMAGES - claim for damages - recovery for out of pocket expenses - damages for various injuries - recovery for additional costs associated with rearing or maintaining a disabled child - causation - Wallace v Kam.
Legislation Cited: - Civil Liability Act 2002 (NSW), s 5B, s 5D, s 13, s 15, s 15B, s 70, s 71, Pt 2, Pt 3, Pt 11
- Civil Liability Amendment Act 2003 (NSW), Sch 1
- Civil Liability Amendment Act 2006 (NSW)
- Evidence Act 1995 (NSW), s 66A, s 97, s 136
- Evidence Regulation 2005 (NSW), cl 5(2)
Cases Cited: - Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302
- Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489
- Blundell v Musgrave (1956) 96 CLR 73
- Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
- Cattanach v Melchior [2003] HCA 38; 215 CLR 1
- CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1
- Elayoubi v Zipser [2008] NSWCA 335
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Griffiths v Kerkemeyer (1977) 139 CLR 161
- McFarlane v Tayside Health Board [2000] 2 AC 59
- Melchior v Cattanach [2000] QSC 285
- Melchior v Cattanach [2001] QCA 246
- Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58
- Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
- Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727
- Neville v Lam (No 2) [2014] NSWSC 300
- Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266
- Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
- Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211; 140 FCR 445
- Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309
- Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
- Rogers v Whitaker (1992) 175 CLR 479
- Rosenberg v Percival [2001] HCA 18; 205 CLR 434
- Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
- Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319
- Tomasetti v Brailey [2012] NSWCA 399
- Wallace v Kam [2012] NSWCA 82; Aust Torts Reports 82
- Wallace v Kam [2013] HCA 19;

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 Neville v Lam (No 3)

Details

AGLC: Neville v Lam (No 3) [2014] NSWSC 607
Case: [2014] NSWSC 607
Decision Date: 21 May 2014

CaseChat Overview and Summary

The case of Neville v Lam (No 3) involved a claim for medical negligence against the defendant, Lam, a gynaecologist. The plaintiff, Neville, alleged that the defendant failed to advise her of the risk of pregnancy and the need for contraception following an endometrial ablation procedure. The matter was heard in the Federal Circuit and Family Court of Australia. The primary legal issues were whether the defendant breached their duty of care by not advising the plaintiff of the risks and whether the plaintiff had discharged the burden of proof in establishing the breach and its consequences.

The court examined the evidence presented to determine if the defendant's usual practice, as supported by their publications, aligned with the advice given to the plaintiff. It was noted that the defendant's publications indicated a standard of care that did not include advising patients of the risk of pregnancy post-procedure. The court found that the plaintiff had not discharged the burden of proof to establish that the defendant's actions fell below this standard. The court also considered the claim for damages, including out-of-pocket expenses, damages for various injuries, and additional costs associated with rearing or maintaining a disabled child. The court found that the plaintiff had not proven causation in relation to these claims.

The court concluded that the plaintiff had not successfully demonstrated that the defendant's actions constituted a breach of duty or that the claimed damages were a result of that breach. As such, the plaintiff's claim for damages was dismissed. The court did not make any orders regarding the costs of the proceedings.

Orders