Ngo v Elysee - [2019] NSWCA 123

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ngo v Elysee [2019] NSWCA 123
Hearing dates: 1 March 2019
Decision date: 29 May 2019
Before: White JA at [1]; McCallum JA at [13]; Sackville AJA at [135]
Decision:
(1) Allow the appeal;
(2) Set aside the orders of the primary judge entered on 31 May 2018;
(3) Enter judgment for the appellant;
(4) The respondent to pay the appellant’s costs of the proceedings before the primary judge and of the appeal;
(5) The respondent to be granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.

Catchwords:
TORTS – negligence – medical negligence – breach of duty of care – whether test results warranted referral to a specialist – finding of breach of duty unsupported by the evidence – causation – no evidence that referral to a specialist would have changed the course of treatment – no occasion to order new trial – Court in position to resolve the evidentiary conflict
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – consideration of inappropriateness of bringing a summary judgment application based on agreement between experts in conclave
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Civil Procedure Act, ss 56, 58
District Court Act 1973 (NSW), s 127
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), ss 75A(5), 75A(6), 75A(6)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 31.23(1), 31.24, 31.24(6), 31.26, 31.26(3), 31.28(3)(c), 31.28(4), 51.53(1)
Cases Cited: Breheny v Cairncross [2002] NSWCA 69
Ford v Nagle [2004] NSWCA 33
Hare v Harmer [2009] NSWCA 68
Wickstead v Browne (1992) 30 NSWLR
Category: Principal judgment
Parties: Trung Huu Ngo (appellant)
Sam Elysee (respondent)
Representation:
Counsel:
Mr M Hutchings (appellant)
Mr M Cranitch SC with Mr A Campbell and Mr L Robison (respondent)
Solicitors:
Meridian Lawyers Ltd (appellant)
Gerard Malouf and Partners (respondent)

File Number(s): 2018/179725
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2018] NSWDC 137

Date of Decision:

24 May 2018

Before:

Cowdroy QC ADCJ

File Number(s):

2016/00097659

Judgment

WHITE JA: I have had the advantage of reading in draft the reasons for judgment of McCallum JA. I agree with her Honour’s reasons and proposed orders.
McCallum JA’s reasons demonstrate that the primary judge’s findings that the appellant breached his duty of care to the respondent and that the negligence found was causative of the respondent’s loss cannot be sustained.
An important issue is the primary judge’s reliance on evidence elicited from Dr Thornley which departed from an opinion contained in an expert’s joint report on causation in which he joined. As McCallum JA observes at [130] where Dr Thornley had indicated that the reason for his concurrence with the opinion expressed in the causation report was that he deferred to the opinion of the two nephrologists, evidently because he regarded the issue as more within their expertise than his, the opinion expressed in the causation report should have been accepted.
I agree with…

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 Ngo v Elysee

Details

AGLC: Ngo v Elysee [2019] NSWCA 123
Case: [2019] NSWCA 123
Decision Date: 29 May 2019

CaseChat Overview and Summary

The appeal in *Ngo v Elysee* concerned a claim for medical negligence. The appellant, Ms. Ngo, alleged that the respondent, Dr. Elysee, breached his duty of care by failing to refer her to a specialist after receiving certain test results. The primary judge had dismissed Ms. Ngo's claim.

The Court of Appeal was required to determine whether the primary judge erred in finding that Dr. Elysee had breached his duty of care. It also had to consider whether, even if a breach were established, Ms. Ngo had demonstrated that such a breach caused her loss, specifically whether a referral to a specialist would have altered the course of her treatment. Furthermore, the Court considered the appropriateness of the respondent's attempt to have the proceedings summarily dismissed based on an agreement reached between experts in conclave.

The Court found that the evidence did not support the primary judge's finding of a breach of duty. It held that the test results in question did not, on their own, warrant a referral to a specialist. Crucially, the Court also determined that there was no evidence to suggest that a referral to a specialist would have led to a different course of treatment for Ms. Ngo, thus failing the causation element of the negligence claim. The Court noted that it was in a position to resolve the evidentiary conflict and that the respondent's application for summary dismissal based on expert agreement in conclave was inappropriate.

The appeal was allowed, the orders of the primary judge were set aside, and judgment was entered for the appellant. The respondent was ordered to pay the appellant's costs of the proceedings at first instance and on appeal, with a certificate under the Suitors’ Fund Act 1951 (NSW) to be granted if otherwise entitled.

Orders

Orders of the court

(1) Allow the appeal;

(2) Set aside the orders of the primary judge entered on 31 May 2018;

(3) Enter judgment for the appellant;

(4) The respondent to pay the appellant’s costs of the proceedings before the primary judge and of the appeal;

(5) The respondent to be granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ngo v Elysee [2019] NSWCA 123
Hearing dates:	1 March 2019
Decision date:	29 May 2019
Before:	White JA at [1]; McCallum JA at [13]; Sackville AJA at [135]
Decision:	(1) Allow the appeal; (2) Set aside the orders of the primary judge entered on 31 May 2018; (3) Enter judgment for the appellant; (4) The respondent to pay the appellant’s costs of the proceedings before the primary judge and of the appeal; (5) The respondent to be granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.
Catchwords:	TORTS – negligence – medical negligence – breach of duty of care – whether test results warranted referral to a specialist – finding of breach of duty unsupported by the evidence – causation – no evidence that referral to a specialist would have changed the course of treatment – no occasion to order new trial – Court in position to resolve the evidentiary conflict CIVIL PROCEDURE – summary disposal – dismissal of proceedings – consideration of inappropriateness of bringing a summary judgment application based on agreement between experts in conclave
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D Civil Procedure Act, ss 56, 58 District Court Act 1973 (NSW), s 127 Suitors’ Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), ss 75A(5), 75A(6), 75A(6)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 31.23(1), 31.24, 31.24(6), 31.26, 31.26(3), 31.28(3)(c), 31.28(4), 51.53(1)
Cases Cited:	Breheny v Cairncross [2002] NSWCA 69 Ford v Nagle [2004] NSWCA 33 Hare v Harmer [2009] NSWCA 68 Wickstead v Browne (1992) 30 NSWLR
Category:	Principal judgment
Parties:	Trung Huu Ngo (appellant) Sam Elysee (respondent)
Representation:	Counsel: Mr M Hutchings (appellant) Mr M Cranitch SC with Mr A Campbell and Mr L Robison (respondent) Solicitors: Meridian Lawyers Ltd (appellant) Gerard Malouf and Partners (respondent)
File Number(s):	2018/179725
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2018] NSWDC 137 Date of Decision: 24 May 2018 Before: Cowdroy QC ADCJ File Number(s): 2016/00097659