Ngo v Elysee

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.