Nguyen v Rickhuss

The applicants, medical practitioners who performed breast augmentation surgeries, sought leave to appeal a decision of the primary judge who had found that the claims brought by the representative plaintiffs, on behalf of a group of patients, gave rise to substantial common questions of law and fact, and that the litigation should proceed as a representative proceeding. The dispute concerned allegations that the surgical system employed by the applicants increased the risk of harm to patients.

The central legal issue before the appellate court was whether the primary judge had erred in finding that the claims raised substantial common questions of law and fact, thereby permitting the matter to continue as a representative proceeding. This required the court to consider whether the claims of the representative plaintiffs and the group members were sufficiently "common" or were instead too "individualistic" to warrant a representative proceeding.

The appellate court reasoned that the statement of claim alleged a systemic failure in the surgical procedure, which, if proven, would apply to all patients who underwent surgery under that system. This systemic allegation meant that the core questions of whether the system was defective and whether it caused harm were common to all group members. The court found that the primary judge had correctly identified these substantial common questions and was therefore correct in allowing the matter to proceed as a representative proceeding.

The appeal was dismissed, with the applicants ordered to pay the costs of the first to twelfth respondents.