Old v Miniter - [2021] NSWCA 92

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Old v Miniter [2021] NSWCA 92
Hearing dates: 7 April 2021
Decision date: 18 May 2021
Before: Basten JA at [1];
Macfarlan JA at [127];
Meagher JA at [128]
Decision:
(1) Dismiss the appeal from the judgment of the District Court delivered on 31 July 2020.
(2) Order the appellant to pay the respondent’s costs in this Court.

Catchwords:
NEGLIGENCE – duty of care – breach – standard of care – professional negligence – whether reasonable to leave medical hardware in situ after the injury had healed – differing opinions of orthopaedic surgeons – reliance on infectious diseases experts
NEGLIGENCE – causation – medical negligence – later infection where medical hardware left in situ after earlier operation – whether later operation would have been required but for the foreign material – conclusion not dependent on whether infection caused by organisms present when first operation undertaken
NEGLIGENCE – damages – economic loss – loss of earning capacity – business losses incurred by appellant’s employer – no evidence that plaintiff suffered loss of income for closed period

Legislation Cited:
Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 45
Civil Liability Act 2002 (NSW), ss 5D, 16
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 5D, 60
District Court Act 1973 (NSW), s 127

Cases Cited:
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29

Texts Cited:
M Berkes et al, “Maintenance of Hardware after Early Postoperative Infection Following Fracture Internal Fixation”, The Journal of Bone and Joint Surgery, Inc, Vol 92, No 4, April 2010, p 823.

Category: Principal judgment
Parties: Brian Old (Appellant)
Paul Miniter (Respondent)
Representation:
Counsel:
Mr A D Campbell (Appellant)
Ms P A Horvath / Mr M A Collins (Respondent)
Solicitors:
Gerard Malouf and Partners (Appellant)
Makinson D’Apice Lawyers (Respondent)

File Number(s): 2020/250010
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2020] NSWDC 401

Date of Decision:

31 July 2020

Before:

Levy SC DCJ

File Number(s):

2018/273550

HEADNOTE

[This headnote is not to be read as part of the judgment]

In May 2010 the appellant, Mr Brian Old, sustained an injury in a motorcycle accident, which involved a displaced fracture of the fibula in his right ankle. The respondent, Dr Paul Miniter, an orthopaedic surgeon, undertook the reconstruction of the broken fibula on 10 May 2010. In May 2017, the appellant suffered an infection, osteomyelitis, which was said to have resulted from a failure by the respondent to remove surgical components from the appellant’s ankle. This infection caused severe ankle pain and required a further operation.

The appellant brought proceedings in the District Court, claiming that the respondent had breached his duty of care, failed to exercise reasonable care and skill, and failed to comply with the consumer guarantee as to due care and skill. He claimed…

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 Old v Miniter

Details

AGLC: Old v Miniter [2021] NSWCA 92
Case: [2021] NSWCA 92
Decision Date: 18 May 2021

CaseChat Overview and Summary

The appeal in *Old v Miniter* concerned a claim for professional negligence brought by the appellant against the respondent, a medical practitioner. The dispute arose from the respondent's treatment of the appellant's fractured tibia, which involved the insertion of medical hardware. The appellant alleged that the respondent was negligent in leaving this hardware in situ after the fracture had healed, leading to subsequent complications and further medical treatment. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the respondent owed a duty of care to the appellant, whether that duty was breached, and whether any such breach caused the appellant's loss. Specifically, the court had to determine the appropriate standard of care for a medical practitioner in deciding whether to leave medical hardware in place after an injury had healed, considering differing expert opinions. Furthermore, the court was required to assess whether the later operation, necessitated by infection, would have been avoided had the foreign material been removed earlier, and whether the appellant had suffered compensable economic loss, such as loss of earning capacity.

The Court of Appeal considered the evidence regarding the respondent's decision-making process, including the opinions of orthopaedic surgeons and infectious diseases experts. The court found that the respondent's actions were within the bounds of reasonable professional practice, even in the face of differing expert views. The court also determined that the appellant had not established that the later operation was a direct consequence of the respondent's alleged negligence, nor had the appellant demonstrated a loss of income for a closed period that could be attributed to the respondent's conduct.

Consequently, the Court of Appeal dismissed the appeal from the judgment of the District Court and ordered the appellant to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the appeal from the judgment of the District Court delivered on 31 July 2020.

(2) Order the appellant to pay the respondent’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Old v Miniter [2021] NSWCA 92
Hearing dates:	7 April 2021
Decision date:	18 May 2021
Before:	Basten JA at [1]; Macfarlan JA at [127]; Meagher JA at [128]
Decision:	(1) Dismiss the appeal from the judgment of the District Court delivered on 31 July 2020. (2) Order the appellant to pay the respondent’s costs in this Court.
Catchwords:	NEGLIGENCE – duty of care – breach – standard of care – professional negligence – whether reasonable to leave medical hardware in situ after the injury had healed – differing opinions of orthopaedic surgeons – reliance on infectious diseases experts NEGLIGENCE – causation – medical negligence – later infection where medical hardware left in situ after earlier operation – whether later operation would have been required but for the foreign material – conclusion not dependent on whether infection caused by organisms present when first operation undertaken NEGLIGENCE – damages – economic loss – loss of earning capacity – business losses incurred by appellant’s employer – no evidence that plaintiff suffered loss of income for closed period
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 45 Civil Liability Act 2002 (NSW), ss 5D, 16 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 5D, 60 District Court Act 1973 (NSW), s 127
Cases Cited:	Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Texts Cited:	M Berkes et al, “Maintenance of Hardware after Early Postoperative Infection Following Fracture Internal Fixation”, The Journal of Bone and Joint Surgery, Inc, Vol 92, No 4, April 2010, p 823.
Category:	Principal judgment
Parties:	Brian Old (Appellant) Paul Miniter (Respondent)
Representation:	Counsel: Mr A D Campbell (Appellant) Ms P A Horvath / Mr M A Collins (Respondent) Solicitors: Gerard Malouf and Partners (Appellant) Makinson D’Apice Lawyers (Respondent)
File Number(s):	2020/250010
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2020] NSWDC 401 Date of Decision: 31 July 2020 Before: Levy SC DCJ File Number(s): 2018/273550