Paul v Cooke

Case [2013] NSWCA 311

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Paul v Cooke [2013] NSWCA 311
Hearing dates:29, 30 July 2013
Decision date: 19 September 2013
Before: Basten JA at [1];
Ward JA at [14];
Leeming JA at [19]
Decision:

Appeal dismissed, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: NEGLIGENCE - Civil Liability legislation - liability - no causation where harm is outside scope of defendant's liability - no liability for materialisation of inherent risk - failure to diagnose aneurysm - no deterioration of aneurysm in three years before diagnosis occurred - plaintiff suffered harm when aneurysm treated - defendant not liable for harm suffered
Legislation Cited: Civil Liability Act 2002 (NSW), Part 1A
Civil Procedure Act 2005 (NSW), s 56
Trade Practices Act 1974 (Cth), s 65A
Cases Cited: Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1
Balnaves v Smith [2010] QSC 39; [2011] 2 Qd R 17
Bond v Barry [2008] FCAFC 115; (2008) 173 FCR 106
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134
Cox v Fellows [2013] NSWCA 206
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32
Fitzgerald v Penn (1954) 91 CLR 268
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
Kavanagh v The Commonwealth (1960) 103 CLR 547
King v Jones (1972) 128 CLR 221
King v Western Sydney Local Health Network [2013] NSWCA 162
Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1
Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344; (2008) 74 NSWLR 550
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506
Moyes v Lothian Health Board 1990 SLT 444
MTAA Superannuation Fund (RG Casey) Building Property Pty Ltd v Commissioner of Taxation [2012] FCAFC 89; (2012) 203…

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AGLC
Paul v Cooke [2013] NSWCA 311
Case
[2013] NSWCA 311
Decision Date

CaseChat Overview and Summary

The plaintiff, Paul, appealed to the Court of Appeal of New South Wales against a decision of the primary judge that dismissed his claim in negligence against the defendant, Cooke. The dispute concerned the defendant's alleged failure to diagnose an aneurysm, and whether this failure caused the harm suffered by the plaintiff when the aneurysm was eventually treated.

The central legal issues before the Court of Appeal were whether the defendant's conduct breached the duty of care owed to the plaintiff, and crucially, whether any such breach caused the harm suffered by the plaintiff. Specifically, the court had to consider whether the harm suffered by the plaintiff was a materialisation of an inherent risk, and whether the harm was outside the scope of the defendant's liability, as contemplated by the Civil Liability Act 2002 (NSW).

The Court of Appeal affirmed the primary judge's finding that there was no causal link between the defendant's alleged negligence and the plaintiff's harm. The court reasoned that the aneurysm had not deteriorated in the three years prior to its diagnosis, and the harm suffered by the plaintiff occurred during the treatment of the aneurysm, not as a result of its growth or rupture. Therefore, the materialisation of the harm was not within the scope of the defendant's liability for failing to diagnose the aneurysm. The court applied principles of causation under the Civil Liability Act, finding that the plaintiff had failed to establish that the defendant's breach of duty was a necessary condition for the occurrence of the harm.

The appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders

Orders of the court

Appeal dismissed, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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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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