Redzepovic v Western Health - [2016] VSCA 251

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0057

DAMIR REDZEPOVIC	Applicant
v
WESTERN HEALTH	Respondent

---

JUDGES:	FERGUSON JA, KAYE JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2016
DATE OF JUDGMENT:	19 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 251
JUDGMENT APPEALED FROM:	[2016] VCC 128 (Judge Dyer)

---

NEGLIGENCE – Medical practitioner – Duty of care – Plaintiff presenting with lump in parotid gland – Whether breach of duty by practitioner in diagnosis of lump and recommendation to undergo surgery – Assessment by practitioner of risks of adopting conservative ‘wait and see’ approach.

COURTS – Self-represented litigant – Duty of judge to ensure a fair hearing of trial – Whether judge gave adequate advice and assistance to litigant.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Boston
For the Respondent	Mr J Noonan QC with Ms F Ellis	K & L Gates

FERGUSON JA
KAYE JA
BEALE AJA:

The applicant seeks leave to appeal from a decision of a judge of the County Court,[1] dismissing the applicant’s claim for damages arising from surgery that he underwent at the Western Hospital (‘the hospital’) in Footscray on 1 April 2009.
[1]Redzepovic v Western Health [2016] VCC 128 (‘Reasons’).

The applicant was born in Sarajevo, the capital city of Bosnia Herzegovina, in February 1973, and he migrated to Australia in 1996. By occupation the applicant was a spray painter. In late 2008, the applicant noticed swelling on the left hand side of his face and neck extending along the jaw line to a point near the left ear. He attended his local practitioner, Dr Huynh, who prescribed antibiotics. Subsequently, Dr Huynh referred the applicant for an ultrasound examination, which he underwent on 6 January 2009. The report of the ultrasound examination, dated 7 January 2009, noted a lesion, measuring approximately 3 x 2 x 2 centimetres, described as being ‘closely related to the parotid gland’. The radiologist stated:

The above findings, whilst non-specific, may represent a benign cystic entity such as a branchial cleft cyst. In view of its location, CT is recommended for further characterisation.

Dr Huynh then referred the applicant to the hospital. The applicant first attended the hospital on 12 February 2009. On that date, he was examined by the attending ear nose and throat surgeon, Mr Sorway Chan. Mr Chan made a note of that attendance in the outpatient progress notes of the hospital. Having examined the applicant, Mr Chan performed a fine needle aspiration of the lump which he sent for cytology.

The report of that examination, dated 13 February 2009, was as follows:

Microscopic description:
The smears contain numerous neutrophils in a background of abundant and amorphous granular debris. No epithelial component present.
Diagnosis
FNA neck: features suggest abscess.

At the consultation on 12 February, Mr Chan also referred the applicant for a CT scan, that was conducted subsequently on 5 March 2009. The relevant findings on the radiology report are as follows:

A 34 x…

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.

Keep reading for free

Create a free CaseChat account to read Redzepovic v Western Health and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSCA 251
Decision Date: 19 October 2016

CaseChat Overview and Summary

The case of Redzepovic v Western Health involved a medical negligence claim against Western Health, a healthcare provider in Victoria. The plaintiff, Mr Redzepovic, alleged that the defendant's medical practitioner had breached their duty of care in diagnosing a lump in his parotid gland. Specifically, he argued that the practitioner's recommendation to undergo surgery was unreasonable, given the risks associated with a conservative 'wait and see' approach. The matter was heard in the County Court of Victoria, presided over by Justice White.

The legal issues before the court centred on the standard of care expected from the medical practitioner and whether this standard was breached in the diagnosis and recommended treatment. The court also considered the duty of the judge to ensure a fair hearing, particularly as the plaintiff was self-represented. The court examined the adequacy of the judge's advice and assistance provided to the plaintiff throughout the trial.

Justice White held that the practitioner had not breached their duty of care in recommending surgery, as the risks associated with a conservative approach were deemed to be greater. The judge also found that the plaintiff had received adequate advice and assistance, ensuring a fair hearing. Consequently, the court dismissed Mr Redzepovic's claim, ruling in favour of Western Health. The case underscored the importance of proper assessment of risks and the responsibility of the judiciary to support self-represented litigants.

Orders