District Court
New South Wales
Medium Neutral Citation: Roberts v Shimmin [2024] NSWDC 171 Hearing dates: 6, 7, 8, 9, 10 March and 9 June 2023 Date of orders: 29 April 2024 Decision date: 29 April 2024 Jurisdiction: Civil Before: Andronos SC DCJ Decision: (1) Direct the parties to provide agreed short minutes, giving effect to these reasons, to my Associate by 13 May 2024.
(2) In the event that the parties cannot agree on the form of orders, grant leave to approach my Associate by 13 May 2024 for a timetable and hearing date for the determination of any issues arising therefrom.
(3) Costs are reserved.
Catchwords: NEGLIGENCE — Breach — Standard of care — Professional negligence – primary total knee arthroplasty/total knee replacement
NEGLIGENCE — Causation — Materially contributing factor
NEGLIGENCE — Damages — Non-economic loss
NEGLIGENCE — Damages — Economic loss — Earning capacity
Legislation Cited: Civil Liability Act 2002 (NSW), s 5O
District Court Act 1973, s 44
Wrongs Act1958 (Vic), s 28B, s 28G, s 28LE, s 28LN, s 48, s 51, s 58, s 59
Cases Cited: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 662
Boxell v Peninsula Health [2019] VSC 830
Briginshaw v Briginshaw (1938) 60 CLR 336
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Csalar v Cirosta (2002) 55 NSWLR 212
Dhupar v Lee (2022) 107 NSWLR 492
Elayoubi v Zipser [2008] NSWCA 335
Elbourne v Gibbs [2006] NSWCA 127
Forder v Hutchinson [2005] VSCA 281
Fox v Percy (2003) 214 CLR 118
Helton v Allen (1940) 63 CLR 691
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Mason v Demasi [2009] NSWCA 227
Medlin v State GIO (1995) 182 CLR 1; [1995] HCA 5
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Schneider v Hoechst Schering Agrevo Pty Ltd [2001] FCA 102; (2001) 50 IPR 555
South Western Sydney Local Health District v Gould [2018] NSWCA 69; (2018) 97 NSWLR 513
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3
Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182; [2012] HCA 5
Tabet v Gett (2010) 240 CLR 537
The Nominal Defendant v Cordin [2017] NSWCA 6
Transport Industries Insurance Co v Longmuir [1997] 1 VR 125
Tubemakers of Australia Limited v Fernandez (1976) 50 ALJR 720
Texts Cited: A M Suchowersky, D Dickison and LA Ashton, “Current variability in the assessment of component position for the unhappy knee replacement”, (2019) ANZ J Surg 1
E J De Valk, J C A Noorduyn and E L A R Mutsaerts, “How to assess femoral and tibial component rotation after total knee arthroplasty with computed tomography: a systematic review” (2016) 24 Knee Surg Sports Traumatol…
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- AGLC
- Roberts v Shimmin [2024] NSWDC 171
- Case
- [2024] NSWDC 171
- Decision Date
CaseChat Overview and Summary
The Court considered whether Shimmin breached the standard of care owed to Roberts by performing the surgery in a manner that was not in accordance with accepted medical practice. Shimmin accepted that his actions fell short of the required standard. The Court then examined whether Shimmin's negligence was a materially contributing factor to Roberts' injuries. Shimmin argued that other factors also contributed, but the Court found that Shimmin's negligence was a significant cause. Regarding damages, the Court assessed Roberts' non-economic loss, including pain and suffering, and his economic loss, specifically his reduced earning capacity. The Court determined the appropriate amount of damages, considering both past and future losses.
The Court directed the parties to provide agreed short minutes reflecting these reasons to the Associate by 13 May 2024. If the parties could not agree, they were granted leave to approach the Associate for a timetable and hearing date for any unresolved issues. Costs were reserved pending further agreement or determination by the Court.
Orders
Orders of the court
(1) Direct the parties to provide agreed short minutes, giving effect to these reasons, to my Associate by 13 May 2024.
(2) In the event that the parties cannot agree on the form of orders, grant leave to approach my Associate by 13 May 2024 for a timetable and hearing date for the determination of any issues arising therefrom.
(3) Costs are reserved.
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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