Sarian v Elton

Case [2011] NSWCA 123

Court of Appeal

New South Wales
Case Title: Sarian v Elton
Medium Neutral Citation: [2011] NSWCA 123
Hearing Date(s): 1 March 2011
Decision Date: 19 May 2011
Jurisdiction:
Before:

BEAZLEY JA at 1
WHEALY JA at 6
HOEBEN J at 69
Decision:

Appeal dismissed.
Appellant to pay the respondent's costs of the appeal.
[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 - general practitioner administering cortisone injection - development of abscess - medical causation - whether failure by trial judge to properly analyse factual evidence - whether failure by a trial judge to properly analyse expert evidence - extent to which appellate court should interfere with fact finding of trial judge - evidence - difficulties in trial judge assessing competing medical evidence when reports tendered and oral evidence not given.
Legislation Cited:

Civil Liability Act 2002 ss 5B, 5O
Uniform Civil Procedure Rules 2005 (UCPR), r 51.53
Cases Cited:

Archibald v Byron Shire Council [2003] 129 LGERA 311
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431 per Mason P
Biogen Inc v Medeva Plc (1997) RPC 1 at 45 per Lord Hoffman
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 AJLR 842; 62 ALR 53
Chambers v Jobling (1986) 7 NSWLR 1 at 27 per Mahoney JA
Dearman v Deaman (1908) 7 CLR 549 per Isaacs J
Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA
Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321
Papadopoulos v NSW Insurance Ministerial Corporation [1999] NSWCA 116
Powell v Streatham Manor Nursing Home [1935] AC 243 at 266 - 268
Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666 - 667
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278, 279 per McHugh JA
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174, (2004) 60 NSWLR 127
Williams v The Minister for Aboriginal Land Rights Act 1983 [2000] NSWCA 255 at [137]
Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [164] - [167]
Texts Cited:
Category: Principal judgment
Parties:

Dr Paul Sarian - Applicant
Alaine Elton - Opponent
Representation
- Counsel:

Counsel
Mr R Cavanagh SC - Applicant
Mr RN O'Neill - Opponent
- Solicitors:

Solicitors
Norton Rose Australia - Applicant
McDonnell Schroder - Opponent
File number(s): 2010/321032
Decision Under Appeal
- Court / Tribunal:
- Before: Delaney DCJ
- Date of Decision: 06 September 2010
- Citation:
- Court…

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Details
AGLC
Sarian v Elton [2011] NSWCA 123
Case
[2011] NSWCA 123
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim in negligence brought by the appellant, Mr Sarian, against the respondent, Dr Elton, a general practitioner. The dispute arose from a cortisone injection administered by Dr Elton to Mr Sarian, following which Mr Sarian developed an abscess. Mr Sarian alleged that Dr Elton had been negligent in the administration of the injection.

The primary legal issues before the court were whether the trial judge had erred in failing to properly analyse the factual and expert evidence presented, and the extent to which an appellate court should interfere with the fact-finding of a trial judge, particularly where the trial judge had to assess competing medical evidence based on tendered reports rather than oral testimony.

The appellate court found no error in the trial judge's assessment of the evidence. The court reiterated the principle that an appellate court should be slow to interfere with the findings of fact made by a trial judge, especially when those findings involve the assessment of credibility and the weighing of competing expert opinions. The court noted the inherent difficulties in assessing medical evidence when reports are tendered without oral evidence, but concluded that the trial judge had adequately discharged their duty in this regard.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

Appeal dismissed.

Appellant to pay the respondent's costs of the appeal.

[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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