Varipatis v Almario - [2013] NSWCA 76

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Varipatis v Almario [2013] NSWCA 76
Hearing dates: 11 and 12 March 2013
Decision date: 18 April 2013
Before: Basten JA at [1];
Meagher JA at [95];
Ward JA at [118]
Decision:
(1) Allow the appeal and set aside the judgment and orders made by the trial judge on 21 December 2012.
(2) Order that the respondent pay the costs of the appellant of the appeal and of the trial below.
(3) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the 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:
PROFESSIONS AND TRADES - medical practitioner - scope of duty - morbidly obese patient with elevated liver function test - critical period 1998-2001

TORTS - negligence - breach - whether doctor breached duty of care by failing to re-refer morbidly obese patient to obesity clinic - where patient ignored prior referral - whether duty required exercise in futility

TORTS - negligence - breach - whether doctor breached duty of care by failing to refer morbidly obese patient to bariatric surgeon - practice of general practitioners at the relevant time

TORTS - negligence - causation - whether doctor's failure to advise patient of true cause of his health problems caused their further deterioration - where doctor supported patient's erroneous belief that health problems partly due to chemical exposure - where patient told that weight loss was needed to save his health

TORTS - negligence - causation - whether doctor's failure to refer morbidly obese patient to obesity clinic causative of patient's liver cancer - where patient unwilling to use available services to lose weight
TORTS - negligence - where duty involves two alternate courses of action - proper approach to causation
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Cases Cited: Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267
Category: Principal judgment
Parties: Emmanuel Varipatis (Appellant)
Luis Almario (Respondent)
Representation:
Counsel:

Mr D Higgs SC/Ms E Peden (Appellant)
Mr D E Graham SC/Mr N J Broadbent (Respondent)
Solicitors:
Tresscox Lawyers (Appellant)
Turner Freeman (Respondent)

File Number(s): CA 2013/15638
Decision under appeal

Jurisdiction:

9111

Citation:

Almario v Varipatis (No 2) [2012] NSWSC 1578

Date of Decision:

2012-12-21 00:00:00

Before:

Campbell J

File Number(s):

SC 2012/100166

HEADNOTE

[This headnote is not part of the judgment]

Dr Varipatis ("the appellant") appealed from a judgment finding that he was negligent in his treatment of Mr Almario ("the plaintiff"), who had been his patient between August 1997 and February 2011. The plaintiff had worked at the former Union Carbide site,…

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 Varipatis v Almario

Details

AGLC: Varipatis v Almario [2013] NSWCA 76
Case: [2013] NSWCA 76
Decision Date: 18 April 2013

CaseChat Overview and Summary

In *Varipatis v Almario*, the appeal concerned a medical negligence claim brought by the respondent patient against the appellant doctor. The dispute centred on the appellant's treatment of the respondent, who was morbidly obese and had elevated liver function tests, during the period between 1998 and 2001. The patient alleged that the doctor breached his duty of care by failing to adequately manage his weight and associated health risks, leading to the deterioration of his health and the development of liver cancer.

The Court of Appeal was required to determine whether the appellant doctor breached his duty of care to the respondent patient. Specifically, the court considered whether the doctor was negligent in failing to re-refer the patient to an obesity clinic, given the patient had previously ignored a referral, and whether such a referral would have been an exercise in futility. The court also examined whether the doctor breached his duty by failing to refer the patient to a bariatric surgeon, assessing this against the prevailing practice of general practitioners at the relevant time. Furthermore, the court had to determine issues of causation, including whether the doctor's alleged failure to advise the patient of the true cause of his health problems, and his support for the patient's erroneous belief about chemical exposure, caused further deterioration. Finally, the court considered whether the failure to refer the patient to an obesity clinic was causative of his liver cancer, particularly in light of the patient's unwillingness to utilise available weight loss services.

The Court of Appeal allowed the appeal, setting aside the judgment and orders of the trial judge. The court reasoned that the doctor's duty of care did not extend to compelling a patient to undergo treatment or to persist in offering referrals that the patient had previously ignored and was unlikely to accept. The court found that the doctor had provided appropriate advice regarding weight loss and had acted within the scope of reasonable medical practice at the time. The court concluded that the alleged failures did not breach the requisite standard of care and, in any event, were not causative of the patient's liver cancer, given the patient's own lack of engagement with available treatment options. Consequently, the respondent was ordered to pay the costs of the appellant on appeal and at trial, and was granted a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside the judgment and orders made by the trial judge on 21 December 2012.

(2) Order that the respondent pay the costs of the appellant of the appeal and of the trial below.

(3) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Varipatis v Almario [2013] NSWCA 76
Hearing dates:	11 and 12 March 2013
Decision date:	18 April 2013
Before:	Basten JA at [1]; Meagher JA at [95]; Ward JA at [118]
Decision:	(1) Allow the appeal and set aside the judgment and orders made by the trial judge on 21 December 2012. (2) Order that the respondent pay the costs of the appellant of the appeal and of the trial below. (3) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the 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:	PROFESSIONS AND TRADES - medical practitioner - scope of duty - morbidly obese patient with elevated liver function test - critical period 1998-2001 TORTS - negligence - breach - whether doctor breached duty of care by failing to re-refer morbidly obese patient to obesity clinic - where patient ignored prior referral - whether duty required exercise in futility TORTS - negligence - breach - whether doctor breached duty of care by failing to refer morbidly obese patient to bariatric surgeon - practice of general practitioners at the relevant time TORTS - negligence - causation - whether doctor's failure to advise patient of true cause of his health problems caused their further deterioration - where doctor supported patient's erroneous belief that health problems partly due to chemical exposure - where patient told that weight loss was needed to save his health TORTS - negligence - causation - whether doctor's failure to refer morbidly obese patient to obesity clinic causative of patient's liver cancer - where patient unwilling to use available services to lose weight TORTS - negligence - where duty involves two alternate courses of action - proper approach to causation
Legislation Cited:	Civil Liability Act 2002 (NSW), s 5D
Cases Cited:	Strong v Woolworths Ltd [2012] HCA 5; 86 ALJR 267
Category:	Principal judgment
Parties:	Emmanuel Varipatis (Appellant) Luis Almario (Respondent)
Representation:	Counsel: Mr D Higgs SC/Ms E Peden (Appellant) Mr D E Graham SC/Mr N J Broadbent (Respondent) Solicitors: Tresscox Lawyers (Appellant) Turner Freeman (Respondent)
File Number(s):	CA 2013/15638
Decision under appeal	Jurisdiction: 9111 Citation: Almario v Varipatis (No 2) [2012] NSWSC 1578 Date of Decision: 2012-12-21 00:00:00 Before: Campbell J File Number(s): SC 2012/100166