Ziaee v Rubino

[2023] ACTCA 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Ziaee v Rubino

Citation:

[2023] ACTCA 7

Hearing Date:

17 November 2022

DecisionDate:

15 February 2023

Before:

McCallum CJ, Kennett and O’Sullivan JJ

Decision:

(1)       The appeal is allowed.

(2)       Set aside the orders made on 3 February 2022 and,            in lieu thereof, order that the Originating Claim be            dismissed with costs.

(3)       The respondent is to pay the appellant’s costs of the            appeal.

Catchwords:

APPEAL – CIVIL LAW – Medical negligence – general practitioner – consideration of requisite standard of care – whether duty on general practitioner to follow up referral to a specialist in the public hospital system

APPEAL – CIVIL LAW – Medical negligence – general practitioner – consideration of causation – cause of delay – whether primary Judge erred finding that something went “awry” in management of referral by public hospital – whether follow up of referral by general practitioner would have resulted in appellant being seen by specialist at materially earlier time

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 45

Cases Cited:

Rogers v Whitaker (1992) 175 CLR 479

Rubino v Ziaee [2021] ACTSC 331
Tabet v Gett [2010] HCA 12; 240 CLR 537

Tai v Hatzistavrou [1999] NSWCA 306

Parties:

Soroush Ziaee ( Appellant)

Michael Rubino ( Respondent)

Representation:

Counsel

G W Diehm KC with C O’Neill ( Appellant)

A Campbell with R Wathukarage ( Respondent)

Solicitors

Avent Law ( Appellant)

Gerard Malouf & Partners ( Respondent)

File Number:

ACTCA 7 of 2022

Decision under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  McWilliam AJ

Date of Decision:          23 December 2021

Case Title:  Rubino v Ziaee

Citation: [2021] ACTSC 331

THE COURT:

Introduction

1․The respondent suffered pain from a hyperkeratosis (commonly known as a corn) on the sole of his right foot, which interfered with his ability to work. Between July 2013 and August 2016 he attended around 19 consultations with the appellant, who was a general practitioner working at the Tristar Medical Group (the Practice) in Bruce. On 6 March 2014 the appellant referred the respondent to a surgeon working in general surgery at Canberra Hospital (the first referral). When he saw the respondent again on 2 May 2014, at which time no response had been received to the first referral, the appellant sent a further letter to the surgeon (the second referral). No response to either referral was received by the appellant or the respondent, and there followed a period of more than two years during which the respondent was treated mainly by prescribed painkillers. In August 2016, the respondent’s foot became infected and extremely painful. He was admitted to Canberra Hospital for acute care and surgery was performed to drain an abscess.

2․The respondent sued the appellant, seeking damages in negligence.

3․It was not in dispute before the primary Judge that the appellant owed the respondent a duty to exercise reasonable care in treating him. The other elements of the cause of action…