Ziliotto v Dr Hakim - [2012] NSWSC 610

Supreme Court

New South Wales

Medium Neutral Citation: Ziliotto v Dr Hakim [2012] NSWSC 610
Hearing dates: 20-22 June 2011; 4 August 2011; 7-9 December 2011
Decision date: 24 July 2012
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Judgment for the Plaintiff in the sum of $1,373,035.
(2) The Defendant is to pay the Plaintiff's costs.

Catchwords: DAMAGES - assessment of damages - medical negligence - plaintiff with pre-existing psychiatric problems - factual issue only - no matters of principle.
Legislation Cited: Civil Liability Act 2002
Category: Principal judgment
Parties: Stella Maris Ziliotto (Plaintiff)
Dr Claude Hakim (Defendant)
Representation: Counsel:
B Gross QC & BCA Bradley (Plaintiff)
M Windsor SC & F Lalic (Defendant)
Solicitors:
P K Simpson & Co (Plaintiff)
Avant Law Pty Ltd (Defendant)

File Number(s): 2009/297666

Judgment

On 28 February 2008 the Plaintiff was admitted to the Eastern Suburbs Private Hospital under the care of Dr Hakim, the Defendant, for an abdominal hysterectomy, left oophorectomy and abdominal lipectomy. During the course of the operation the Defendant ligated the external iliac artery and divided and ligated the external iliac vein.

The result was a considerable loss of blood and serious permanent damage to her right leg.

The Defendant has admitted liability for the negligent way in which the operation was performed and it is now necessary to determine the damages to which the Plaintiff is entitled. The Plaintiff is considerably disabled as a result of the operation. By reason of a pre-existing psychiatric condition of the Plaintiff issues arise concerning a number of the heads of damage. The issue of care was hotly disputed by reason of its being bound up with the marital difficulties that the Plaintiff has experienced and continues to experience.

The Plaintiff's background

The Plaintiff was born in Argentina in February 1955. She was, therefore, aged 53 at the time of the surgery and is now aged 57 years.

She was first married at the age of 18 in 1973. Two children were born of that union being a son Ismael born 1974 and a daughter Vanessa born March 1975.

The Plaintiff divorced her first husband in 1975 and remarried in 1985. Her third child, Yasmin, was born in October 1987 and her fourth and final child, Solange, was born in July 1989.

The Plaintiff was divorced from her second husband in 1998 because, she said, of her husband's infidelity. When they separated before the divorce she suffered from depression for which she received psychological and psychiatric treatment. She said that that depression resolved about three years later.

The Plaintiff met Tony Ziliotto (to whom I shall refer as Tony with no disrespect intended) as a result of making contact on the internet in May/June 2005. This came about because Tony was a friend of one of the Plaintiff's friends who had married an Australian man. The Plaintiff first came to Australia on 23 December 2005 and married Tony on 27 January 2006. She returned to Argentina in March 2006 to await the…

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 Ziliotto v Dr Hakim

Details

AGLC: Ziliotto v Dr Hakim [2012] NSWSC 610
Case: [2012] NSWSC 610
Decision Date: 24 July 2012

CaseChat Overview and Summary

Ziliotto v Dr Hakim involved a claim for damages due to alleged medical negligence. The plaintiff, Ziliotto, brought the action against Dr Hakim, a medical practitioner, asserting that the defendant's actions exacerbated her pre-existing psychiatric issues. The case was heard in the Supreme Court of New South Wales.

The primary legal issues revolved around the assessment of damages in the context of medical negligence, specifically whether the exacerbation of the plaintiff's psychiatric condition could be attributed to the defendant's actions. The court also needed to determine if the exacerbation was a direct result of the defendant's negligence or if it was due to other factors, including the plaintiff's pre-existing condition. Furthermore, the court had to consider the appropriate measure of damages for the alleged harm.

The court found that there were factual issues to be resolved regarding the causation and extent of the plaintiff's psychiatric harm. It was determined that while the exacerbation of the plaintiff's condition was a factual issue, there were no underlying matters of principle that required resolution. The court held that the plaintiff's pre-existing psychiatric problems did not preclude a finding of negligence if the exacerbation was directly attributable to the defendant's actions. The court concluded that the case involved factual issues that needed to be resolved by a jury, and there were no new principles of law to be applied. The case was remitted for a new trial to address the factual issues.

No final orders were made in the text provided, as the decision was to remit the case for a new trial to address the unresolved factual issues.

Orders