Civil Procedure – Case Law Update – Medical Negligence
Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57
In the matter of Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57, the plaintiff, Graham Cleary, commenced personal injury proceedings against the defendant, Health Care Corporation Pty Ltd t/as Wollongong Private Hospital, for medical negligence concerning his treatment at Wollongong Private Hospital in 2020.
On 17 July 2020, the plaintiff underwent spinal surgery at Wollongong Private Hospital. The following day, two registered nurses conveyed the plaintiff in his hospital bed from the intensive care unit (ICU) to the radiology department (Radiology) for a CT scan. When returning from Radiology to ICU, the bed in which the plaintiff was being conveyed came into contact with a wall. Following the incident, the plaintiff reported pain and numbness in his left leg.
On 23 July 2020, the plaintiff underwent further spinal surgery during which a piece of bone graft material was found sitting under the left L5 nerve and was removed. The movement of the nerve over the bone graft material had permanently damaged the L5 nerve. The plaintiff continued to experience, pain, numbness and altered sensation in his left leg.
On 21 July 2021, the plaintiff commenced proceedings in the New South Wales District Court claiming damages for negligence. The primary judge accepted the plaintiff’s account of events surrounding the incident, found that the defendant was negligent, and that the plaintiff’s symptoms were caused by the bed hitting the wall. On 11 August 2023, the New South Wales District Court awarded damages to the plaintiff in the sum of $583,711.00.
The defendant appealed from the primary judgment on 16 grounds, which can be summarised into four issues:
- The first issue concerns the New South Wales District Court’s findings regarding the bed hitting the wall and the effect of the incident on the plaintiff (grounds 1-7 and 9);
- The second issue concerns the New South Wales District Court’s finding that the defendant was negligent (grounds 8, 10 and 15);
- The third issue is in regard to the New South Wales District Court’s findings on causation (grounds 11-14); and
- The final issue concerns the assessment of damages (grounds 16 and 17).
The New South Wales Court of Appeal provided as follows:
As to Issue 1 (grounds 1-7 and 9), the primary judge did not err in accepting Mr Cleary’s account of the incident, the effect of the collision on his body and his sensation of immediate pain and discomfort. [49]. Mr Cleary’s evidence was supported by the evidence of Mr Egidis and to the extent the two accounts differ, her Honour placed more weight on contemporaneous documents: [40], [42], [46]. Ms Gaviria’s evidence was not consistent with the evidence of Mr Egidis or Mr Cleary: [48].
As to Issue 2 (grounds 8, 10 and 15), the primary judge did not err in finding that HCC was negligent: [63]. Having regard to the common ground that the bed made contact with the wall, and to her Honour’s acceptance of Mr Cleary’s account of events, it was open to her Honour to find that Mr Egidis had lost control of the bed at the time it hit the wall: [54]. The primary judge did not err in concluding that the risk her Honour identified was neither far-fetched, fanciful nor insignificant: [62].
As to Issue 3 (grounds 11-13), her Honour did not err in finding that Mr Cleary’s symptoms were caused by the bed hitting the wall. Her Honour’s finding was supported by Mr Cleary’s evidence regarding the lack of relevant pain and their sudden onset at and following the collision, as well as the expert evidence and the evidence of Dr Pitham: [77].
As to Issue 4 (grounds 16 and 17), it was open to her Honour to find that Mr Cleary had capacity to return to part time work, earning $800 per week: [85]. The Court accepted Mr Cleary’s submission that a reduced figure of $5,229 be awarded for past economic loss: [87]. Mr Cleary conceded that her Honour erred in awarding any damages for future economic loss and past domestic assistance: [88], [91]. The primary judge erred in the assessment of future medical expenses as it was not justified on the evidence, and in the assessment of future equipment as no evidence was provided as to whether the claims had been made to the insurer for equipment and the insurer had declined them [105], [109]. Her Honour did not err in her assessment of damages for past and future superannuation and future domestic assistance: [90], [99].
Ultimately, on 15 March 2024, the New South Wales Court of Appeal allowed the defendant’s appeal in part, being to set aside order 1 of the orders made by the District Court and in lieu thereof, order judgement for the plaintiff in the sum of $350,187.60.
The Court of Appeal ordered, with respect to the costs of the appeal and the costs order made below, the parties are to provide within 14 days of the date of these orders either:
- short minutes of agreed orders, or
- any evidence and written submissions of no more than 5 pages, each party having a further 7 days to reply, with costs to be determined on the papers.
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