Old v Miniter

[2021] NSWCA 92

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Professional negligence
3. › Medical negligence
4. › Breach of duty
5. › Standard of care
6. › Whether reasonable to leave medical hardware in situ after injury had healed
7. › Differing opinions of orthopaedic surgeons
8. › Reliance on infectious diseases experts
9. › Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43
1. Negligence
2. › Causation
3. › Medical negligence
4. › Factual causation
5. › Whether later infection would have occurred but for retained foreign material
6. › Whether conclusion dependent on whether infection caused by organisms present at first operation
7. › Civil Law (Wrongs) Act 2002 (ACT), s 45
1. Negligence
2. › Damages
3. › Economic loss
4. › Loss of earning capacity
5. › Business losses incurred by employer
6. › Whether plaintiff proved loss of income
1. Practice and Procedure
2. › Pleadings
3. › Alternative case not pleaded
4. › Whether court may uphold finding on unpleaded basis
5. › Whether case put to defendant

Quick Take

A deliberate clinical decision by a surgeon, supported by reasoned expert evidence and within the range of competent professional practice, does not constitute breach of duty merely because another expert disagrees, particularly where the dissenting expert's opinion is dogmatic and fails to address practical complications.