Williams v Burton

[2026] NSWSC 486

Supreme Court of NSW

Built by Barristers,
For Australian Law.

In a delayed diagnosis medical negligence claim, a plaintiff must adduce probative counterfactual evidence demonstrating that timely diagnosis would more probably than not have produced a materially different clinical outcome; a generic assertion that early identification 'might have made a difference' is insufficient to establish factual causation under s 5D(1)(a) of the Civil Liability Act 2002 (NSW).
On an application under UCPR r 29.10, the plaintiff's evidence is taken at its highest and treated as uncontradicted, but where the evidence on an essential element (here, causation) amounts to no more than a scintilla or is entirely absent, judgment may properly be directed for the defendant.
Expert evidence that a defendant breached the standard of care does not assist on causation where the expert's opinion is premised on an assumption (here, that the plaintiff was infected at the relevant time) and no independent evidence supports the counterfactual that earlier treatment would have prevented or reduced the harm.