Williams v Fraser [2021] NSWSC 416

Supreme Court New South Wales

Medium Neutral Citation: Williams v Fraser [2021] NSWSC 416 Hearing dates: 15-18, 22, 24-26, 29 June, 1 July and 22 September 2020 Date of orders: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Common Law Before: Harrison J Decision: (1) Judgment for the defendants. (2) Costs reserved. Catchwords: MEDICAL NEGLIGENCE – 18 year old plaintiff with undiagnosed congenital pars defect – where radiologist failed to report on the existence of the defect in mid-2012 – where radiologist admitted breach of duty – where plaintiff alleges that she complained of symptoms to orthopaedic specialist that were indicative of her congenital condition – where orthopaedic surgeon denies any such complaint – where plaintiff not thereafter treated conservatively – where plaintiff subsequently required spinal surgery in mid-2013 – whether plaintiff's loss and damage caused by radiologist's breach – whether conservative management of the condition during intervening 12 months would have avoided deterioration of her condition or the need for surgery with severe consequences or whether the outcome was unavoidable even if correctly treated and managed – standard of proof – whether plaintiff established loss and damage on balance of probabilities or merely a statistical chance that her condition could have been successfully managed without surgery if diagnosed earlier Legislation Cited: Civil Liability Act 2002 (NSW), Part 1A, ss 5B, 5D, 5I, 5O Cases Cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Bergman v Haertsch [2000] NSWSC 528 Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] UKHL 464 Browne v Dunn (1893) 6 R 67 Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42 Najdovski v Crnojlovic [2008] NSWCA 175 Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 Oneflare Pty Ltd v Chernih [2017] NSWCA 195 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 Category: Principal judgment Parties: Hailee Williams (Plaintiff) John Fraser (First Defendant) Michael Stening (Second Defendant) Representation: Counsel: J Morris SC with P D'Arcy-King (Plaintiff) J Downing (First and Second Defendants)