Old v Miniter [2021] NSWCA 92

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Old v Miniter [2021] NSWCA 92 Hearing dates: 7 April 2021 Decision date: 18 May 2021 Before: Basten JA at [1]; Macfarlan JA at [127]; Meagher JA at [128] Decision: (1) Dismiss the appeal from the judgment of the District Court delivered on 31 July 2020. (2) Order the appellant to pay the respondent's costs in this Court. Catchwords: NEGLIGENCE – duty of care – breach – standard of care – professional negligence – whether reasonable to leave medical hardware in situ after the injury had healed – differing opinions of orthopaedic surgeons – reliance on infectious diseases experts NEGLIGENCE – causation – medical negligence – later infection where medical hardware left in situ after earlier operation – whether later operation would have been required but for the foreign material – conclusion not dependent on whether infection caused by organisms present when first operation undertaken NEGLIGENCE – damages – economic loss – loss of earning capacity – business losses incurred by appellant's employer – no evidence that plaintiff suffered loss of income for closed period Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 45 Civil Liability Act 2002 (NSW), ss 5D, 16 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 5D, 60 District Court Act 1973 (NSW), s 127 Cases Cited: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Texts Cited: M Berkes et al, "Maintenance of Hardware after Early Postoperative Infection Following Fracture Internal Fixation", The Journal of Bone and Joint Surgery, Inc, Vol 92, No 4, April 2010, p 823. Category: Principal judgment Parties: Brian Old (Appellant) Paul Miniter (Respondent) Representation: Counsel: Mr A D Campbell (Appellant) Ms P A Horvath / Mr M A Collins (Respondent)