Kennedy v Malhotra [2024] NSWSC 576

Supreme Court New South Wales

Medium Neutral Citation: Kennedy v Malhotra [2024] NSWSC 576 Hearing dates: 2, 3, 4, 5, 8 April 2024 Date of orders: 15 May 2024 Decision date: 15 May 2024 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Judgment for the defendant. (2) The plaintiff is to pay the defendant's costs. (3) Grant liberty to apply should either party seek a variation of the costs order. Catchwords: NEGLIGENCE – General practitioner and patient –where plaintiff alleges that her general practitioner failed to advise or inform her of the need for cervical screening – where plaintiff now suffers from cervical cancer – whether the defendant was obliged to "follow up" on whether the plaintiff had undergone cervical screening – whether s 5O of the Civil Liability Act applies NEGLIGENCE – Causation – Medical negligence –whether, absent the defendant's negligence, the plaintiff would have undergone cervical screening at a time when her condition was treatable NEGLIGENCE – Damages – damages sought for both economic and non-economic loss – assessment of likely future earning capacity Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 5O Cases Cited: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Grinham v Tabro Meats Pty Ltd [2012] VSC 491 Husher v Husher (1999) CLR 138 Kite v Malycha (1998) 71 SASR 321 Koziol v Anasson [1997] FCA 803 O'Gorman v Sydney South West Area Health Service [2008] NSWSC 1127 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 Rogers v Whitaker (1992) 175 CLR 479 Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1984] AC 871 Skelton v Collins (1966) 115 CLR 94 at 121 South-western Sydney Local Health District v Gould [2018] 97 NSWLR 513 Sparks v Hobson (2018) Aust Torts Reports 82-372 Tai v Hatzistavrou [1999] NSWCA 306 Young v Central Australian Aboriginal Congress [2008] NTSC 47 Category: Principal judgment Parties: Athena Kennedy (Plaintiff) Deepika Malhotra (Defendant) Representation: Counsel: D Toomey SC and J Thompson (Plaintiff) M Gerace SC (Defendant)