LEWKOVITZ v RICH [1993] NSWCA 161

LEWKOVITZ v RICH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and Cripps JA 25 June 1993, 25 June 1993

[1993] NSWCA 161

NEGLIGENCE — medical practitioner — ENT specialist — whether breach of duty of care — whether failure to give adequate warning to patient to avoid exposure to noise — judge prefers patient's version — appeal dismissed.

COSTS — recovery of judgment less than $50,000 — judge orders full costs — declines indemnity costs following compromise offer — held: consider costs globally — appeal and cross-appeal dismissed.

NEGLIGENCE — medical practitioner — specialist ENT — whether failed to fulfil duty of care to patient — whether failed to provide warning to the patient concerning avoidance of exposure to high noise levels — patient alleges no warning given — claims serious noise loss follows attendance for 4 hours at discotheque — seeks and recovers damages of $43,000 (including $18,000 interest) for acceleration of constitutional condition of deafness — factual issue at trial concerning what was said by medical practitioner to patient — judge prefers patient's version that no relevant warning given — held: (Cripps JA: Gleeson CJ and Kirby P concurring): On the factual findings of the trial judge, there was ample evidence that no sufficient positive warning was given to the patient — this, on the evidence, constituted negligence — appeal dismissed.

COSTS — level of recovery — appeal and cross-appeal — recovery of judgment of less than $50,000 — judge orders costs on highest scale — offer of compromise made — judge refuses indemnity costs — held: Discretionary order — no ground for interference — matter considered globally — appeal and crocs-appeal dismissed.

Cripps JA This is an appeal from a decision of Sharpe J awarding damages to the respondent in respect of the negligent conduct of her treating specialist doctor. When the appeal was lodged there were three issues for determination. The first was whether the appellant had a duty to warn the respondent in her vulnerable condition of the dangers of exposing herself to excessive noise. The second was, if he did, did he fail to fulfil this duty either at all or adequately, and involved in this was a question whether any information which he passed to her at the appropriate time was adequately communicated. A third was whether or not the respondent suffered damage as a result of the appellant's breach of duty.