YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE [1995] NSWCA 529

YOUKHANA v WESTERN SYDNEY AREA HEALTH SERVICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, SHELLER JA and MCLELLAND AJA 28 August 1995, 10 October 1995 [1995] NSWCA 529

NEGLIGENCE — duty of care — breach reasonable response to risk of injury — expert evidence — new trial not limited to damages — Wyong Shire Council v Shirt (1980) 146 CLR 40.

On 21 September 1988, while Dr Marzbani, a final year dental student employed by the defendant, Western Sydney Area Health Service, was treating the plaintiff, Jennifer Youkhana, she spilled a small quantity of Milton solution into the plaintiff's right eye. The plaintiff appealed from Judge McLachlan's decision of 6 May 1992 that there should be a verdict for the defendant.

In his judgment his Honour noted that no expert evidence was called by the plaintiff to establish what was the proper standard of care in the circumstances of the case. He accepted that for a duty of care to arise there must be evidence that the injury was such as to warrant the imposition of such duty. Later he said:

"Relating that back to the defendant's proposition that there was no duty of care because there is no evidence that injury of the type, that is physical injury as opposed to mild irritant, was likely to occur, I find myself in the position that I am not able to decide on the evidence that there was a duty of care. If there was, I need guidance from experts and I do not have it."

The substantial ground of appeal was founded in what appears to be confusion in his Honour's judgment about whether the defendant owed the plaintiff a duty of care and assuming it did what was required of the defendant.

Held:

(1) At the time of the incident, the defendant owed the plaintiff some duty of care; Wyong Shire Council v Shirt (1980) 146 CLR 40. His Honour could not find properly for the defendant on "the defendant's proposition" that, because there was no evidence that "physical injury as opposed to a mild irritant" was likely to occur, there was no duty of care.