NB v Sydney South West Area Health Service [2010] NSWDC 172

New South Wales District Court

CITATION: NB v Sydney South West Area Health Service [2010] NSWDC 172

HEARING DATE(S): 5 July 2010-9 July 2010, 21 July 2010

JUDGMENT DATE: 6 October 2010

JURISDICTION: District Court - Civil

JUDGMENT OF: Sidis DCJ

1) Verdict for the defendant. DECISION: 2) The plaintiff is to pay the defendant's costs of the proceedings. This order is suspended for a period of seven days to allow the parties, should they wish, to list the matter for further argument in respect of costs. 3) The exhibits will be retained for 28 days.

CATCHWORDS: MEDICAL NEGLIGENCE - Duty of hospital to protect patient from sexual assault by hospital staff member - Plaintiff heavily medicated - Absence of record of misconduct by staff member - Absence of opportunity - Alternative rational explanation - Buffer for economic loss

LEGISLATION CITED: Civil Procedure Act 2005

Kondis v State Transport Authority 154 CLR 672 CASES CITED: Modbury Triangle Shopping Centre Pty Ltd v Anzil 205 CLR 254 New South Wales v Lepore 212 CLR 511

TEXTS CITED: Salmond on Torts, 9th ed (1936)

PARTIES: NB (Plainitff) Sydney South West Area Health Service (Defendant)

FILE NUMBER(S): 2009/00333266

COUNSEL: Mr A J Lidden SC and Mr P Khandhar (For the Plaintiff) Ms J Sandford (For the Defendant)

SOLICITORS: Brydens Law Office (For the Plaintiff) GILD Insurance Litigation Pty Limited (For the Defendant)

Pursuant to s 72 of the Civil Procedure Act 2005 the Court has prohibited the publication or disclosure of the name of the plaintiff and the disclosure of any information tending to reveal the identity of the plaintiff