Krommydas v Sydney West Area Health Service [2006] NSWSC 901

New South Wales Supreme Court

CITATION : Krommydas v Sydney West Area Health Service [2006] NSWSC 901

HEARING DATE(S) : 18 August 2006

JUDGMENT DATE : 18 August 2006

JUDGMENT OF : Sully J at 1

DECISION : Declaration in accordance with para 1, order in accordance with para 2, and declaration in accordance with para 3 of short minutes of order. No order as to costs.

LEGISLATION CITED : Human Tissue Act 1983 (NSW)

CASES CITED : Mesahi v South-East Area Health Service [2004] NSWLR

PARTIES : Dennis Krommydas Sydney West Area Health Service

FILE NUMBER(S) : SC 2006/4304

COUNSEL : T. L. Lee (Solicitor) - Plaintiff J. Maconachie QC/J. Emmett - Defendant

SOLICITORS : T. L. Lee - Plaintiff Blake Dawson Waldron - Defendant

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

18 August 2006

2006/4304 – DENNIS KROMMYDAS v SYDNEY WEST AREA HEALTH SERVICE

JUDGMENT 1 HIS HONOUR: A gentleman named Mr Dennis Krommydas is at present a patient in the intensive care unit at the Westmead Hospital. In connection with his treatment in that unit there is current an injunction made by Mr Justice Windeyer on the 16th of this month. So far as is relevant, the terms of the injunction require that up to and including 21 August 2006, and while ever Mr Krommydas remains in a hospital or other institution within the area and under the control of the Sydney West Area Health Service, the defendant in the proceedings before his Honour, he be provided with necessary and appropriate medical treatment directed towards the preserving of his life and the promoting of his good health and welfare. 2 The Health Service moves by learned senior counsel for an order dissolving the injunction. The Health Service seeks, more particularly, a declaration that Mr Krommydas has died in the sense contemplated by s 33 of the Human Tissue Act 1983 (NSW), and seeks, consequent upon the making of such declaration, orders that the injunction and other orders made on 16 August be vacated; and for certain other ancillary orders which are, in fact, cast in the terms of additional declarations. I am not sure that if the declaration in connection with s 33 were to be made and there we to be appended to it, a consequential order appended to it vacating all of the orders made on 16 August that there would be any need for additional orders. 3 It is not necessary, I think, to canvass in fine detail the present condition of Mr Krommydas. It is on any view a profoundly sad even tragic condition. It is, if I may say so, entirely understandable that the immediate members of his family are concerned to do anything possible to prolong any aspect of his treatment that might offer any possibility, however slight, of any improvement, however slight, to Mr Krommydas's demonstrated present condition. 4 That understandable concern of the members of his immediate family adds its own dimension of sadness to the overall situation with which the Court is called upon to deal, and makes it particularly important that in coming to grips with the issues on the present application, the Court take care not to be inappropriately distracted by feelings of sympathy, entirely proper and logical feelings of sympathy, for the plight of the members of Mr Krommydas's family. They are entitled to express their views as they have done through their solicitor. They are entitled to have those views given every proper and respectful consideration by the Court. But in the end the way in which the present application falls to be considered depends not upon consideration of that kind, but upon cut and dried considerations of law, and cut and dried findings of fact based not upon supposition or hope, but upon concrete evidence. 5 The first point taken in support of the application to dissolve the current orders is that it should be found by the Court that in accordance with s 33 of the Human Tissue Act 1983 (NSW) Mr Krommydas has died. The terms of that section are few and simple and clear. The section provides as follows: "For the purposes of the law of New South Wales a person has died (a) when there has occurred an irreversible cessation of all functions of the patient's brain, or (b) irreversible circulation of blood in the person's body."