George v Biggs [2015] NSWDC 11

District Court New South Wales

Medium Neutral Citation: George v Biggs [2015] NSWDC 11 Hearing dates: 21, 22, 23, 27, 28, 29, 30, 31 October, 3, 4, 20 & 21 November, 5, 9, 10 & 17 December 2014; close of submissions 2 February 2015 Decision date: 24 February 2015 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the plaintiff in the sum of $330,999.85;

2.The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further or other orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS –negligence – medical treatment – whether consent properly obtained for neuro-otologic surgery for removal of a right sided acoustic neuroma of the 8th cranial or vestibular nerve – inadvertent intra-operative division of adjacent right 7th cranial or facial nerve causing right-sided facial paralysis – whether relevant failure to provide plaintiff with adequate information, advice and warning of potential adverse result – non-English speaking patient – role of interpreters in health care setting – interpreters not called to give evidence – whether plaintiff's facial nerve palsy was relevantly caused by a departure from required standard of care – utility of evidence of usual professional practice absent relevant recollection on the part of the practitioners concerned and absent complete clinical records – resolution of divergent expert opinions where some experts were not called – consideration of defence of alleged materialisation of an inherent risk pursuant to s 5I of the Civil Liability Act 2002 – consideration of whether treatment provided to plaintiff was in accordance with contemporary peer professional practice in Australia pursuant to s 5O of the Civil Liability Act 2002