Biggs v George [2016] NSWCA 113

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Biggs v George [2016] NSWCA 113 Hearing dates: 1 and 2 December 2015 Decision date: 17 May 2016 Before: Basten JA at [1]; Ward JA at [165]; Payne JA at [166] Decision: (1) Allow the appeal and set aside the judgment for the plaintiff with costs, given in the District Court, including orders 1 and 2 made and entered on 24 February 2015.

(2) In lieu of those orders order that: (a) the proceedings in the District Court be dismissed; (b) the plaintiff pay the defendants' costs in that Court.

(3) With respect to the judgment given and the orders made on 17 April 2015 and entered on 23 June 2015:

(a) set aside orders 3 and 4; (b) in place of order 3 order that the defendants pay to Dr Havas an amount of $3,950 for compliance with a subpoena to attend and give evidence on 23 October 2014; (c) order that the plaintiff pay the costs of her motion dated 30 March 2015 seeking an order that the defendants pay the witness expenses charged by Dr Havas.

(4) Order that the first respondent pay the appellants' costs of the proceedings in this Court.

(5) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) Catchwords: TORTS – negligence – medical negligence – failure to warn – duty to warn patient of material risks of surgical procedure with reasonable care – non-English speaking patient – scope of duty of care where effective communication reliant on translation – whether failure to warn of potential risks of surgery which eventuated