Ngo v Elysee [2019] NSWCA 123

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ngo v Elysee [2019] NSWCA 123 Hearing dates: 1 March 2019 Decision date: 29 May 2019 Before: White JA at [1]; McCallum JA at [13]; Sackville AJA at [135] Decision: (1) Allow the appeal; (2) Set aside the orders of the primary judge entered on 31 May 2018; (3) Enter judgment for the appellant; (4) The respondent to pay the appellant's costs of the proceedings before the primary judge and of the appeal; (5) The respondent to be granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. Catchwords: TORTS – negligence – medical negligence – breach of duty of care – whether test results warranted referral to a specialist – finding of breach of duty unsupported by the evidence – causation – no evidence that referral to a specialist would have changed the course of treatment – no occasion to order new trial – Court in position to resolve the evidentiary conflict

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – consideration of inappropriateness of bringing a summary judgment application based on agreement between experts in conclave Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Civil Procedure Act, ss 56, 58 District Court Act 1973 (NSW), s 127 Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW), ss 75A(5), 75A(6), 75A(6)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 31.23(1), 31.24, 31.24(6), 31.26, 31.26(3), 31.28(3)(c), 31.28(4), 51.53(1) Cases Cited: Breheny v Cairncross [2002] NSWCA 69 Ford v Nagle [2004] NSWCA 33 Hare v Harmer [2009] NSWCA 68 Wickstead v Browne (1992) 30 NSWLR Category: Principal judgment Parties: Trung Huu Ngo (appellant) Sam Elysee (respondent) Representation: Counsel: Mr M Hutchings (appellant) Mr M Cranitch SC with Mr A Campbell and Mr L Robison (respondent)