Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475

Supreme Court New South Wales

Medium Neutral Citation: Hassan v Sydney Local Health District (No 2) [2020] NSWSC 475 Hearing dates: 25 March 2020 Date of orders: 05 May 2020 Decision date: 05 May 2020 Jurisdiction: Common Law Before: Fagan J Decision: 1 Judgment for the defendant. 2 The plaintiff is to pay the defendant's costs of the proceedings. Catchwords: TORTS – negligence – medicine –whether plaintiff provided valid consent to medical treatment – valid consent proven – judgment for the defendant. Cases Cited: Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651 Hassan v Sydney Local Health District [2019] NSWSC 1652 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; [1992] HCA 15 Category: Principal judgment Parties: Ayan Abdi Hassan (plaintiff) Royal Prince Alfred Hospital (defendant) Representation: Counsel: N/A B Bradley (defendant)

Solicitors: Plaintiff self-represented Makinson d'Apice Lawyers File Number(s): 2018/114499 Publication restriction: No

Judgment 1. On 28 November 2019 it was ordered that the following question be decided separately and before all other questions that remain to be resolved in the proceedings: Whether the plaintiff gave a valid and effective consent for a muscle biopsy to be carried out by the defendant on her left vastus or quadriceps muscle prior to the defendant performing that procedure on 7 April 2015. 1. That question is now before the Court for determination. If the answer is yes then no other issue will need to be decided in the case and it would follow that there should be judgment for the defendant on the plaintiff's statement of claim filed 5 April 2019. If the answer to the separate question is no then it would follow that the medical procedure referred to in the question constituted an unlawful assault: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218; [1992] HCA 15. The Court would in that event make directions for the filing of medical and lay evidence on damages and proceed in due course to an assessment. 2. The plaintiff has been self-represented throughout the proceedings, which commenced in May 2018. Her statement of claim of 5 April 2019 alleged negligence in various respects in the carrying out of a muscle biopsy at the defendant's Royal Prince Alfred Hospital ("RPAH") on 7 April 2015. It was also pleaded that a general anaesthetic was administered on that day without the plaintiff's consent. These claims were dismissed on 28 November 2019 because the plaintiff did not produce a medical expert's report supporting each element of her causes of action, in particular, breach of duty of care and causation of damage. A supporting medical opinion was required to be filed with the statement of claim by r 31.36 of the Uniform Civil Procedure Rules ("UCPR"). After liberal extensions of time, the plaintiff first produced medical reports in August and September 2019. These did not support her claims in essential respects. 3. That left for determination only the plaintiff's claim that she had not given consent for the biopsy of the left vastus. There was some evidence of damage in connection with that claim, in that the biopsy of the vastus had involved an incision and it had left a scar. This cause of action therefore turns upon the factual issue raised by the separate question now before the Court. The plaintiff's claim in this respect does not depend upon medical opinion as to any departure from professional standards of reasonable care. 4. The history of dismissal of most of the plaintiff's case is set out in more detail in two earlier judgments: Hassan v Royal Prince Alfred Hospital [2019] NSWSC 1651 delivered on 14 June 2019 and Hassan v Sydney Local Health District [2019] NSWSC 1652 delivered on 28 November 2019. 5. The defendant's records of the treatment of the plaintiff were before the Court in an interlocutory hearing on 14 June 2019 and were summarised at [4]-[17] of the judgment delivered that day. The following factual findings are in part based upon the records referred to in that judgment, which were again before the Court on the final hearing, and also upon affidavit and oral evidence.