Whether plaintiff’s refusal to undergo surgery was unreasonable

ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 arose from a fall rather than medical treatment, however the Court of Appeal of New South Wales was required to consider whether the claimant’s refusal to undergo knee surgery was unreasonable in the sense that she had thereby failed to mitigate her loss.

The Court relevantly held that:

  • The appellant / defendant bore the burden of establishing that the claimant had failed to mitigate her loss and should have pleaded in its defence that she had unreasonably refused to undergo the recommended surgery. However, the primary judge did not err making findings on the matter because it was plainly in issue from the early stages of the hearing, and understood as such by the parties: [31]-[35]; (see Fazlic v Milingimbi Community Inc [1982] HCA 3); and
  • Whether the refusal to undergo surgery was reasonable depended on the claimant’s knowledge of the benefits and risks of the surgery at the time of her refusal. The primary judge erred in failing to take her state of knowledge into account. There was no evidence that her doctors explained the benefits and risks of the surgery to her. Accordingly, the appellant failed to discharge its burden of proof and the primary judge’s finding of unreasonableness had to be set aside: [37]-[41]

With thanks to Janine McIlwraith for drawing this decision to my attention.


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