Of interest regarding damages assessments, Norris v Routley [2015] NSWSC 1875 required consideration of  certain pharmaceutical costs associated with the deceased’s condition as a liver transplant recipient infected with the Hepatitis C virus. Argument arose as to whether the medications in question would have been available on a subsidised basis and, if not, whether the deceased would have chosen to incur the unsubsidised cost.

At [15] the Court noted:

The likely availability of the new anti-viral drugs remains undecided and effectively unknown. I can safely assume, as there has been no attempt to suggest otherwise, that they are not available yet, despite having been approved for use. Even if they were I am not possessed of an expert opinion that says anything specific about their use or suitability for the deceased, having regard to his particular age and circumstances, had he survived. The unsubsidised cost would certainly have caused both Dr Norris and the deceased to think carefully about expending such a large sum with uncertain prospects of success, especially having regard to the ever present risk of an early death at any time, and the need for Dr Norris and the deceased to evaluate the continuing future needs of their two sons. There is nothing in Dr Norris’s evidence that impels me with confidence to the view that she or the deceased would necessarily have taken up the use of these drugs had they only been available at very high cost.

 

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