Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559 saw a claim which arose as the claimant underwent voluntary testing to determine whether she was a candidate for neurosurgical intervention for her epilepsy. She alleged that the staff of the hospital did not intervene with appropriate medical treatment as promptly as they should have, allowing her to descend into a more serious, prolonged period of seizure activity. Her claim was that the failure to intervence led to a marked and permanent deterioration of her epilepsy involving brain or neuronal injury and consequential psychiatric injury.

The hospital ultimately admitted breach of duty (at [6]), leaving in issue whether the deterioration arose as a result of the breach or was simply a progression of her underlying condition.

The court accepted (referring to the principles in Tabet v Gett) that the plaintiff established a detrimental difference in her condition due to the negligence of the defendant, even though her underlying condition was progressive: [165].

The law of Queensland applied: [7] – [9]. Damages were assessed accordingly, the court noting at [193] that the principles discussed in Malec v Hutton (1990) 169 CLR 638, as expounded in Seltsam Pty Ltd v Galeb [2005] NSWCA 208 at [103] – [107] and Ridolfi v Hammond [2012] NSWCA 3 at [86] – [88], were engaged.

 

 

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