Mestow v Kowalski was a decision of Balla DCJ on 3 March 2017, which does not appear to have found its way onto the NSW Caselaw database.
The claimant alleged negligence in the performance of laparoscopic hysterectomy leading to bowel perforation.
The defendant argued that the perforation was a known risk of which the claimant had been warned and which was not associated with any breach of duty of care.
A medical practitioner retained by the plaintiff, although not a gynaecological surgeon, was accepted as an appropriate expert given his laparoscopic surgery training and experience. However the evidence of the defendant’s experts was preferred and accordingly there was a verdict for the defendant.
The trial judge found that there was no breach of duty (section 5B) and, although not necessary to decide, the section 5O defence would have been available to the defendant.
The judgment does not appear to include a discussion of section 5I of the Civil Liability Act 2002 (NSW) being the inherent risk provision.