Apportionment of responsibility and damages

Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 is a decision today of the NSW Court of Appeal. The headnote explains:

“…Ms Emily Pierce, has suffered from epilepsy since the age of six. In 2010, at the age of 20, Ms Pierce underwent electroencephalographic monitoring, a telemetry testing procedure requiring sleep deprivation and the withdrawal of medication, to induce a seizure so as to determine whether surgery would be suitable to address her epileptic episodes. The testing was held at one of the appellant’s hospitals, the Royal Brisbane and Women’s Hospital.

Subsequently, Ms Pierce brought a claim for damages for the harm suffered as a result of the Hospital’s negligence in conducting the telemetry testing. Whilst the existence of a duty of care, and the Hospital’s breach of that duty, was admitted, the appellant submitted that its negligence did not cause or materially contribute to any increase in the burden of Ms Pierce’s epilepsy. The respondent contended and Ms Pierce denied that Ms Pierce’s epilepsy was a progressively deteriorating condition.

The primary judge found for Ms Pierce, awarding damages in the sum of $1,672,790.75. In so finding, his Honour discounted damages for past economic loss by 50 per cent, damages for past care and future economic loss by 67 per cent and damages for future care by 75 per cent.

The appeal

The issues in the appeal were:

(i) whether the primary judge was justified in concluding that Ms Pierce suffered from a progressively deteriorating condition;

(ii) whether the evidence justified the primary judge’s conclusion that the burden of Ms Pierce’s epilepsy worsened following the telemetry event of 5 January 2010;

(iii) whether the primary judge was justified in concluding that the worsening that his Honour found, going beyond a natural deterioration, was caused or materially contributed to by the Hospital’s negligence; and

(iv) the challenge by both parties to the primary judge’s assessment of damages.

The Court held (Per White JA; Macfarlan and Payne JJA agreeing) dismissing the appeal:

In relation to (i)

The cross-appeal was unsuccessful; Ms Pierce’s epilepsy was a progressively deteriorating condition as established on the balance of probabilities: [114]-[115].

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied.

In relation to (ii)

The evidence amply supported the primary judge’s finding that there was a detrimental difference to Ms Pierce’s condition after the telemetry event: [133].

In relation to (iii)

The primary judge’s application of s 11 of the Civil Liability Act 2003 (Qld) was correct. His Honour was correct that “but for” the negligence of the Hospital in conducting the EEG, Ms Pierce would not have suffered an increase in the burden of her epilepsy to the extent she did: [158]-[159].

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29; EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238; Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190; Adelaide Stevedoring Co Ltd v Forst (1940) 64 NSWLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

In relation to (iv)

There was no error in the primary judge’s approach in relation to damages. His Honour had made a finding that was open to him, considering the pre-existing condition and its likely natural deterioration: [186]-[187].”



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