Chapter 2 - LexisNexis

http://www.austlii.edu.au/au/other/HCATrans/2009/303.htmlhttp://www.austlii.edu.au/au/other/HCATrans/2009/304.html[Reference to the following notes should be qualified by consideration of Gett vTabet [2009] NSWCA 76 above.]• O'Gorman v Sydney South West Area Health Service [2008] NSWSC 1127.Consideration of content of duty of care owed by breast screening organisationto plaintiff; evidence supported the application of the causation principlestated by McHugh J in Chappel v Hart. This was not a case wheremetastasisation was likely in any event and the plaintiff had merely lost thechance of a better outcome. The events which occurred, i.e. the developmentof tumours in the plaintiff’s lungs and brain, occurred within the very area ofrisk which had been increased by the delay in diagnosis. No scope for theapplication of the principle in Rufo v Hosking. See [150] – [151]. On appeal asSydney South West Area Health Service v Stamoulis [2009] NSWCA 153, thematter was sent for retrial on the issue of breach of duty, by reason of the trialjudge’s exclusion of certain evidence.• State of New South Wales v Burton [2008] NSWCA 319. Difficulties ofassessment of loss of chance, chance of some better outcome highlyspeculative. At [110], although the onus is on the plaintiff to identify the valueof the lost chance, in accordance with the authorities referred to above, it isreasonable to err on the side of generosity, to avoid the negligent defendantobtaining too great a benefit of the doubt from uncertainty as to the causes andtreatment of psychiatric conditions.Chapter 1313.10 100% reduction for contributory negligenceReturn to table of contents• Adams by her next friend O'Grady v State of New South Wales [2008]NSWSC 1257. Alleged breach of duty by State in providing plaintiff withaccess to knife with which she stabbed and killed a teacher. As to contributorynegligence: see [132] ff. “…in assessing relative culpability and respectiveshare in the responsibility, the Court is entitled to come to a view that thecontributory negligence should be assessed at 100% of the cause of the injury.For the reasons already given as to responsibility for the stabbing, duty ofcare, damages and causation, I would ordinarily assess the “contributorynegligence” to be at 100% of the damage…”• Zilio v Lane [2009] NSWDC 226 discloses a 100% reduction for contributorynegligence as an alternative finding in a motor accident context, withoutreferring to the applicable civil liability legislation provision.13.18 Medical liability cases regarding contributory negligence