Sarian v Elton [2011] NSWCA 123

Sarian v Elton [2011] NSWCA 123

The appeal was dismissed because the primary judge's acceptance of Ms Elton's evidence and rejection of Dr Sarian's evidence about the injection technique were open on the evidence and should not be disturbed consistently with principles of appellate restraint. Reading the primary judge's reasons fairly, his Honour accepted Professor Iredell's opinion and rejected Associate Professor Eisen's alternative gastrointestinal-source explanation because there were no signs or symptoms supporting that source and because the accepted facts made direct inoculation from faulty technique the more probable cause. Although the reasons on the medical evidence were sparingly expressed, they were...

Jurisdiction
Australia
Judgment Date
19 May 2011
Procedural Posture
Medical Negligence Appeal / Appeal From District Court Judgment on Liability; Application for Leave to Appeal and Appeal Heard Together
Outcome
Appeal dismissed. Appellant to pay the respondent's costs of the appeal.
Legal Topics
['cortisone Injection by General Practitioner' 'injection Site Abscess' 'medical Causation' 'breach of Duty of Care' 'appellate Restraint in Factual Findings' 'expert Medical Evidence Tendered Without Oral Evidence' 'civil Liability Act 2002 Ss 5 B and 5 O']
['negligence' 'medical Negligence' 'civil Procedure' 'evidence'] ['cortisone Injection by General Practitioner' 'injection Site Abscess' 'medical Causation' 'breach of Duty of Care' 'appellate Restraint in Factual Findings' 'expert Medical Evidence Tendered Without Oral Evidence' 'civil Liability Act 2002 Ss 5 B and 5 O']

Case Brief

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Procedural Posture

Medical Negligence Appeal / Appeal From District Court Judgment on Liability; Application for Leave to Appeal and Appeal Heard Together

Legal Issues

  1. 1 ['Whether the trial judge failed properly to analyse the factual evidence concerning how the cortisone injection was administered.' 'Whether the trial judge failed properly to analyse competing expert medical evidence on causation.' "Whether the Court of Appeal should interfere with the trial judge's findings of fact and credibility." 'Whether the respondent established causation and breach of duty in relation to the infection following the injection.' 'Whether the defence under s 5O of the Civil Liability Act 2002 was established.']

Ratio Decidendi

The appeal was dismissed because the primary judge's acceptance of Ms Elton's evidence and rejection of Dr Sarian's evidence about the injection technique were open on the evidence and should not be disturbed consistently with principles of appellate restraint. Reading the primary judge's reasons fairly, his Honour accepted Professor Iredell's opinion and rejected Associate Professor Eisen's alternative gastrointestinal-source explanation because there were no signs or symptoms supporting that source and because the accepted facts made direct inoculation from faulty technique the more probable cause. Although the reasons on the medical evidence were sparingly expressed, they were...

Court Disposition

Appeal dismissed. Appellant to pay the respondent's costs of the appeal.

Orders

  • ['Appeal dismissed.' "Appellant to pay the respondent's costs of the appeal."]