Old v Miniter [2021] NSWCA 92

Old v Miniter [2021] NSWCA 92

The decision not to remove the medial hardware was within the range of competent professional judgment and did not constitute a breach of duty. The appellant failed to demonstrate on evidence that the respondent's actions fell outside professional standards. Accordingly, no breach was established, and the appeal must be dismissed.

Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Appeal / Judgment on Appeal From District Court
Outcome
Appeal dismissed
Legal Topics
['duty of Care' 'standard of Care' 'causation' 'professional Negligence' 'medical Hardware Removal' 'infectious Diseases in Medical Procedures' 'assessment of Damages' 'loss of Earning Capacity']
['tort Law' 'medical Negligence'] ['duty of Care' 'standard of Care' 'causation' 'professional Negligence' 'medical Hardware Removal' 'infectious Diseases in Medical Procedures' 'assessment of Damages' 'loss of Earning Capacity']

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Procedural Posture

Appeal / Judgment on Appeal From District Court

Legal Issues

  1. 1 ['Whether the respondent breached his duty of care to the appellant' 'Whether the breach of duty was causative of the 2017 infection' 'Whether the assessment of damages, including failure to award interest, was correct']

Ratio Decidendi

The decision not to remove the medial hardware was within the range of competent professional judgment and did not constitute a breach of duty. The appellant failed to demonstrate on evidence that the respondent's actions fell outside professional standards. Accordingly, no breach was established, and the appeal must be dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['Dismiss the appeal from the judgment of the District Court delivered on 31 July 2020.' "Order that Mr Old pay Dr Miniter's costs in this Court."]