Varipatis v Almario [2013] NSWCA 76

Varipatis v Almario [2013] NSWCA 76

The appeal was allowed because the evidence did not establish that in 1998 a reasonable general practitioner was required to refer the respondent directly to a bariatric surgeon, and the appellant was not in breach by failing to re-refer the respondent to an obesity clinic where the respondent had already received and declined such a referral. The respondent also failed to establish that any alleged failure to correct his belief about toxic chemical exposure, or any referral to an obesity clinic or hepatologist, would probably have caused sufficient weight loss to avoid cirrhosis and liver cancer. In any event, on the trial judge's alternative findings, causation was not established...

Jurisdiction
Australia
Judgment Date
18 April 2013
Procedural Posture
Appeal in Negligence Proceedings Concerning Medical Treatment by a General Practitioner / Appeal From Judgment of Campbell J in Almario V Varipatis (no 2) [2012] NSWSC 1578
Outcome
Appeal allowed; judgment and orders below set aside.
Legal Topics
['scope of Duty of Care of General Practitioner' 'breach of Duty' 'causation' 'referral to Obesity Clinic or Bariatric Surgeon' "suitors' Fund Certificate"]
['torts' 'medical Negligence' 'civil Procedure'] ['scope of Duty of Care of General Practitioner' 'breach of Duty' 'causation' 'referral to Obesity Clinic or Bariatric Surgeon' "suitors' Fund Certificate"]

Case Brief

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Procedural Posture

Appeal in Negligence Proceedings Concerning Medical Treatment by a General Practitioner / Appeal From Judgment of Campbell J in Almario V Varipatis (no 2) [2012] NSWSC 1578

Legal Issues

  1. 1 ['Whether the appellant breached his duty of care by failing to re-refer the respondent to an obesity clinic or endocrinologist.' 'Whether a reasonable general practitioner in 1997-1998 was required to refer the respondent to a bariatric surgeon.' "Whether the appellant's alleged failure to correct the respondent's belief that his health problems were caused by toxic chemical exposure caused his failure to lose weight." 'Whether referral to an obesity clinic or hepatologist would have caused the respondent to lose sufficient weight to avoid cirrhosis and liver cancer.' 'Where a duty could be discharged by either of two alternative courses, whether omission of one course was a necessary condition of the harm.']

Ratio Decidendi

The appeal was allowed because the evidence did not establish that in 1998 a reasonable general practitioner was required to refer the respondent directly to a bariatric surgeon, and the appellant was not in breach by failing to re-refer the respondent to an obesity clinic where the respondent had already received and declined such a referral. The respondent also failed to establish that any alleged failure to correct his belief about toxic chemical exposure, or any referral to an obesity clinic or hepatologist, would probably have caused sufficient weight loss to avoid cirrhosis and liver cancer. In any event, on the trial judge's alternative findings, causation was not established...

Court Disposition

Appeal allowed; judgment and orders below set aside.

Orders

  • ['Allow the appeal and set aside the judgment and orders made by the trial judge on 21 December 2012.' 'Order that the respondent pay the costs of the appellant of the appeal and of the trial below.' "Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal."]