Almario v. Varipatis (No. 2) [2012] NSWSC 1578

Almario v. Varipatis (No. 2) [2012] NSWSC 1578

Dr. Varipatis was negligent in failing to refer Mr. Almario to a bariatric surgeon or specialist obesity clinic by July 1998, and failing to refer him to a hepatologist by September 2000. But for this negligence, Mr. Almario would have avoided progression to cirrhosis, liver failure, and cancer. The limitation period should be extended under s.60G Limitation Act 1969 as the plaintiff was unaware of the connection between the doctor’s conduct and his injury until 2012. Damages are reduced by 20% for contributory negligence.

Parties
Plaintiff: Luis Almario; Defendant: Emmanuel Varipatis
Jurisdiction
Australia
Judgment Date
21 December 2012
Procedural Posture
Principal Judgment / Final Judgment After Trial
Outcome
Judgment for the plaintiff; limitation period extended; damages awarded; costs to plaintiff.
Legal Topics
Negligence, Medical Negligence, Limitation of Action, Extension of Limitation Period
Torts Limitation of Actions Negligence Medical Negligence Limitation of Action Extension of Limitation Period

Case Brief

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Parties

Luis Almario

Plaintiff

Emmanuel Varipatis

Defendant

Procedural Posture

Principal Judgment / Final Judgment After Trial

Legal Issues

  1. 1 Whether Dr. Varipatis was negligent in his treatment of Mr. Almario, particularly regarding management of obesity and liver disease
  2. 2 Whether any negligence by Dr. Varipatis caused the progression of Mr. Almario's liver disease to cirrhosis, liver failure and cancer
  3. 3 Whether the plaintiff's claim is barred by the Limitation Act 1969 (NSW)

Ratio Decidendi

Dr. Varipatis was negligent in failing to refer Mr. Almario to a bariatric surgeon or specialist obesity clinic by July 1998, and failing to refer him to a hepatologist by September 2000. But for this negligence, Mr. Almario would have avoided progression to cirrhosis, liver failure, and cancer. The limitation period should be extended under s.60G Limitation Act 1969 as the plaintiff was unaware of the connection between the doctor’s conduct and his injury until 2012. Damages are reduced by 20% for contributory negligence.

Court Disposition

Judgment for the plaintiff; limitation period extended; damages awarded; costs to plaintiff.

Orders

  • Pursuant to s.60G Limitation Act 1969 extend the time for bringing the proceedings to 29th March 2012.
  • Judgment for the plaintiff against the defendant in the sum of $364,372.48