Morocz v Marshman [2016] NSWCA 202

Morocz v Marshman [2016] NSWCA 202

The appellant was adequately warned of all material risks associated with the surgical procedure, as established by both documentary evidence and expert consensus; additional risks not warned of were not material or known risks requiring disclosure at the time. Exclusion of expert reports was justified due to lack of sufficient specialised knowledge or relevance; no special grounds existed for admission of fresh evidence. Accordingly, there was no breach of duty or error by the primary judge, and the appeal failed.

Jurisdiction
Australia
Judgment Date
11 August 2016
Procedural Posture
Appeal / Judgment After Hearing of Appeal
Outcome
Appeal dismissed
Legal Topics
['failure to Warn' 'duty to Warn' 'admissibility of Expert Evidence' 'medical Informed Consent' 'civil Appeals' 'fresh Evidence on Appeal']
['torts' 'medical Negligence' 'civil Procedure' 'evidence'] ['failure to Warn' 'duty to Warn' 'admissibility of Expert Evidence' 'medical Informed Consent' 'civil Appeals' 'fresh Evidence on Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal / Judgment After Hearing of Appeal

Legal Issues

  1. 1 ['Whether the respondent failed in the duty to warn the appellant of material risks associated with the medical procedure' 'Whether expert reports on behalf of the appellant were wrongly excluded as inadmissible' 'Whether the appellant was adequately warned about all relevant material risks' 'Whether the respondent was required to warn of certain risks alleged by the appellant' "Whether the primary judge erred in finding that appellant's factual causation was not established if a breach was found" 'Whether fresh evidence should be admitted on appeal']

Ratio Decidendi

The appellant was adequately warned of all material risks associated with the surgical procedure, as established by both documentary evidence and expert consensus; additional risks not warned of were not material or known risks requiring disclosure at the time. Exclusion of expert reports was justified due to lack of sufficient specialised knowledge or relevance; no special grounds existed for admission of fresh evidence. Accordingly, there was no breach of duty or error by the primary judge, and the appeal failed.

Court Disposition

Appeal dismissed

Orders

  • ['Notices of motion dated 20 August 2015 and 4 September 2015 dismissed.' 'Appeal dismissed.' "The appellant pay the respondent's costs of the appeal on a party‑party basis as agreed or assessed."]