Sharman v Boshell [2005] NSWCA 476

Sharman v Boshell [2005] NSWCA 476

The trial judge committed appellable error by not considering, or by failing to give reasons for disregarding, Dr Parker's oral testimony that qualified the written concessions, especially regarding the application and effects of the Filshie clip. Further, it was an error to rely on the absence of cross-examination of Professor Kovacs, given the respondent's choice not to pursue it. These errors, which potentially affected the outcome, warrant setting aside the verdict and ordering a new trial.

Jurisdiction
Australia
Judgment Date
22 December 2005
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal allowed; verdict and judgment set aside; new trial ordered
Legal Topics
['negligence' 'failed Sterilisation' 'duty of Care' 'evidentiary Issues']
['medical Negligence'] ['negligence' 'failed Sterilisation' 'duty of Care' 'evidentiary Issues']

Case Brief

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Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 ["Whether the respondent correctly applied the Filshie clip to the appellant's left fallopian tube" "Whether the trial judge erred in preferring the respondent's evidence of usual practice over direct observational evidence" 'Whether the trial judge erred by relying on absence of cross-examination of Professor Kovacs' 'Whether all relevant evidence, especially oral testimony, was considered']

Ratio Decidendi

The trial judge committed appellable error by not considering, or by failing to give reasons for disregarding, Dr Parker's oral testimony that qualified the written concessions, especially regarding the application and effects of the Filshie clip. Further, it was an error to rely on the absence of cross-examination of Professor Kovacs, given the respondent's choice not to pursue it. These errors, which potentially affected the outcome, warrant setting aside the verdict and ordering a new trial.

Court Disposition

Appeal allowed; verdict and judgment set aside; new trial ordered

Orders

  • ['Appeal allowed' 'Verdict and judgment of Acting Judge Hungerford set aside' 'Matter remitted to the District Court for a new trial' 'Costs of the first trial to be determined by the Judge hearing the retrial' "Respondent to pay the appellant's costs of the appeal" "Respondent to have a Certificate under the...