Damaging Consequences Medical Negligence Case - Withholding evidence

Medical Negligence – The Damaging Consequences Of Withholding Evidence

Withholding evidence by failing to disclose an unfavourable report may not only be unethical, but it can significantly alter the costs outcomes for parties in medical negligence proceedings.

Most people are aware that certain communications between lawyers and their clients, or lawyers and third parties on behalf of the client are protected from disclosure in legal proceedings unless specifically authorised by the client. This is known as legal professional privilege.

However, there are some circumstances where a document must be disclosed to the other party and the Court regardless of how damaging it is to the party concerned.

One such document is a subsequent report by an expert. Once an expert report is served and relied on by a party, the expert has an overriding duty to the Court and not to the person who requested the report. It is not privileged. When a solicitor steps across this ethical boundary by withholding evidence, it can be disastrous for their client (even moreso than the report itself) because they may be forced to disclose other documents which would normally be protected from disclosure, such as written advices from their solicitor. Failure to do so could result in significant costs orders against the client and solicitor.

In one such case of Medical Negligence proceedings in the ACT Supreme Court, a firm of solicitors had suppressed a report from an infectious diseases expert which was against the interests of their client for approximately 2 years. The expert had previously provided three very supportive reports in favour of the orthopaedic surgeon for whom the firm of solicitors acted, and all had been served on the other party. The subsequent report had expressed damaging opinion against the interests of the doctor. One day before the matter was due to go to trial the firm of solicitors served the report claiming that the failure to serve the other party was a simple oversight.

The other party, a teenage girl who had contracted a nasty infection after a third operation at the hands of the orthopaedic surgeon, required production of all letters and communications around the creation of the report and advices to the orthopaedic surgeon from his lawyer.

Associate Justice David Mossop, the judge who heard the application was not happy. He found that withholding evidence by not disclosing the report was probably a deliberate decision and in those circumstances, privilege would be removed over all documents surrounding the report given the likely professional misconduct of the firm involved.

These letters to the client may well have expressed the firm’s view about the poor prospects of defending the case, which would not otherwise have been available to the other party or the Court. If that is the case, the Court may impose damaging costs orders on the surgeon when the defence fails.

Social Media Comments

Using Social Media as a Platform for Business Promotion – Be Careful

If you post on Facebook, other social media sites, or via your business website and allow comments, care must be taken to review the comments carefully and where potentially offensive or defamatory of a third party to remove them as soon as possible. If you don’t you could attract legal liability as a secondary publisher of the comments.

In a recent case in South Australia, a plaintiff sued both the comment maker and the business who posted the original Facebook post in defamation. Even though the business itself had not made the defamatory remarks themselves the Court held that by making the original post, it had participated in the publication of the comments by creating the occasion for the comments to be made. The business was ordered to pay $100,000 in aggravated damages. The Court held that by making the original post, the business accepted the responsibility to monitor the comments and remove those which were inappropriate or suffer the consequences, even if there was substantial inconvenience attached to monitoring the comments.

The business was ordered to pay $100,000 in aggravated damages.

It must now be obvious that the laws that apply to publishing are just as much applicable to social media platforms and online publishing. If you use social media platforms for promotion, then you are in the business of publishing.

Testamentary capacity - valid Will

Testamentary capacity – the mistaken belief of capacity for a valid Will

The term testamentary capacity is often used but rarely understood. Most would think that a Will would not be valid if the will maker was suffering a disorder of the mind or was suffering an insane delusion about certain matters regarding the obvious beneficiaries to their estate.

Banks v Goodfellow (1870) LR 5 QB 549 is an old English authority adopted in Australia setting down the principles of testamentary capacity:

The will maker (testator) must:

  • understand the nature and effect of making a will ie that the document will govern who is appointed as the executor after the will maker’s death, and what will happen to his or her assets;
  • understand the nature and extent of their property. This does not mean that they should know precisely to the dollar the amount held in their bank account, but understand in general terms what property they own or have a disposable interest in; and
  • have the capacity to comprehend the moral claims of potential beneficiaries on their estate.

One might think that a person who holds a false belief about a beneficiary which affects their decision to make a gift they would otherwise have made, would constitute incapacity.

The cases which have followed Banks have developed concepts of the absence of a ‘disorder of the mind’ including an ‘insane delusion.

In the case of Carr v Homersham [2018] NSWCA 65 the Court of Appeal dealt with a situation where Mrs Hordern, 76 year old woman, had changed her will to leave all of her estate to a friend (rather than her niece and next of kin). She did so because she held a false belief about her niece having made disgraceful comments about her mother, the deceased’s sister, when she had not.

The Court found had the deceased known it to be untrue at the time of the will she would have left her estate to the niece. The Court upheld the will on the basis that even though the belief was untrue, the decision was not irrational, nor the product of a delusion or mental disorder. Because the deceased had not been faced with the truth, it could not be said that the belief was not simply a misunderstanding or mistake.

It is interesting to note that not even a diagnosis of dementia will not preclude a finding of testamentary capacity.


Fertility and pre-natal genetic testing

Fertility and Pre-Natal Genetic Testing

Fertility and Pre-Natal Genetic Testing

Our principal, Conrad Curry represented a couple in a landmark case in the Supreme Court of New South Wales late last year, in which the couple resolved the first stage of their case against a major Australian Genetic Testing Laboratory.

The couple are the parents of two beautiful boys who have the genetic disorder – Fragile X Syndrome. The disorder is the biggest single gene cause of autism spectrum disorder and mental retardation in children worldwide. It is an hereditary X-dominant linked disorder which is passed down by parents to their children and can cause behavioural, developmental and intellectual disability. Typically, boys suffer the full affects of the disorder (to varying degrees) and girls are less affected and often carriers.

The mother’s uncle had been diagnosed with Fragile X and it was recommended that she too have testing before considering starting a family. Her G.P. referred her to a pathology service who took her blood and sent it off to the genetic testing laboratory requesting testing for carrier status. Unfortunately, testing was conducted which could only detect full mutation of the disorder and not carrier status. She was not advised, nor was her G.P., that the test which could detect carrier status was not used – the results returned were normal (a false negative).

The couple met, and started their relationship, married and conceived two children in the comfort and knowledge that their children would not be affected by the disorder. Both boys were affected by delayed development and after referral to a paediatrician and subsequent genetic testing they were diagnosed with Fragile X Syndrome. Mum had further (and appropriate) testing which revealed that she was in fact a carrier of the genetic disorder.

It is obvious that the couple love their children very much, but had they known that mum was a carrier they would have looked to different methods of parenting, or had in utero pre-natal testing to determine the genetic status of the foetus in the early stages of pregnancy.

They alleged that the laboratory was negligent and should have advised if the test conducted was incapable of determining the very issue for which the testing was conducted. Their case raises very significant and undetermined issues of law in wrongful birth law.

Conrad has also recently been instructed in several other genetic false negative cases in the context of IVF testing at embryonic stage and pre-natal testing by Chorionic Villus Sample. Watch this space for developments.

Court Update: Family Provision

Court Update: Family Provision

There have been a number of very interesting cases in recent times determined in the field of Family Provision Claims in the Court of Appeal. Family Provision claims are claims brought by certain eligible people who are unhappy that they have been left out of a will or have not received what was appropriate provision for them in the will.

These cases have resulted in the reduction in the circumstances in which certain eligible persons can claim and in limiting the generosity of the Court. One such case which has received some attention in the media and was recently the subject of an application for special leave to the High Court was Lodin v Lodin [2017] NSWCA 327. This case involved a claim by an ex-wife of the deceased (a doctor) some 25 years after their brief marriage of just 1 year had ended. There had been a property settlement in which the claimant had faired very well, and the deceased maintained all of his financial obligations throughout the child’s life including the payment of private school fess. The child of the relationship was the beneficiary under the deceased’s will and stood to inherit an estate worth around $5M.

Unfortunately, the claimant had been quite nasty to the deceased after the breakdown of their relationship, threatened to make his life not worth living and making false complaints to the Health Department.

Despite all of this the Court at first instance decided that the deceased hadn’t discharged his moral duty to the claimant and awarded $750,000. On appeal by the daughter, the Court decided that secondary claimants such as ex-spouses were not to be considered the natural object of testamentary intention, and must show social, domestic and moral obligation beyond mere familial relationship. An example might be where a couple had not reached a financial settlement or where the claimant had carried the full financial and emotional burden of raising the child/children.

The claimant was awarded nothing in the Court of Appeal.

We successfully ran a case for an ex-spouse recently who had raised the child of the relationship on her own. The father had limited involvement in the child’s life and paid nothing towards the costs of her upbringing. The deceased left his estate to another subsequent short-term spouse with whom he remained friends after the relationship and gave nothing to either his daughter or ex-spouse. Thankfully we were able to ensure a satisfactory outcome for our client, and the daughter.

Motor accident

246 lives lost a year through motor vehicle accidents

As of August 2016, there have been 246 lives lost on New South Wales roads and about 30 people per day are hospitalised as the result of serious injuries from motor vehicle accidents. This not at all surprising given that there are roughly 1.6 vehicles on average for each home in New South Wales and that we spend on average some 79 minutes per day travelling in one form or another for transport. Even more concerning is that the rate of growth in private vehicles outstrips the rate of growth in population.

Unfortunately, this means that there is a high probability of injury as the result of the motor accident. In New South Wales, there are compensatory benefits available not only for those who are the innocent victims of another motorist’s negligence, but also other victims involved in blameless accidents. Even people who were at fault during an accident may have an entitlement to benefits under the Lifetime Care and Support scheme where their injuries are significant (usually spinal or brain injury).

The system for recovery of compensation is highly regulated and complex with very strict compliance time frames for claims and injury thresholds. If you are injured in a motor vehicle accident, you need to ensure that you obtain urgent advice from an experienced lawyer.

The Law Office of Conrad Curry offers its clients thorough, timely and complete advice throughout the course of their claims. No-win-no-fee options are available (subject to conditions) and an initial no-obligation first appointment.

Australian Dollar Cash Rate

Official cash rate unchanged

The Reserve Bank of Australia has elected to leave the official cash rate at 1.5% which is good news for the new financial year.

What does this mean for you?

Despite the official cash rate remaining unchanged, lenders are continuing to move interest rates. In June 2017, the big 4 banks increased interest rates on interest only loans but lowered interest rates on principal and interest loans. The purpose of this was to push borrowers to switch from interest only loans to principal and interest loans to lower their debts whilst interest rates remain low.

Interesting times ahead.

Watch this space for further updates. If you would like further information on how this may affect you, please contact our property lawyer, Alicia Floyer on 49104023.

Cosmetic clinic reveals confidential records

Cosmetic clinic reveals confidential records

So many issues – privacy of patient medical notes, competency of practitioners in the industry of cosmetic surgery in relation to the procedure itself but also in issues of anaesthetic awareness, infection and secondary complications. Are there the resources when surgery takes an unexpected turn?

An article in the Daily Telegraph reveals a Sydney Cosmetic Surgery Clinic had leaked the confidential details of hundreds of women around Australia.

Read the article here

Assisted Dying

Assisted dying

Assisted dying is such a controversial topic.

Legally, a person who is compos mentis and properly advised, can refuse treatment or insist on not being resuscitated if that is what stands between them and death.

However, it is not lawful to attempt to end your own life or for a person to assist a person to end their life, no matter the seriousness of their condition, the pain they are suffering or the imminence of their death.

Assistance might be providing the means to a lethal injection, providing a tablet or terminating life support already agreed.

If a person is terminally ill and in pain is it not humane to allow self determination in sustaining or ending life?

Governments need to rethink outdated Christian tenets of morality.

Conrad, May 2017

Limitations on abuse

No limitations on abuse

Recently the NSW government made amendments to the Limitations Act and introduced section 6A.

This section removed entirely a limitation period for claims arising from child abuse (including sexual abuse) and opens up the rights to victims to pursue institutions for damages in negligence, including religious organisations for breach of their duty of care.

Sexual abuse was rife. You have rights.


4 April 2017