Campbell bht Mammoliti v Ritchie [2026] NSWSC 754 (Link to Caselaw).
There was ultimately a judgment for the defendant in this matter, where the defendant performed biliopancreatic diversion surgery on plaintiff in 1999.
The court was required to address s 5O issues, inherent risk, a failure to warn argument and limitation period expiry.
The credit of the plaintiff was in issue, with the trial judge stating at [160] that while I am I am generally reluctant to find that a witness has been deliberately dishonest, no other conclusion is open to me in this case given the wealth of contemporaneous documents which demonstrate the falsity of much of the plaintiff’s evidence, and in the face of which he made many complaints and no concessions. I also had the opportunity to observe the plaintiff as he gave evidence over 14 days. He was evasive, argumentative and disingenuous, particularly when asked questions that he apparently perceived were adverse to his case.
On the limitation period issue the plaintiff sought an order pursuant to s 52 of the Limitation Act that the limitation period was suspended during the period of the plaintiff’s disability. The court held that the plaintiff was not under a disability within the meaning of s 11(3) of the Limitation Act during the period of 1999 to 2020. Therefore, no limitation period applicable to the plaintiff’s claims was ever suspended during those years pursuant to s 52(1) of the Limitation Act. ([233]). Nor was the court persuaded to make an order extending the limitation period ([252]).
In relation to section 5O, the trial judge said at [287]:
During concurrent evidence, the bariatric surgeons (who were the defendant’s “peers” for the purposes of s 5O) were in resounding agreement that the defendant had acted in a manner which, in 1999, was widely accepted by peer professional opinion as competent professional practice. Both experts agreed that it was appropriate to recommend the BPD procedure to the plaintiff, that the defendant had provided appropriate explanation and material to enable the plaintiff to understand the risks involved in the procedure, and that the defendant’s regime of monitoring and his response to the plaintiff’s complaints were in accordance with what was expected of a bariatric surgeon at that time.
On the failure to warn argument there were a number of elements. However the key finding appears to be that at [295]:
I pause here to note that I have found, as a matter of fact, that the plaintiff was provided with adequate advice and education about the risk of malnutrition (from malabsorption) following the BPD surgery and the consequences of the BPD surgery. I have found, as a matter of fact, that the defendant informed the plaintiff about the advantages and disadvantages of BPD surgery, compared with other available bariatric surgery options in 1999, including RYGB surgery. I have also found that Dr Ritchie warned the plaintiff both orally and in writing, and in language that the plaintiff understood, about the risks associated with BPD surgery, which included malodorous stools, gas, steatorrhea and diarrhoea, and the possibility of micronutrient and vitamin deficiency as a result of malabsorption.
The expert evidence fell far short of establishing on the balance of probabilities that the plaintiff suffered any harm as a result of the alleged negligence by the defendant. The plaintiff’s case therefore also failed on causation.
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