Zvicer v Hunter New England Local Health District [2026] NSWSC 1241 (Link to Caselaw).
The plaintiffs’ claims in this matter (for personal injury and mental harm) were ultimately dismissed, as outlined below.
Ms Zvicer claimed that the failure to perform a fasciotomy on her left leg in 11 November 2020 caused or materially led to her requiring a below knee amputation on that leg.When the decision not to perform a fasciotomy on Ms Zvicer’s left leg was made, she was a patient receiving emergency care at John Hunter Hospital .
- Ms Zvicer’s children (the second, third, fourth and fifth plaintiffs) each claimed to have suffered psychiatric injuries arising from their mother’s injuries and disabilities.
The court did not accept that s 5I of the Civil Liability Act (inherent risk) would, in those hypothetical circumstances, have provided a standalone answer to the claim made against HNELHD in the proceedings. ([112]).
As regards s 5O, the court was satisfied that HNELHD established that, in deciding not to perform a fasciotomy on Ms Zvicer’s left leg when he was performing her surgery on 11 November 2020, Dr Nicholson acted in a manner which, at the time, would have been widely accepted in Australia by peer professional opinion as competent professional practice. ([173]).
As to causation, even if (contrary to the view reached by the trial judge) Ms Zvicer had established that the muscles in her left leg were sufficiently viable at the time Dr Nicholson performed his surgery to have been capable of being salvaged by a fasciotomy, she has not established that performing that procedure would have prevented the necrosis which developed in her left foot and heel, that — based on the evidence of Professor Harris and Dr Robinson – itself led to her needing a below knee amputation of the left leg.([195]).
As for the children, the trial judge was satisfied that Ms Zvicer’s treating doctors owed a duty of care to her children to prevent psychiatric injury and that HNELHD would be vicariously liable for any harm caused by a breach of that duty. ([206]). However HNELHD did not breach the duty of care it owed to Ms Zvicer. For the same reasons, the trial judge was not satisfied that HNELHD breached any duty of care it owed to Ms Zvicer’s children. ([207]). Further, the trial judge was not satisfied that — even with a more optimistic assessment of the benefits associated with performing a fasciotomy on Ms Zvicer’s left leg — her children had established that performing that procedure on 11 November 2020 would have avoided any psychiatric illness from which they might be suffering or that any psychiatric illness would have manifested itself in a less severe way. ([208]) At the very highest, it might be suggested that a partial foot amputation might have carried with it the chance of a better outcome for Ms Zvicer’s children from a psychiatric perspective. That is plainly not enough for them to have established causation in the sense required by ss 5D and 5E of the Civil Liability Act: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 at [46]-[47], [111], and [66]-[67]. ([269]).
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