Wei Fan v South Eastern Sydney Local Health District (No 2)1 is a professional negligence decision given by Harrison AsJ on 31 August 2015. In this case, the plaintiff claimed damages for medical negligence on the basis of delayed diagnoses which caused him significant injuries.
This case serves as a good example of the importance of credible lay and expert evidence, particularly where the facts include multiple hospitals and multiple admissions. This case also provides a reasonable example of the interplay between different mitigating defences including contributory negligence, failure to mitigate and volenti non fit injuria (voluntary assumption of risk).
Ultimately, as the plaintiff’s evidence was not substantial or credible, the plaintiff’s claim failed. The court also went further and determined that (had the plaintiff been successful) there would have been a non-specific discount for contributory negligence

Canton, S

Doepel, M

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The University of Notre Dame AustraliaResearchOnline@NDLaw Papers and Journal Articles School of Law2015Wei Fan v South Eastern Sydney Local Health District (No 2)M DoepelThe University of Notre Dame Australia, mark.doepel@nd.edu.auS CantonFollow this and additional works at: http://researchonline.nd.edu.au/law_articlePart of the Law CommonsThis article was originally published as:Doepel, M., & Canton, S. (2015). Wei Fan v South Eastern Sydney Local Health District (No 2). Australian Civel Liability Bulletin, 12(9), 168-170.This article is posted on ResearchOnline@ND athttp://researchonline.nd.edu.au/law_article/64. For more information,please contact researchonline@nd.edu.au.Wei Fan v South Eastern Sydney Local HealthDistrict (No 2)Mark Doepel and Steven Canton SPARKE HELMOREWei Fan v South Eastern Sydney Local HealthDistrict (No 2)1 is a professional negligence decisiongiven by Harrison AsJ on 31 August 2015. In this case,the plaintiff claimed damages for medical negligence onthe basis of delayed diagnoses which caused him sig-nificant injuries.This case serves as a good example of the importanceof credible lay and expert evidence, particularly wherethe facts include multiple hospitals and multiple admis-sions. This case also provides a reasonable example ofthe interplay between different mitigating defences includ-ing contributory negligence, failure to mitigate andvolenti non fit injuria (voluntary assumption of risk).Ultimately, as the plaintiff’s evidence was not sub-stantial or credible, the plaintiff’s claim failed. The courtalso went further and determined that (had the plaintiffbeen successful) there would have been a non-specificdiscount for contributory negligence.Factual summaryWei Fan attended Sutherland Hospital, Prince ofWales Hospital, and St George Hospital in the periodbetween 20 January 2007 and 16 March 2007. Thesehospitals are collectively under the control of the defen-dant, South Eastern Sydney Local Health District. MrFan alleged that, during his admission at those hospitals,the hospitals were negligent because they failed todiagnose and treat his gall bladder condition (acutecholecystitis — being inflammation of the gall bladder)and his type 2 diabetes, because they wrongly allowedhim to fall from his hospital bed on 11 March 2007, andbecause he was discharged from St George Hospital on16 March 2007 when he was not fit to be discharged.2Accordingly, he brought proceedings against the hospi-tals in the Supreme Court of New South Wales forapproximately $86 million in damages.The hospitals denied the existence of the duty of carecontended by the plaintiff, denied breach of duty andcausation, pleaded s 5O of the Civil Liability Act 2002(NSW) (CLA) as a defence, and alleged contributorynegligence, failure to mitigate damage, and volenti nonfit iniuria.3No breach of duty of careThe court’s first inquiry was whether there was abreach of s 5B of the CLA on breach of duty. It notedthat this inquiry is not retrospective, but rather requiresa consideration of what a reasonable person would havedone looking forward from a point of time towards theinjury.4The court discussed the plaintiff’s claim that at allmaterial times he had type 2 diabetes and the defendantwas negligent in not diagnosing the condition. However,when glucose test results were taken on 20 Janu-ary 2007, the levels were, although indicative of elevatedblood sugar levels, not necessarily indicative of diabe-tes. Further, Mr Fan’s glucose levels were consistentlymonitored during January-March 2007, and after thisdate. As such, it was clear that the plaintiff’s blood sugarlevels were normal until just before his eventual diag-nosis. For this reason, the court found that the medicalstaff who reviewed the plaintiff acted in accordance withcompetent medical practice, and there was no breach ofduty of care in failing to diagnose and manage type 2diabetes.5The court then considered whether the plaintiff shouldhavebeendiagnosedwithacutecholecystisis.On15March2007,Dr Davies diagnosed the plaintiff with chronic cholecystitisfor the first time (a prolonged inflammation of the gallbladder). However, the plaintiff was never diagnosedwith acute cholecystitis and at no time did the tests,including an ultrasound, or the plaintiff’s symptomssupport this conclusion. As such, the court held thatthere was no breach of duty of care in not diagnosing theplaintiff with acute cholecystitis.6 Additionally, the courtthen went on to determine that there was no breach bydelaying a cholecystectomy (removal of the gall blad-der) as the plaintiff did not have acute cholecystitis andthus did not require an urgent operation.7The court also considered if there was any breach ofduty based on the fall from the hospital bed on 11 March 2007,the discharge from St George hospital on 16 March2007, or in not providing Mr Fan with information andadvice. In these cases, the court determined that therewas no evidence that the hospitals or the staff actedcontrary to competent medical professional practice, andthus there had been no breach.8australian civil liability October 2015168CausationDespite finding that there was no breach of duty, thecourt went on to consider the other issues put before thecourt, including causation: s 5D of the CLA.The court noted that, in order for the plaintiff tosucceed, he must show that it is more probable than notthat, but for the breach, particular harm would not havebeen suffered.9 Accordingly, the questions before thecourt were whether, if the plaintiff’s diabetes had beenmonitored, diagnosed and treated sometime during hisadmission, he would have developed complicationsincluding peripheral neuropathy and whether he wouldhave fallen and fractured his skull on 9 March 2007.10The court accepted expert evidence from Dr Carterwho stated that peripheral neuropathy develops over aprolonged period of time and that it is extremelyuncommon for peripheral neuropathy to develop over acourse as short as 14 months (being the period betweenthe initial admission and the diagnosis).11 Dr Carter wasof the view that, if peripheral neuropathy had developedover this period, then it is unlikely it could have beenavoided, and was thus not caused by any delay indiagnosis.12The court also considered the expert evidence onwhether any delay in performing the cholecystectomywas causally linked to the plaintiff’s injuries. The courtaccepted the view of the experts, which was that thedelay in treatment made no difference to the plaintiff’scondition, and in fact was favourable, as there areincreased risks involved in operating too early on apatient with cholangitis.13Accordingly, the court determined that the plaintiff’sclaim failed. Despite this, the court went on to considerthe defences raised by the defendant.Contributory negligence, failure tomitigate and volenti non fit injuriaThe defendant claimed that, if the court was to findthat there was a breach of duty before 9 March 2007 bydelaying the cholecystectomy, and if the court were tofind that the plaintiff’s damage occurred because he leftthe hospital on 9 March 2007 and suffered a further fallon 11 March 2007, then such loss was caused entirely(100%) by the plaintiff’s own contributory negligence.The defendants alleged that contributory negligencearose because the plaintiff deliberately chose to leave thehospital against medical advice.14The court noted that contributory negligence consistsof:15… a “failure of a plaintiff to take reasonable care for theprotection of his or her person or property”: see Astleyv Austrust Ltd (1999) 197 CLR 1; 161 ALR 155; 73 ALJR403; BC9900546 at [21].Alternatively, the defendants submitted that any injurywas caused or contributed by the failure of the plaintiffto mitigate his loss by failing to remain at hospital onnumerous occasions, and by failing to attend an appoint-ment on 12 February 2007.15At para 303, the court stated that:In Richardson v Schultz (1980) 25 SASR 1 at 20, WilliamsJ distinguished between contributory negligence and failureto mitigate on the basis that: “contributory negligence isconcerned with negligence of the plaintiff before the causeof action has matured by the occurrence of some damage;after damage has occurred and an action in tort is vested inthe plaintiff, he has a duty to take care to mitigate his loss”(referring to Street, the Law of Torts (4th Edition) p 448).The defendant also relied upon the doctrine of volentinon fit injuria, submitting that, by voluntarily decliningto attend appointments and remain at hospital, theplaintiff voluntarily assumed the risk of declining treat-ment. In this regard, the court referred to Fleming’s TheLaw of Torts17 which stated that the voluntary assump-tion of risk is available as a defence where the plaintifffully comprehended the risk of injury that materialisedand chose to accept it.18The court, in the event that it was wrong to determinethat the plaintiff’s claim failed, determined that someallowance should be made for contributory negli-gence.19 That allowance was unspecified, and was madeon the basis that the plaintiff discharged himself on9 March 2007 despite being scheduled for the cholecystectomyon 12 March 2007. It was also based on the fact that, asthe fall occurred shortly after his discharge, he wouldnot have had the fall in which he suffered a skull fracturehad he remained in hospital.20The court also found that, as a deduction would bemade for contributory negligence, it would be unneces-sary to make further deductions for failure to mitigate orvolenti non fit injuria.ConclusionThis case demonstrates the importance of havingcredible lay and expert evidence. In this case, many ofthe claims made by the plaintiff could not be substanti-ated by the factual evidence, were contrary to the court’sdetermination of the credibility of the plaintiff’s wit-nesses, and were not supported by the medical expertopinions given to the court. For this reason, there wasgreat difficulty in the plaintiff meeting his burden ofproof and ultimately the plaintiff was unsuccessful.This case is also a good example of the defencesavailable in medical negligence claims. It demonstratesthat, in addition to the defences to breach of duty,namely s 5O of the CLA, on competent professionalpractice, there are also a number of mitigating defencesincluding contributory negligence, failure to mitigate,and volenti non fit injuria.australian civil liability October 2015 169Mark DoepelPartnerSparke HelmoreAssociate Professor, School of Law,University of Notre DameSteven CantonLawyerSparke HelmoreFootnotes1. Wei Fan v South Eastern Sydney Local Health District (No 2)[2015] NSWSC 1235; BC201508304.2. Above, n 1, at [14].3. Above, n 1, at [16].4. Above, n 1, at [240]–[243]. See also Adeels Palace Pty Ltdv Moubarak; Adeels Palace Pty Ltd v BouNajem (2009) 239CLR 420; [2009] HCA 48; BC200910035 at [13]; Vairyv Wyong Shire Council (2005) 223 CLR 422; [2005] HCA62; BC200507887 at [126]–[129].5. Above, n 1, at [244]–[250].6. Above, n 1, at [251]–[253].7. Above, n 1, at [256].8. Above, n 1, at [257], [259], [261].9. Above, n 1, at [267]. See also Wallace v Kam [2013] HCA19; BC201302166 at [12].10. Above, n 1, at [277].11. Above, n 1, at [280].12. Above, n 1, at [280].13. Above, n 1, at [290].14. Above, n 1, at [299].15. Above, n 1, at [299]; CLA s 5R.15. Above, n 1, at [301].17. J Fleming, The Law of Torts (4th edn) The Law BookCompany Limited, Sydney, 1971.18. Above, n 1, at [304].19. Above, n 1, at [305].20. Above, n 1, at [305].australian civil liability October 2015170

Wei Fan v South Eastern Sydney Local Health District (No 2)

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Wei Fan v South Eastern Sydney Local Health District (No 2)

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