When in … France? A novel application of lex loci deliciti in medical negligence proceedings

20 August 2020

The NSW Supreme Court applied the law of France to determine breach of duty by a surgeon who performed knee surgery on a professional rugby player, and also to determine the appropriate damages to award.

The Background

Mr Lucas Anthony Miller (the plaintiff), a 23 year old Australian-born professional rugby league player, suffered an injury to his right knee whilst playing a rugby league game in Toulouse, France.

Whilst in France, the plaintiff underwent a surgical reconstruction procedure performed by an orthopaedic surgeon, Dr David Jones (the defendant). Shortly after the surgery, the plaintiff suffered performance issues with his right knee, and his professional rugby league career gradually deteriorated.

The plaintiff subsequently commenced medical negligence proceedings against the defendant, claiming that the defendant’s surgery had been suboptimal and had ultimately affected not only his professional rugby league career but also his future employment trajectory outside of rugby league, which included labour intensive occupations.

In Issue

  • Whether the Supreme Court of NSW should apply the law of France to determine the issues in the proceedings.
  • Whether the alleged negligence met the degree of ‘fault’ recognised in the law of France in medical negligence matters.

The Decision at Trial

The parties to the proceedings ultimately determined to apply the lex loci deliciti - ‘the law of the place of the tort’ – on the basis that the surgical repair procedure had been performed in France and consequently the law of France should be applied to both issues of breach of duty of care and assessment of damages.

In considering the issue of liability, including whether the defendant breached his duty of care to the plaintiff and was at ‘fault’ for the plaintiff’s alleged injures, the court considered whether the defendant’s conduct accorded with the standard to be expected of a reasonably competent orthopaedic surgeon specialising in this type of surgery.

The court found that the plaintiff had successfully established the requisite threshold of liability and/or ‘fault’, on the basis that: in performing the reconstruction, the defendant had inappropriately positioned the plaintiff’s ACL graft; the malpositioning of the graft had resulted in suboptimal strength and instability in the plaintiff’s knee; and that, as a result of the defendant’s suboptimal surgery, the plaintiff had suffered damage and had lost the opportunity to return to his career as a rugby league player, and to later pursue a profitable but labour intensive career in mining.

Implications for you

The case presents a degree of novelty in private international law as most matters subject to jurisdictional and/or choice of tort law considerations relate to transactional matters including breach of contract as opposed to professional medical negligence.

Although novel, the case raises relevant considerations for health lawyers, including the need to be on the alert for potential growth in the area of private international torts(noting the growth in cosmetic tourism), and that experts briefed to provide opinion in these matters should be conscious of the international legal framework being applied, including relevant thresholds, in articulating their opinion.

Miller v Jones (No. 6) [2020] NSWSC 736

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