Background
In an earlier judgment, Peterkin v Tadros [2026] NSWSC 1185, the Court held that Dr Abram Tadros was negligent in failing to investigate Ross Peterkin’s rectal bleeding adequately, take an appropriate history, and refer him for further investigation. The Court found that, with proper care, Peterkin probably would have been diagnosed with cancer by February 2023 rather than May 2024. It also found Peterkin contributorily negligent.
This consequential judgment addressed apportionment, damages, and costs. Peterkin had disregarded a pamphlet warning that bleeding attributed to haemorrhoids could be caused by cancer, failed to mention returning symptoms during seven later medical consultations, and waited 137 days to act on another doctor’s specialist referral. The delayed diagnosis contributed to a permanent colostomy, bowel perforation, pelvic recurrence of incurable cancer, and a 4.75-year reduction in life expectancy.
The Court’s Holding
Sirtes J assessed Peterkin’s share of responsibility for the damage at 35%. Although Dr Tadros’s conduct was a significant departure from the standard expected of a reasonable general practitioner and had substantial causal potency, Peterkin repeatedly missed opportunities to reduce the consequences of that breach. His pre-August 2022 inaction received no weight because it preceded Dr Tadros’s breach and did not contribute to the subsequent diagnostic delay.
The Court assessed non-economic loss at 50% of a most extreme case, or $414,500. After combining that amount with the agreed economic-loss, care, domestic-services, and out-of-pocket components, total damages were $648,654.60. Applying the 35% reduction produced judgment for Peterkin of $421,625.49.
Although the award was below the $500,000 threshold addressed by r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW), the Court held that commencing and continuing the case in the Supreme Court was warranted by complex causation issues, the need for expedition, and Peterkin’s reasonable initial expectation that damages could exceed the District Court’s jurisdictional limit. Dr Tadros was therefore ordered to pay Peterkin’s costs, subject to either party seeking a different order within 14 days.
Key Takeaways
- Contributory negligence in a medical-negligence case is assessed by comparing the parties’ relative blameworthiness and the causal potency of their conduct.
- A patient’s failure to report returning symptoms or act reasonably promptly on a specialist referral can materially reduce damages, even when the doctor’s earlier breach created the principal diagnostic delay.
- Non-economic loss may reflect not only reduced life expectancy but also additional physical suffering, permanent disability, mental anguish, and loss of amenities caused by delayed diagnosis.
Why It Matters
The decision illustrates that a negligent doctor remains principally responsible for failing to investigate warning symptoms, but a patient’s later opportunities to mitigate the resulting harm remain relevant to apportionment. It also distinguishes the causation inquiry used to establish the counterfactual diagnosis date from the separate assessment of the patient’s responsibility for damage in the events that actually occurred.
The costs ruling confirms that recovery below the Supreme Court threshold does not automatically preclude a costs award where the claim reasonably required that Court because of complexity, urgency, and the damages reasonably anticipated when proceedings began.