By Louise Cantrill, Partner, Alesha Burke, Special Counsel, and Heidi Shooks, Lawyer

In Nguyen v Rickhuss [2023] NSWCA 249, the court held that proceedings could continue as a class action in circumstances where individual assessments of damages were required of each member of the proceedings.

Background

The proceedings are representative proceedings commenced on behalf of patients who underwent breast augmentation surgeries. The surgeries were performed using a “One Size Fits All Approach” (the Approach). The defendants include ten medical professionals who implemented this approach.

It is alleged that the approach involves a higher level of risk as it fails to consider each patient’s needs, or whether different approaches or techniques were indicated. It is further alleged that this higher level of risk was not disclosed to the patients.

The defendants obtained leave to appeal a finding that the proceedings were properly pleaded as a class action. On appeal, the defendants argued that there was no substantial common question of law or fact as required under section 157 of the Civil Procedure Act (2002) NSW.

‘Substantial Common Question of Law’

The primary judge identified 45 questions which were purported to be ‘common questions of fact and law’. These questions considered whether the alleged approach was used and whether associated risks had materialised. The questions also considered whether the approach amounted to a breach of Australian Consumer Law.

On appeal, the defendants’ appeal argued that these questions ought to be applied to each plaintiff individually to assess any entitlement to damages. The defendants’ referred to the investigation which would need to occur on a case-by-case basis and stated that it would not be “in the interests of justice” for the proceedings to continue as a representative proceedings.

Findings

The court rejected the argument that there was no “substantial common question of law or fact”. The court noted that the plaintiff’s alleged that the breast augmentation surgery was performed in a materially identical way. That issue was relevant to the class and therefore was a common question for determination. While the defendants are entitled to adduce specific and individualistic evidence in respect of each plaintiff, it did not follow that there was no common question.