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.


negligence, professional negligence, expert evidence, lay evidence, volenti non fit injuria (voluntary assumption of risk)

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