NEW SOUTH WALES SUPREME COURT
CITATION: Bergman v Haertsch [2000] NSWSC 528
CURRENT JURISDICTION:
FILE NUMBER(S): 20394/96
HEARING DATE{S): 22/02/00; 24/02/00; 28/02/00; 29/02/00;
01/03/00; 06/03/00; 07/03/00
JUDGMENT DATE: 22/06/2000
PARTIES:
Britt-Channelle BERGMAN v Peter Anthony HAERTSCH
JUDGMENT OF: Abadee J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
Mr D. Cassidy QC; Ms Hanna - Plaintiff
Mr P. Greenwood SC - Defendant
SOLICITORS:
Mark Phillip Symonds - Plaintiff
Tress Cocks & Maddox - Defendant
CATCHWORDS:
PROFESSIONAL NEGLIGENCE - Specialist medical practitioner - Gender reassignment surgery - Male to female transsexual - Whether breach of duty to warn of material risks - Whether breach of duty in performance of surgery - Whether res ipsa loquitur applicable - contractural term(s) - Whether breach of contract - Whether cause of action in assault available.
ACTS CITED:
Births Deaths & Marriage Act
DECISION:
Verdict and judgment for the defendant; The plaintiff to pay the defendant's costs; Grant liberty to the parties to bring in "interest" calculations if they consider such to be appropriate within 14 days; Exhibits may be returned.
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONPROFESSIONAL NEGLIGENCE LIST
ABADEE J
THURSDAY 22 June 2000
20394/96 - Britt-Chanelle BERGMAN v Peter Anthony
HAERTSCH
JUDGMENT
HIS HONOUR: The plaintiff by the amended statement of claim, seeks to recover damages against the defendant, a medical practitioner, and plastic/gender reassignment surgeon. The proceedings in broad terms relate to what is called gender reassignment surgery performed by the defendant on the plaintiff on 23 May 1994. The plaintiff relies on three causes of action being in contract, negligence and assault (trespass). The plaintiff’s case in negligence is put upon two bases: first an alleged failure to warn of material risks inherent or associated with the gender reassignment surgery; and further, or alternatively, negligent performance of the gender reassignment surgery itself. That said, it is appropriate to immediately note that in his final submission the plaintiff’s counsel did state (T 338) his view that he always thought that “this case was all about” the issue relating to the performance of the surgery.
The action involves issues of human, legal and medical interest. It is a case concerning matters normally of a highly personal and private nature to a human being. It is a case of some sensitivity and delicacy calling for understanding and some sympathy. That said, it is an action which puts these matters into the open. The action is to be determined according to the evidence and according to law. This is a case where for obvious reasons it is not appropriate to always utilise gender neutral language. Against this background I make no apology for the length of this judgment.
Background and Introduction
The plaintiff is a male to female transsexual. The plaintiff was born on 6 September 1969. She was born a biological male and of the male gender. The plaintiff at birth had male genitalia. The plaintiff’s sex was…
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- AGLC
- Bergman v Haertsch [2000] NSWSC 528
- Case
- [2000] NSWSC 528
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the defendant breached his duty of care by failing to adequately warn the plaintiff of the material risks associated with the surgery, whether the defendant breached his duty of care in the actual performance of the surgery, whether the doctrine of res ipsa loquitur applied to establish negligence, whether the defendant breached contractual terms, and whether a cause of action in assault was available to the plaintiff. The court had to consider the applicable standard of care owed by the defendant to the plaintiff, the disclosure of risks, the performance of the surgery, and the potential for alternative causes of action.
The court found that the defendant did breach his duty of care by failing to adequately warn the plaintiff of the material risks of the surgery. The court held that the doctrine of res ipsa loquitur did not apply. The court also found that the defendant breached his duty of care in the performance of the surgery. In terms of contract, the court found that the defendant breached contractual terms. Finally, the court found that a cause of action in assault was not available to the plaintiff.
The court awarded the plaintiff damages in the sum of $415,000 for the professional negligence and breach of contract. The court declined to award damages for the alleged assault.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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