Bergman v Haertsch

Case [2000] NSWSC 528

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 DIVISION

PROFESSIONAL NEGLIGENCE LIST

ABADEE J

THURSDAY  22 June 2000

20394/96  -  Britt-Chanelle  BERGMAN  v  Peter Anthony

HAERTSCH

JUDGMENT

  1. 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.

  2. 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

  3. 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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Details
AGLC
Bergman v Haertsch [2000] NSWSC 528
Case
[2000] NSWSC 528
Decision Date

CaseChat Overview and Summary

The plaintiff in Bergman v Haertsch sought damages from the defendant, a specialist medical practitioner, for professional negligence in the performance of gender reassignment surgery. The plaintiff, a male to female transsexual, had undergone surgery in 1994 to alter her physical sex from male to female. The plaintiff alleged that the defendant breached his duty of care in failing to warn her of material risks associated with the surgery, in performing the surgery negligently, and in breach of contractual terms. The plaintiff also sought to establish a cause of action in assault. The case was heard and determined in the Supreme Court of South Australia.

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

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 that of a male. The plaintiff was registered as being of the male sex. From early childhood the plaintiff experienced what has been called gender dysphoria or transsexualism. For a number of years prior to the surgery of 1994 the plaintiff had long been pre-occupied with her gender. Prior to 1994, though physically of the male sex, the plaintiff felt herself to be of the psychological disposition of the female sex. The situation was not of her own choice or making. That said, this is not the occasion to explore the cause or causes of gender dysphoria or transsexualism. The plaintiff’s pre-operation situation may conveniently be summarised by reference to the history of Dr Walker’s report of 10 March 1998. The history recorded I generally accept. I quote:“Chanelle was born the only child in her family. She had three female cousins, one the same age as she was, another one year older, and a third two years older. She grew up with these 3 girls and had a close affinity to them, going on shared holidays together. Right from the earliest age that she can remember, she enjoyed doing things that other girls did. Problems began to emerge when Chanelle had to wear shorts and go to a co-educational primary school as a boy. Somehow she felt that she was a girl dressed as a boy. She did not enjoy socialising at school, and was harassed at primary and secondary schools because of her effeminate demeanour. She was molested as a child at home from age 7 years. She remembers when she was at high school that she was attracted to boys, believing that she was a girl, so she was attracted to them as heterosexuals not from a homosexual point of view.At aged 15 she met a transsexual and felt aligned to the way that that transsexual thought. After seeing her family physician she was started on feminising hormones from the age of 16 to 17 years but, because she was unsure of her sexuality at that time she started and stopped feminising hormones. She soon realised however, that she felt better as a female and had good breast development with feminising hormones. She left home and went to live in Melbourne. She dressed as a female from aged 17 years. She has qualified as a beauty therapist in 1993.Previous medical history - breast augmentation ….”.

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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