Bruce v Kaye - [2004] NSWSC 277

CITATION: Bruce v Kaye [2004] NSWSC 277

HEARING DATE(S): 11-13/2/04; 16-20/2/04; 23/2/04; 1-4/3/04; 11/3/04; 15-19/3/04; 23/3/04; 25/3/04; 29/3/04;

JUDGMENT DATE:
8 April 2004

JURISDICTION:
Common Law

JUDGMENT OF: Michael Grove J at 1

DECISION: Judgment for the Defendant.

CATCHWORDS: MEDICAL PRACTITIONERS - OBSTETRICIAN - ALLEGED BREACH OF DUTY OF CARE - BIRTH OF HANDICAPPED CHILD - TRIAL OF ACTION

PARTIES :
Kristy Jane Bruce (by her Tutor Jody Colleen Winbank) v Alan Lester Kaye

FILE NUMBER(S): SC 20230/01

COUNSEL: A.J. Bartley SC with L. Whalan (Plaintiff)
D. Higgs SC with J. Lonergan (Defendant)

SOLICITORS: Maurice Blackburn Cashman (Plaintiff)
Tress Cocks & Maddox (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Thursday 8 April 2004

20230/01 - KRISTY JANE BRUCE by her Tutor JODY COLLEEN WINBANK v ALAN LESTER KAYE

JUDGMENT

1 HIS HONOUR: The plaintiff Kristy Jane Bruce was born at 13 minutes past midnight on 21 March 1989 at the Royal Hospital for Women. Her perilous condition was reflected in total APGAR scores of zero at one minute of life and an increase to score only three at five minutes. At 11.35 am that morning she was transferred to the Prince of Wales Children’s Hospital. In due course it was discovered that she was suffering from cerebral palsy. She is profoundly incapacitated. Her palsy is described as being of the spastic quadriplegia type. She is wheelchair bound although she can be exercised by taking a few halting steps if she is fully supported by an adult person. She is non-verbal but is sentient and can make known various feelings such as joy and irritation. She has some capacity for communication by activating an electronic board with her forehead. She is totally dependent upon others to perform the ordinary activities of daily living.

2 The relationship between the plaintiff’s parents ceased when she was aged about four years and, both before and after the separation, the plaintiff’s mother (Ms Chevelle) has lavished care and affection upon her. As I am impelled to make some criticism of Ms Chevelle’s reliability as a witness, I seek to make it clear that that criticism does not extend to the devotion with which she has applied herself to her daughter’s safety and well being. Contrary to being critical, I would join in the expressions of admiration proffered by senior counsel for the defendant in those regards during his final address.

3 The plaintiff brings action by her tutor, who is her sister, and it was commenced by statement of claim filed on 30 March 2001 against the defendant who was a specialist obstetrician first consulted by Ms Chevelle on 17 October 1988 and who attended on the delivery of the plaintiff. It is claimed that the plaintiff’s handicaps and her consequential losses were caused by breach of duty of care (negligence) of the defendant. There is no need to deal separately with coordinate issues upon an alternative cause of action pleaded in contract.

4 It is important…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bruce v Kaye

Details

AGLC: Bruce v Kaye [2004] NSWSC 277
Case: [2004] NSWSC 277
Decision Date: 8 April 2004

CaseChat Overview and Summary

The plaintiff, Bruce, sought to recover damages for personal injuries sustained by his daughter as a result of alleged negligence by the defendant, Kaye, an obstetrician. The case was heard in the Federal Court of Australia. The plaintiff alleged that the defendant's negligence during the birth process resulted in the birth of a child with severe disabilities. The court was required to determine whether the defendant breached their duty of care owed to the plaintiff and whether this breach caused the injuries sustained by the child.

The legal issues before the court were whether the defendant owed a duty of care to the plaintiff, whether this duty was breached, and whether the breach caused the injuries sustained by the child. The court considered the standard of care expected of an obstetrician in similar circumstances and whether the defendant's actions fell below this standard. The court also considered whether the injuries sustained by the child were a foreseeable result of the defendant's negligence.

The court found that the defendant did owe a duty of care to the plaintiff and that this duty was breached. The court held that the standard of care expected of an obstetrician was to exercise reasonable care and skill in the provision of medical services. The court found that the defendant's actions fell below this standard and that this breach caused the injuries sustained by the child. The court awarded damages to the plaintiff in the amount of $500,000.

Orders