Danka Durovic v Dr Robert Zabow

The appeal concerned a claim for damages arising from alleged medical negligence. The plaintiff, Danka Durovic, claimed that Dr. Robert Zabow negligently prescribed hormone replacement therapy when she should have been prescribed contraceptives. This error led to an unintended pregnancy, which the plaintiff subsequently terminated. The plaintiff sought damages for the psychological effects and mental injury she attributed to the termination and the circumstances surrounding it. The appeal was heard by Mason P, Barr and McClellan JJ.

The central legal issues before the court were whether the trial judge had erred in assessing the quantum of damages, specifically concerning the plaintiff's psychological sequelae. The court was required to consider whether the consequences of the alleged negligence had been exaggerated by the plaintiff, and whether there was contradictory evidence regarding the true cause of her mental injury. Further, the court had to determine the significance of the plaintiff's failure to call one of her treating psychiatrists at trial and her failure to inform other treating psychologists and psychiatrists of all her medical treatments.

The Court of Appeal ultimately dismissed the appeal. The judges found no error in the trial judge's assessment of the impact of the tort. They considered the evidence presented, including the contradictory accounts of the cause of the plaintiff's mental injury, and concluded that the trial judge had properly weighed this evidence. The failure to call a treating psychiatrist and the lack of full disclosure between treating medical professionals were matters that the trial judge had taken into account in their assessment of the plaintiff's case and the quantum of damages.

The appeal was dismissed with costs.