Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Dhupar v Lee [2022] NSWCA 15 Hearing dates: 25, 26 May 2021 Date of orders: 18 February 2022 Decision date: 18 February 2022 Before: Brereton JA at [1];
McCallum JA at [192];
Simpson AJA at [193].Decision: Dismiss the appeal with costs.
Catchwords: TORTS – Medical negligence – Gynaecological surgery for elective sterilisation – Failed Filshie clip tubal ligation leading to unwanted pregnancy – Circumstantial case – Reconciliation of inconclusive medical imagery with other evidence – Whether onus of proof reversed by trial judge – Requirement to prove ultimate question rather than subsidiary issues – Conclusion that pregnancy post surgery was attributable to negligent operator error on part of doctor
TORTS – Damages – Civil Liability Act s 71 – Difference between damages for pregnancy and birth of child and damages for economic loss for loss of earnings attributable to psychiatric injury associated with birth of child
TORTS – Damages – Non-economic loss – assessment of percentage of most extreme case
Legislation Cited: Civil Liability Act 2002 (NSW), s 71
Cases Cited: AEA Constructions Pty Ltd v Wharekawa [2019] NSWCA 176
Barkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38
Dell v Dalton (1991) 23 NSWLR 528; [1991] NSWCA 76
Dhupar v Lee (NSWCA, 24 May 2021, unreported)
MD v Sydney South West Area Health Service (2009) 8 DCLR (NSW) 232; [2009] NSWDC 22
Melchior v Cattanach [2000] QSC 285
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60
Rowe v McCartney [1976] 2 NSWLR 72
South Western Sydney Local Health District v Sorbello [2017] NSWCA 201
Tame v NSW (2002) 211 CLR 317; [2002] HCA 35
Waller v James (2015) 90 NSWLR 634; [2015] NSWCA 232
Texts Cited: Della Bosca The Hon John, Civil Liability Amendment Bill, Second Reading, Hansard, Legislative Council, 4 December 2003.
Varma R, Gupta JK, “Failed sterilisation: evidence-based review and medico-legal ramifications”, BJOG: an International Journal of Obstetrics and Gynaecology (December 2004), Vol 111: 1322-32.
Varma R, Gupta JK, “Predicting negligence in female sterilization failure using time interval to sterilization failure: analysis of 131 cases”, Human Reproduction (2007) 22(9): 2437-43.
Category: Principal judgment Parties: Dr Nita Dhupar (Appellant)
Jodie Lee (A pseudonym) (Respondent)Representation: Counsel:
Solicitors:
Mr S Kalfas SC and Ms E Elbourne (Appellant)
Mr D Higgs SC and Mr R O’Keefe (Respondent)
Avant Law (Appellant)
Slater & Gordon Lawyers (Respondent)
File Number(s): 2020/340595 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Civil
- Citation:
- Date of Decision:
- 19 November 2020
- Before:
- Levy SC DCJ
- File Number(s):
- 2017/284433
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 26 August 2014, the appellant (“the doctor”) performed on the respondent (“the patient”) a laparoscopic tubal ligation – a surgical procedure intended…
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- AGLC
- Dhupar v Lee [2022] NSWCA 15
- Case
- [2022] NSWCA 15
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the trial judge had erred in reversing the onus of proof and whether the ultimate question of negligence had been proven. The court also considered the assessment of damages, specifically the distinction between damages for the pregnancy and birth of a child, and damages for economic loss arising from psychiatric injury linked to the birth. The assessment of non-economic loss, by reference to the percentage of the most extreme case, was also a point of consideration.
The appellate court found that the trial judge had not reversed the onus of proof, but rather had correctly focused on the ultimate question of whether negligence had been established. The court reasoned that the pregnancy was attributable to negligent operator error on the part of Dr Lee, despite the inconclusive nature of some of the medical imagery. The court applied principles relating to medical negligence and the assessment of damages under the Civil Liability Act, including the distinction between different categories of loss and the method for assessing non-economic loss.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Dismiss the appeal with costs.
Background
Background to the litigation
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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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