Dhupar v Lee

Case [2022] NSWCA 15


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

Bourhill v Young [1943] AC 97

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

Wilson v Peisley (1975) 50 ALJR 207

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:
Mr S Kalfas SC and Ms E Elbourne (Appellant)
Mr D Higgs SC and Mr R O’Keefe (Respondent)

Solicitors:
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:

[2020] NSWDC 717

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 appeal concerned a claim for medical negligence brought by Ms Dhupar against Dr Lee, a gynaecologist. Ms Dhupar alleged that Dr Lee was negligent during a tubal ligation procedure intended for sterilisation, resulting in an unwanted pregnancy. The case was largely circumstantial, requiring the court to reconcile inconclusive medical imaging with other evidence to determine the cause of the failed sterilisation. The appeal was heard by Brereton and McCallum JJA and Simpson AJA.

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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