Dhupar v Lee

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.