Ehlefeldt v Rowan-Kelly - [2009] NSWSC 331

CITATION: Ehlefeldt v Rowan-Kelly [2009] NSWSC 331

HEARING DATE(S): 27/04/2009

JUDGMENT DATE :
1 May 2009

JUDGMENT OF: Hoeben J

DECISION: I enter judgment in favour of the plaintiff against the defendant for $6,046,562.00.
I order the defendant to pay the plaintiff’s costs of these proceedings.

CATCHWORDS: DAMAGES - Ex parte assessment of damages - brain injured plaintiff - application of Civil Liability Act 2002 - plaintiff unable to care for children - damages for loss of capacity to perform domestic services for children - s15B Civil Liability Act.

LEGISLATION CITED: Civil Liability Act 2002

CATEGORY: Principal judgment

CASES CITED: Amaca Pty Limited v Novek [2009] NSWCA 50
CSR Limited v Eddy [2005] HCA 64, (2005) 226 CLR 1
Griffiths v Kerkemeyer (1977) 139 CLR 161
Kendrick v BlueScope Steel (AIS) Pty Limited & Ors [2007] NSWSC 1288
Sullivan v Gordon (1999) 47 NSWLR 319

PARTIES: Bianca Lee Ehlefeldt by her tutor Moerangi Kennedy - Plaintiff
Dr Michael Charles Leigh Rowan-Kelly - Defendant

FILE NUMBER(S): SC 20351/2005

COUNSEL: Mr GR Graham - Plaintiff
No appearance - Defendant

SOLICITORS: Rishworth Dodd & Co - Plaintiff
No appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 1 May 2009

20351/2005 – Bianca Lee EHLEFELDT by her tutor Moerangi KENNEDY v Dr Michael Charles Leigh ROWAN-KELLY
JUDGMENT

1 HIS HONOUR:

Nature of proceedings

2 The plaintiff alleges that at the time that the defendant placed her on the home detox program he failed to advise either her or her mother about the risks accompanied Xanax withdrawal, in particular the risk of seizures. On 14 November 2002 the plaintiff suffered hypoxic brain damage as a result of a seizure. The plaintiff has brought these proceedings against the defendant alleging negligence on his part in failing to advise her as to the dangers associated with Xanax withdrawal and in failing to properly treat her by administering anti-convulsant medication. Although the defendant was served with the originating process, he thereafter departed for the United States and his present whereabouts is unknown. Judgment on the issue of liability was entered in favour of the plaintiff against the defendant by Studdert J on 2 March 2007. This left the assessment of damages outstanding.

3 The present proceedings relate to the assessment of damages. The hearing proceeded on an ex parte basis. There was no appearance by the defendant. The evidence relied on by the plaintiff comprised the oral evidence of her mother and reports from Dr Walsh of 22 September 2005; Dr Bleasel of 30 August 2005; Dr Buckley of 24 April 2006 and Ms…

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.

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Details

Case: [2009] NSWSC 331
Decision Date: 1 May 2009

CaseChat Overview and Summary

The case of Ehlefeldt v Rowan-Kelly involved a plaintiff, Ehlefeldt, who sought an ex parte assessment of damages following a brain injury caused by the defendant, Rowan-Kelly. The dispute was centred on the extent of damages, particularly those related to the plaintiff's inability to care for her children and the loss of capacity to perform domestic services for them. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine the appropriate application of the Civil Liability Act 2002 to assess damages for the plaintiff's loss of capacity to care for her children. A specific issue was whether the damages awarded should reflect the loss of the plaintiff's ability to perform domestic services for her children under section 15B of the Act. This section allows for the inclusion of such losses when assessing damages for personal injury claims.

In its reasoning, the court considered the specific circumstances of the plaintiff's injury and the impact on her ability to provide care for her children. The court found that the plaintiff's inability to care for her children and the loss of capacity to perform domestic services constituted significant and compensable losses. Consequently, the court awarded damages to the plaintiff, recognising the value of these domestic services in the context of her personal injury claim. The court's decision underscored the importance of considering the full scope of a plaintiff's losses when assessing damages in personal injury cases.

The final orders of the court reflected the assessment of damages for the plaintiff, acknowledging the loss of capacity to care for her children and perform domestic services. The court's decision provided a clear framework for evaluating such losses in similar future cases, ensuring that the rights of injured plaintiffs are protected under the Civil Liability Act 2002.

Orders