Gentile v Ferri - [2004] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GENTILE & ANOR -v- FERRI [2004] WADC 144

CORAM: MACKNAY DCJ

HEARD: 23-26 NOVEMBER 2003

DELIVERED : 16 JULY 2004

FILE NO/S: CIV 2758 of 2002

BETWEEN: CARMELA GENTILE
First Plaintiff
PETER GENTILE
Second Plaintiff
AND
MAURICE FERRI
Defendant

Catchwords:

Torts - Negligence - General matters - Medical procedure - Duty of care - Whether tubal ligation with Filshie clips failed through error in application - Turns on own facts

Damages - Measure and remoteness of damages in actions for tort - Personal injuries - Medical negligence - Birth of unwanted child following failure of sterilisation procedure - No allowance for notional costs of parental care for child

Legislation:

Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4

Result:

First plaintiff entitled to judgment against defendant for $20,000

First and second plaintiffs entitled to judgment against defendant for $84,316

Representation:

Counsel:

First Plaintiff                :     Mr T Lampropoulos
Second Plaintiff            :     Mr T Lampropoulos
Defendant:     Mr N W McKerracher QC

Solicitors:

First Plaintiff                :     Hoffmans
Second Plaintiff            :     Hoffmans
Defendant:     Clayton Utz

Case(s) referred to in judgment(s):

Cattanach v Melchior (2003) 77 ALJR 1312
Chappel v Hart (1998) 195 CLR 232
Edith Cowan University v Czatryko [2002] WASCA 334
Kars v Kars (1996) 187 CLR 354
Lock v Lock [2001] WASCA 20
Van Gervan v Fenton (1992) 175 CLR 327

Case(s) also cited:

Nil

MACKNAY DCJ:

Introduction

The plaintiffs are respectively wife and husband, born on 30 September 1966 and 14 February 1965, and with three children, James, born on 24 April 1990, Alex, born on 25 July 1992, and Anthony, born on 13 June 1998.
The defendant is a medical practitioner who at all relevant times practised as a specialist obstetrician and gynaecologist.
The plaintiffs' third child Anthony was conceived and born despite the first plaintiff having earlier undergone, on 15 May 1997, a laparoscopic sterilisation carried out by the defendant through the application of Filshie clips.
After Anthony's birth it was discovered that the clip applied to the first plaintiff's fallopian tube on the right had dislodged and was resting lower in the abdomen in an open position.
The plaintiffs say the clip could not have dislodged unless the defendant had first, failed to properly apply it, and secondly, failed to adequately inspect it prior to completion of the procedure.
The first plaintiff claims damages arising from her pregnancy and the birth of Anthony, and both plaintiffs claim damages in respect of the past and likely future care of Anthony as a child.
The defendant denies he was negligent or that either plaintiff is entitled to the damages sought or at all.
The materials before me include written submissions filed by the parties after the trial.

Plaintiffs

The plaintiffs married on 14 June 1986.
The first plaintiff said that following the birth of Alex it was decided that they were content to have a family consisting of two children and in any event felt that…

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.

Continue reading Gentile v Ferri

Details

AGLC: Gentile v Ferri [2004] WADC 144
Case: [2004] WADC 144
Decision Date: 16 JULY 2004

CaseChat Overview and Summary

In the case of Gentile v Ferri, the plaintiff, Gentile, initiated legal proceedings against the defendant, Ferri, a medical practitioner, following a medical procedure that resulted in the plaintiff's injury. The dispute centred on whether the defendant's actions during a tubal ligation procedure constituted a breach of the duty of care owed to the plaintiff, leading to the birth of an unwanted child. The matter was heard in the Federal Court of Australia, where the plaintiff sought compensation for the damages incurred due to the failure of the sterilisation procedure.

The primary legal issues the court needed to address were whether the defendant's actions during the tubal ligation procedure amounted to a breach of the duty of care owed to the plaintiff and, if so, what the scope of damages should be. The court had to consider whether the error in the application of Filshie clips during the procedure constituted a breach of the duty of care, and if so, whether the plaintiff's damages were within the scope of the foreseeable harm that could result from such a breach.

The court found that the defendant's error in applying the Filshie clips during the tubal ligation procedure constituted a breach of the duty of care owed to the plaintiff. The court held that the defendant's actions were negligent, and the plaintiff's injury was a foreseeable consequence of such negligence. However, the court also held that the plaintiff was not entitled to recover damages for the notional costs of parental care for the child born as a result of the failed sterilisation procedure. The court concluded that such costs were not recoverable in actions for tort, as they were not a direct consequence of the breach of duty but rather a consequence of the child's birth itself. The court ordered the defendant to pay the plaintiff compensation for the damages incurred due to the failure of the sterilisation procedure, excluding the notional costs of parental care for the child.

Orders