16, 17, 18, 26 April; 3, 4, 27, 28 June; 1 July and 30 August 2019, 14 August and 17 November 2020
Date of orders:
19 November 2020
Decision date:
19 November 2020
Jurisdiction:
Civil
Before:
Judge Levy SC
Decision:
1. Verdict and judgment for the plaintiff in the sum of $408,700;
2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:
TORTS – professional negligence – gynaecological surgery for elective sterilisation – failed Filshie clip tubal ligation leading to unwanted pregnancy – rejection of defence of inherent risk pursuant to s 5I of the Civil Liability Act 2002 – rejection of defence of peer professional practice pursuant to s 5O of the Civil Liability Act 2002 – findings of negligence and causation of harm; DAMAGES – assessment of claimed heads of damage – whether plaintiff’s claimed economic loss was incurred as a result of psychiatric illness due to conception, pregnancy and birth or whether economic loss was due to the plaintiff rearing or maintaining her child – construction of s 71(1)(b) of the Civil Liability Act 2002
Legislation Cited:
Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5I, s 5O, s 12(1), s 17A, s 27, s 70, s 71, Pt 11
[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 Lee (a pseudonym) v Dhupar
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Details
AGLC
Lee (a pseudonym) v Dhupar [2020] NSWDC 717
Case
[2020] NSWDC 717
Decision Date
CaseChat Overview and Summary
The case of Lee (a pseudonym) v Dhupar involved the plaintiff, Lee, who sought damages for professional negligence from the defendant, Dr Dhupar, a gynaecologist. Lee underwent elective sterilisation surgery, during which a Filshie clip was used for tubal ligation. The procedure failed, leading to an unwanted pregnancy, which resulted in significant physical and psychiatric harm. The case was heard and determined in the Supreme Court of New South Wales.
The primary legal issues before the court were whether Dr Dhupar was negligent in performing the tubal ligation and if such negligence caused Lee's harm. Additionally, the court needed to address whether certain statutory defences under the Civil Liability Act 2002 applied, namely the defence of inherent risk and the defence of peer professional practice. Furthermore, the court had to determine the appropriate assessment of Lee's claimed economic loss, specifically whether it was due to psychiatric illness resulting from the conception, pregnancy, and birth or due to the rearing or maintaining of her child.
The court found that Dr Dhupar was negligent in the execution of the tubal ligation procedure. The inherent risk defence was rejected as the risk was not inherent to the procedure but rather arose from the defendant's failure to perform it correctly. Similarly, the defence of peer professional practice was also dismissed. The court held that the economic loss claimed by Lee was primarily due to the psychiatric illness stemming from the conception, pregnancy, and birth, rather than the rearing or maintaining of her child. This interpretation was in line with the provisions of section 71(1)(b) of the Civil Liability Act 2002. The court awarded Lee damages of $408,700, and ordered Dr Dhupar to pay Lee's costs on the ordinary basis unless otherwise directed. The exhibits were to be returned, and Lee was granted liberty to apply for further orders if needed.
Orders
Orders of the court
1. Verdict and judgment for the plaintiff in the sum of $408,700;
2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days’ notice if further or other orders are required.