Lee (a pseudonym) v Dhupar

Case [2020] NSWDC 717


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Lee (a pseudonym) v Dhupar [2020] NSWDC 717
Hearing dates: 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

Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 and s 8(1)(a), (c), (e)

Evidence Act 1995 (NSW), s 60, s 136, s 140(1)

UCPR r 31.27(1)(c), Sch 7, cl 3(e), r 31.20(2)(j)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48

Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1

Amaca Pty Ltd v Ellis [2010] HCA 5

Amadio Pty Ltd v Henderson (1998) FCR 1490; [1998] FAC 823

Angel v Hawkesbury Council [2008] NSWCA 130

Blacktown City Council v Hocking [2008] NSWCA 144

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29

Browne v Dunn (1893) 6 R 67

Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38

CGU Insurance Ltd v Porthouse (2008) 235 CLR 103, [2008] HCA 30

Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1, [1981] HCA 40

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Dobler v Halvorsen (2007) 70 NSWLR 151; [2007] NSWCA 335

Elayoubi v Zipser [2008] NSWCA 335

Fox v Percy [2003] HCA 22; 214 CLR 118

Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159

Goode v Angland [2017] NSWCA 311

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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.

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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