Lee (a pseudonym) v Dhupar

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.