Melchior v Cattanach

[2000] QSC 285

SUPREME COURT OF QUEENSLAND

CITATION:

Melchior & Anor v Cattanach & Anor [2000] QSC 285

PARTIES:

KERRY ANNE MELCHIOR
(first plaintiff)
CRAIG MELCHIOR
(second plaintiff)
v
STEPHEN ALFRED CATTANACH
(first defendant)
STATE OF QUEENSLAND
(second defendant)

FILE NO:

S466 of 2000

DIVISION:

Trial Division

DELIVERED ON:

23^rd August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

5,6,7,8,9, 15 June 2000

JUDGE:

Holmes J

ORDER:

Judgment for the first plaintiff against the first and second defendants in the amount of $103,672.39

Judgment for the second plaintiff against the first and second defendants in the amount of $3,000.00

Judgment for the first and second plaintiffs against the first and second defendants in the amount of $105,249.33

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – Special Relationships and Duties – Professional Persons
STANDARD OF CARE – Particular Persons and Situations – Other Cases.
ECONOMIC LOSS – Careless Advice, Statements and Non-Disclosure – Particular Persons and situations
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – Method of Assessment – Medical and Hospital Expenses – Loss of Earnings and Earning Capacity – Expenses Flowing from Plaintiff’s Inability to Work – other Pecuniary Damage – Non-pecuniary Damage – Pain and Suffering – Loss of Consortium.

COUNSEL:

Mr DOJ North SC with Mr RJ Clutterbuck for the Plaintiffs
Mr JA Griffin QC with Mr C Newton for the Defendants

SOLICITORS:  

Shine Roche McGowan for the Plaintiffs
Deacon Graham & James for the Defendants

1. HOLMES J:  The plaintiffs, Mrs and Mr Melchior, seek damages for wrongful conception. Their action arises out of the birth of their son Jordan in 1997, despite the performance of a sterilisation procedure on Mrs Melchior by the first defendant, Dr Cattanach, some years earlier. The second defendant, the State of Queensland, admits liability for any negligence on the part of Dr Cattanach, who was engaged as a consultant obstetrician and gynaecologist at the Redland Hospital where the procedure took place, although it denies that there was any such negligence.

The background to the action

1. Most of what occurred can, with hindsight, be reconstructed and is not controversial.  What is disputed are the contents of the conversations between Mrs Melchior and Dr Cattanach prior to the operation; and what steps, if any, Dr Cattanach ought to have taken, by way of confirmation of the success of the sterilisation operation or further warning to Mrs Melchior.

1. Mrs Melchior is now 48 years of age.  The history giving rise to this action begins in December 1967, when she was, as a young woman of 15, admitted to the Balmain Hospital in Sydney for an appendectomy.  In the course of that operation her right ovary was, according to the surgical notes, found to be filled with a blood clot and was removed.  There was, however, no abnormality in the left ovary or either fallopian tube, and those organs were accordingly left intact.  The operation was performed under a general anaesthetic.  Ms Melchior gave evidence that her mother…