Mollenhauer v Gilroy

[2004] QSC 377

SUPREME COURT OF QUEENSLAND

CITATION:	Mollenhauer v Gilroy & Ors [2004] QSC 377
PARTIES:	BERNICE KAY MOLLENHAUER (plaintiff) v DR KEVIN GILROY (first defendant) STATE OF QUEENSLAND (second defendant) QUEENSLAND SURGICAL PTY LTD ACN 058 061 233 (third defendant) ENDOVASIVE PTY LIMITED ACN 061 512 132 (fourth defendant) FEMCARE LIMITED (fifth defendant)
FILE NO/S:	SC No 10074 of 2001
DIVISION:	Trial Division
PROCEEDING:	Claim for Professional Medical Negligence
DELIVERED ON:	5 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 2001; 2 November 2001
JUDGE:	de Jersey CJ
ORDER:	Judgment for the defendant against the plaintiff, with costs, including any reserved costs, to be assessed
CATCHWORDS:	PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – DUTY TO WARN OF RISKS – where the plaintiff sues the defendant, who is a gynaecologist, for damages for negligence and breach of contract, in relation to her bearing a child subsequently to a tubal ligation carried out upon her by the defendant – whether the defendant warned the plaintiff of a risk of conception
Fazlic v Milingimbi Community Inc (1980) 32 ALR 437, cited Harris v Commercial Minerals Ltd (1996) 186 CLR 1, cited Manser v Spry (1994) 181 CLR 428, cited MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, cited Rogers v Whittaker (1992) 175 CLR 479, cited
COUNSEL:	J G Crowley QC, with R M Bourke, for the plaintiff S C Williams QC, with A Luchich, for the respondents
SOLICITORS:	Hewlett & Co for the plaintiff Flower & Hart for the respondents

1. de JERSEY CJ:  The plaintiff sues the defendant, who is a gynaecologist, for damages for negligence and breach of contract, in relation to her bearing of a child subsequently to a tubal ligation carried out upon her by the defendant.

1. At the commencement of the trial, Counsel informed me that the quantum of damages had been agreed at $130,000.  Of that sum, $23,000 was agreed as the amount which has been, or will be, paid by the Commonwealth Government for Family Tax Benefits A and B with respect to the rearing of the child.  There is an issue, to which I will return, whether the amount of any judgment should be $130,000 or the reduced sum of $107,000.

1. The plaintiff is a married woman, born on 21 March 1968.  She is married to Timothy Mollenhauer, who gave evidence at the trial.  The plaintiff had previously been married, for eight years, to a Mr Prove.  That relationship ended in 1995/6.  It produced two children, Amanda born in 1987, and Imogen born in 1991.  A third child was lost through cot death syndrome.  Amanda and Imogen live with the plaintiff and her present husband.

1. During the early stages of her relationship with her present husband, the plaintiff terminated a pregnancy and underwent a tubal ligation.  That was carried out at the Greenslopes Clinic.  The father was not her present husband.  The plaintiff and her present husband discussed that…