*The contents in this blog relates to legislation in New South Wales.

Last month, the New South Wales Court of Appeal handed down a decision in Dhupar v Lee. It was found by the trial judge that the doctor failed to correctly apply, or inspect whether they had been properly applied, ‘Filshie clips’ during a laparoscopic tubal ligation intended for permanent contraception.

The trial judge found in favour of the patient and she was awarded $408,700 plus costs in damages. Her award of damages included for non-economic loss, past economic loss and future loss of earning capacity.

The doctor appealed, as to both liability and damages. However, the Court of Appeal held the decision of the trial judge and dismissed the appeal (per Brereton JA, McCallum JA and Simpson AJA agreeing) [191].

As to liability, it was found that on the balance of probabilities, the trial judge was right to conclude that the patient’s pregnancy post tubal ligation was attributable to negligent operator error on the part of the doctor in the application of the left Filshie clip. Further, in their consideration of the evidence, it was concluded that the doctor did not sufficiently prove that the trial judge had erred in their finding.

Significantly, as to damages, the Court of Appeal discussed the application of s 71 of the Civil Liability Act 2002 (NSW) (“CLA”), finding that it is a limited intrusion on the common law and does not involve denying a mother damages for the pregnancy and birth of the child, but only for the costs of raising the child, and lost earnings “while the claimant rears or maintains the child.” In proceedings involving a claim for the birth of a child, the court found that s 71(1) of the CLA does not preclude the award of damages for economic loss for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child: [172]-[177].

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The full decision can be accessed here: https://www.caselaw.nsw.gov.au/decision/17f0571a34bbe41c4e4301c7