MD v Sydney South West Area Health Service (3) [2009] NSWDC 24

New South Wales District Court

CITATION: MD v Sydney South West Area Health Service (3) [2009] NSWDC 24

HEARING DATE(S): 9 - 11, 13 February 2009

JUDGMENT DATE: 6 March 2009

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: 1. Verdict for the first defendant. 2. Verdict for the plaintiff against the second defendant in the sum of $110,120.

CATCHWORDS: NEGLIGENCE - duty of care - failure to order a pregnancy test - INFERENCES - rule in Jones v Dunkel - TORTS - vicarious liability - relation of Visiting Medical Officer to employing health authority

LEGISLATION CITED: Civil Liability Act 2002

Jones v Dunkel (1959) 101 CLR 298 Payne v Parker (1976) 1 NSWLR 191 CASES CITED: Manly Council v Byrne [2004] NSWCA 123 Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

TEXTS CITED: Ipp D, "Problems with fact-finding" (2006) 80 Australian Law Journal 667 McClellan P, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655

MD (Plaintiff) PARTIES: Sydney South West Area Health Service (First Defendant) Ian Fulcher (Second Defendant)

FILE NUMBER(S): 215 of 2007

COUNSEL: A Lidden SC with E E Welsh (Plaintiff) K Burke (First and Second Defendant)

SOLICITORS: Bryden's Law (Plaintiff) TressCox Lawyers (First and Second Defendant)

JUDGMENT

Issues

1 In this case MD sues the South Western Sydney Area Health Service (the First Defendant) and Dr Ian Fulcher (the Second Defendant) for negligence, which she alleges was constituted primarily by Dr Fulcher's omission to require her to have a pregnancy test before he carried out a repair of her prolapsed uterus and a tubal ligation. She says that, as a consequence of the negligence, she has suffered severe psychiatric damage and, in addition, has had to have her fifth child by caesarean section, resulting in an unsightly scar, as well as mental health problems.