Rosenberg -v- Kumarasinghe [2002] NSWSC 1262

New South Wales Supreme Court

CITATION : Rosenberg -v- Kumarasinghe [2002] NSWSC 1262 FILE NUMBER(S) : SC 20656/2000 HEARING DATE(S) : 13 June 2002, 14 June 2002, 11 September 2002 JUDGMENT DATE : 10 December 2002

Sharon Rosenberg -v- Zaveeni Kumarasinghe PARTIES : Executrix of the Estate of the late Dr. Hiary Kumarasinghe and Ors

JUDGMENT OF : Acting Justice Taylor at 1

Mr. K. Rewell SC (Plaintiff) COUNSEL : Mr. S. Davis (2nd Defendant) Mr. B Walker SC (3rd & 4th Defendants) SOLICITORS : CATCHWORDS : Application to strike out Statement of Claim - professional negligence - adequacy of material filed pursuant to Part 14 r 6 SCR LEGISLATION CITED : SCR Part 31, Rule 6, Part 14C. HG v The Queen (1999) 197 CLR 414 at 428 CASES CITED : Micallef v ICI Australia Operations Pty Ltd & Ors [2001] NSWCA 274 Queensland v JL Holdings Pty Ltd (1997) 146 at 155 DECISION : See paragraph 78

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

Acting Justice Taylor

10 December 2002

20656 of 2000

Sharon Rosenberg -v- Zaveeni Kumarasinghe Executrix of the Estate of the late Dr. Hiary Kumarasinghe and Ors

Introduction 1 In these proceedings the plaintiff claims damages for negligence in respect of a failed laprascopic sterilization procedure carried out by the late Dr Kumarasinghe aT the Lithgow Hospital. The operation involved severing of the plaintiff's fallopian tubes and the application of a clip called a Filshie clip by a device known as an applicator distributed by the third defendant (Endovasive) and manufactured by the fourth defendant (Femcare). 2 Subsequent to the operation the plaintiff became pregnant and gave birth to a son. The doctor's estate, the operator of the hospital, the distributor and manufacturer of the clips are all sued for breach of duty and /or contract. The plaintiff claims for prenatal distress and the expenses involved in the child's upbringing.