ELAYOUBI v ZIPSER [2008] NSWCA 335

Appeal Outcome: Special leave dismissed with costs 1 May 2009 (S575/2008 & S3/2009)

New South Wales Court of Appeal

CITATION: ELAYOUBI v ZIPSER [2008] NSWCA 335

HEARING DATE(S): 25 and 27 June 2008

JUDGMENT DATE: 3 December 2008

JUDGMENT OF: Allsop P at 1; Beazley JA at 2; Basten JA at 3

(1) Allow the appeal and set aside the judgment and orders of the trial judge entered on 28 June 2007.

(2) In lieu thereof,

(a) give judgment for the plaintiff against the first, second and third defendants in the amount of $7,281,319 to take effect on and from 28 June 2007; (b) on each cross-claim, order that liability be apportioned

DECISION: (i) as to two-thirds against the first and second defendants, (ii) as to one-third against the third defendant;

(c) order the defendants to pay the plaintiff's costs of the trial.

(3) Order the respondents to pay the appellant's costs of the appeal.

(4) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of his costs of the appeal.

CATCHWORDS: EVIDENCE – experts – medical practitioners – value of evidence of usual practice – whether inference available against second hospital for failure to call operating surgeon from first hospital - EVIDENCE – witnesses – inconsistencies between mother's evidence at trial and history recorded by medical practitioners – whether inconsistencies significant - MEDICAL NEGLIGENCE – breach of duty of care – failure to warn of previous caesarean section encroaching into upper uterine segment – failure to record nature of previous section – failure to inquire about obstetric history from hospital where previous child born - TORTS – negligence – breach of duty of care – plaintiff born with spastic quadriplegia and intellectual disability – previous caesarean section encroaching into upper uterine section – failure to advise mother of risks of ruptured uterus – second hospital not inquiring of first hospital of nature of procedure - TORTS – negligence – causation – dual tortious conduct – breaks in chain of causation – factual and normative tests – whether first hospital's failure to record previous section broke causal link between second hospital's failure to inquire and plaintiff's damage – whether request for previous obstetric records would have indicated true nature of previous section – whether second hospital's failure to inquire broke causal link between first hospital's failure to record and failure to warn mother - WORDS & PHRASES – "causation"