Elayoubi BHNF Kolled v Zipser & 2 Ors [2007] NSWSC 587

New South Wales Supreme Court

CITATION : Elayoubi BHNF Kolled v Zipser & 2 Ors [2007] NSWSC 587

HEARING DATE(S) : 29 - 31 May 2006, 2, 5 - 9, 13 - 16, 19 - 20, 22 - 23, 26 - 28 June 2006, 10 July 2006, 7 December 2006.

JUDGMENT DATE : 28 June 2007

JUDGMENT OF : Hislop J

DECISION : (1) Verdict and judgment for the first, second and third defendants; (2) Plaintiff to pay the costs of the defendants.

CATCHWORDS : Torts - Personal injury - Medical negligence - Birth injury.

LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 - s 5(1)(c)

Kondis v State Transport Authority (1984) 154 CLR 672 CASES CITED : Rogers v Whitaker (1992) 175 CLR 479 Weideck v Williams [1999] NSWCA 346

Plaintiff - Kaled Elayoubi BHNF Tamam Kolled PARTIES : First Defendant - Gabriel Zipser Second Defendant - South Western Sydney Area Health Service Third Defendant - Northern Health

FILE NUMBER(S) : SC 20260/01

Plaintiff - Mr M. Cranitch SC with Mr A. Campbell COUNSEL : First and Second Defendants - Mr D. Higgs SC with Ms J. Lonergan Third Defendants - Mr I. Harrison SC with Mr I. Butcher

Plaintiff - Gerard Malouf & Partners SOLICITORS : First and Second Defendants - Ebsworth & Ebsworth Third Defendants - Phillips Fox

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

HISLOP J

28 June 2007

20260/01 Kaled Elayoubi by his Next Friend Tamam Kolled v Gabriel Zipser & 2 Ors

JUDGMENT

Introduction 1 The plaintiff is the fifth child born to Tamam Kolled ("TK"). He was born on 13 October 1984 at Bankstown Hospital ("the hospital"). He suffers from spastic quadriplegia and intellectual disability. It is common ground that his condition is the result of deprivation of oxygen during the birth process consequent upon a uterine rupture. 2 On 31 October 1978 TK's fourth child, Wassif, was born by caesarean section at the Preston and Northcote Community Hospital ("PANCH") in Victoria. At the time of birth TK was 35½ weeks pregnant. The plaintiff alleges that the caesarean section was performed by a vertical incision which involved the upper segment of the uterus, that the incision created an increased risk of uterine rupture in the event of a subsequent pregnancy and that that risk became reality shortly before the plaintiff's birth. 3 The plaintiff seeks damages for his condition which he alleges was caused by the negligence of each of the defendants. 4 The first defendant is sued as a specialist obstetrician/gynaecologist and visiting medical officer to the hospital. He saw TK in the antenatal clinic on 31 July 1984. It is alleged he failed to provide reasonable care on that occasion. 5 The second defendant is sued as the organisation liable for any claim arising from the operation, control and management of the hospital. The plaintiff alleges, in essence, the hospital was negligent in relation to the antenatal treatment it provided, in failing to admit for early confinement and in the treatment afforded on 12 and 13 October 1984. 6 The third defendant is sued as the body responsible for any claim arising from the operation, control and management of PANCH. The plaintiff alleges, in essence, that PANCH was negligent in failing to advise and warn TK as to the risk implications of the caesarean section she had undergone and in failing to inform her referring general practitioner of the nature of that procedure. 7 Each of the defendants has accepted that he or it owed a duty of care to the plaintiff but has denied any breach of duty or, if there was breach of duty, that such breach was causative of the plaintiff's condition. 8 The High Court in Rogers v Whitaker (1992) 175 CLR 479 at 483 held: The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. … The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …