NSW Caselaw
New South Wales Supreme Court
CITATION : Ehlefeldt v Rowan-Kelly [2009] NSWSC 331
HEARING DATE(S) : 27/04/2009
JUDGMENT DATE : 1 May 2009
JUDGMENT OF : Hoeben J
DECISION : I enter judgment in favour of the plaintiff against the defendant for $6,046,562.00. I order the defendant to pay the plaintiff's costs of these proceedings.
CATCHWORDS : DAMAGES - Ex parte assessment of damages - brain injured plaintiff - application of Civil Liability Act 2002 - plaintiff unable to care for children - damages for loss of capacity to perform domestic services for children - s15B Civil Liability Act.
LEGISLATION CITED : Civil Liability Act 2002
CATEGORY : Principal judgment
Amaca Pty Limited v Novek [2009] NSWCA 50 CSR Limited v Eddy [2005] HCA 64, (2005) 226 CLR 1 CASES CITED : Griffiths v Kerkemeyer (1977) 139 CLR 161 Kendrick v BlueScope Steel (AIS) Pty Limited & Ors [2007] NSWSC 1288 Sullivan v Gordon (1999) 47 NSWLR 319
PARTIES : Bianca Lee Ehlefeldt by her tutor Moerangi Kennedy - Plaintiff Dr Michael Charles Leigh Rowan-Kelly - Defendant
FILE NUMBER(S) : SC 20351/2005
COUNSEL : Mr GR Graham - Plaintiff No appearance - Defendant
SOLICITORS : Rishworth Dodd & Co - Plaintiff No appearance - Defendant
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
HOEBEN J
Friday 1 May 2009
20351/2005 – Bianca Lee EHLEFELDT by her tutor Moerangi KENNEDY v Dr Michael Charles Leigh ROWAN-KELLY
JUDGMENT 1 HIS HONOUR: Nature of proceedings The defendant is a medical practitioner who was in general practice at a medical centre in Leichhardt in 2002. The plaintiff alleges that while under his care between April and August 2002 she became addicted to Xanax, a benzodiazepine. In August 2002 the plaintiff alleges that the defendant placed her on a home detox program in order to overcome her addiction to that substance. 2 The plaintiff alleges that at the time that the defendant placed her on the home detox program he failed to advise either her or her mother about the risks accompanied Xanax withdrawal, in particular the risk of seizures. On 14 November 2002 the plaintiff suffered hypoxic brain damage as a result of a seizure. The plaintiff has brought these proceedings against the defendant alleging negligence on his part in failing to advise her as to the dangers associated with Xanax withdrawal and in failing to properly treat her by administering anti-convulsant medication. Although the defendant was served with the originating process, he thereafter departed for the United States and his present whereabouts is unknown. Judgment on the issue of liability was entered in favour of the plaintiff against the defendant by Studdert J on 2 March 2007. This left the assessment of damages outstanding. 3 The present proceedings relate to the assessment of damages. The hearing proceeded on an ex parte basis. There was no appearance by the defendant. The evidence relied on by the plaintiff comprised the oral evidence of her mother and reports from Dr Walsh of 22 September 2005; Dr Bleasel of 30 August 2005; Dr Buckley of 24 April 2006 and Ms Ravagnani, an occupational therapist of 19 April 2009.
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