King v Western Sydney Local Health Network [2013] NSWCA 162

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: King v Western Sydney Local Health Network [2013] NSWCA 162 Hearing dates: 22 November 2012 Decision date: 14 June 2013 Before: Basten JA at [1] Hoeben JA at [36] Ward JA at [162] Decision: Leave to appeal is granted. The appeal is dismissed. The appellant is to pay the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - breach of duty owed by hospital to newborn child - mother attends hospital - risk of mother developing chicken pox while pregnant - breach - risk to mother and child if mother developed chicken pox - failure to advise mother of availability of VZIG and its potential beneficial effects in preventing or ameliorating chicken pox - failure to offer to administer VZIG - section 5B Civil Liability Act 2002 - breach established - TORTS - negligence - causation - section 5D(1)(a) Civil Liability Act - factual causation - whether appellant's breach "necessary condition" of harm suffered - whether administration of VZIG would have prevented mother developing chicken pox and therefore child suffering injury - TORTS - negligence - causation - expert evidence - conflicting opinion of doctors as to efficacy of VZIG - status of available medical literature - effect of medical literature equivocal - limitations of available medical literature - statistical probability of VZIG being effective to protect child - TORTS - negligence - causation - application of statistics provided by medical literature - equivocal nature of statistics - whether trial judge adopted an overly mechanistic approach to causation issue - whether too much weight placed on limitations of scientific evidence - whether as an "exceptional case" section 5D(2) of Civil Liability Act 2002. Legislation Cited: Civil Liability Act 2002 (NSW) - ss 5B, 5D, 5E Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5; 240 CLR 111 Bonnington Castings Ltd v Wardlaw (1956) UKHL 1; (1956) AC 613 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 366 Chappel v Hart [1998] HCA 55; 195 CLR 232 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Flounders v Millar [2007] NSWCA 238 King v Western Sydney Local Health Network [2011] NSWSC 1025 Merck Sharp and Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128 Roads and Traffic Authority v Royal (2008) 82 ALJR 870 Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Tabet v Gett [2010] HCA 12; 240 CLR 537 TC by his tutor Sabatino v State of New South Wales & Ors [2001] NSWCA 380 Zanner v Zanner (2010) 79 NSWLR 702 Texts Cited: Australian Immunisation Handbook (7th ed, March 2000) Management of Perinatal Infections (2002, Australasian Society for Infectious Diseases) The Lancet, Vol 343, pp 1548-1551 (18 June 1994) Category: Principal judgment Parties: Tamara King by her next friend Phillippine King - Appellant Western Sydney Area Health Network - Respondent Representation: Counsel: Mr R O'Neill/Mr E Romaniuk - Appellant Mr M Windsor SC/Mr S Woods - Respondent Solicitors: McDonnell Schroder - Appellant Gild Insurance Litigation Pty Ltd - Respondent File Number(s): 2005/269149 Decision under appeal Citation: [2011] NSWSC 1025 Date of Decision: 2011-09-07 00:00:00 Before: Garling J File Number(s): 2005/269149