ELAYOUBI v ZIPSER [2008] NSWCA 335

The appeal was allowed because the failures to warn Mrs Kolled in 1978 and to inquire of Preston Hospital in 1984 were causally connected to the plaintiff's injury. The Court found that proper warning would have impressed on Mrs Kolled the need to avoid labour and convey the information to later carers; that the 1978 notes probably contained the critical information and an inquiry would have elicited it; and that, with proper information, Mrs Kolled would probably have attended hospital earlier and Bankstown Hospital would have acted with greater urgency. On the probabilities the plaintiff would have been delivered no later than 11:48pm, within about 10 minutes of the rupture, when...

Jurisdiction: Australia
Judgment Date: 03 December 2008
Procedural Posture: Appeal in Medical Negligence Proceedings / Appeal From Supreme Court Judgment Dismissing the Plaintiff's Claims
Outcome: Appeal allowed; judgment and orders of the trial judge set aside; judgment entered for the plaintiff against the first, second and third defendants; liability apportioned two-thirds against the first and second defendants and one-third against the third defendant; respondents ordered to pay the appellant's costs of...
Legal Topics: ['breach of Duty of Care' 'failure to Warn' 'causation' 'dual Tortious Conduct' 'hospital Obstetric Records' 'failure to Call Witness' 'apportionment Between Tortfeasors' "suitors' Fund Certificate"]

['torts' 'medical Negligence' 'evidence' 'civil Procedure'] ['breach of Duty of Care' 'failure to Warn' 'causation' 'dual Tortious Conduct' 'hospital Obstetric Records' 'failure to Call Witness' 'apportionment Between Tortfeasors' "suitors' Fund Certificate"]

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Procedural Posture

Appeal in Medical Negligence Proceedings / Appeal From Supreme Court Judgment Dismissing the Plaintiff's Claims

Legal Issues

1 ['Whether Northern Health warned Mrs Kolled of the nature of the 1978 caesarean section and its ramifications for any future pregnancy.' 'Whether adequate advice in 1978 would have led Mrs Kolled to pass relevant information to later obstetric carers and attend hospital earlier.' 'Whether the 1978 operation notes would have recorded an incision encroaching into the upper uterine segment and whether an inquiry by Bankstown Hospital would have elicited that information.' "Whether any negligence by Preston Hospital in recording information would break the causal link between Bankstown Hospital's failure to inquire and the plaintiff's injury." "Whether, absent the defendants' negligence, the plaintiff would probably have been delivered early enough to avoid irreversible brain damage." 'How liability should be apportioned on the cross-claims.']

Ratio Decidendi

Court Disposition

Appeal allowed; judgment and orders of the trial judge set aside; judgment entered for the plaintiff against the first, second and third defendants; liability apportioned two-thirds against the first and second defendants and one-third against the third defendant; respondents ordered to pay the appellant's costs of...

Orders

['Allow the appeal and set aside the judgment and orders of the trial judge entered on 28 June 2007.' '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.' 'On each cross-claim, order that liability be apportioned as to...