Hirst v Sydney South West Area Health Service [2011] NSWSC 664

Hirst v Sydney South West Area Health Service [2011] NSWSC 664

Dr Browning diagnosed an unstable lie, provisionally on 27 September 2000 and certainly by 2 October 2000, and considered a scan but did not arrange one. On the accepted expert evidence, once unstable lie was found by 2 October at about term, a scan ought to have been performed within a few days; failure to ensure this occurred was a breach of duty. A scan would have detected the Plaintiff's hydrocephalus, leading to earlier transfer, delivery and shunting, and it was more likely than not that the Plaintiff would have suffered less damage, assessed broadly as a 20% better outcome. Hydrocephalus was a possible cause to be investigated by ultrasound, so the harm was within the appropriate...

Jurisdiction
Australia
Judgment Date
22 August 2011
Procedural Posture
Common Law Medical Negligence Proceedings / Principal Judgment on Breach of Duty, Causation and Damages After Settlement With Sydney South West Area Health Service and Agreement on Damages for Whole Injury
Outcome
Verdict for the Plaintiff with damages to be agreed or assessed.
Legal Topics
['obstetric Practice' 'unstable Lie' 'failure to Order Ultrasound' 'hydrocephalus' 'causation' 'scope of Liability' 'burden of Proof' 'pre Existing Condition and Apportionment of Damage']
['negligence' 'medical Negligence' 'civil Liability' 'damages'] ['obstetric Practice' 'unstable Lie' 'failure to Order Ultrasound' 'hydrocephalus' 'causation' 'scope of Liability' 'burden of Proof' 'pre Existing Condition and Apportionment of Damage']

Case Brief

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Procedural Posture

Common Law Medical Negligence Proceedings / Principal Judgment on Breach of Duty, Causation and Damages After Settlement With Sydney South West Area Health Service and Agreement on Damages for Whole Injury

Legal Issues

  1. 1 ["Whether Dr Browning diagnosed, or ought to have diagnosed, an unstable lie during Mrs Hirst's pregnancy." 'Whether Dr Browning breached his duty of care by failing to order an ultrasound after an unstable lie was found or confirmed.' "Whether earlier ultrasound, delivery and shunting would probably have reduced the Plaintiff's disabilities." "Whether it was appropriate under s 5D(1)(b) for the scope of Dr Browning's liability to extend to the harm caused." 'Whether s 5E of the Civil Liability Act 2002 displaced the Watts v Rake principle concerning disentangling damage from pre-existing conditions.' 'What damages were recoverable for the additional injury attributable to the breach.']

Ratio Decidendi

Dr Browning diagnosed an unstable lie, provisionally on 27 September 2000 and certainly by 2 October 2000, and considered a scan but did not arrange one. On the accepted expert evidence, once unstable lie was found by 2 October at about term, a scan ought to have been performed within a few days; failure to ensure this occurred was a breach of duty. A scan would have detected the Plaintiff's hydrocephalus, leading to earlier transfer, delivery and shunting, and it was more likely than not that the Plaintiff would have suffered less damage, assessed broadly as a 20% better outcome. Hydrocephalus was a possible cause to be investigated by ultrasound, so the harm was within the appropriate...

Court Disposition

Verdict for the Plaintiff with damages to be agreed or assessed.

Orders

  • ['Verdict for the Plaintiff with damages to be agreed or assessed.']