Lee (a pseudonym) v Dhupar [2020] NSWDC 717
- Status
- Judgment
- Jurisdiction
- Australia
- Posture
- Civil / Principal Judgment After Trial
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Dr Dhupar was negligent in performing the plaintiff's tubal ligation: she misapplied the left Filshie clip, placing it too laterally and including extraneous tissue, failing to ensure proper closure and locking as required by relevant standards and manufacturer instructions, and failing to check both sides. This fell below the requisite standard of care. Her actions were not a typical use of the Filshie system nor supported by peer professional practice. The misapplication, not inherent risk or device failure, caused the pregnancy. The statutory defences under s 5I and s 5O of the Civil Liability Act 2002 (NSW) were not made out. Accordingly, the defendant was liable for the plaintiff's damages.
Court disposition
Judgment for the plaintiff
Orders
- Verdict and judgment for the plaintiff in the sum of $408,700;
- The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
- Liberty to apply for further or other orders if required.
02
Material facts
Parties
Jodie Lee (a pseudonym)
Plaintiff Counsel: Mr R O'Keefe, Mr Cummings (Solicitor) (14 Aug 2020), Slater & GordonNita Dhupar
Defendant Counsel: Ms E Elbourne (16, 17, 18, 26 Apr 2019), Mr S Kalfas SC with Ms E Elbourne (from 3 Jun 2019), Avant LawAmounts and remedies
- Non Economic Loss: AUD 261,000
- Past Economic Loss: AUD 45,000
- Future Loss of Earning Capacity: AUD 80,000
- Future Treatment Expenses: AUD 15,000
- Past Out of Pocket Expenses: AUD 7,700
- Total Damages Awarded: AUD 408,700
03
Procedural history
Posture
Civil / Principal Judgment After Trial
04
Questions and positions
Legal issues
- 01
Whether Dr Dhupar was negligent in performing tubal ligation surgery on the plaintiff
- 02
Whether the defendant's actions fell below the applicable standard of care under the Civil Liability Act 2002 (NSW)
- 03
Whether the pregnancy was caused by inherent risk or operator error
- 04
Whether the plaintiff is entitled to damages for psychiatric injury and economic loss
Party arguments
- Applicant
- The plaintiff claimed the failed tubal ligation and subsequent pregnancy resulted from Dr Dhupar's negligent application of the Filshie clip, breaching duty of care. She argued for damages covering non-economic loss, economic loss, and expenses due to physical and psychiatric injury.
- Respondent
- The defendant denied negligence, contending failure was an inherent risk under s 5I Civil Liability Act 2002 (NSW), and claimed the procedure was widely accepted peer professional practice (s 5O). The defence argued any pregnancy post-procedure was not proof of negligence and challenged causation and quantum of damages.
05
Court’s reasoning
Legal principles
- 01
Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58
A medical practitioner owes a duty to exercise reasonable care and skill in the provision of professional advice and treatment.
- 02
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48; Civil Liability Act 2002 (NSW), ss 5B, 5C
Breach of duty must be evaluated prospectively by reference to s 5B and s 5C of the Civil Liability Act 2002 (NSW).
- 03
Civil Liability Act 2002 (NSW), s 5I, s 5O
Defendant not liable for inherent risk unless negligence is shown. S 5I and s 5O of Civil Liability Act - practitioner may be excused if conduct aligns with peer professional opinion unless court considers it irrational.
- 04
Civil Liability Act 2002 (NSW), s 71(1)(b)
Damages for economic loss for birth of a child are limited by statute where the loss is incurred while rearing or maintaining the child.
06
Ratio, limits and disposition
Ratio decidendi
Dr Dhupar was negligent in performing the plaintiff's tubal ligation: she misapplied the left Filshie clip, placing it too laterally and including extraneous tissue, failing to ensure proper closure and locking as required by relevant standards and manufacturer instructions, and failing to check both sides. This fell below the requisite standard of care. Her actions were not a typical use of the Filshie system nor supported by peer professional practice. The misapplication, not inherent risk or device failure, caused the pregnancy. The statutory defences under s 5I and s 5O of the Civil Liability Act 2002 (NSW) were not made out. Accordingly, the defendant was liable for the plaintiff's damages.
Obiter and limits
- The non-economic loss percentage was assessed at the higher end, reflecting the significant and ongoing psychiatric injury.
- Photographic record-keeping and adherence to manufacturer instructions are of critical importance in such surgical procedures and for future litigation risks.
- Inherent risk defences require proper evidence of strict compliance with recognised practices—mere proof of failure is not enough.
Court disposition
Judgment for the plaintiff
- Verdict and judgment for the plaintiff in the sum of $408,700;
- The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
- Liberty to apply for further or other orders if required.
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