Neville v Lam (No 3) [2014] NSWSC 607

Neville v Lam (No 3) [2014] NSWSC 607

The plaintiff did not discharge the onus of proving that the defendant failed to advise her of the residual risk of pregnancy after endometrial ablation and the need to use safe and effective contraception. Although the plaintiff was an honest witness, her memory of consultations nearly a decade earlier was fallible. The defendant's asserted usual practice was supported by his publications, and his notes of the 27 October 2004 consultation referring to discussion of endometrial ablation versus Mirena IUD strongly supported the conclusion that the relative contraceptive effects and the need for contraception were discussed. The Court was actually persuaded that the relevant advice was...

Jurisdiction
Australia
Judgment Date
21 May 2014
Procedural Posture
Medical Negligence Claim in Tort Concerning Alleged Failure to Advise of Pregnancy Risk and Need for Contraception Following Endometrial Ablation / Principal Judgment After Hearing
Outcome
Proceedings dismissed; plaintiff ordered to pay the defendant's costs.
Legal Topics
['failure to Warn' 'endometrial Ablation' 'risk of Pregnancy' 'contraception Advice' 'burden of Proof' 'usual Practice Evidence' 'causation' 'unplanned Birth Damages' 'additional Costs of Rearing or Maintaining a Disabled Child' 'non Economic Loss' 'pure Mental Harm']
['torts' 'medical Negligence' 'damages' 'civil Liability'] ['failure to Warn' 'endometrial Ablation' 'risk of Pregnancy' 'contraception Advice' 'burden of Proof' 'usual Practice Evidence' 'causation' 'unplanned Birth Damages' 'additional Costs of Rearing or Maintaining a Disabled Child' 'non Economic Loss' 'pure Mental Harm']

Case Brief

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Procedural Posture

Medical Negligence Claim in Tort Concerning Alleged Failure to Advise of Pregnancy Risk and Need for Contraception Following Endometrial Ablation / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant failed to advise the plaintiff that pregnancy remained possible after endometrial ablation and that safe and effective contraception should be used.' 'Whether any failure to give that advice constituted breach of duty.' 'Whether, assuming negligence and that the plaintiff would not have conceived but for the negligence, damages were recoverable for pregnancy, psychiatric harm, economic loss, out of pocket expenses, gratuitous care, and additional costs associated with rearing or maintaining a disabled child.' "Whether the scope of liability under s 5D of the Civil Liability Act 2002 (NSW) would extend to additional costs associated with Samuel's congenital disabilities."]

Ratio Decidendi

The plaintiff did not discharge the onus of proving that the defendant failed to advise her of the residual risk of pregnancy after endometrial ablation and the need to use safe and effective contraception. Although the plaintiff was an honest witness, her memory of consultations nearly a decade earlier was fallible. The defendant's asserted usual practice was supported by his publications, and his notes of the 27 October 2004 consultation referring to discussion of endometrial ablation versus Mirena IUD strongly supported the conclusion that the relative contraceptive effects and the need for contraception were discussed. The Court was actually persuaded that the relevant advice was...

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the defendant's costs.

Orders

  • ['The proceedings be dismissed.' "The plaintiff pay the defendant's costs."]