Dhupar v Lee [2022] NSWCA 15 (18 February 2022) (Brereton and McCallum JJA, Simpson AJA)


Catchwords:


TORTS – Medical negligence – Gynaecological surgery for elective sterilisation – Failed Filshie clip tubal ligation leading to unwanted pregnancy – Circumstantial case – Reconciliation of inconclusive medical imagery with other evidence – Whether onus of proof reversed by trial judge – Requirement to prove ultimate question rather than subsidiary issues – Conclusion that pregnancy post surgery was attributable to negligent operator error on part of doctor

TORTS – Damages – Civil Liability Act s 71 – Difference between damages for pregnancy and birth of child and damages for economic loss for loss of earnings attributable to psychiatric injury associated with birth of child

TORTS – Damages – Non-economic loss – assessment of percentage of most extreme case