Court of Appeal (Qld)|2001-06-26|Before: McMurdo P, Davies and Thomas JJASeparate reasons for judgment of each, member of the Court, McMurdo P and Davies JA concurring as to the orders made, Thomas JA dissenting
McMurdo P, Davies and Thomas JJASeparate reasons for judgment of each, member of the Court, McMurdo P and Davies JA concurring as to the orders made, Thomas JA dissenting
Catchwords
TORTS – NEGLIGENCE – MEDICAL NEGLIGENCE –ECONOMIC LOSS
– CARELESS ADVICE, STATEMENTS AND NON DISCLOSURE –
FAILURE TO ADVISE
OF RISK– where female plaintiff requested defendant doctor to perform
Source
Original judgment source is linked above.
Catchwords
TORTS – NEGLIGENCE – MEDICAL NEGLIGENCE –ECONOMIC LOSS– CARELESS ADVICE, STATEMENTS AND NON DISCLOSURE –FAILURE TO ADVISEOF RISK– where female plaintiff requested defendant doctor to performsterilisation procedure – wherethe defendant doctor failed to inform herof the risk or possibility that further investigation might reveal that furthersteps werenecessary – where female plaintiff subsequently gave birth to ahealthy baby DAMAGES – MEASURE AND REMOTENESS OF DAMAGES INACTIONS FOR TORT – WRONGFUL PREGNANCY – METHOD OF ASSESSMENT –female plaintiff entitled to recover damages for pain and suffering in respectof the pregnancy and birth and depression which followed,lost earning capacity(past and future) and various medical expenses and also loss of consortium– whether the damages shouldalso include cost of raising the child– survey of authority and discussion of the major views respecting suchclaims –
whether such claims by mother and father are for pure economic
loss – relevance of Perre v Apand –whether damages should
take into account the benefit of having a healthy child – relevance of
public policy in principles
applicable to assessment of damagesFamily
Law Act 1975 (Cth), ss60 B, 66 CCriminal Code, ss286,
324Administrator Natal v Edouard [1990] ZASCA 60
(1990) (3) SA 581,
consideredCES v Super Clinics (Aust) P/L (1995) 38 NSWLR 47,
consideredDahl v Purnell (1993) 15 QLR 33, consideredHartke v
McKellway [1983] USCADC 218
707 F2d 1544 (1983), considered Heydon v NRMA Ltd
& Ors [2000] NSWCA 374, consideredKealey v Berezowski (1996)
136 DLR (4th) 708, consideredLovelace Medical Centre v Mendez
805 P2d 603 (NM 1991) McFarlane v Tayside Health Board [1999] UKHL 50
[2000] 2
AC 59, consideredMcKernan v Aasheim 687 P2d 850 (Wash 1984),
consideredPerre v Apand [1999] HCA 36
(1999) 198 CLR 180, considered
Rogers v Whitaker [1992] HCA 58
(1992) 175 CLR 479, consideredSherlock v
Stillwater Clinic 260 NW 2d 169 (Minn 1977), consideredThake v
Maurice [1986] QB 644, consideredUdale v Bloomsbury Area Health
Authority [1983] 2 All ER 522, consideredVeivers v Connolly
[1995] 2 Qd R 326, considered
Judgment (17 paragraphs)
[1]
TORTS - NEGLIGENCE - MEDICAL NEGLIGENCE -ECONOMIC LOSS - CARELESS ADVICE, STATEMENTS AND NON DISCLOSURE - FAILURE TO ADVISE OF RISK- where female plaintiff requested defendant doctor to perform sterilisation procedure - where the defendant doctor failed to inform her of the risk or possibility that further investigation might reveal that further steps were necessary - where female plaintiff subsequently gave birth to a healthy baby
[2]
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - WRONGFUL PREGNANCY - METHOD OF ASSESSMENT - female plaintiff entitled to recover damages for pain and suffering in respect of the pregnancy and birth and depression which followed, lost earning capacity (past and future) and various medical expenses and also loss of consortium - whether the damages should also include cost of raising the child - survey of authority and discussion of the major views respecting such claims - whether such claims by mother and father are for pure economic loss - relevance of Perre v Apand -whether damages should take into account the benefit of having a healthy child - relevance of public policy in principles applicable to assessment of damages