Elayoubi v Zipser [2008] NSWCA 335
This case is a very good example of an unusual outcome that may occur in the event of two defendants having failed to warn a patient of a particular outcome (multiple causation).
In this case, the mother of the plaintiff had undergone a classic caesarean section with respect to the birth of her first child. This meant that she should not have been allowed to proceed to vaginal delivery of her second child (the plaintiff). The mother could not remember the advice (if any) that had been provided to her following the birth of her first child. At the time of her second pregnancy (with the plaintiff many years later) she attended upon another obstetrician and hospital. Each of them negligently failed to enquire of the first hospital about the nature of the first caesarean section delivery.
The first defendant failed to record the nature of the operation that was clearly a classic caesarean rather than a lower segment caesarean section (that would have permitted vaginal delivery). If only one of these sets of defendants (ie. the first hospital as opposed to the second hospital/obstetrician) was negligent, then the plaintiff would succeed. However, curiously, if both of them were negligent then the plaintiff, on a conventional approach, might not have been able to establish causation for the reason that the first hospital’s negligence in failing to record the procedure could not be said to have led to any damage in the event of the second defendant having failed to make an enquiry about the nature of the first caesarean section delivery. Basten JA suggested in such circumstances, on the “normative” approach, both defendants would be liable.
The plaintiff suffered spastic quadriplegia and intellectual disability and it was common ground that his condition was the result of deprivation of oxygen during the birth process, consequent upon a uterine rupture. The plaintiff failed at first instance in the Supreme Court of New South Wales but succeeded on appeal. Judgment was ultimately entered in favour of the plaintiff against the first, second and third defendants in the sum of $7,281,319.00 plus costs.
This summary is provided by Kate Henderson, a senior solicitor at BPC lawyers. Kate is an accredited specialist in personal injury law and has a particular interest in medical negligence claims including birth injury claims. Kate has acted for a number of plaintiffs suffering cerebral palsy as a result of adverse birth events. Kate has successfully acted for plaintiffs suffering cerebral palsy in New South Wales, interstate, in the United Kingdom and Singapore. For more information or to speak with Kate, please contact us on (02) 8280 6900 or kate@bpclaw.com.au.
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