Supreme Court of New South Wales

Part 11

Damages for the birth of a child

70 - Application of Part

(1) This Part applies to any claim for damages in civil proceedings for the birth of a child, regardless of whether that claim is made in tort, in contract, under statute or otherwise.

(2) This Part does not apply to any claim for damages by a child in civil proceedings for personal injury (within the meaning of Part 1A) sustained by the child pre-natally or during birth.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B but, despite that section, does apply to liability of the kind referred to in section 3B (1) (a).


71 - Limitation of the award of damages for the birth of a child

(1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:

(a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or

(b) any loss of earnings by the claimant while the claimant rears or maintains the child.

(2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

Dhupar v Lee [2022] NSWCA 15

Dr Dhupar (“the doctor”) (the appellant) performed on the respondent (“the patient”) a laparoscopic tubal ligation – a surgical procedure intended to result in permanent contraception – using ‘Filshie clips’ to clamp the fallopian tubes so that they become sealed and are eventually severed. Approximately nine months after receiving the surgery, the patient fell pregnant.

The patient sought damages for negligence, alleging that the doctor did not correctly apply the Filshie clips or inspect whether they had been properly applied. The patient was awarded damages of $408,700 plus costs, including damages for non-economic loss, past economic loss and future loss of earning capacity. The doctor appealed, on both liability and damages. The Court of Appeal dismissed the appeal.

On s 71: Section 71 of the Civil Liability Act is a limited intrusion on the common law and does deny a mother damages for the pregnancy and birth of the child. It excludes damages only for the costs of raising the child and for lost earnings “while the claimant rears or maintains the child”. It follows that, in proceedings involving a claim for the birth of a child, CLA s 71(1) does not preclude the award of damages for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child: [172]-[177].

 

Last updated:

09 Nov 2024

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