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King v Western Sydney Local Health Network [2011] NSWSC 1025

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Relevant Facts

The relevant facts of the case were as follows:

  • On 6 May 2002, the plaintiff’s elder sister was diagnosed with chickenpox.
  • Later that day, Mrs King, who was pregnant with the plaintiff, presented to the Hospital with vaginal bleeding, back pain and abdominal pain. She told the Triage Nurse that she was 12 weeks pregnant, but did not disclose contact with her daughter who was infected with chickenpox.
  • Mrs King was then seen by Dr Jane Davidson. Mrs King told Dr Davidson of her exposure to chickenpox, but said that she believed she did not have chickenpox. Dr Davidson conferred with an obstetrician and gynaecologist and decided not to treat immediately with Varicella-Zoster Immunoglobulin (VZIG). Dr Davidson reassured Mrs King, took a blood sample and told her that an obstetrician and gynaecologist would review her on 9 May.
  • On 9 May, Mrs King attended an ante-natal clinic at the Hospital, but there was no consideration or discussion of her exposure to chickenpox.
  • Mrs King subsequently saw two general practitioners on 17 and 18 May, who both diagnosed her with chickenpox.
  • On 19 May, Mrs King again attended the hospital emergency department. She advised the doctor that her rash had appeared on the 17 May 2002. There was no evidence to suggest that Mrs King had developed chickenpox symptoms before 17 May. She was admitted to hospital and remained there until 22 May 2002.
  • Tamara was born on 1 November 2002 with symptoms of congenital varicella infection.


King v Western Sydney Local Health Network provides a solid overview of the law regarding medical negligence liability under the Civil Liability Act. In particular, the case highlighted the importance of contemporaneous medical records to the determination of medical negligence claims, the nature of the duty of care owed to a foetal plaintiff, and the way in which the s5O (s.5PB in WA) defence should be determined. The court also clarified the role of ‘common sense’ arguments and epidemiological studies in determining causation of harm for negligence.