The background
Ms O’Loughlin (the Plaintiff), a mother of six children at the relevant time, was advised by Dr McCallum (the First Defendant) to consider a sterilisation procedure after the birth of her sixth child. The Defendant had recommended the sterilisation procedure because any future pregnancy and birth carried a risk to her life.
The Plaintiff subsequently consented and underwent a tubal ligation procedure, which she assumed had been successful. However, unbeknown to the Plaintiff the sterilisation procedure was not successful and some 4 years later she fell pregnant again.
The Defendants admitted negligence with respect to the performance of the procedure and it then fell to the Court to determine what damages should be payable in order to put the parents in the same position they would have been in had the sterilisation procedure not been negligently performed.
The outcome
Loss of earnings
The First Plaintiff claimed that but for the child’s birth, she would have commenced employment and she claimed loss of earnings for the period from 2015 to 2020 when the child would have commenced schooling. The Defendants argued that the First Plaintiff had no relevant earning capacity because she lacked any employment history and was the main care giver to her children. It was also submitted that an assault conviction against her further limited her employment prospects.
The trial judge considered the First Plaintiff’s maximum earning capacity was limited to employment opportunities in unskilled positions that were available while her children attended school. Whilst commenting on the scant evidence available demonstrating that the First Plaintiff’s diminished earning capacity was actually productive of financial loss, the trial judge awarded $20,000.00.
General Damages
The First Plaintiff submitted that she had suffered anguish at discovering the pregnancy and pain after the birth of her child. The Defendants in reply submitted that the Plaintiff had a normal pregnancy and there was an absence of evidence of any incapacity while recovering from birth.
The trial judge held that the First Plaintiff experienced anxiety about the risk to her of the pregnancy, the pain and trauma of the birth process and that her quality of life was adversely affected because she was not able to be involved in the care of her other children for a period of time after the birth. For this, the Plaintiff was awarded $22,000.00 net of the statutory threshold, for general damages.
Assessment of the costs of raising the child
In accordance with other case law, it was accepted that the parents were entitled to damages for the costs of raising the child. However, other than evidence of their modest household income, the parents did not adduce evidence of the past or future costs of raising the child. The Defendants adduced expert actuarial evidence which relied upon the National Centre for Social and Economic Modelling (NATSEM) to estimate the average costs of raising a child taking account of certain variables, including level of household income and family size.
The judge accepted the estimate of costs sourced from the Defendants’ expert as the appropriate assessment of loss. Using those estimates, the parents were jointly awarded $83,347.00 as damages for the economic cost of raising the child.
The implications
The assessment of damages in claims of this type is always difficult and is often influenced by the circumstances of the family involved. Whilst this case does not establish any new principles to be relied upon when undertaking such an assessment, it does highlight that each claim must be assessed on the basis of its own facts.
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