Case

X & Y v Pal
(1991) 23 NSWLR 26; (1991) Aust Torts Reports 81-098

Summary

Facts

A woman (X) with undiagnosed syphilis had given birth to a child with congenital abnormalities who died one month after birth. She had during that pregnancy been cared for by Dr. Pal, who had failed to screen her for syphilis. During her second pregnancy she was cared for by a number of other specialists, one of whom incorrectly told her that her first child had died of toxoplasmosis, and advised her there was no reason she should not proceed with a second pregnancy. Again, she was not tested for syphilis. Y was subsequently born ‘dysmorphic and mentally retarded’ and suffering from syphilis. The substantial default for which the doctors were sued was their failure to test for and so to diagnose X’s syphilis.

Held

(i) The mother (who had suffered shock on learning of the child’s syphilis) was entitled to recover for that shock.

(ii) The birth of a child suffering from syphilis being a foreseeable consequence of the negligent act of each of the doctors, the child was entitled to recover against each of them damages for the syphilitic condition with which it was born.

(iii) It was open to the primary judge to conclude from the expert evidence that the cause of the dysmorphic feature and mental retardation was not the syphilis suffered by the mother. The child could not recover damages for those disabilities.

(Causation failed in relation to (iii).)

Key Information

Court:

Supreme Court of New South Wales – Court of Appeal

Judges: Mahoney, Clarke, and Meagher JJA

Issues:

Pre-natal injury

Duty of care: preconception, pregnancy

Case Citator:

LawCite