Section 71 Does Not Preclude Damages for Psychiatric Injury Arising from Childbirth

Jul 11, 2024 | Publication

In the landmark decision of Dhupar v Lee [2022] NSWCA 15, the New South Wales Court of Appeal clarified that damages can be awarded for economic loss resulting from a psychiatric injury suffered by a mother due to childbirth. This decision underscores the distinction between ordinary costs of child-rearing and economic losses arising from other causes, such as medical negligence.


The case revolved around a medical procedure performed by the appellant doctor on the respondent patient. The procedure involved a tubal ligation using Filshie Clips to clamp the Fallopian tubes for permanent contraception. Approximately nine months later, the patient discovered she was pregnant and subsequently filed a claim against the doctor for allegedly negligent application of the Filshie clips.

The trial judge found that the doctor had misapplied the left clip, resulting in incomplete closure. This application was deemed inconsistent with widely accepted peer professional standards, thus violating section 5O of the Civil Liability Act 2002. The doctor’s defence, based on the inherent risk under section 5I of the same Act, was unsuccessful.


The doctor appealed the trial court’s decision regarding both liability and damages. While acknowledging that pregnancy can occur post-tubal ligation without negligence, the Court of Appeal concurred with the initial finding that the left Filshie clip was improperly applied, leading to incomplete closure. Hence, the liability verdict of the District Court was upheld.

Concerning damages, the appeal did not dispute the trial judge’s conclusions that the patient developed a psychiatric injury following the birth of her child and suffered loss of earnings and earning capacity due to this injury.

Section 71 of the Civil Liability Act 2002 stipulates that in claims involving the birth of a child, damages for economic loss related to the cost of raising or maintaining the child, including lost earnings during this period, cannot be awarded. However, the trial judge determined that section 71 does not preclude awarding damages for loss of earnings due to psychiatric injury linked to childbirth. This interpretation was affirmed by the Court of Appeal, which upheld the damages awarded to the mother for her lost earnings due to psychiatric injury.


The decision in Dhupar v Lee [2022] NSWCA 15 highlights the need to distinguish between economic losses from the routine costs of child-rearing, which are not compensable, and losses arising from other causes, such as psychiatric injuries. Section 71 of the Civil Liability Act 2002 does not prevent recovering economic losses for psychiatric injuries (and potentially other physical injuries) caused by childbirth. This case reinforces the availability of damages for economic loss arising from injuries suffered by a mother due to childbirth.

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