Failed contraception claim

Stobart v Al-Hakeem [2017] WADC 127 was a ‘wrongful birth’ claim asserting that a medical practitioner failed to properly insert an Implanon contraceptive device, in the sense that the defendant medical practitioner failed to properly ascertain that the claimant was in the first five days of her menstrual cycle at the time of insertion. The claimant later became pregnant but by that time believed (at [213]) that she could not lawfully terminate the pregnancy as it was too far advanced. The defendant had not asserted contributory negligence in that regard, in any event (see [224]).

The claim was ultimately unsuccessful, with some adverse comment about the reliability of the evidence of the claimant (see [308]).

In the notional assessment of damages the trial judge applied a contingency of 10% given that the claimant may have later chosen to have another child (at [328]).

A ‘gratuitous care’ claim does not appear to have been made.




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