Moore v State of Queensland[2005] QSC 48

SUPREME COURT OF QUEENSLAND

Introduction

[1] On 21 January 2001, the plaintiff was admitted to the Redland Bay Hospital, owned and operated by the first defendant, after suffering an incomplete miscarriage. After consultation with Dr Hillen, a registrar employed by the hospital, she decided to be sterilised by means of application of clips to the fallopian tubes. On the next day Dr Hillen performed a laparoscopic procedure in which a Filschie clip was placed over each of her fallopian tubes. She became pregnant in early 2002 and gave birth to a son on 7 October 2002.

[2] On 11 June 2002, she commenced these proceedings against the State of Queensland and two other entities claiming damages for negligence. The allegation of negligence, in paragraph 8 of the Statement of Claim, is particularized as follows:

“8.1failing to adequately secure the filshie clips to the fallopian tubes so as to ensure complete occlusion of the tubes;

...

8.3 failing to inspect the attached clips to ensure that the upper jaw had been fully compressed and securely locked under the nose of the lower jaw;

8.4 failing to place the filshie clips on the isthmic portion of the tubes, 1-2 cm from the cornu.”

The plaintiff’s case

[3] On the trial, the plaintiff’s case was based on the evidence, which will be discussed in more detail shortly, that the clip was placed on the ampulla of the right fallopian tube rather than its isthmic part. This, it was asserted, was contrary to proper medical practice, enhanced the risk that the tube would not be fully occluded and, on the balance of probabilities, caused the plaintiff’s pregnancy. No reliance was placed on particular 8.3. The proceedings were discontinued against the other defendants.

The defendant’s case

[4] Ms Dalton SC, who appeared for the defendant, argued on the basis of the expert evidence called on behalf of the defendant that it was not wrong or negligent to place Filshie clips on any section of the fallopian tube as long as the tube was completely occluded. In this case, it was submitted, a considerable body of evidence showed that the clip had been placed around the whole of the tube resulting in a full occlusion. Whatever the cause of the pregnancy, it was not the faulty placement of the clip.

The Filshie clip

[5] Filshie clips are 12.7mm long and 4mm wide with jaws of titanium lined with silicon rubber. They effect sterilisation by being locked across the breadth of each fallopian tube to occlude [close] the tubal lumina [hollow channel or aperture].[1]

[6] Dr Korda, a highly qualified obstetrician and gynaecologist who was called on behalf of the plaintiff, described the application procedure in the following terms:

“The mid portion of the fallopian tube is fully grasped deep in the angle between the jaws of the Filshie clip applicator that is in the open position … The operation requires practice and coordination of the clip applicator and the uterine manipulator. The tube can be gently slid deep into the jaws of the applicators with a sideways snuggling motion until the mesosalpinx butts the angle of the hinge of the clip. The clip is held in a cradle by the open applicator until an acceptable position is achieved. At this point, pressure of the applicator drives the spring mechanism over the jaws of the clip, locking it closed. The top of the clip thus becomes flat, losing its gentle convex curve. If the clip does not end with a flat top, the clip has not been correctly applied.”

[7] Dr Korda goes on to observe:

“If improper application is determined at this point, the clip cannot be removed, and another clip will have to be placed.”

[8] The process by which the clip fulfils its purpose has been described as its being “slowly locked in place around the entire circumference of the tubal isthmus [so that the fallopian tube is] gently crushed and the lumen is closed. As ischemic necrosis develops, the inner silicone lining swells and expands, resulting in obliteration of the isthmic segment”.[2]

The correct placement of the Filshie Clip

[9] As observed earlier, an issue in the case is whether Dr Hillen was negligent in affixing the clip to the ampullary section of the right fallopian tube rather than to its isthmic section. Dr Penfield’s article, quoted above, describes the clip’s method of affixation as locking around “the tubal isthmus”. The same article, under the heading, “Recommendations concerning Filshie Clip application” states that the isthmus is “the proper site of application”. Dr Filshie, the clip’s designer, wrote in an article in July 1999:[3]

“The clip should normally be placed over the isthmic part of the fallopian tubes … as this is the thinnest part. Application of clips over the ampulla is not recommended as it is possible not to completely occlude the whole tube.”

[10] The operating room instructions current at relevant times provided by Femcare Ltd, the manufacturer of the Filshie clip and provider of the clip applicator, direct that the clip be placed on the isthmic portion of the fallopian tube “1-2cm from the cornu”.

[11] All expert medical witnesses accepted, either expressly or implicitly, that the normal method of application of the clip was for it to be placed on the isthmic portion of the fallopian tube. It may be inferred that the great bulk of relevant medical literature is to like effect.

[12] It was common ground between the witnesses who ventured a view on the point that the principal reasons for this placement were:

(a) the fact that the tube was at its thinnest in this section and the clip was thus more likely to be able to fully occlude the whole tube when closed; and

(b) reversal of a tubal ligation was likely to be more successful if the tube had been occluded or severed at its isthmic portion.

Did the placement of the clip on the ampullary section of the right fallopian tube breach a duty of care?

[13] In Dr Korda’s opinion, the failure to apply the clip to the isthmus of the fallopian tube amounted to conduct “below an appropriate code of conduct” for a medical practitioner.

[14] Dr Vaughan, a very experienced obstetrician and gynaecologist who was the Director in Obstetrics and Gynaecology at the Redlands Hospital, did not directly address this issue. In a statement of his which was tendered, after referring to the reasons for it being recommended that Filshie clips be placed on the isthmic portion of fallopian tubes, he observed:

“Nevertheless, the purpose of a tubal ligation is to interrupt the tube to prevent the union of sperm and ovum. If the clip is placed on the ampullary section and successfully occludes the whole width of the tube, then the operation has been performed correctly.”

[15] Dr Robson, Director of Obstetrics and Gynaecology at the Canberra Hospital, and senior lecturer of obstetrics and gynaecology at the Australian National University, addressed the question more directly, asserting in a May 2003 report:

“It is competent practice to place the Filshie clip in such a way that the fallopian tube is completely enclosed within the clip, whatever portion of the fallopian tube the clip is applied to.”

[16] Despite these views, neither Dr Robson nor Dr Vaughan suggested that he, or any other medical practitioners to his knowledge, had a practice of applying the clip to the ampullary section of fallopian tubes. Dr Hillen gave evidence that his practice was to put clips on the isthmic portion of the fallopian tube about 2-3 cm from the corner of the uterus and that he had not placed a clip “out there so far … before or again”.

[17] Dr Hillen’s evidence, which I accept, was that he usually inspected the placement of the clip through the laparoscope and satisfied himself that the tube was fully occluded. In his notes made shortly after the conclusion of the procedure, he recorded “completed (sic) occluded”. His practice at the time was to place another clip on the tube if he thought it had not been fully occluded. In this case he did not see the need for a further clip.

[18] The thrust of the evidence, however, including that of Dr Hillen himself, is that visual inspection through a laparoscope, whilst useful, and indeed a basic part of the procedure, will not necessarily reveal an imperfect fitting. Dr Korda’s explanation of the inconclusiveness of visual inspections was as follows:

“So you cannot see absolutely that you’ve occluded the entire breadth of the tube in that clip … That’s the whole idea of not doing it where the ampulla is.”

[19] The standard of care owed by a doctor to his or her patient is that of “the ordinary skilled person exercising and professing to have that special skill … that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.”[4]

[20] In my view, an ordinary skilled medical practitioner in Dr Hillen’s position would not have placed the clip on the ampullary section of the tube without good reason for departing from the procedure counselled by the medical literature and followed by skilled practitioners. Having departed from the normal practice and appreciating that visual inspection had its limitations, he would have placed another clip on the isthmic section of the tube. The failure to place the clip on the isthmic section of the right tube increased the risk that the whole of the tube would not be contained within the clip and, consequently, that full occlusion would not occur. That risk was capable of being avoided by the application of another clip and no reason, apart from Dr Hillen’s satisfaction with his visual inspection, was advanced for disregarding this straight forward precaution. Accordingly, the conclusion I have reached is that there was a breach of the doctor’s duty of care for which the first defendant is vicariously responsible.

[21] That conclusion does not, of itself, establish the defendant’s liability. For the defendant to be liable, the plaintiff must prove that the cause of the pregnancy was the faulty application of the clip. Although the attachment of the clip to the ampullary section of the right fallopian tube increased the risk that the tube might not be fully contained within the clip, it does not follow that the clip was not in fact fully contained.

[22] Before proceeding to the issue of causation, I should mention that there may be reasons, such as difficulty of access, for placing a Filshie clip on other than the isthmic section of the fallopian tube. No such reason was recorded in Dr Hillen’s notes and he is unable to recall why he departed from his otherwise universal practice in this case. It is thus now possible only to speculate as to whether such a reason existed. Moreover, the existence of a valid reason for the subject placement was not an issue raised on the pleadings. 

The evidence relied on by the defendant for the conclusion that the right fallopian tube was fully occluded by the clip

[23] Dr Hillen recorded immediately after the operation that the right fallopian tube had been completely occluded. He confirmed in his oral evidence that he was aware of the unusual positioning of the clip at the time of its placement and that he checked it carefully. I accept that he did so.

[24] On 9 October 2002, Dr Vaughan conducted a further sterilisation procedure on the plaintiff, removing both fallopian tubes from close to the point at which each tube joined the uterus. When the tubes were removed, the clips were still attached and Dr Vaughan observed that “there was an excellent application of the clips to the tubes”. He said, and I accept, that as failure of the procedure was uncommon, he inspected the clips with particular interest. He also looked at Dr Hillen’s notes and the photographs taken at the time of Dr Hillen’s procedure. He remarked in the course of his oral evidence that “… I was in no doubt in my mind that the tubes had been clipped and the lumen, or the hole in the tube, was completely obstructed by the clip on both tubes”.  In cross-examination he said of the right fallopian tube, “It looked to be completely occluded by the clip. You can see quite easily by the naked eye that they come across the tube.”

[25] In a signed statement which was tendered, Dr Vaughan referred also to the histopathology report and concluded from this, the photographs taken for the purposes of the report, Dr Hillen’s photographs, and his own observations that the tubal occlusion was performed effectively and that the plaintiff’s pregnancy was not due to any failure of the tubal occlusion.

[26] Dr Vaughan requested histopathology of the plaintiff’s fallopian tubes after their removal by him. On the request form he asked that a very detailed report be given, that there be two opinions and he drew attention to the possibility of litigation. No doubt was cast on any of the above evidence of Dr Vaughan by cross-examination.

[27] Dr Milne, recently qualified as a pathologist, was then employed as a registrar at the Princess Alexandra Hospital. He had been working in that capacity for over two and a half years and had been examining at least two pairs of fallopian tubes a day on average. This, however, was the first occasion on which he had been required to examine fallopian tubes with a view to ascertaining whether there was a failure in the application of a Filshie clip, and if so, the cause of the failure. He had not read any of the specialised literature relating to Filshie clips and the possible reasons for failure after their application.

[28] A biopsy report signed by Dr Axelsen, the supervising pathologist, was produced on 17 October 2002. The part of the report for which Dr Milne was responsible states:

“HISTORY

Histology. Please note that this case could likely be subject to litigation as pregnancy after ‘technically correct’ tubal clip in 2001. Please give very detailed report. Left tube clip applied 1/01. Photo evidence shows correct application. Bilateral salpingectomy. Two opinions please.

MACROSCOPIC

Two specimens received.

1.The specimen is labelled ‘Right tube’ and consists of a fallopian tube measuring 58 x 10 x 7 mm. Eleven millimetres from the proximal end is a metallic clip which is covered by a thin semitransparent membrane. The clip is intact, closed and tightly clamped around the tube. The entire lumen of the tube is compressed with the clip. The tissue actually within the clip is grossly compressed and appears atrophic. No pathologic abnormalities are identified … All tissue has been processed and photographs taken. The clip was broken during specimen dissection and has been retained in the pot. …”

[29] The matter under “HISTORY” records what Dr Vaughan had written on the histopathology request form save that Dr Vaughan had written “Filshie clip application January’01”, not “left tube clip applied 1/01”.

[30] Dr Milne took nine sections of tissue from each fallopian tube and, in particular, cut the tissue on each side of the clip placed on the right hand fallopian tube. He then examined the material on each side of the cut and attempted to determine the nature and extent of the tissue within the clip, which broke in the course of the examination. When asked if he dissected the material further, he replied:

“No, there was not much further dissection that could be done. Imagine you’ve got this metal clip as almost metal on metal, and, as I said, it was atrophic and fibrous and basically worn away to almost nothing, almost like a membranous, scarry, sort of tissue.”

[31] Dr Milne conducted the examination carefully and in a detailed way having regard to the pathology request and the prospect of litigation. He recalls also that, although some tissue was not enclosed within the clip, he was able to ascertain that it was paratubal tissue rather than tissue from the fallopian tube wall. When, in cross-examination it was suggested to him that all persons are fallible and make mistakes or fail to “pick things up” he said, “I certainly had a very close look at both of these specimens, and as far as my naked eye goes, … the tubes appeared to be correctly placed”. He thought it unlikely, although he could not say “a hundred percent” that he had missed something on his inspection.

[32] In re-examination, he explained:

“As I cut each side cutting through the lumen of the tube, obviously, on either side, and on both sides of the tube the lumen appeared to be going into the clip.”

[33] Asked how he could tell that, he replied, “Looking at it closely, cutting it very slowly, seeing where you are coming into the wall, and the lumen either side sort of narrowed down into that sort of tissue”.

Prospects of failure to achieve sterilisation in the event of regular clip attachment

[34] Dr Korda states in his report of 10 November 2003 that the incidence of failure with a Filshie clip tubal ligation is in the vicinity of 0-2:1,000 tubal ligations. It is his opinion that women seeking sterilisation by such means should be advised to that effect. He asserted that the procedure may fail by one of three mechanisms:

“The first is when there is presence of a tubo-peritoneal fistula … The second is regeneration of a tubo-tubal fistula … The third cause is the failure of the operator to perform a satisfactory procedure.”

[35] The same report notes:

“On balance, if the failure of a tubal ligation occurred at prior to one year it is more likely to be associated with a misapplication, although this is not proof of negligence. Failures after this time are more likely to be associated with natural causes.”

[36] Dr Korda explained this on the basis that if the tube is not completely occluded, a pregnancy is more likely to occur early because the egg has a greater chance of entering the fallopian tube, but after 12 months it is statistically more likely to result from another cause such as fistula formation.

[37] The failure rate stated by Dr Robson in his report was 2 to 3 in 1,000. Dr Vaughan used this rate as well. The difference between these statistics and those put forward by Dr Korda was not touched on in the course of evidence.  I do not regard the difference as significant for present purposes.

[38] Dr Milne’s examination did not detect the existence of any fistula and he thought it unlikely that he would have failed to notice one had it been present.

The expert evidence on the cause of the failure of the plaintiff’s tubal ligation

[39] Dr Robson advanced the following reasons why a Filshie clip may fail to prevent pregnancy:

1. Conception having occurred before application of the clips.

2. Incomplete locking of the clips.

3. Failure to include the entire lumen of the tube within the clip.

4. Application of the clip to the wrong structure.

5. Tubal re-canalization. The ends of the tube oppose and heal together, with reformation of the lumen of the tube.

6. Unexplained reasons.

[40] In his evidence in chief, he elaborated on what he meant by “unexplained”, saying that it meant the inability to determine a cause after investigation.

[41] In cross-examination, Mr Dorney QC, who appeared for the plaintiff, took issue with Dr Robson’s reference to “inexplicable” in his report and pointed out that the report does not refer to fistulas as such, let alone temporary fistulas. This cross-examination arose because Dr Robson gave as an example of an inexplicable reason for pregnancy, the formation of a fistula which healed prior to examination. Dr Korda, in his oral evidence, firmly rejected the possibility of a fistula having occurred and healed without its presence being revealed by the histopathology. In response to the assertion that “a fistula would leave some trace of its previous existence” Dr Robson replied:

“I don’t agree because they are usually inflammatory, they heal through that same inflammatory process and, in fact, on the histological (sic) report it explicitly says there is inflammation in the specimen.”

[42] Later in Dr Robson’s cross-examination, the following exchange occurred:

“So, this – it just happens to be in this case that there’s been some sort of temporary fistula that just happened to allow the ovum or ova through and just happened that you got a pregnancy in this case? - - I think we underestimate the enormous biological imperative of reproduction. There are more than 65 cases of women who have fallen pregnant after hysterectomy. People underestimate fertility.

But fistulas don’t occur because of this biological imperative do they? - - No, but they allow the biological imperative to be consummated.”

[43] Dr Korda, in response to questions posed for his opinion by the plaintiff’s solicitors, expressed the view in a report that, on the balance of probabilities, the application of a clip over the ampullary portion of a fallopian tube would “significantly increase the risk of” pregnancy. Invited to comment on whether the failure of the plaintiff’s sterilisation could have been caused by the failure to apply the clip to the isthmus, Dr Korda wrote:

“On the balance of probabilities, not applying the Filshie clip to the isthmic portion of the tube … is associated with a greater incidence of pregnancy. The failure of the operating surgeon to apply the Filshie clip to the isthmic portion of the tube would be associated with significantly greater incidence of failed sterilisation.”

[44] Dr Korda, having reviewed copies of photographs taken at the time of the original surgery and in the course of the histopathological examination, was invited to re-address the last two questions. He did so in a second report dated 22 December 2004. The second of these questions was identical in terms to the second question addressed in his 10 November report but he expanded his response by adding:

“On the balance of probabilities a placement of the Filshie clip on the ampullary section of the right fallopian tube has resulted in the failure of the sterilisation procedure and your client’s subsequent pregnancy.”

[45] In cross-examination Dr Korda explained:

“It’s very hard to occlude the tube at the ampullary end and the analogy would be a bit like trying to compress a garden hose. If you can’t put whatever you use to compress it, like a G-clamp to completely occlude across the whole breadth of the tube, you cannot be sure that the lumen is occluded. A small knuckle of lumen could escape from your clamp, so it is quite important.”

The words emphasised by me in the above quotation are of significance in later discussion.

[46] In Dr Korda’s opinion, the clip should never be fixed to the ampullary end of the tube because of the impossibility of determining by visual observation in the course of the procedure that the tube is fully contained within the clip, “because the fallopian tube … is hanging on a line like a sheet. When you put the clip across that line portion of tube, part of that is actually invisible because the mesosalpinx occludes it at the ampullary end.” Whereas, in his view, when the clip is applied at the isthmic end “you are more likely to tell … because the isthmus is much smaller and the clip is wide enough to completely cover the entire breadth of the tube”.

[47] In cross-examination, Dr Korda agreed with the suggestion that his response to the second question in his first report was all he could “honestly say … in answer to that question … because you accept, as you’ve told me, that the histopathology shows that the lumen on the right is completely occluded and that the material within the clip was degraded, fibrotic, and almost not there?”

[48] The following exchange then occurred:

“So that if someone comes to you – a solicitor, or anyone else, a colleague, for that matter – and says: look, I want your opinion on this. We’ve got a woman who is pregnant post a tubal ligation, here, look where I’ve put the clip; up on the ampullary section. All you can honestly say is: well, that increases the risk of the woman falling pregnant. We would have to look to see whether or not the lumen has been completely occluded. That’s the only significance, isn’t it, of that piece of information; that it puts you on alert to see if it has occluded the lumen? – Yes.”

[49] Dr Korda was then taken to the further opinion expressed in his second report and invited to explain how he could have held it, having regard to the contents of his first report and the answers he had just given. His response, in effect, was that the only possible explanation for the failure of the sterilisation was the faulty placement of the clip.

[50] Pressed closely by Ms Dalton SC to explain the different answers to the second question, Dr Korda initially said that he had been asked a different question the second time. When it was pointed out to him that the questions were the same, he said that he had not changed his opinion but had merely elaborated on it.

[51] Neither in his two reports, nor in his oral evidence did Dr Korda explain why the conclusion of Dr Milne that the right tube had been fully occluded should not be accepted. Indeed, the first report accepted the finding implicitly, if not expressly. His approach in his oral evidence was essentially that if a pregnancy occurred and if the histopathology results revealed no other possible cause of the pregnancy such as the existence of a fistula, it necessarily followed that full occlusion had not occurred.

[52] Dr Robson worked from the converse premise. He accepted Dr Milne’s evidence that there had been full occlusion and therefore concluded that there had been some other cause of the pregnancy, such as the existence of a fistula. He supported this opinion by reference to his examination of the photograph taken by Dr Hillen at the time of the operation and appeared to have no difficulty in accepting the accuracy of Dr Milne’s naked eye observations.

Conclusions on the question of causation

[53] None of the evidence suggests that there would be a higher chance of complete occlusion by applying the clip to the isthmic rather than the ampullary section of a fallopian tube where the whole of the tube is enclosed within the clip. The evidence did not touch upon the possibility that the clip, although containing the tube, may not have been fully compressed. Perhaps it was thought that such a possibility was excluded by the evidence of Dr Milne and Dr Vaughan.

[54] The parties approached the evidence on the basis that the clip, when examined, was appropriately fixed. The issue was not the manner of affixation, but the place of affixation and whether as a result of misplacement, full occlusion had not occurred.

[55] Dr Korda’s evidence appeared to proceed on the assumption that if the tube is fully enclosed within the clip, which is then properly applied, complete occlusion will occur irrespective of the location of the clip on the tube. That view is consistent with the opinions of Doctors Robson and Vaughan.

[56] Where, as is the case here, a Filshie clip is applied to the wrong part of the fallopian tube and a pregnancy nevertheless occurs after a few weeks but before 12 months, on the face of things, the most likely cause of the pregnancy is the failure of the clip to occlude the lumen. Statistically, there is a very modest prospect of the existence of some other cause.

[57] In this case, however, there is a strong body of evidence that the tube was entirely within the clip and that, in consequence, full occlusion did occur. Acceptance of that evidence leads to the conclusion that this is one of the rare cases in which, despite Filshie clips being properly applied to the fallopian tubes, pregnancy has resulted. The evidence in question is cumulative in nature. It commences with Dr Hillen’s careful visual inspection at the time of the procedure. That was followed by Dr Vaughan’s close inspection when the fallopian tubes were removed. Dr Milne then performed his examination. He was aware of the need for particular care and there is no reason to doubt that he exercised it.

[58] Dr Milne had not studied any of the literature on Filshie clip failure, but it was not shown that, had he done so, he would have carried out his examination differently. Nor was it shown that his examination technique was deficient in any way. No microscopic examination was carried out, but there was no evidence to the effect that a microscopic examination was necessary to establish whether the lumen had been fully occluded. Indeed, it appeared to be accepted by Dr Korda that no microscopic examination was necessary to establish the existence or non existence of a fistula.

[59] Another matter which operates in the defendant’s favour is the lapse of time between the operation and the pregnancy – almost twelve months. Dr Korda’s evidence, supported by the medical literature, was that a failure of tubal ligation within one year is more likely to be associated with a misapplication whereas failures after one year are more likely to be associated with natural causes. This pregnancy, as Dr Robson observed, was “on the cusp” of the 12 month period.

[60] Dr Milne’s examination failed to reveal the presence of a fistula or other physical phenomenon which could explain the movement of a fertilised egg along the right tube. But Dr Robson, who impressed me as a careful and considered witness, advanced one possible explanation for the plaintiff’s pregnancy. Whilst I do not doubt Dr Korda’s expertise, it did seem from the evidence to which I referred earlier that his evidence in support of the plaintiff’s case strengthened considerably in his second report. And I was not persuaded that the additional evidence made available to him after his first report justified this change in emphasis.

[61] For the above reasons, I am unable to be satisfied that the plaintiff’s pregnancy was caused by any breach of Dr Hillen’s duty of care.

Quantification of the plaintiff’s damages

[62] The defendant accepts that it follows from the decision in Cattanach v Melchior[5] that if the plaintiff establishes a breach of the defendant’s duty of care, she is entitled to damages for the cost of raising and maintaining the child.  The quantum of damages in that regard has been agreed, except as I will presently explain, at $150,000, including interest.

[63] The sole remaining quantum issue is whether the amount the plaintiff will receive over the child’s lifetime as benefits paid as One Off Payments to Families, Maternity Payment, Child Care Benefit and Family Tax Benefits A and B under the A New Tax System (Family Assistance Act) 1999 (“the Act”) should be deducted from the agreed amount of compensation for the cost of raising the child or the agreed amount of the plaintiff’s future loss of income.  The former is agreed at $90,000, the latter at $20,000 and the sum receivable under the Act is agreed at $20,000.

[64]  Under section 21 of the Act an individual is eligible for a “Family Tax Benefit” if the individual has at least one FTB child and meets the criteria specified in section 21(1)(b) and (c).  The individual’s rate of Family Tax Benefit, worked out under Division 1 of Part 4, must be greater than nil.[6]  Section 3 of the Act provides that the expression “FTB child” in relation to a Family Tax Benefit and in relation to Childcare Benefit has the meaning given in Subdivision A of Division 1 of Part 3 of the Act.

[65] Section 22,[7] sets out the circumstances in which an individual is an FTB child of another individual. Dealing with individuals aged under 18 who are Australian residents, the section establishes that such individual is an FTB child of “the adult” where:

“●the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and

●the individual is in the adult’s care.” 

[66] Other parts of the section deal with the circumstance in which a family law order or registered parenting plan is in force in relation to the individual and the circumstance in which the individual is in the care of an adult who does not have the legal responsibility for the individual’s day-to-day care, welfare and development.

[67] In tort, damages are awarded with the object of placing the plaintiff in the position in which he would have been had the tort not been committed.[8] An alternative formulation is that a plaintiff cannot recover more than he has lost.[9] Had this tort not been committed, the child would not have been born and the plaintiff would not have incurred the cost of raising and maintaining her. It would thus seem to follow as a matter of general principle that, unless the payments under the Act are offset against damages awarded to compensate the plaintiff for the care and maintenance of her child, she will receive excessive compensation.  The development of the law in this area, however, is such that the question now under consideration must be answered by reference to the principles articulated in a number of High Court decisions, rather than by resort to the basic principles referred to earlier.[10]

[68] As I have determined the question of liability against the plaintiff, it is unnecessary for me to pursue the question of quantum any further.

Conclusion

[69] As the plaintiff has not succeeded in establishing liability, there will be judgment in the action for the first defendant with costs including reserved costs, if any, to be assessed on the standard basis.