As you may know I am teaching Torts at the moment. We recently covered trespass to the person, which I admittedly have a soft spot for. I like it because trespass to the person actions are easily relatable. I also like it because it shows us how a number of areas of...
Cruising, Pregnancy and Miscarriage- Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650
Recent Blog Posts
Medical Negligence, Causation and Bariatric Surgery!!!
Woohooo…I am teaching causation in negligence actions again!! Causation is kinda cool but can also be super tricky… Essentially causation in a negligence action, relates to whether or not the defendant (alleged wrongdoer) caused the harm to the plaintiff (person who...
Duty of Care and Climate Change…
Nothing gets people more excited than talking about owing duties of care. For the uninitiated, duty of care in a negligence action relates to whether or not a defendant owes a legal duty to another. Within a negligence action, finding a duty of care is often easily...
Social Media and Criminal Law- Revenge Porn, Cyberbullying and Harassment!!!
This week we investigated the intersection between social media and criminal law in my Social Media Law course. I will be honest and tell you I was both appalled and confused by many of the cases and incidents which are cited relating to criminal activities which take...
I recently read Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650. This case may be of interest to students in my Torts Law class.
The plaintiff was 15 weeks pregnant when she started to show signs of losing her baby. At the time she was enjoying a cruising holiday with P & O Cruises (Carnival). Ms Waine consulted with Dr Pretorius, who was P & O’s resident doctor. Dr Pretorius initially thought there was a scratch on her cervix that was causing the bleeding. He opined this was the result of rough sexual intercourse.
Ms Waine decided to travel back to Australia after her consultation with Dr Pretorius. Sadly, the signs of miscarriage did not abate, and her bleeding became worse. The plaintiff’s evidence is quite confronting when describing her experience at Auckland Airport- she had to walk through Auckland airport covered in blood with people staring at her in horror. She was later admitted into Auckland hospital.
This post will focus on the negligence claim against the ship’s doctor Dr Pretorius. The key legal issues in contention were breach, causation and the scope of the duty of care Dr Pretorius owed Ms Waine. This latter aspect included the advice and warnings Dr Pretorius should have given the plaintiff in relation to her medical position. Other causation issues were discussed. For example, would Ms Waine have received medical assistance in Noumea, instead of attempting to travel home to Australia, if she had been given appropriate advice and warnings? In addition, did the fact she miscarried at Auckland Airport cause her to develop a psychological disorder? Defences relating to whether or not the plaintiff contributed to her harm were also discussed.
Taylor SC DCJ held that Dr Pretorius did owe a duty to give further advice and warnings about the risk of miscarriage and subsequent bleeding and infection. In addition, it was held the doctor should have formulated a management plan (including an ultrasound) for Ms Waine whilst onboard the ship. Furthermore, advice about possible complications if she attempted to travel back to Australia should have been discussed. Thus, it was found that Dr Pretorius breached his duty of care.
In relation to causation it was found that if she had been given adequate advice by Dr Pretorius, she would have chosen not to travel back to Australia until the miscarriage and aftermath was concluded. In other words, the lack of adequate advice was a necessary condition which led to her psychological injury. Thus, the circumstances of the miscarriage, rather than the miscarriage in isolation was the main reason Ms Waine suffered injury.
Ms Waine received damages of $326,122 and was awarded costs. Heads of damage which were compensated for included loss of earning capacity, non-pecuniary losses and medical expenses.