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Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650 (on Caselaw)
The plaintiff suffered a miscarriage during and after a cruise supplied by the defendant, Carnival PLC trading as P&O Cruises Australia. She suffered heavy bleeding and discharge of the products of conception whilst in Auckland Airport on her way to Australia, which resulted in her being hospitalised in Auckland for two days. She sued Carnival for damages, including substantial psychological damage, arising from that event.
The plaintiff’s claim was made in negligence, in contract and for misleading conduct under the Australian Consumer Law. Each cause of action depended upon proof of negligent medical care provided to Ms Waine by Carnival, principally by the ship’s doctor, Dr Warren Pretorius, and the damages that resulted. Carnival did not dispute a duty of care, but denied any breach of that duty, and denied that any conduct of it or Dr Pretorius caused damage.
The trial judge determined that the doctor had a duty at the time of the first consultation to advise Ms Waine about the possibility and risks of a miscarriage, including of severe bleeding, infection and loss of the baby. He was obliged to identify a plan of management, including an ultrasound to confirm the status of the foetus, and for patient rest until then, and to investigate the facilitation of getting Ms Waine off the ship if she wanted that, especially if it was at her cost; and at the time of the second consultation to give Ms Waine advice about the risks of complications were she to attempt to fly back to Australia whilst the miscarriage remained incomplete, and advice about the options of waiting in Noumea for the natural result of miscarriage; and of having surgical or medical intervention in Noumea in a hospital before returning to Australia, including providing details about the hospital, its facilities and ability to perform a D&C. Breach of duty was found ([124], [131]).
As for causation, the trial judge held that the prudent choice would be to have treatment in Noumea ensuring the miscarriage was complete before returning to Australia. There was nothing in the evidence to indicate that Ms Waine was not prudent in respect of her health. From her enquiries before cruising about the medical facilities available on the cruise, to her willingness to immediately seek medical advice when she noticed discoloured urine, to her early morning attendance on Dr Pretorius, to her attendance upon the specialist in Noumea, to her immediate contact with the doctor on returning to the ship with concerns about what she should do: all show she was open to information, advice and medical assistance. The Court held she would have been prudent in deciding her course of action had she been given the appropriate advice, and prudence dictated not travelling indirectly back to Australia with an incomplete miscarriage. The defective advice of Dr Pretorius was a necessary condition of the occurrence of the harm of discharging the products of conception in an uncontrolled environment ([158]-[159]). And at [177]:
As Dr Samuell and Dr Byth both attribute her psychiatric condition to the events of the miscarriage in Auckland Airport, I am satisfied on the balance of probabilities that the negligence of Dr Pretorius was a necessary condition of the occurrence of the psychiatric harm. She had no similar consequences with her previous miscarriages that occurred in controlled environments, and I accept the common view of the expert psychiatrists that the circumstances of the miscarriage rather than having a miscarriage itself was the “predominant stressor” or cause of the psychiatric condition.
Damages were assessed and a partial indemnity costs order was made by reason of an offer of compromise served by the plaintiff.
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