Medical negligence claim dismissed
On 25 November 2025, the Supreme Court of NSW delivered judgment in Stott v Rashid [2025] NSWSC 1379, dismissing the plaintiff’s claim for damages arising from a mid-urethral sling procedure performed in 2013 to treat stress urinary incontinence.
The plaintiff alleged that the defendants failed to warn her of material risks associated with the procedure and that the surgery was negligently performed.
The CSO acted for the defendants, providing representation and advice throughout the proceedings.
Key findings of the Court:
- The first defendant owed a duty to warn of material risks, including the risk of urinary tract infection, worsening of pre-operative voiding symptoms, short-term urinary retention requiring catheterisation, and the rare possibility of revision surgery.
- The Court accepted the first defendant’s evidence that the plaintiff was provided with warnings and a brochure addressing infection, worsened voiding symptoms, and short-term urinary retention, but did not specifically warn of catheterisation or revision surgery.
- Although these two warnings were not given, causation was not established. The Court found the plaintiff would have proceeded with surgery even if those warnings had been provided, given the severe impact of her long-standing symptoms, and the failure of non-surgical options in addressing the symptoms.
- No breach of duty was established in the performance of the surgery. Expert evidence did not support allegations of nerve injury or negligent technique.
- Claims under contract and statutory guarantees pursuant to the Australian Consumer Law (NSW) also failed.
- The claim was brought within time, as the plaintiff became aware of the cause of action upon receipt of her expert liability report.
This judgment reinforces two key principles for NSW agencies:
- The scope of a medical practitioner’s duty to warn is assessed by reference to material risks under Rogers v Whitaker.
- Failure to warn does not, by itself, establish liability. Causation remains critical - the plaintiff must prove they would have declined the procedure had the warnings been given.
Contacts
Denise Aydin, Special Counsel
denise.aydin@cso.nsw.gov.au
Amy Lee, Senior Solicitor
amy.lee@cso.nsw.gov.au
