Failed-vasectomy surgeon loses appeal for costs

A surgeon who was unsuccessfully sued over a failed vasectomy has lost his appeal to the Supreme Court over costs.

Masterton couple Scott and Melissa Bensemann lost their bid for compensation from Masterton Hospital surgeon Alan Shirley in 2004 after the vasectomy he performed on Mr Bensemann failed and Mrs Bensemann had a fourth child.

Mr Shirley spent $34,000 defending the case and the High Court at Wellington ruled the Wairarapa District Health Board - which had earlier settled with the Bensemanns - should pay a third of his costs.

The Supreme Court yesterday announced that it had unanimously upheld a decision by the Court of Appeal which quashed a costs order made by the High Court against the board.

In its decision the Supreme Court said that while the board had settled with the plaintiffs, Mr Shirley chose to defend and succeeded.

"In the usual course he would have obtained a costs order against the plaintiffs, but could not do so in this case as they were legally aided. Instead he sought costs against the board."

The Supreme Court agreed with the Court of Appeal's majority decision that costs should not have been awarded against the board.

It held that the case was not one warranting departure from the established general principle that the loser, and only the loser, paid costs.

"The High Court erred in treating the board as having caused Mr Shirley's costs," the Supreme Court said.

"The costs have been caused by the plaintiffs and all the board had done was to have Mr Shirley joined as a defendant."

- NZPA