Armellin v Ljubic [2009] ACTCA 22

IN THE SUPREME COURT OF THE ) No. ACTCA 7 - 2009

) No. SCC 447 of 2005

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: SYDNEY ROBERT ARMELLIN

Appellant

AND: DRAGICA LJUBIC

Respondent

Judges: Higgins CJ, Refshauge and North JJ

Date: 18 December 2009

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal against a decision of the Master, handed down on 13 March 2009 awarding to the respondent against the appellant damages for negligence in the sum of $170,200 and costs.

2. The claim arose out of a total abdominal hysterectomy that took place on Thursday 25 November 2003 performed by the appellant, a specialist obstetrician and gynaecologist. There was no issue about the technical skill of the operation. The issue was that the respondent claimed that she did not consent to an operation that would remove her ovaries whereas the appellant believed that there was consent to that procedure.

3. The respondent (plaintiff) sued the appellant (defendant) for negligence, trespass to the person and breach of contract.

4. As the Master found, the plaintiff had consulted the defendant on 20 November 2003 concerning her need for a hysterectomy. Her uterus had fibroid growths within it and they were worsening. The option of hysterectomy was, undoubtedly the most reasonable for dealing with that condition. That judgment was not disputed.

5. Whether the ovaries were also to be removed was an open question. The plaintiff’s ovaries were healthy. She was only 44 years of age. A pamphlet the defendant provided pointed out, albeit amongst four pages of close print, the following passage: … if the ovaries are removed during a hysterectomy in a premenopausal woman, the level of female hormones in the blood will decrease quickly. This will cause symptoms of the “change of life” as well as the absence of periods.

6. There was no medical reason to remove the ovaries in the plaintiff’s case. The defendant explained, he recollected, that there was a one percent chance of later development of ovarian cancer and some women, particularly over 45 years of age, preferred to avoid that risk, have the ovaries removed, and accept hormone therapy to deal with the consequences of that removal.

7. At that point in the consultation it was clear to the defendant that the plaintiff did not want her ovaries removed.

8. A consent form for hysterectomy was then signed which did not include salpingo-oophorectomy, that is, ovary removal. That form was completed by the defendant rather than the plaintiff contrary to the instructions on the form.

9. The Master accepted that the plaintiff, nevertheless, gave informed consent to a total hysterectomy but not to the removal of ovaries.

10. It was the defendant’s recollection that the plaintiff’s response, after he had explained the pros and cons of ovarian removal to the question “What do you want to do about the ovaries?” was “Take it all out”.

11. It was, clearly, the defendant’s understanding that this referred to the removal of the ovaries. He dictated a letter to the plaintiff’s general practitioner on 21 November 2003, reflecting that understanding. However, the defendant did not alter the consent form to reflect this. He also did not indicate on the pamphlet he gave to the plaintiff, which she took away with her, that of the options it outlined, hysterectomy with removal of ovaries was or had been selected. Rather it indicated that the option of hysterectomy without removal of ovaries had been selected.

12. The pamphlet and the marking on it have some significance for the plaintiff used it when discussing the proposed operation with a friend, who confirmed, on the basis of them, that the proposed operation would not include the removal of the plaintiff’s ovaries.

13. It was apparent to the Master that, whilst the plaintiff spoke and understood English, it was not her first language and her understanding of it was somewhat imperfect.

14. On her account of the consultation of 20 November 2003 the plaintiff said, when it was clear that the defendant considered that removal of the uterus was necessary “You’re not going to – you not going to touch my ovaries?”. The defendant responded, as she put it, “No your ovaries is healthy. You a young lady, you know, if I do that you need … to go on hormone replacement”.

15. The plaintiff did inform the defendant of the difficulties she had at home in the context of the plan to schedule the operation, due to a cancellation, on 25 November 2003.

16. That was consistent with the defendant’s recollection that the plaintiff said she would need to check with her family about the operation.

17. It is clear too that the plaintiff’s question might not indicate a firm decision to leave her ovaries but it is clear that the defendant did advise that removal of the ovaries was not necessary. His evidence was in accordance with that.

18. There was, the Master found, a significant lack of understanding by the plaintiff of words such as “cervix” even in her own language, let alone in English.

19. She did not believe she said anything to the defendant which represented that she wanted her ovaries removed.

20. Her understanding was confirmed by the marked pamphlet the defendant gave her. It appears that was also the understanding of the defendant’s staff as the operation was booked in at CalvaryHospital as “total abdominal hysterectomy”, that is, not including ovary removal.

21. The defendant on attending to perform the operation on 25 November 2003 noticed that entry and asked the plaintiff, “You’re having a hysterectomy, are you still happy for your ovaries to be removed?” She replied, he said, in the affirmative.

22. This conversation occurred immediately before the operation and about an hour after the anaesthetic had been commenced. It was at least possible that the sedation was then effective or on its way to being so. It was clearly an unsatisfactory way of obtaining consent.

23. It was apparent to the Master that the defendant’s error both in not amending the pamphlet and scheduling the operation for hysterectomy only had confirmed the plaintiff’s expectation that her ovaries would not be removed. The pre-operative conversation, even if the plaintiff correctly understood it, was clearly inadequate to clear up the misunderstanding between them.

24. That conclusion ineluctably followed from the Master’s assessment of the relevant witnesses. It could not be otherwise than clearly open to him from the evidence he heard and saw.

25. That there could have been, and was, a misunderstanding between the plaintiff and defendant was clearly open and it is apparent that the defendant materially contributed to that misunderstanding particularly in not reflecting on the material given to the plaintiff his understanding of her then instructions.

26. The conclusion to which his Honour came – In those circumstances the removal of the ovaries amounted to a breach of the surgeon’s duty of care to the patient, and, as a matter of law, to a trespass to the person of the patient. was in our view, inevitable.

27. That is because, on the findings made by the Master, the defendant had, by his negligence, removed the plaintiff’s ovaries without her consent. It does not matter therefore, whether McHale v Watson and Others (1966) 115 CLR 199 was correct to suggest that the onus of proof of lack of negligence and of intent lies on the defendant rather than the plaintiff. It is clear that the Master regarded it as proved that the defendant had, due to his negligence, failed to ensure that the plaintiff was aware of and consented to the removal of her ovaries. We would, however, comment that we prefer the approach of Kirby P in Platt v Nutt (1988) 12 NSWLR 231 (at 240) that though a trespass to the person without intent or negligence will not be tortious, the plaintiff must prove either the intent or negligence. It is not required, however, as submitted by the appellant, that the plaintiff prove an intention to harm. See Cowell v Corrective Services Commission of New South Wales(1988) 13 NSWLR 714 per Clark JA (with whom Priestly JA agreed) (at 743).

28. The Master clearly found that the plaintiff had proved that the defendant’s trespass had been intentional. Although those reasons were not iterated in paras 120 and 121 of his Honour’s judgment, they are clearly articulated in the preceding paragraphs. Damages

29. The defendant disputes the quantum of damages awarded.

30. The Master awarded $60,000 for the plaintiff’s pain and suffering, that is, general damages.

31. The appellant submits that this is excessive in view of the fact that not all of the symptoms of which the plaintiff complained were physically related to the removal of her ovaries.

32. The Master accepted, however, that the emotional impact on the plaintiff was “significant”.

33. The Master’s findings were: 124. Having said that, I accept that the removal of the ovaries has had a significant effect on the plaintiff physically and emotionally, and in addition I accept that the emotional impact on the plaintiff of the knowledge that her ovaries had been removed without her authority was, and continues to be, severe, and productive of symptoms of anxiety and depression of mood. The plaintiff was predisposed to such a reaction by her psychological makeup, illustrated by the fact that she had suffered and required treatment for depression in earlier years. The other side of that coin is that the plaintiff was probably vulnerable to episodes of anxiety and depression in the future, triggered by other events in her life, regardless of the removal of her ovaries. 125. Physically, the plaintiff has been subjected to the sudden termination of the production of female hormones, and deprived of the normal gradual progression towards menopause. Probably her symptoms would have been lessened if she had taken the advice of her doctors and taken hormone replacement therapy throughout, but the defendant must take the plaintiff as he finds her, with her ethnic, linguistic and educational background. I am not prepared to find that her pattern of giving up medically prescribed hormone replacement therapy and trying out health food store alternatives amounts to a failure to mitigate her damage. Because of the pattern she has adopted, the symptoms have been worse and I am satisfied that she has had a generally unpleasant time of it, with hot flushes, interference with sleep, dryness of the skin and the vagina, and the other symptoms she has described. I also take account of the fact that the combination of her symptoms has impaired her interest and participation in sexual activity with her husband, to the detriment of their relationship more generally. … 127. I invited counsel to make submissions as to a range for general damages. Senior counsel for the plaintiff suggested $70,000.00 to $80,000.00. Senior counsel for the defendant put a range of $35,000.00 to $40,000.00 should I find generally for the plaintiff on the issues on which I have.

34. It is apparent that, though generous, the award was within the applicable range.

35. We would not interfere with it.

36. The remaining challenge was to the award of $30,000 for past economic loss and $50,000 for future economic loss.

37. The starting point for both calculations was that the plaintiff had a pre-operative theoretical earning capacity of $250 per week nett of taxation. Her theoretical nett earnings before judgment would have been approximately $65,000. A discount of over 50% (46%) is a considerable acknowledgement of contingencies which may otherwise have affected the plaintiff’s employment. The future earnings might have been expected to be between $111,550 and $154,500. Allowing for the usual vicissitudes a figure of between $95,000 and $145,000 (in round figures) would be appropriate. To allow $50,000 represents a discount for vicissitudes, again well over 50%.

38. As a matter of judgment, informed by the demeanour of the plaintiff, that assessment cannot be faulted.

39. The only issue is whether the decision of the plaintiff not to accept hormone replacement therapy (HRT) was so unreasonable as to warrant a reduction in damages.

40. Subject to a judgment as to the impact of the psychological effect of the plaintiff’s injury, it is possible that the plaintiff’s choice exacerbated her situation. Nevertheless, given the disappointment in medical advice and performance the plaintiff had suffered, it could not be said to have amounted to an unreasonable decision on her part to decline HRT.

41. It follows that the Master’s decision should be upheld.

42. We would so order and dismiss the appeal with costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 18 December 2009

Counsel for the Appellant: Mr A Bartley SC with Ms C Whalan

Solicitor for the Appellant: Ken Cush & Associates

Counsel for the Respondent: Mr R Crowe SC with Mr DJC Mossop

Solicitor for the Respondent: Maliganis Edwards Johnson

Date of hearing: 4 November 2009

Date of judgment: 18 December 2009

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