74 Again the point was illustrated in respect of Dr. Walker's operation in May 1998 (apparently involving or followed by denervation of the neo-clitoris with death of a portion of the clitoral tissue at least). Dr Royle said for example he personally would not have done a reduction in the size of the neo-clitoris that was done stating: "I am not saying it is necessarily wrong". The point I believe to be made is that professional views and minds may legitimately and reasonably differ. This point further illustrates that the mere doing of things differently does not establish negligence on the part of a professional
75 Next, to the extent that it may even have been indirectly suggested or raised, in my view there was no negligence or breach of duty by the defendant in using or adopting the penile inversion technique (which was the one he had least used and followed in 100 cases before 1994). That was his technique of surgery. There is no negligence alleged in terms or capable of being found on the matter of failure to "warn" or advise of different procedures: see also Ainsworth per Handley JA at 16. If I am wrong I would still find no negligence concerning that matter in any respect.
76 I have already mentioned the matter of res ipsa loquitur and not the content of the amended statement of claim. The plaintiff in his final submission seemed to directly or indirectly invoke it. Having regard to the nature of surgery and to the evidence, the plaintiff is unable to invoke the doctrine to support the case. I repeat in my view in the circumstances of this case the plaintiff cannot rely upon the doctrine of res ipsa loquitur to make out a case of negligence in the performance of the actual gender reassignment surgery: see also the recent decision of the High Court in Schellenberg supra; Ainsworth supra; Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 per Reynolds JA at 554; Elliott v Bickerstaff (1999) NSWCA 453.
77 Indeed, in his closing submission Mr Greenwood QC submitted that the plaintiff was in effect also seeking to establish a case of negligent surgery in reliance in effect upon the doctrine. There is force in this submission. However, the doctrine in the circumstances has no operation and provides no assistance to the plaintiff in seeking to establish any negligence or breach of duty.
78 In Australia the standard of care to be observed by a person with some special skill or competence to that of the ordinary skilled person exercising and professing to have that special skill that is, a doctor practising in the area concerned. In this case it is the skill of a plastic surgeon specialising in gender reassignment surgery with which one is concerned. The principal issues are whether there was negligent performance of the surgery and/or whether there was a breach of that duty in failing to warn of a material risk inherent in the proposed gender reassignment surgery procedure in the sense as formulated and explained in Rogers v Whitaker (1992) 175 CLR 479. If the answer is that the duty to warn was not performed (or properly performed) then the second question concerns causation in the sense whether any such failure to warn, was causally related to any injury. Perhaps the causation question in the context of a duty to warn may further or alternatively, be expressed another way, namely whether any alleged omission to warn (if any) would have caused the plaintiff to alter her option or election of action to have the gender reassignment surgery, or whether it would otherwise made no difference to the plaintiff's course of action to proceed with the gender reassignment surgery (including when she did) with the defendant. There too are further potential complicated questions of damages in the event of breach being found, depending upon the nature of such breach(es) found.
79 Next, the standard of care is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade: see Rogers at pp 488-489 and 491. Even before the decision in Rogers in the sphere of diagnosis and treatment the Bolam principle has not always been applied cf Albrighton supra. That said, it is perhaps more particularly (but not exclusively) in the field of non disclosure of risk or in the failure to warn or in the provision of advice and information that the courts have adopted the principle that whilst evidence of acceptable medical practice is a useful guide it is for the courts to determine and adjudicate upon what is the appropriate standard of care: Rogers supra at 489. The courts abdicate that ultimate responsibility to no one.
80 However, that said, the test for medical negligence is not what other doctors say that they would have done or not done in similar circumstances. Such views of themselves are not and cannot be decisive as a matter of law: Chappel; cf Naxakis per Gaudron J at 782. Nevertheless, that is not to say that in an evidentiary sense (particularly in the field of diagnosis or treatment) opinions and views of relevant medical experts in the field may not or will not be helpful to the court in determining whether the standard of care in a particular instance was met and whether the defendant doctor was in breach of his/her duty of care. Ultimately what is "reasonable" in the circumstances is for the court and court alone. As was said in Rogers (at 489-490):
" Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices". [my emphasis]
81 As to the matter of "treatment" it is appropriate for me to here state that I generally accept the opinion(s) of Dr Royle who I further regard as the most impressive, highly experienced and highly qualified expert in the case. Indeed, where there is conflicting expert opinion (particularly with the plaintiff's experts including Dr Walker) I conclude that his expert opinions should be accepted and that I can safely act upon them. It is for me to decide whose expert opinions and evidence that I accept. In doing so I further or alternatively have had additional regard to my assessment of him as a witness based upon seeing and hearing him give extensive evidence by way of lengthy and visual link-up to London. In any area of conflicting opinion I too would accept the opinions of Dr Korda in preference to opinions of the plaintiff's doctors.
82 That the duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty is not disputed. Nevertheless, the factors according to which the court determines whether a medical practitioner is in breach of the requisite standard of care perhaps will vary according to whether the case involves diagnosis treatment or provision of warnings of material, information or advice. It has been said that there is a fundamental difference between on the one hand diagnosis and treatment and on the other hand the provision of warnings, advice or information to the patient: Rogers at 489. As to the matter of warning the duty to provide an adequate warning too it has been stated is in "terms which the appellant would understand" cf: Bustos v Hair Transplant Pty Ltd (NSWCA, 15 April 1997, unreported) per Gleeson CJ at 9. In this instant case I am fully satisfied that not only were extensive and adequate proper warnings conveyed (both oral and in booklet form), but that the plaintiff too was an intelligent person of sound mind (who too had made independent and extensive enquiries and conducted her own independent research and enquiry) who fully understood the warnings.
83 Nevertheless, all this said, particularly in the area of treatment and diagnosis, in determining the content of the duty of the doctor in the particular case, it is necessary to determine amongst other issues what is in the circumstances reasonable care and skill in the relevant area of medical practice. Such issues necessarily direct attention to the practice or practices of medical practitioners: Rogers per Gaudron J at 493-494.
84 Perhaps, unlike Rogers (and Chappel), the present case involves claims of negligence both in the sphere a duty to warn of material risks and in the duty of care in the provision of surgery. The case raises issues of breach of duty in respect of both matters. Both or either are relied upon. Again I observe that different results in terms of causation and even damages might in some cases arise whether there is a breach of duty involving a failure to warn or negligent surgery is established. As I have further indicated as Rogers also shows, particularly in the context of the duty to give medical advice and information (and also in respect of treatment), the fact that a body of reputable medical practitioners would have given the same advice as the defendant cannot preclude a finding of negligence or practice. That said, it is not argued or submitted by the plaintiff that I cannot have regard to the views for example of Dr Royle even on the question of the duty to warn (causation being in that context a different matter). I treat the medical evidence given and have regard to it in accordance with the way permitted by authority. To allow the views of what a responsible body of opinion to be decisive would be to seek to reintroduce the Bolam test: see McHugh J at 791. That said, there is a difference between that which is decisive and that which is of assistance. I repeat that I particularly accept and have regard to the opinions of Dr Royle in preference to conflicting opinions from doctors who have given opinion evidence in the plaintiff's case. I have further or alternatively had regard to his demeanour which I also have taken into account in accepting his evidence but not in the sense of resolving conflicting expert opinion by mere simple credibility assessment: Conflicts of medical and other expert testimony are not ordinarily susceptible to resolution by "simple credibility assessment": Jackamarra v Krakover (1998) 195 CLR 516 per Kirby J at 543. In accepting Dr Royle I have not adopted the mere "simple credibility assessment" approach in respect of accepting the views of Dr Royle (or any other witness). In respect of expert witnesses I am entitled to also give effect to my formed impression of the expert witness see Public Trustee supra per Mahoney JA at 19-24; see also SRA v Earthline Constructions Pty Ltd (In Liquidation) (1999) 73 ALJR 306. In his evidence Dr Royle (in cross-examination to Mr Cassidy) indicated views on the subject of "informed consent" or warning, advice and information including views that the "overall practice of Dr Haertsch had was excellent", of the plaintiff "having a better deal etc" and his view "I don't think you can do more than that" (T 205). This evidence was adduced in cross-examination presumably because Mr Cassidy considered it material and relevant to the discharge of the duty to warn. I have not had regard to this evidence of Dr Royle in a way that transgresses in any impermissible manner the High Court views in Rogers or even in the later case of Chappel supra.
85 As to the issue of warning, although such is not and cannot be resolved by medical opinion, that does not in itself make the medical expert views and evidence on the subject not material: cf Bustos at 13. Perhaps this too is why Mr Cassidy cross-examined Dr Royle on the point. Nevertheless that said, it is difficult to see how expert opinion generally will be material on the issue of causation in the context of a duty to warn where the subjective intention or subjective basis approach is involved in the issue.
86 A further point to be made is that Rogers itself drew a distinction (at 489) between influences and guiding effect of expert evidence in determining whether the requisite standard of care has been breached in cases where the alleged negligence lies in relation to the provision of professional advice and information, and on the other hand cases involving surgical treatment where the matter of proper medical treatment is likely (as in the present case) to involve technical medical questions and matters which the tribunal of fact can perhaps in an evidentiary or practical sense only really determine in the light of expert evidence adduced at the trial.
87 Before leaving Rogers supra it is appropriate for me to deal with several other matters. First, in dealing with the question of the duty to advise and inform and whether or not the defendant was under a duty to disclose or advise as to some risk in the proposed gender reassignment procedure, the law recognises that a doctor has to warn a patient of a "material risk inherent in the proposed treatment" [my emphasis]. A risk is material if, in the circumstances of the particular case, a reasonable person would in the plaintiff's position be likely to attach significance to it or if the medical practitioner should be reasonably aware that the particular patient if warned of the risk would be likely to attach significance to it: Rogers at 490. In this case the plaintiff was, for reasons that will appear and despite her assertions or attempted assertions to the contrary, in my view warned of the material risks both orally and in writing. Her claim or case of relevant non warnings or inadequate warnings in all or any respects should be rejected. Despite her "denials" the plaintiff in my view elected surgery with full knowledge and understanding of material risks and after the discharge of the defendant's duty to warn and to provide information and advice. In my opinion she was fully warned of the relevant risks. She wanted the surgery. The decision she reached was with proper advice, warning and information following time for careful reflection and mature consideration, investigation and research over a long period of time. The decision to have the surgery was not a hasty one and further, whilst elective, was the consequence of a personal need.
88 In respect of the duty to warn aspect of this case the issue of causation alternatively still arises for consideration in the event that I am wrong in my view that the duty was discharged.
89 Next, in the present case the issue of the plaintiff's credibility and reliability both generally and in particular respects both on the issue of liability and damages is very much in dispute. At the trial I indicated and here repeat that my assessment of the plaintiff's demeanour was unfavourable. All parties accept this. Indeed, I made this clear in submissions. Mr Cassidy whilst arguing that the plaintiff's credit had nothing to do with a case of negligent surgery nevertheless conceded and accepted that her credit "certainly had to do with the failure to warn and damages" arguing also "that is all". (T 350). He also conceded (properly so in my view) that the "plaintiff was an unsatisfactory witness". (T 351). That said, I too consider that she was an unreliable witness, an unimpressive witness and particularly not credible on important material matters. This is a view not just based on mere simple adverse credibility assessment. I reject her evidence on a number of material matters, and not merely so because of an unfavourable credibility or demeanour assessment. Next, I am entitled to accept part of her evidence and reject other parts as I have done in this case: Naxakis at 793. I am not generally impressed with her as a witness. This said, a point made by Mr Cassidy that the plaintiff's credibility and reliability is not relevant to any issue of breach of duty based upon a claim of negligent performance of surgery is in my view validly made, and indeed accepted by the defendant. However, that said, as I have indicated I did not understand him to dispute that the plaintiff's credibility and reliability (in part based upon assessment of her as a witness) was not relevant to the other issues. Nevertheless, one must also bear in mind as I do, the further observations of McHugh J relating to the use of demeanour in the context of causation in a failure to warn case. In Chappel when discussing causation his Honour said (at 246):
"Furthermore, a defendant is not causally liable, and therefore legally responsible for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The inquiry as to what the plaintiff would have done if warned is necessarily hypothetical."
90 In footnote 64 his Honour also said:
"… Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken in determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence [at least as I understand it on the issue of the effect of a warning] can only be determined by reference to the objective factors, particularly the attitude and conduct of the plaintiff, at or about the time when the breach of duty occurred." [emphasis added]
91 Although his Honour appears to countenance the use of demeanour perhaps to assist to reject a plaintiff's evidence on the causation issue in the context of a duty to warn, I have not merely adopted this approach in considering the "hypothetical" question posed by the causation issue. I have rejected what I believe to be the plaintiff's self serving assertions and evidence on the matter of both failure to warn and what she allegedly would have done (the causation point) for a variety of valid reasons, also applying the approach of McHugh J. For reasons that will further appear including that the plaintiff in my view was properly warned of the material risks. Thus the matter of causation in such context does not strictly advise, since I am satisfied that despite the plaintiff's claims, assertions and evidence, that the plaintiff was properly warned of the material risks in the circumstances of the case and the defendant's duty in this respect was discharged. However, if I am wrong I would find as a fact that warnings of risks would not have made any difference or altered the course of action by the defendant. In her determination and decision to have the surgery in 1994 conducted by the defendant, I reject the plaintiff's assertions on the issue, I reject her claim(s) she would not have undertaken the surgery (including when she did), by the defendant.
92 It might be perhaps thought that causation is more obvious in cases involving for example failed surgeries or negligent treatment. Indeed, the failure to warn cases as I have indicated, present problems indeed, perhaps even special problems in the context of causation.
93 Of course in respect of the general question of causation such is a question of fact to be resolved as a matter of common sense in the sense explained in Chappel; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Bennett v Minister for Community Welfare (1992) 176 CLR 408 and see my judgment in Williams supra particularly at pp 363-368. It is really of little value to add any more to the extensive learning on the subject of causation. However, I would mention as to causation in medical negligence cases generally and as to a discussion of Chappell see article by Justice Beverley McLachlin, "Negligence - Law - Proving the Connection" in Nicholas J Mullany & Allen M. Linden (Eds) Torts tomorrow - A Tribute to John Fleming (LBC: 1998) and Honore T, "Medical non-disclosure, causation and risk: Chappel v Hart" (1999) 7(1) Torts Law Journal 1.
94 The plaintiff's case as I have said, relies upon three causes of action, negligence, breach of contract and a belated claim in assault.
95 As to the cases in tort and contract, there is no dispute that a case such as the present involving an action against a doctor to whom the plaintiff paid a reward, that there may be a concurrent or dual liability in both contract and tort. There is the availability of concurrent causes of action in negligence and for breach of contractual duties to exercise reasonable care and skill. Separate concurrent actions lie in contract and tort for breach of a duty of care under a contract for professional services. The plaintiff has alternative claims: Astley v Austrust Ltd (1999) 73 ALJR 403; Chappel. In Astley the High Court held that the solicitor owed a duty to exercise reasonable care and skill in both contract and tort. It was also held that contributory negligence which had been relied upon did not constitute a defence to an action for breach of contract. Further, in Astley the measure of damages for breach of the duty of reasonable care and skill in contract and in tort was apparently considered by the court to be the same in the circumstances. In the instant case, it has not been submitted that there would be any difference between the quantum of damages (if the plaintiff were entitled to succeed) in tort and contract.
96 As to liability in contract and in tort, contractual obligations are voluntarily assumed, tort obligations are imposed on the parties by the law. That said, no contributory negligence is pleaded in the instant case by way of defence even to the count in negligence. As to the breaches of the duty of care, whether in contract or in tort, they ordinarily involve breach or breaches of the same standard of care and skill in the performance of the relevant service. However, whether in contract or in tort it is common ground in this case that absent a contractual term, results are not guaranteed in contract. Next, in the present case where there is a contract, imposing a duty of care, it has not been suggested that there was any contractual term excluding or limiting liability in contract for breach of such contractual duties: see Astley supra generally. As to the matter of what term is to be implied in the circumstances of the instant contract in this case I do not consider that it is higher than that the law ordinarily implies in a contract of professional services namely, that the defendant would exercise reasonable care. In Astley the majority observed (at 414):
"The implied term of reasonable care in a contract of professional service arises by operation of law."
97 Further, in Astley Callinan J at 430-431, whilst observing that the obligations of professions in modern times were not "light ones" to be considered, (absent express terms) that the contractual term in the contract of professional services involved the implied promise to exercise reasonable care and skill in the performance of the services.
98 Further, on the matter of damages, it is appropriate to here record that in respect of the cause of action in contract and the cause of action in tort, the case has been argued upon the basis that the measure of damages, if breach of duty is established, is really the same and that the general principles of causation apply for the purposes of any recovery in contract and in tort. It has been no part of the plaintiff's case that mere beach of contract, without more (that is proof of causation) if established would entitle the plaintiff to at least nominal damages: see Chappel per Kirby J at 270 and Hayne J at 290. Hence for this reason, having regard to the issues addressed and raised, it is not necessary for me even were a breach of contract found (and none has been established) to address the matter of nominal damages. The parties have conducted the case upon what I might call the usual basis, that both in contract and in tort, the plaintiff to recover damages must establish and prove causation of the loss or damage shown or alleged: see Chappel per McHugh J.
99 As to the matter of contract Mr Cassidy (in his final address) whilst asserting there was the general contractual duty of reasonable care and skill also urged that I should find in addition an implied term that the defendant would produce a vagina and genitalia (including the clitoris) that they were reasonably fit for the purpose for which they were required to have female sexual intercourse (T 379) although "not putting the term as high as guarantee" (T 380). He argued that the implied term extended beyond the common law duty of reasonable care and skill (T 379-380). He particularly argued that the further implied term related to the creation of a neo-vagina for intercourse and (at 374). He said: "It is fitness of purpose and purpose of merchandise"! As I understand his submission in reference to his argument that the implied term in relation to the vagina was established (indeed was to be found in contract), he referred to the decision of Samuels v Davis [1943] KB 526 (dentist providing a particular dental treatment suing for unpaid fee). In my view Mr. Cassidy's proposition that there was further an implied term of the kind asserted in addition to the contractual term relating to the exercise of reasonable care and skill (breach aside) is not supported by the authority referred to, and is not one on the evidence to be further implied in the contract for professional services in this case. The only implied term is as I have found it to be, namely the implied term of reasonable care: Astley. Even if the situation were otherwise I would still find no breach of duty or such further claimed implied term.
100 It is appropriate for me to make some observations about the assault count which was belatedly added on the eve of the trial. [my emphasis].
101 As I understand it, the plaintiff's case and maintained at the trial and in final address, was that the defendant at all times represented to the plaintiff that the procedure was "straight forward" and did not warn her of the risks that the operation might fail or be unsuccessful and if so warned she would not have undergone it and therefore the defendant in operating upon her constituted an assault. So stated in such terms the views of the High Court in Rogers supra (at 489) would tend to deny the availability of any case in assault. In legal terms the patient's consent to treatment may be a valid one if he or she is informed in "broad terms" of the procedure which is intended and consented to. In my opinion on any view of the evidence, she was so informed and further she was properly informed and warned of the material risks. An allegation that risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence not in trespass: Rogers (at 489).
102 Whilst any medical treatment without consent ordinarily constitutes trespass to the person, consent ordinarily has the effect of transferring what would otherwise be unlawful into acceptable contact. Consensual contact does not, ordinarily amount to an assault. Generally speaking consensual contact involving an adult of full mental capacity (as this plaintiff was at the time of her consent) is not an assault: Secretary of Health & Community Services (NT), Department of Health v JWB & SMB (1992) 175 CLR 218 at 232-234.
103 As I understand it the plaintiff really ultimately sought to avoid or circumvent the consequences of the law as stated by in effect arguing (T 368) that whilst accepting that consent is a defence to assault, nevertheless if information was withheld in bad faith such would destroy consent. Mr Cassidy submitted that it was open for me to hold and find that there was a withholding of information in bad faith. I have no hesitation in rejecting this submission. It is without foundation or basis. The plaintiff's evidence too touching upon this matter of failure to warn, I unhesitatingly reject. I should also observe that Mr Cassidy correctly did not in terms invoke to seek to argue for example any suggestion of any alleged fraudulent misrepresentation of the type for example raised and rejected in O'Brien v Wheeler (NSWCA 23 May 1997, unreported). Further, I do not accept the plaintiff's evidence that if she had been given "appropriate" warnings (which she denies receiving but which I have found she did) she would not have undergone surgery by the defendant.
104 I reject Mr. Cassidy's submissions in relation to the assault count. There is no basis for finding any assault. No relevant information was withheld let alone withheld or not disclosed in bad faith. Such views dispose of the assault case and it will not be necessary to return to it.
105 Next, it is appropriate if I deal with another matter relied upon by the plaintiff in her claim for damages. In addition to her claim for damages the plaintiff also seeks to recover exemplary damages and aggravated damages. I should indicate at the outset that even were the plaintiff entitled to otherwise recover damages in the circumstances of this case I would not have, for reasons in the circumstances which appear here, considered it an appropriate case for recovery of exemplary damages or aggravated damages, leaving aside the question as to whether exemplary damages could in any event even be awarded for a breach of contract: see my judgment in Williams supra. I will return to the matter of exemplary and aggravatory damages when dealing with the matter of "hypothetical" damages.