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The case for the plaintiff

15. The plaintiff brings her claim under three separate limbs. The first limb is that the defendant performed RYGB surgery, which is extremely complicated bariatric surgery, on the plaintiff on 15 July 2022 when it was unnecessary to do so. The second limb is that the defendant failed to perform appropriate testing, investigations and enquiries in order to form a diagnosis prior to performing the RYGB surgery on 15 July 2022. The third limb is that the defendant performed the RYGB surgery on the plaintiff on 15 July 2022 when a reversal of the VBG surgery, which the plaintiff underwent in the UK in 1997, could have and should have been performed first. If there was a problem with that VBG surgery, a reversal of it would have solved the problem and that should have been done prior to any other form of radical surgery such as RYGB.

16. In her opening, the plaintiff, through her counsel, informed me that, in the original pleadings, the failure by the defendant to take into account the plaintiff’s psychiatric eating disorders and things of that nature were a singular aspect of negligence. I was informed by counsel that there had been an evolution of the case, and this complaint now forms part of the second limb. It is unclear whether these limbs are said to give rise to a separate claim for breach of duty or are to be considered together holistically in forming a conclusion as to whether there has been a breach of duty.

17. The plaintiff contends and the defendant disputes that, following the gastroscopy performed on Friday 8 July 2022, the defendant formed a final view that the plaintiff suffered from Barrett’s oesophagus, gastritis, gastric ulcers and a hiatus hernia. The plaintiff’s expert, Dr Adam Skidmore opines that none of the biopsies taken in the gastroscopy showed a histopathology medically confirming the presence of Barrett’s oesophagus. The plaintiff contends that there were no gastric ulcers and there was no evidence of gastritis nor the presence of a hiatus hernia. Dr Skidmore opines that there was no repair of a hiatus hernia in surgery on 15 July 2022. The plaintiff contends that none of the diagnoses made by the defendant could have been rightfully made.

18. The plaintiff relies upon the fact that, notwithstanding her complaints about uncontrolled vomiting, she had not vomited between 1 July and 8 July 2022. On 12 July 2022, after the gastroscopy, the plaintiff attended a business conference, ate some food and commenced vomiting after lunchtime. The plaintiff has a capsaicin allergy, which is an allergy to spicy type foods such as chilli. The effect of the plaintiff’s capsaicin allergy is that upon consumption of food, the plaintiff vomits. The plaintiff had been referred to the defendant for review because of the vomiting episodes that she experienced, some of which may have included a reaction to spicy foods. A matter of concern was that, in some of these vomiting episodes, the plaintiff had vomited blood. As a result of this vomiting episode, there was a consultation on 13 July 2022 where the gastroscopy results were discussed.

19. The plaintiff contends that at the meeting on 13 July 2022, the defendant referred to the gastroscopy report and her other clinical notes and recommended to the plaintiff that she undergo the RYGB operative procedure. According to the plaintiff, there was no discussion about the reversal of the VBG procedure. A principal focus of the plaintiff’s claim is that the surgeon’s report of the 15 July 2022 surgery records the reason for the operation as being gastric outlet obstruction. There is no reference in the gastroscopy report to gastric outlet obstruction, and it had not been previously discussed with the plaintiff. The same report makes no reference to the repair of a hiatus hernia. The plaintiff contends that there is no basis for a diagnosis of gastric outlet obstruction because the gastroscopy was performed with an endoscope and the record of the gastroscopy was that the endoscope passed easily through the stomach to the duodenum. The plaintiff contends that, as a result, there could be no diagnosis of gastric outlet obstruction.

20. The plaintiff further contends that the RYGB surgery is bariatric surgery, is elective surgery and is not an emergency surgery. Dr Skidmore opines that there is not any form of bariatric surgery which is emergency surgery because it is elective and is connected with attempts by patients to lose weight by controlling their eating. As well, the plaintiff was admitted to the hospital the evening before the surgery. The plaintiff was placed on a drip and she contends she was given food to eat prior to midnight. She was required to fast after midnight. The plaintiff contends that it is inconsistent for a patient to be suffering from a gastric outlet obstruction and to be given food prior to surgery where the plaintiff suffers from a vomiting disorder. I am unable to accept this version of events given by the plaintiff as being credible or reliable. I accept that before midnight she was given fluids.

21. The plaintiff had a very poor recovery following surgery. She suffered a partial lung collapse, was placed on a ventilator and she remained in hospital for 22 days. The lung collapse followed being overloaded with fluids in ICU at the Calvary John James Hospital. She was transferred to the Calvary Bruce Hospital for better ICU care. The plaintiff’s condition developed into a bradycardia issue and these issues were not completely resolved until the insertion of the pacemaker in October 2023. She developed chronotropic incompetence and, on 14 October 2023, a pacemaker was installed by a cardiologist.

22. Before turning to the evidence, it is appropriate to make some comments upon the operation of ss 42, 43 and 45 of the Civil Law (Wrongs) Act 2002 (ACT) (the Civil Wrongs Act).

23. Section 42 of the Civil Wrongs Act provides: For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

24. Section 43 of the Civil Wrongs Act provides: (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm.

25. Section 45 of the Civil Wrongs Act provides: (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). (2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them— (a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but (b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability. (3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

26. Staying with s 42 of the Civil Wrongs Act, the standard of care required of the defendant is that of a reasonable person in her position as a bariatric surgeon possessing all the information that she had or reasonably ought to have had at the time of the incident giving rise to the harm of which the plaintiff complains. The standard which the defendant was required to reach was that of an ordinarily competent bariatric surgeon. That assessment is not made in a vacuum of information and, in making it, regard must be had to all the information which the defendant possessed or reasonably ought to have possessed at the relevant time. The obligations of professional persons are not circumscribed by limits upon the information given to them by, for example, patients. The obligation upon all professional people when giving advice about any matter within their professional expertise is to make all necessary enquiries to ensure a full comprehension of the condition, issue or complaint which brings the person or patient before that professional. As an example, a medical practitioner is required to make sufficient enquiries of a patient to ensure a familiarity with the background history of the medical issues suffered by the patient. In turn, the answers to these enquiries may lead to the necessity for other testing, investigations and inquiries to be undertaken and, depending upon the circumstances, referrals to other professionals. In the usual case, a referral to another professional will occur in concert with the provision of advice about the need for such a referral of the patient and, in this case, the involvement of the referring doctor.

27. Having established the standard of care in s 42 of the Civil Wrongs Act, the general principles connected with assessing whether a person has breached the standard of care are prescribed within s 43 of the Civil Wrongs Act. Unfortunately, but probably inevitably, the drafting of s 43 is replete with double negatives. As may be seen above, the preamble of s 43(1) states that a person is not negligent (a negative) “in failing to take precautions against the risk of harm unless” (another negative). Doing the best I can, it is apparent that the meaning of s 43(1) may be expressed in the following terms: a person is negligent in failing to take precautions against a risk of harm where the risk is foreseeable, being a risk which the person knew or ought to have known, the risk was not insignificant and, in the circumstances, a reasonable person in the person’s position would have taken those precautions (s 43(1)(a)-(c) of the Civil Wrongs Act). This formulation begets an examination of when a reasonable person would have taken precautions against the risk of harm. The court is required to consider four possibilities, amongst other relevant things (s 43(2)(a)-(d) of the Civil Wrongs Act).

28. It is well-settled that this decision is one for the court and is not a decision informed only by the opinion of experts (Rogers v Whitaker [1992] HCA 58; 175 CLR 479). The decision of the court may be assisted by and informed by the opinions of experts. Notwithstanding, the decision about the behaviour of the reasonable person in the context of the factual matrix giving rise to the claim and the application of the legislation belongs to the court. I am required to consider the probability that harm would happen if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm and the social utility of the activity creating the risk of harm and any other relevant matter which I consider requires consideration.

29. In Fuller v ACT [2024] ACTCA 19 (Fuller), the ACT Court of Appeal considered an appeal from a judgement in a medical negligence case where an anaesthetist had inserted a needle into the spine of the patient to administer spinal anaesthetic in a planned caesarean section. The two needles used in the procedure were used between two and five times and, on the last occasion, the needle broke requiring the attendance of a neurosurgeon to remove the broken needle so that the patient could be properly anaesthetised. There were two anaesthetists involved in the procedure. The first was unable to penetrate the spinal column of the patient after between two and four attempts. The supervising anaesthetist then attempted to insert the same needle as had been used by the first anaesthetist. It was then that the needle broke, requiring the attendance of the neurosurgeon to retrieve the broken needle in the spine of the patient. In her claim, the patient alleged that she had suffered psychological, neurological and physical injury because of the failed attempt to administer the spinal anaesthetic. The patient alleged that her injuries were as a result of the breach of duty by the anaesthetist, in breach of ss 42 and 43 of the Civil Wrongs Act.

30. In the context of the factual circumstances of the case before them, the Court of Appeal considered the operation of s 43 of the Civil Wrongs Act. At [86]-[91], the Court of Appeal considered the enquiry demanded by s 43 of the Civil Wrongs Act as follows: 86. The inquiry demanded by s 43 of the Wrongs Act (and similar corresponding provisions in interstate legislation) is a prospective one: see Austen v Tran [2023] ACTCA 44 (Austen) at [67]; Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at 71 [48] (per French CJ, Gummow, Hayne, Crennan and Bell JJ). In this instance, the prospective inquiry required an assessment of what a reasonable anaesthetist in Dr Stephens’ circumstances, in possession of all the information Dr Stephens ought reasonably to have had, would have done, if anything, by way of response to the foreseeable risk of harm to the appellant. 87. The primary judge correctly identified that Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 (Cornwall) endorsed s 43 of the Wrongs Act as encapsulating the considerations identified in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40(Shirt). 88. The Court in Cornwall confirmed at 244 [28] that the obvious similarities between s 43 and Shirt considerations “demonstrates the continuing relevance of pre- Wrongs Act principles and authority to the determination of liability in claims for damages in negligence to which the Wrongs Act applies”. Determination of a breach of a duty of care by failing to take precautions against a foreseeable risk of harm requires consideration of multiple matters and attribution of weight to each of those matters. This Court is obliged to determine for itself, in conducting a “real review”, the weight to be given to particular matters: Cornwall at 246 [35]. 89. The reasons of the primary judge do not reflect a considered synthesis of all the relevant considerations such that the strands of evidence were weaved together when considering and assessing for himself the question of whether negligence had been established. Rather, the primary judge treated the expert evidence as determinative of accepted competent professional practice, and additionally, determinative of the question as to whether the plaintiff had established negligence. 90. An assessment of what constitutes reasonable care can include a consideration of evidence in relation to standards accepted to be competent medical practice, but is ultimately a question for the judge. While the standard of care is that of the ordinary skilled person exercising the special skill in question, “that standard 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”: Rogers v Whitaker [1992] HCA 58; 175 CLR 479 (Rogers) at 483. While we do not consider that the primary judge applied s 5O of the Civil Liability Act as the appellant asserted, in that it is apparent from the reasons that the primary judge identified ss 42-44 of the Wrongs Act as the applicable provisions, we do consider that the primary judge approached the expert evidence as determinative of the assessment that his Honour was required to perform for himself. 91. It may be accepted that, in the field of treatment as opposed to a case of failure to warn, “the appropriate standard of care is a question in the resolution of which responsible professional opinion will have influential, often a decisive, role to play”: Rogers at 489. But where, as here, the case involves the weighing of risks and benefits, the trial judge must undertake that evaluation. In such a case, it is not enough to rely on expert opinion unless it is clear that the experts have undertaken that process: cf Queensland v Masson [2020] HCA 28; 94 ALJR 785 at 598 [133].

31. At [92]-[99] the Court considered the entitlement of the trial judge to consider competent professional practice as part of the overall consideration of what reasonable care is required. Their Honours said: 92. The primary judge was entitled to consider competent professional practice as part of his overall consideration of what reasonable care required. In our view though, the approach adopted, reflected in the reasons of the primary judge, saw that factor applied in a general manner devoid of analysis as to the nuance of the opinions expressed therein as they applied to the facts as his Honour found them. Specifically, the primary judge did not properly consider s 43(2)(b)-(c) of the Wrongs Act in his Honour’s analysis of whether Dr Stephens should have replaced the spinal needle prior to her attempt at the procedure. 93. Firstly, in our view, the primary judge did not determine, as required by s 43(2)(b) of the Wrongs Act, the likely seriousness of the harm: Fuller at [78]-[79]. Possible “consequences” were canvassed by summarising some of the evidence of Dr MacPherson before the primary judge observed that “the expression ‘likely seriousness’ invites a comparative analysis of likely harm”: Fuller at [79]. 94. The primary judge did not go on to express his own view as to the likely seriousness of the harm. This is a case where the rarity of the risk did not correlate to the likely seriousness of the harm being low. Indeed, on the contrary, the likely seriousness of harm should a spinal needle break off in a patient’s spine is significant. That swift intervention might occur if available and reduce the seriousness of that harm does not undermine that proposition. The primary judge assessed the likely seriousness of harm through the prism of swift removal of the broken portion of the spinal needle because “fortunately, in most cases”, as in the appellant’s case, the broken spinal needle is noticed “at once”. A proper assessment required regard to be had to the range of possible outcomes should a spinal needle break off in a patient’s spine, which included grave injury causing significant disability with lifelong effect. While the primary judge canvassed some of those possibilities, his Honour did not definitively determine his view as to this factor. 95. Secondly, though the reasons in Fuller record at [60] that “it was common ground that the use of a fresh spinal needle would not amount to a material financial cost and that fresh spinal needles were conveniently available”, the primary judge did not reference that fact as part of the analysis his Honour engaged in when determining whether there was a breach of the duty of care by the failure of Dr Stephens to replace the spinal needle when she took over the procedure. 96. The ease with which the precaution could have been taken in circumstances where the risk was not insignificant and the likely seriousness of the harm was significant, was not encompassed by the analysis the primary judge engaged in for the purposes of assessing the circumstances, including the factor at s 43(2)(c) of the Wrongs Act, as his Honour was obliged to do. 97. Further to this factor is a matter not considered as part of the primary judge’s assessment, and that is the circumstances of the administration of the procedure. The evidence established that the spinal anaesthetic was being administered to the appellant as part of a planned caesarean section on 14 February 2020. This was not a procedure attended to by any urgency, such as might occur for an unplanned, emergency caesarean section. There was no evidence upon which it could be suggested that Dr Stephens was under any pressure or time constraints within which to perform the procedure. There was opportunity for Dr Stephens to easily take the convenient precaution of a fresh spinal needle in order to avoid the “not insignificant” risk. This factor did not feature at all in the primary judge’s consideration of the burden of taking precautions to avoid the risk. In all of the circumstances established on the evidence, the ‘burden’ of taking the precaution was de minimis. 98. We do not consider that the primary judge expressly stating at [81], “I have also taken into account those other matters referred to by me above and which are necessary to consider in the framework of ss 42-44 of the Civil Law (Wrongs) Act 2002 (ACT)”, reveals a proper consideration of s 43(2)(b)-(c) of the Wrongs Act. 99. Thirdly, the primary judge applied a broad-brush approach when considering the effect of the expert evidence on the facts as his Honour found them. The expert evidence was nuanced and considered. Both Dr MacPherson and Dr Liyanagama were careful to express some of the difficulties that made unequivocal opinion about the use of a fresh spinal needle problematic. While there was consensus that once an anaesthetist reached the use of the same spinal needle for the seventh occasion or more, a fresh needle was the appropriate action to take, there nonetheless remained a “grey area” when the entirety of the expert evidence was considered. Dr MacPherson expressed this view, with which Dr Liyanagama agreed: DR MACPHERSON: […] I mean, they’re - I mean it sounds silly but let's say, you know, 10 attempts with the one needle would be beyond the pale. That would be, you know, excessive use but two or three attempts would not be; that's quite reasonable. So somewhere in the middle is where a person would be thinking - especially if, you know, you have actually hit bone on a number of occasions and you pull - you know, you examine the needle and if there's no obvious cause of deformity then a lot of people would continue on for four or five attempts. Then there's - so there's a grey area in the middle. To do seven or eight or nine attempts with the one needle I don't think would be good practice but it's perfectly good practice to do one, two, three or four and then there's a grey area in the middle that's difficult to say.

32. The Court of Appeal then found at [106]-[109] that the primary judge had not taken the proper approach to the question of negligence as follows: 106. Respectfully, the primary judge approached the expert evidence as if it was entirely conclusive in relation to the number of attempts that could be ‘safely’ made before a fresh spinal needle would be required. Having accepted Dr Stephens’ evidence and determined that the risk was rare, the primary judge ‘applied’ the expert evidence as if it answered the question of whether Dr Stephens ought to have used a fresh spinal needle. Having determined that the risk was rare and that the decision not to use a fresh spinal needle came within the scope of “accepted competent professional practice”, the primary judge reasoned the appellant failed to establish negligence. This was an error. Undoubtedly, the expert evidence was influential. It did not relieve the primary judge of the obligation to assess all of the evidence, including the circumstances particular to the administration of the spinal anaesthetic to the appellant, and determine for himself whether there had been a breach of the duty. As was observed in Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 439 [7], citing Rogers at 486-7: In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues. 107. Both expert doctors were unequivocal that the one precaution that could be taken to avoid the risk of the spinal needle breaking would be to “simply change the needle”. There was no evidence in the expert conclave that explained why Dr Stephens would not have simply taken this step in the circumstances in which she found herself. 108. The approach of the primary judge did not account for the nuance of the expert evidence as to the “grey area” in the particular circumstances of the case in light of the factual findings. This fed directly into the assessment made of the circumstances in which the decision not to take the precaution to replace the spinal needle was made. In our view, the primary judge approached the expert evidence on the basis that it provided a hard floor and ceiling within which the “grey area” existed. This was not, in our view, the effect of the evidence. 109. The appellant succeeds with respect to establishing error in the primary judge’s approach to negligence.

33. The Court of Appeal then considered afresh whether the plaintiff had established negligence. The Court of Appeal was satisfied that negligence had been established and held at [110]-[117] as follows: 110. There was no complaint made as to the finding that the risk of harm was foreseeable and not insignificant. In our view, both findings were correct on the evidence. There was no dispute that the appellant was owed a duty of care and that the standard of the duty was that of a reasonable anaesthetist in Dr Stephens’ position, in possession of all the information that Dr Stephens either had or ought reasonably to have had at the time of the incident out of which the harm arose. 111. The evidence established that the probability that the harm would happen, if a fresh spinal needle was not used, was low, it being a “rare” or “very rare” occurrence for a spinal needle to break off entirely. The respondent advanced an argument in the primary proceedings that characterised the risk as so remote that a reasonable person in Dr Stephens’ position was not required to take precaution to guard against it, citing Waugh v Kippen [1986] HCA 12; 160 CLR 156, where the High Court held at 168 [17] that “a very slight degree of risk falls short of establishing a likelihood of risk of injury sufficient to activate the rule”. The primary judge rejected that argument, correctly in our view. The rarity of the risk in this instance did not translate to there being a very slight degree of risk. Though rare, the risk was nonetheless more than “slight”. 112. The likely seriousness of the harm to which we have already referred was significant, the evidence demonstrating the capacity for harm to be severe and life altering. This is further made clear by the urgency of the response upon the spinal needle breaking, which included an immediate instruction given to her by Dr Stephens to “hold really still” to guard against any movement from the appellant causing the broken spinal needle to migrate while it was lodged in her back. There is clearly strong social utility to the proper administration of spinal anaesthetic for the purposes of a caesarean section. 113. A compelling feature of the circumstances of this case is the minor burden involved in taking the precaution of using a fresh spinal needle. As we have already identified, this was a planned caesarean section and the evidence did not reveal any need dictated by time or emergency for Dr Stephens to use the same spinal needle as Dr Abeygunasekara. As the primary judge observed, fresh spinal needles were readily and conveniently available at insignificant cost. 114. The effect of the expert evidence in our view was to identify a “grey area” within which multiple factors influence the decision to use a fresh spinal needle. It is necessary when assessing whether the standard of care owed to the appellant was breached by the decision not to use a fresh spinal needle to carefully consider the factors established on the evidence. This is an assessment conducted not only by reference to what the expert evidence disclosed about the significance of any one factor and about acceptable standards of practice, but also by reference to the factors operating around the administration of the procedure relevant to the decision to use a fresh spinal needle. Practice accepted to be competent professional practice is not determinative of the question of whether there has been a breach of the standard of care required. Indeed, practice accepted to be competent professional practice may nonetheless be assessed to fall below the standard of care owed. 115. In our view, when considered alongside the careful views expressed by the experts and the circumstances in which the procedure was administered, including the nature and extent of the use of the spinal needle by Dr Abeygunasekara by the time Dr Stephens took over, the attempt at the procedure by Dr Stephens firmly occupied a “grey area”. Put another way, the decision by Dr Stephens not to use a fresh spinal needle when administering her own attempt must be assessed not only by reference to the expert evidence of when use of a fresh spinal needle might be expected, but must also include careful consideration of all the factors that made up the circumstances in which the precaution against the risk was not taken. The task then is not to measure the event only against accepted competent professional practice, but to carefully consider those factors set out in s 43 of the Wrongs Act and determine whether negligence has been established. 116. The actions of the reasonable anaesthetist need to be considered for the purposes of ss 42-43 of the Wrongs Act prospectively in the particular circumstances of the event. The circumstances of relevance to the taking of the precaution established by the evidence were these: (a) Dr Abeygunasekara had very limited experience at administering spinal anaesthetic and had been in training as a Registrar Anaesthetist for a matter of weeks at the time of the event with the appellant; (b) Spinal needles can break when used properly and routinely, even without excessive force, if they strike bone or hard ligamentous material, or are otherwise subject to resistance. (c) The appellant’s obese BMI was a known marker for potential difficulty when performing the procedure, including that there was a greater chance of hitting bone or ligamentous material. (d) Dr Stephens was certain that Dr Abeygunasekara had hit bone on at least three occasions and additionally that it was possible for the spinal needle to be moved inside the introducer during the course of the procedure without her observing the movement. (e) Dr Stephens did not know how much force or pressure Dr Abeygunasekara was applying when attempting the procedure. (f) A spinal needle is a small, fine and fragile needle. The spinal needle is so fragile that it requires an introducer so that it does not deform “just going through the skin” and is “prone to deformation even under routine use”. Some force or pressure is required to deform or break a spinal needle. (g) Repeated uses of a spinal needle, in particular where it hits bone or ligamentous material, can weaken the spinal needle and increase the chance of breakage. Common causes of spinal needle rupture or breakage are (even without the use of excessive force): (i) repeated use of the spinal needle for multiple attempts when the spinal needle comes into contact with hard tissue such as bone, thus weakening the spinal needle; (ii) removal of the spinal needle against a stationary introducer; (iii) withdrawing and redirecting the spinal needle with the introducer still in place; (iv) inserting the spinal needle with the stylet removed, thus weakening the spinal needle; and (v) a bent spinal needle being withdrawn through the introducer. (h) Spinal needles are known to break during use, though occasions of such are rare to very rare. (i) The likely seriousness of the harm was significant, arising from the possibility of the broken spinal needle lodging near a nerve, or near or within the intrathecal space, or of spinal needle migration occurring. (j) Replacement spinal needles were readily and conveniently available at low cost. The circumstances of Dr Stephens taking over from Dr Abeygunasekara provided the opportunity to use a fresh spinal needle. The appellant was booked in for a routine, planned caesarean section. Accordingly, there was nothing urgent about the administration of the procedure. There was time for the precaution necessary to avoid the risk to be taken. (k) Inspection of the spinal needle would reveal an obvious deformity but not weakness in the integrity of the spinal needle. 117. Taking into account the rarity of the harm occurring if precautions were not taken, the likely seriousness of the harm as we assessed it to be, the minor burden of taking the precaution to avoid the risk of harm, together with the social utility of properly administering spinal anaesthetic for the purpose of a caesarean section, in our view, a reasonable anaesthetist in the position of Dr Stephens would have taken the precaution of using a fresh spinal needle. The failure to easily guard against the risk of significant harm by taking the precaution of using a fresh spinal needle, in our view, was a breach of the standard of care owed to the appellant.

34. I refer in particular to the content of [114] of their Honours’ decision and in particular that: Practice accepted to be competent professional practice is not determinative of the question of whether there has been a breach of the standard of care required. Indeed, practice accepted to be competent professional practice (may) nonetheless be assessed to fall below the standard of care owed.

35. The Court of Appeal was satisfied that the continued use of the same spinal needle by the first anaesthetist and the second anaesthetist occupied a “grey area”, and their Honours went on to consider the relevant factors set out in s 43 of the Civil Wrongs Act in determining whether negligence had been established.

36. I turn to then consider the evidence given principally by the plaintiff, Elizabeth Mary Cotton. The plaintiff was born in the UK in 1959 and appears to have had a difficult childhood and youth. There was evidence that [redacted]. She went to boarding school when she was 13 years old and it appears that she did not have an enjoyable time at that school. The plaintiff has, for a long period of time and at least since childhood, suffered from some form of obesity due to binge eating. The onset of binge eating appears to have been related to a form of depression of long-standing nature. The obesity of the plaintiff continued after she left school and went to university. She became a heavy drinker and a very occasional user of recreational drugs. There is no clear evidence before the court of her work history after the time that she left university and before she migrated to Australia, however it appears that her difficulties with obesity continued throughout her life in the UK. In her evidence, the plaintiff said that she had been diagnosed with depression in 1992 whilst living in the UK. At the time she was about 33 years of age.

37. At a time which is not clear on the evidence, the plaintiff’s sister and brother emigrated to Australia. The evidence also does not make clear whether her sister and brother had families at the time that they emigrated, but they appear to have had families whilst in Australia. The plaintiff wished to emigrate to Australia to join her siblings. She was morbidly obese at the time and weighed at least 200kgs, as well as suffering the deficits associated with her poor mental health, including binge eating. The plaintiff underwent a stomach stapling operation in the UK in 1997. This is the operation described as the vertical banded gastroplasty (VBG) or stomach stapling.

38. The VBG operation was successful as, within nine months, the plaintiff had reduced her weight to 100 kg. She emigrated to Australia. Following her arrival in Australia, the plaintiff continued to suffer depression and in 2021 and 2022 saw her general practitioner seeking treatment of this condition. She said that she was also suffering from a binge eating disorder and had been referred to a dietician and a psychologist in the 2020s. As part of the treatment of her weight problems, the plaintiff was prescribed Ozempic by her general practitioner, but she did not fill this prescription or undertake the course of treatment because she was concerned about the effect of that drug upon her eating disorder.

39. Although the evidence suggests that Ms Cotton sought assistance for her depressive condition in 2021 and 2022, she gave evidence that she also sought assistance from the early 2000s for this condition, during which time she was also seeking the assistance of a dietician to control her weight gain. She had also sought assistance to deal with her allergy to capsaicin products which had started in the early 2000s. This allergy became worse over time and she became increasingly sensitive to capsaicin. This led to vomiting attacks without any warning because she may not have been able to detect contact between the food she was eating and the offending food containing capsaicin. She was so troubled by the vomiting that she consulted her GP asking to see a gastroenterologist or somebody who could identify what was the cause of her vomiting and reflux which by now had also deteriorated to a form of haematemesis, the vomiting of blood. She told her GP about this and was referred to see the defendant, whom the plaintiff saw on 23 June 2022.

40. The plaintiff can recall having a first meeting with the defendant on 23 June 2022 and a history was taken. The plaintiff told the defendant that her concern was the vomiting which had been increasing and the vomiting of blood. The plaintiff told the defendant of the plaintiff’s history of stomach stapling and reflux. The defendant advised that it would be appropriate to have a gastroscopy and a colonoscopy. The gastroscopy occurred on 8 July 2022. The plaintiff decided not to have the colonoscopy and no reason was given for this decision. At the time of this first consultation, the plaintiff told the defendant about her allergies. The plaintiff has recorded that she last vomited on 1 July 2022 and she thinks it is about right.

41. The gastroscopy was performed on 8 July and as day surgery. The plaintiff recalls a conversation after the procedure in the hospital and can recall the defendant telling her that she had identified something called Barrett’s oesophagus, ulcers, a hiatus hernia and something about acid in her stomach. The defendant showed the plaintiff several pictures. The plaintiff had never heard of Barrett’s oesophagus. The plaintiff was told of ulcers, and she did not know what a hiatus hernia was. The gastroscopy was performed on Friday 8 July 2022. The plaintiff was discharged on 8 July 2022.

42. The following Tuesday, the plaintiff attended a seminar at the Mercure Hotel. She attended the morning sessions and ate lunch but she was very ill in the afternoon and suspects there were capsaicin products in the food. She could not stop vomiting during the afternoon sessions and she had to excuse herself. She put herself to bed that evening. She consulted her GP the following morning, Wednesday 13 July, and she was immediately referred to the defendant’s rooms and had a consultation with the defendant. The plaintiff told the defendant about the 24 hours of vomiting, that she could not hold anything down, that there was blood when she threw up and questioned the defendant about the Barrett’s oesophagus diagnosis because it was a sign of potential cancerous growths. The defendant told the plaintiff that no cancerous cells had been identified. The best recollection of the plaintiff is that the defendant repeated to her what had been said to her on the previous Friday. The plaintiff’s main concern was the hiatus hernia.

43. On 13 July 2022, there was a discussion about surgical procedures and that the only way to resolve the matter was to undergo a RYGB procedure. This was the plaintiff’s understanding after speaking with the defendant. The plaintiff was then required to make a decision about what she wanted to do and a time was booked on 22 July 2022 for the surgery, if that was her decision. The plaintiff had earlier been given several medications by a GP to assist to suppress vomiting, but these did not work. On the next day, she vomited up the water she had been drinking and the medications. As a result, she contacted the defendant and there was a later conversation between the plaintiff and the defendant in which the defendant said that the plaintiff had to undergo emergency surgery and should attend that day at Calvary John James Hospital. Once at Calvary John James Hospital, a drip could be inserted and the surgery could be undertaken on the following morning, being 15 July 2022. The plaintiff signed a request for admission to Calvary which discloses a diagnosis of gastric outlet obstruction. The plaintiff said she never had a discussion with the defendant about this topic and had been unaware of any such diagnosis.

44. The plaintiff was taken to the records of the conversation between the plaintiff and the defendant on 13 July 2022. The defendant records that there was a discussion about different operative interventions, namely RYGB as against a reversal of VBG. The plaintiff denies any such discussion. The plaintiff can recall that after the meeting with the defendant, she purchased some Hydralyte ice blocks and was sucking on those. The plaintiff was then dropped to Calvary Bruce Hospital by her sister and, upon realising she was at the wrong hospital, she caught a taxi to Calvary John James Hospital. She was admitted to hospital and a drip was inserted sometime later in the evening, after she had arrived at 4:15 pm. Before the drip was inserted, the plaintiff believed she was given a sandwich to eat and she was able to hold that down. The plaintiff had not vomited on that day. The plaintiff was given Hydralyte to consume and she may have had a glass of water that evening when she took her medications. I am unable to accept as credible or reliable the evidence that the plaintiff was given a sandwich to eat on that evening. There is no hospital record of this occurring. I do not accept that a recording omission would have occurred in these particular circumstances.

45. The plaintiff was shown a record made by Dr Spiro at about 9:55am on 15 July 2022 which records a note by the defendant: “? gastric outlet obstruction”. The plaintiff denies ever having a conversation with the defendant on that topic on that day. The reference to the gastric outlet obstruction is also recorded on the operation notes as well as on the preoperative diagnosis notes. The plaintiff denied ever having such a diagnosis mentioned to her at any time prior to the operation and she has never understood that this is what was found by Dr Spiro on 8 July 2022 or at any time from that date until 15 July 2022. Although there are no notes indicating an operation for a hiatus hernia, the plaintiff thought she had undertaken repair of a hernia. No discussion on that topic occurred between the plaintiff and the defendant post-operatively. All the plaintiff understood was that the surgery was to be radical. She consented to this surgery because she thought there was something very wrong with her causing her to vomit blood, that she did not have a great choice about what to do and this was the only way to deal with the problem. There was no conversation about gastritis.

46. As planned, the recovery of the plaintiff was to take place in the ICU. The plaintiff recalls waking up in that ward. The plaintiff recalls having a respiratory issue, being told by the defendant that she was given 5 L of the particular fluid, that there were many things attached to her, that she was given oxygen to assist with her breathing, that she had been told to breathe more deeply because the oxygen levels were too low and that she felt generally unwell. The plaintiff suffered several very severe complications following surgery, including muscle weakness, an inability to walk unaided, reduced lung function, pneumonia and fluid retention following an oversupply of fluids to her in the first ICU. This necessitated a transfer to another hospital’s ICU facility. She spent 22 days in hospital for treatment for these conditions, as well as for a bowel obstruction and hernia repair.

47. The plaintiff cannot recall any discussions with an anaesthetist at any time prior to her discharge from the hospital on 3 August 2022. At that time, the plaintiff was very sore and weak and upon returning home she spent most of her time in bed and was not able to walk more than 20 m or 30 m. This was because she was very short of breath; she continued to have breathing problems and could not exert herself. Three months after discharge, the plaintiff commenced using a walker which she had purchased. Even so, she could only walk for a short period of time and would then have to sit down and rest. She was struggling to breathe and was referred to a respiratory physician, Dr Ansary. The plaintiff then saw Dr Huang in the same practice, and she undertook a number of tests, including a cardiopulmonary exercise test. During these tests, it was found that the plaintiff suffered a heart condition called chronotropic incompetence where her heartbeat does not increase with exertion. She was treated by Dr Pathak, a cardiologist. After several tests were conducted, the plaintiff was advised that she needed a heart pacemaker. This was installed on 14 October 2023 and on 15 December 2023 she underwent surgery for a small hernia connected with the surgery on 15 July 2022.

48. The plaintiff suffered a bout of Covid-19 a couple of months before the surgery in July 2022. This severely affected her breathing capacity, and she was put on antivirals which assisted her enormously. She had another bout of Covid-19 in 2023 which affected her breathing and left her breathless. Prior to the surgery on 15 July 2022, the plaintiff said she was active, had two horses, rode regularly, fed her animals, maintained a 100-acre property and walked regularly. I am unable to accept all of this evidence as I am satisfied that, for example, the 100-acre property was sold earlier following the devastation of droughts, fires and floods. Whatever she was doing at the time in 2022 was no more than a hobby.

49. The plaintiff frankly admitted that she is not a social person, she appears to shun company, she did not form any relationships for any extended period and socialised mainly with her sister. The plaintiff cannot walk dogs now, she has sold her property, she does not have horses, does not ride and cannot walk very far. She gets too tired and does not have the strength to ride, to handle big dogs or to talk whilst walking. She planned a holiday to go with her sister to see her brother in Cambodia. They had not seen each other for a long time. The plaintiff flew to Cambodia but could not participate in the planned holiday because she was confined largely to her hotel.

50. The plaintiff said that she operated a bee business pretty much up until the surgery, but she has had to wind it down. She then gave evidence that she lost a bee business in bushfires in 2020 and did not operate it between 2020 and 2022. I am not prepared to place any significance on the evidence about the bee business.

51. The plaintiff has developed a medical condition called dumping syndrome which occurs when she eats forms of carbohydrate. She gets dizzy, sweats and is confused. I am satisfied on the evidence that the plaintiff was warned by the defendant before surgery that dumping syndrome is a known sequelae of RYGB surgery but that it can be alleviated with proper diet control.

52. The plaintiff has also developed faecal incontinence and wears nappies to guard against incontinence. She must be very careful with her diet and has been under the care of Anne Embry, a dietician, who has given great assistance. The plaintiff needs to be more selective regarding the food that she purchases. The plaintiff has incurred considerable out-of-pocket expenses: see Exhibit P5. The evidence satisfies me that the incontinence issue is unrelated to the surgery the subject of this claim and is a further medical malady suffered by the plaintiff.

53. The plaintiff was cross-examined. She confirmed that a portion of the out-of-pocket expenses that she is claiming relate to coronary care which is not a basis of claim in this proceeding. The plaintiff confirmed that she was smoking just prior to the surgery in 2022. The plaintiff was an insulin-dependent diabetic who was first diagnosed with diabetes around 2005. It was type 2 diabetes mellitus which is not an autoimmune condition but is lifestyle related. This largely resolved because of the RYGB surgery and her glycaemic results were within normal limits. Later evidence suggests that she has now developed diabetes which is proving much more difficult to treat. I am satisfied that this later development has no causative or other connection with the surgery but has a different aetiology. The plaintiff has seen an endocrinologist for dumping syndrome which she developed following the operation.

54. The plaintiff suffers from psoriatic arthritis which was first diagnosed in 2010. Tiredness is a known symptom of this condition. The plaintiff’s father suffered from the same form of arthritis. The plaintiff has contracted Covid-19 three times, being in May 2022, in April or May 2023 and sometime later, though the plaintiff could not recall when.

55. The plaintiff was diagnosed with an eating disorder in around 1990 although she had symptoms from the age of 13, being the time she attended boarding school. The disorder has significantly impacted her life. I am satisfied that the RYGB operation has significantly improved the eating disorder and the plaintiff has an eating disorder treatment plan with access to a psychologist and a dietician. The plaintiff appeared to contend that the improvement was due to assistance given to her by her psychologist and her dietician. I do not accept this evidence as reliable or credible. The plan approved 40 visits per year. The plaintiff is on her third plan. The plaintiff was diagnosed with a major depressive disorder from the time she was in her early 20s and there is an acknowledged link between the depressive disorder and her eating disorder. The plaintiff has always used food as a coping mechanism. The plaintiff was diagnosed with ADHD and autism following the surgery in 2022.

56. The plaintiff arranged for the stomach stapling surgery herself which took place in the UK in 1997. In 2022, the plaintiff was aware of the risk of her eating disorder and the risk of binge eating. She saw the psychologist, Ms Dalby, in 2022 for treatment of her eating disorder, and she was later diagnosed by Ms Dalby with extreme severe depression on 12 May 2022. A further diagnosis of moderate anxiety and mild stress was made by Ms Dalby at the same time; however, these diagnoses were made after the plaintiff completed a questionnaire given to her by the psychologist and after consultations. The plaintiff’s expert psychiatrist, Dr Fukui, dismissed the relevance of this questionnaire and these results in her evidence.

57. The plaintiff agreed that from at least September 2021 she consulted with her GP about feeling tired most of the time because at the time she was active and busy. This continued until the surgery. The plaintiff then agreed that on 22 April 2022 she consulted with Ms Dalby and told her that she was struggling on long walks and had reduced core strength.

58. The plaintiff agreed that she used alcohol and recreational drugs whilst at university. She was not a heavy drinker, but she had problems with confidence and she used alcohol as something of a crutch to assist her social confidence. I am unable to accept that the plaintiff was not a heavy drinker. I accept that the rate of people’s alcohol consumption is a comparative, but I am satisfied that because of the poverty of her existence, her weight, and all her other maladies, the plaintiff sought solace in alcohol extensively.

59. The plaintiff maintained her driver’s licence and used a vehicle to go to the shops from about 2023. She can go for walks of up to 1 km on flat services and can now stand and walk for a period of 20 minutes. She can do basic cleaning and has a housecleaner.

60. Although her vomiting problem commenced earlier from at least April 2022, the plaintiff started vomiting blood in May 2022. When she was vomiting blood, the plaintiff was not on a reduced diet and thought her allergy was the cause. The plaintiff did continue to have vomiting problems when she ate meals outside of the home. As a result, she sought treatment from her GP. In July 2022, the plaintiff had an event of very serious vomiting over a period of some two days whilst she was under the care of her GP and after she had been referred to the defendant for review.

61. The GP referred her to the defendant for review and for a gastroscopy and a colonoscopy. The plaintiff had a first consultation with the defendant who advised her to have a gastroscopy and a colonoscopy. The defendant gave her a pamphlet which outlined the operative procedures, dietary requirements and risks. In the plaintiff’s presence, the defendant filled out a request for admission which the plaintiff read and signed as her consent. An approval for the defendant to charge the health funds was also signed. The signature is dated 23 June 2022, being the date of the consultation and when she gave her history to Dr Spiro. The plaintiff agrees that it is possible that any email correspondence between the defendant and the GP was copied to her. The gastroscopy was set for 8 July 2022 at the Calvary Bruce Private Hospital. Shortly prior to the date for admission, the plaintiff told Dr Spiro that she did not want to have the colonoscopy.

62. After the gastroscopy, the defendant came and spoke to the plaintiff in the recovery room, showed her some photographs and listed the things which she identified in the gastroscopy. The plaintiff was told that there were samples taken for pathology testing and there should be a meeting later in the defendant’s rooms.

63. On the Tuesday following the gastroscopy, the plaintiff had a severe episode of vomiting, including vomiting blood. She could not eat anything or drink anything. At the time, the plaintiff was using insulin to treat her diabetes and needed to regularly eat food and take fluids to regulate her blood sugars. On 13 July 2022, the plaintiff saw a different GP and told him she was experiencing stomach pains, vomiting, nausea, vomiting of blood and that her condition was unexplained and undiagnosed. The GP confirmed that he did not have the full report of the defendant, but that the plaintiff had been told about possible ulcers and Barrett’s oesophagus. The plaintiff told the GP that in the last couple of days she had vomited up every meal, including medications. In evidence, the plaintiff said that this was not true when she told this to the GP. The plaintiff did correctly tell the GP that in the morning she had a small amount of milk at breakfast and vomited and that she could no longer tolerate fluids. The GP prescribed a drug to suppress vomiting called Ondansetron, but the plaintiff had used it previously and had some leftover tablets which she had already taken that day. These had not suppressed the vomiting. At the same time, the plaintiff was already taking Nexium and her GP gave her a plan to take the vomiting suppressant drug. His main concern was her dehydration.

64. The notes of the GP the plaintiff saw on 13 July 2022 record that he asked her to focus on oral intake of fluids and, if she could not tolerate fluids or medications by that evening, she should seek admission to the emergency department of the Canberra Hospital. The plaintiff cannot recall the GP giving her this advice. I do not accept this evidence of the plaintiff. It is a matter of plain common sense that a GP who, in these circumstances, is concerned about a patient’s dehydration, will give her advice to present at a hospital if the vomiting continued. This is especially the case for an insulin-dependent person such as the plaintiff. The notes of the GP also indicate that he would contact Dr Spiro to discuss the plaintiff’s condition, but the plaintiff did understand from the GP that if she could not tolerate fluids, she needed to obtain assistance urgently.

65. Pages 129-130 of Exhibit P1 contain a letter from Dr Spiro to the GP, Dr Kolos, of 28 June 2022 in which Dr Spiro reports on the consultation and discussion with the plaintiff on 23 June 2022. The defendant reports that the plaintiff has developed a sensitivity to capsaicin since the VBG in 1997 and occasionally when exposed to capsaicin the plaintiff vomits. The plaintiff complained that in May 2022 she was coughing a fair bit, was nauseated and vomiting and was unable to tolerate fluids. She then contracted Covid- 19. In June 2022, the plaintiff experienced vomiting and this was happening more frequently. In normal circumstances, the plaintiff can eat one cup of food but now has a lot of reflux with epigastric and lower chest pain. She is not on protein pump inhibitor (PPI) and takes Gaviscon for relief, but her symptoms were ongoing. To some extent this “cut across” one of the opinions expressed by Dr Skidmore who opined that before surgery, it was necessary to administer several tests, including administering a PPI. Of importance is the fact that the history given to Dr Spiro by the plaintiff included a history of continuous vomiting and a lot of gastric reflux with epigastric and lower chest pain. Dr Spiro also reported that the helicobacter pylori serology showed no abnormality detected. At transcript pages 216, 230 and 233, Dr Spiro informed the court that this serology relates to the detection of gastritis and ulcers.

66. The plaintiff was unable to contradict any aspect of the content of this letter because she could not remember the conversation she had with Dr Spiro verbatim. The plaintiff did not take notes, but she recalls Dr Spiro gave her information about bowel preparation and what was involved in a colonoscopy and a gastroscopy. The plaintiff knew that she was booked in to undertake these procedures in a hospital on 8 July 2022. The plaintiff can recall clearly telling Dr Spiro that on occasions she was unable to tolerate fluids which caused her to vomit. In preparation for the gastroscopy, Dr Spiro prepared a request for admission. The gastroscopy was performed on 8 July 2022 in a day procedure. Following this procedure, on 12 July 2022, the plaintiff commenced to vomit violently such that she could not hold down food or water.

67. Because she was so ill, the plaintiff conferred with a GP on 13 July 2022. The GP, Dr Mogg, urgently referred her to the defendant and they had a consultation on 13 July 2022 at which time the defendant advised her that, in light of her history and the period of time that the VBG had been in place, it was necessary for the plaintiff to undergo surgery to repair a hiatal hernia, for there to be a gastric resection and for there to be a RYGB. The defendant had earlier prepared a request for admission for the surgery which was originally to be undertaken on 22 July 2022. Because of the plaintiff’s deteriorating condition, the defendant brought forward the surgery date to 15 July 2022 and prepared a request for admission document. In her evidence, the plaintiff denied seeing the document or signing it. I am unable to accept this evidence because pages 140 and 302 of Exhibit P1 contain the full request for admission document which is signed by the plaintiff.

68. As well, at page 50 of Exhibit P8, the psychiatrist Dr Fukui records that at no time was the surgery explained to the plaintiff, and the plaintiff did not register it. I am unable to accept that evidence and I accept that the plaintiff failed to correct the impression she gave to Dr Fukui that this was the case even though she maintained that the evidence was true. This was because on 13 July 2022 the plaintiff was scared about what was happening and did not completely understand. The plaintiff said she had no recollection of some of the things that might have been said at the meeting and accepted that she might have had a confused memory of the meeting because she was feeling ill. In cross-examination, the plaintiff accepted that this confused memory applied not only to the meeting she had on the night of 14 July with Dr Spiro but also to her conversations with Dr Spiro immediately prior to the surgery on 15 July. I am satisfied that this evidence about what she told Dr Fukui is not persuasive or credible.

69. I found the evidence given by the plaintiff on these topics in cross-examination to be quite unsatisfactory and, unless it is separately corroborated, I am unable to accept it as persuasive or credible. In her evidence, the plaintiff informed me that she had gone through the medical notes of several doctors whose notes are contained in the tender bundle and she identified and required corrections of portions of them as being inaccurate. She failed to do so in relation to the obviously inaccurate content of the notes kept by Dr Fukui, an expert to be called on her behalf and in support of her case. The plaintiff wrongly informed Dr Fukui about the information she received from the defendant but these notes were not corrected.

70. I also found the plaintiff’s memory to be very selective and, in this instance, the assertion that she did not sign the request for admission document about the major surgery on 15 July 2022, is simply not credible. It is completely inconsistent with the care previously taken by the defendant in seeking the authority of the plaintiff for the surgery and for the making of arrangements with the relevant hospital. The plaintiff had previously signed similar documents for the gastroscopy. I formed the view that the plaintiff was taking every opportunity she thought might have been available to her to damage the credibility of the defendant without having taken the same level of care to check the documents within her own tender bundle.

71. There is also a level of fatuity about these contentions of the plaintiff. As a surgeon, the defendant could not have undertaken the surgery at the hospital without first obtaining the necessary authority of the plaintiff. Once obtained, this authority could then be used to book surgical space and the other necessary resources of the hospital. After she had been shown the signature, the plaintiff then recalled that she had signed a document authorising a charge by the defendant upon her health fund, NIB. Initially the plaintiff maintained that, on her understanding, the surgery was for a hernia repair but upon reading this authority agreed that she was told that it was for an RYGB. The authority to charge the health fund was signed by the plaintiff on 13 July 2022 and it describes the procedure as an RYGB. The plaintiff then said that Dr Spiro had described this procedure as a solution for the hernia and would not accept that she might be mistaken. I am unable to accept this evidence of the plaintiff as being persuasive or credible. For the same reasons, I formed the view that the plaintiff was again attempting to take every opportunity to damage the credibility of the defendant.

72. The plaintiff agreed that at the meeting on 13 July 2022 Dr Spiro discussed the histopathology report, told her of the results and, for example, confirmed that she did not have any cancerous cells. This was one of the plaintiff’s major concerns after being told of a suspicion of Barrett’s oesophagus. The plaintiff might have been shown photographs from the gastroscopy. The plaintiff does not remember the defendant telling her that she had some mucosal changes. The plaintiff was told that she had a hiatal hernia, but she cannot recall any discussion about the obstruction, whether it was complete and she had no idea what it all meant.

73. The plaintiff was very concerned about dehydration and her vomiting because she been vomiting since midday the previous day when she saw Dr Spiro on 13 July 2022. The plaintiff asked Dr Spiro what she could do to address the symptoms or problems. The plaintiff asserted the Dr Spiro did not explain there were two options: one being the revision of the VBG and the other being the RYGB procedure. The plaintiff stated that if she was told about the revision she would have chosen it.

74. The plaintiff was given the Royal Australasian College of Surgeons document about weight loss surgery that included information about the risks of the RYGB procedure. However, the plaintiff does not recall any conversation with the defendant about those risks or for any option to reverse the VBG procedure. The plaintiff denied being told by Dr Spiro that the reversal was simpler, could be done by keyhole surgery, but that it would not do anything to address the reflux and could make it worse. It could also cause the weight problems to return, and this was a matter that the plaintiff addressed with Dr Spiro. The plaintiff denied Dr Spiro telling her that reversing the stapling would mean open access to the stomach or that Dr Spiro explained she could have the RYGB after the reversal, but the private health fund would only cover one surgery. The plaintiff denies Dr Spiro talked about the risks of a more complicated and longer surgery, or the risk of developing dumping syndrome or ulcers. The plaintiff accepted that Dr Spiro explained that an internal hernia could be a result of the RYGB. She denied that Dr Spiro explained that the reversal procedure would be done via laparoscopy and she would have a quicker recovery. The plaintiff maintained that reversal surgery was not mentioned.

75. The plaintiff accepts that she was concerned about her diabetes and the regulation of her blood sugar and accepts Dr Spiro told her that the RYGB procedure would improve her diabetes and her reflux. The plaintiff accepts that the surgery has resolved or improved her diabetes concerns and has resolved her reflux. I am satisfied that the surgery has resolved her diabetes to the extent she described and as was advised by the defendant at the time. The plaintiff also accepted that the initial surgery was arranged for 22 July 2022 and that Dr Spiro explained that if the symptoms or condition got worse there may be a need to bring the surgery forward. The plaintiff denied that she was informed by Dr Spiro of the risks of bleeding, pneumonia, infection and the collection of fluid. The plaintiff accepts that Dr Spiro explained that the RYGB procedure was not weight loss surgery and recalls Dr Spiro talking about the amount or length of the plaintiff’s intestines that would be reduced. The plaintiff accepts Dr Spiro’s notes contain a record of a discussion about both options, being the RYGB and the revision, but refuses to accept that this is more likely to be an accurate account of what was discussed compared to her own memory. The plaintiff then asserted that anything recorded within the defendant’s notes which might be inconsistent with her memory is wrong. On that basis, the plaintiff denies ever having been told about the potential for a revision surgery. The plaintiff contends that whatever is recorded in the notes on that topic was never said to her. The plaintiff then asserted that Dr Spiro has intentionally made incorrect notes.

76. When the plaintiff cross-examined Dr Spiro, these assertions of the plaintiff were not put to the defendant. It was not asserted, in cross-examination of Dr Spiro or in submissions, that Dr Spiro had intentionally created false notes about her consultations with the plaintiff, implicitly to bolster the defendant’s defence of the plaintiff’s claims. I consider the failure of the plaintiff to put these propositions of wrongdoing to Dr Spiro in cross-examination is both telling and very significant. At many levels, these allegations made by the plaintiff significantly damage the credibility of the plaintiff. To make good the allegations, it would be necessary to accept that, at some unstated time, Dr Spiro made a false record in the expectation of a medico-legal claim at some time in the future. It would also be necessary to accept that the defendant created internal records with the intention that they recorded a consultation and advice in a deliberately false manner.

77. Finally, it would also be necessary to accept that the defendant had deliberately acted in the most egregious way in connection with her relationship with a patient on a referral from another doctor which was intentionally unprofessional and which put at risk her professional standing. There is no basis to establish any of these propositions and none of them are made out on the evidence. I reject them completely and I consider that the evidence of the plaintiff on this topic is wrong and is wholly misconceived. I am satisfied that this is a further attempt by the plaintiff to paint the defendant in the worst possible light and to bolster her own case.

78. The plaintiff was then shown a copy of her solicitor’s letter of 2 March 2026 reflecting instructions which she provided to them. The letter records that the case of the plaintiff was that Dr Spiro did not examine the plaintiff or have a conversation with her at any time between the consultation on 13 July 2022 and the commencement of the surgery on 15 July 2022. Implicitly, it appears that the plaintiff contends that the surgery was undertaken without there being any contact between the plaintiff and the defendant during that period. This would include the time immediately before the surgery when, in the usual course, there is some contact between the anaesthetist, the surgeon and the patient whilst awaiting commencement of the surgery. I am not prepared to accept this proposition which is just wrong and is anathema to plain common sense and ordinary experience. It appears to be another attempt by the plaintiff to paint the defendant in the worst possible light.

79. The plaintiff was cross-examined about the contents of this communication from her solicitors. She denied that she had ever provided those instructions to her solicitors. She agreed that she had at least one conversation with the defendant by telephone during that time, being between the consultation on 13 July 2022 and the commencement of surgery on 15 July 2022. The plaintiff then denied that it had ever been her recollection that she did not have a conversation with the defendant in the period between the consultation on 13 July 2022 and the commencement of surgery. Except to formally record that no application was made by the solicitors for the plaintiff on record, I will leave to one side the fact that this memory about which the plaintiff has given evidence strikes at the fabric of her solicitor-client relationship with the firm of solicitors. My focus is only upon the credibility of the evidence given by the plaintiff. I do not accept that when the solicitors were specifically asked to confirm their instructions, they did not obtain instructions on this point consistent with the content of the correspondence sent to the defendant’s solicitors. I do not accept the credibility of any assertion of the plaintiff to the contrary which is neither truthful nor reliable.

80. There are many other examples of the failure of the memory of the plaintiff. The plaintiff first contended that she arrived at the Calvary John James Private Hospital on 15 July 2022 at 6:26pm but the hospital notes record that she arrived at 4:15pm. The plaintiff accepted that her evidence on the topic was incorrect and that her memory had failed her. She confirmed that when she arrived, she told the hospital that she had difficulty keeping anything down, including fluids, and that even drinking water would result in her vomiting. The plaintiff accepted that a cannula was inserted preparatory to an IV drip being placed in her arm. She accepts now that she may have seen Dr Spiro on admission and that her memory may have failed her again. The plaintiff also accepts that she understood that she would be transferred to the intensive care unit (ICU) following surgery. Different to her memory, she was taken immediately to the mainstream ward and then to the ICU before surgery and it was explained to her that the reason was for the monitoring of her diabetes condition. The plaintiff cannot recall that an ECG was done whilst she was in the ICU but now accepts that it must have been done because there is a record in the hospital notes.

81. Having seen the records, the plaintiff now accepts that she was seen and spoken to by Dr Spiro and the anaesthetist on the morning of the surgery. The plaintiff can now recall a conversation with the anaesthetist on that morning. Having seen the records, the plaintiff accepts that Dr Spiro had a conversation with her when the anaesthetist was present, but she now has no recollection of it. The plaintiff also accepts that she was intubated for a period of about seven hours and that she was not intubated in the ICU ward. She was certainly not intubated for over 100 hours.

82. Following the surgery, the plaintiff was taken to the ICU ward. She suffered from a fluid overload and developed hospital-acquired pneumonia. She was very unhappy with the treatment she received at Calvary John James Hospital and Dr Spiro arranged for her to be transferred by ambulance to Calvary Bruce Hospital. This occurred on 21 July 2022. As she left Calvary John James on a gurney to the ambulance, the plaintiff told those present that she would sue Calvary John James in connection with the fluid overload because she had been given too much fluid in the ICU following the operation. Within a month of 21 July 2022, she had recovered sufficiently to seek legal advice about making a legal claim against Calvary John James Hospital about fluid overload, but this claim did not proceed.

83. Following the operation on 15 July 2022, the plaintiff developed dyspnoea, a lung condition which causes breathing difficulty. The plaintiff saw three doctors in connection with this condition, Dr Jones, Dr Ansary and Dr Huang. The plaintiff did also see a fourth doctor for a “second opinion”. The plaintiff agreed that no doctor has provided a cause for her lung condition and her feeling from her discussion with Dr Huang was that it was caused by her lung collapsing following the fluid overload received by her in the Calvary John James following her operation. One doctor advised the plaintiff that she needed a CPAP machine for treatment of her sleep apnoea, not for shortness of breath. She has also had a heart pacemaker fitted which has had a consequential effect on improving her breathing.

84. After the surgery, the plaintiff contracted Covid-19 and developed an incisional hernia. It was initially unclear what effect Covid-19 had upon the plaintiff as her sister gave evidence that she thought Covid-19 did not cause the plaintiff to be seriously ill, only that she was sick for a while. I think there is significant doubt about the evidence of the plaintiff’s sister. Exhibit D6 is a bundle of material which includes a letter from Dr Huang to Dr Russo dated 12 June 2024. Dr Huang is a respiratory physician who reviewed the plaintiff on 12 June 2024. It had been 11 months since her last review and in that time a pacemaker had been fitted. The plaintiff informed Dr Huang that, in June 2023, she contracted Covid-19 and suffered significant issues with dyspnoea (shortness of breath) as a result. Those symptoms improved after the pacemaker was inserted in October 2023. A cardiopulmonary exercise test in November 2023 at the Canberra Hospital showed an objective improvement in exercise capacity by 37% compared to January 2023. There was still a persistent erratic breathing pattern, and the plaintiff said a dysfunctional breathing pattern has been reported as one of the causes of persistent dyspnoea after a Covid-19 infection. The plaintiff said that she had not seen the reports of Dr Huang. I will return to those reports in detail later in these reasons.

85. In cross-examination, the plaintiff agreed that she developed the incisional hernia about the time she developed Covid-19 in 2023. She agrees that she was informed by Dr Huang in June 2024 that one cause of her dysfunctional breathing was that she had contracted Covid-19 in 2023. The plaintiff saw the letter from Dr Huang in 2024.

86. In further cross-examination, the plaintiff accepted that as early as May 2022, she had told Ms Dalby she was vomiting blood and attended the Queanbeyan Hospital for treatment. On 21 June 2023, the plaintiff informed Dr Ting that she lived on her own and was independent in activities of daily living. In 2024, she travelled with a friend to Türkiye for a holiday and she was able to enjoy eating and having a holiday in that country.

87. The sister of the plaintiff, Ruth Cotton, also gave evidence. The plaintiff’s sister said that before the surgery, her sister was very active and involved herself in many projects. She said that plaintiff was involved in making products from beeswax. The plaintiff’s evidence was that her bee business was destroyed in the bushfires of 2019 and 2020. The plaintiff’s sister’s observations were that the plaintiff could care for herself in all respects.

88. Following the operation, the plaintiff was a very different person, she was completely flat and, heavily sedated and was confused. The plaintiff remained in hospital for 22 days and was released to her care. The plaintiff lived at her sister’s home and her sister did all the cooking for her. The plaintiff could use the bathroom and shower by herself, but her sister, Ruth Cotton, was always present to assist. Ruth did all the shopping and the cooking. The plaintiff moved out of Ruth’s home and into a separate cottage in December 2022. At that time, the plaintiff was managing to look after herself, but she was using a wheeling walker as she was afraid of falling. The cottage was 80 m from Ruth’s home, and the plaintiff could not walk that distance. The plaintiff initially used her car to drive the 80 m distance.

89. The plaintiff and Ruth travelled to Cambodia on a prearranged holiday, but the plaintiff remained in the hotel whilst Ruth toured the countryside as arranged. The plaintiff informed Ruth that she had two reasons for going to Cambodia. The first being to see her brother and the second being to purchase suicide pills. When they returned to Australia, the plaintiff continued to live in the cottage and Ruth continued to do some laundry for her and picked up shopping and the like. The plaintiff managed to do her own cooking at times and cleaning. Ruth knew that the plaintiff was on a restricted diet and Ruth went and did some cooking for her. Ruth left the plaintiff some meals which you could reheat in the microwave.

90. In the post-operative period, the plaintiff had very limited ability to do much at all. The plaintiff expressed a desire to go out but that did not occur. This went on for about a year up until mid-2023. In her evidence, the plaintiff volunteered that she was not a very sociable person and did not go out much anyway and, therefore, I am unable to give much weight to any suggestion that she had become slightly reclusive due to the surgery. The clear impression that I formed was that the plaintiff was not a person who socialised much prior to the surgery. That is consistent with her life circumstances during which she had suffered significant depression and suffered from weight problems.

91. Ruth noticed a dramatic change in the plaintiff from the time when a heart pacemaker was fitted. This gave the plaintiff more energy, although she was still breathless. The evidence suggests that the flat presentation of the plaintiff after the surgery may have been connected to her heart problems. Also, the plaintiff said in her evidence that she now drinks multiple bottles of wine per night and that that was one of the reasons why she left her sister’s home and moved into the cottage. It is difficult to perceive that the consumption of multiple bottles of wine per night would not have some effect upon a person’s outlook on life. The consumption of this much alcohol led to strains in her relationship with her sister Ruth, and the plaintiff has now moved away from the cottage into a unit.

92. Ruth walks the plaintiff’s dogs and knows that the plaintiff does basic cleaning and has a weekly cleaner. The plaintiff’s activities are still limited, although she was doing much more than she did initially. The sisters now live 1 km apart and Ruth thinks that a walk of that distance would completely flatten the plaintiff. The plaintiff has become more difficult and terser with people, gets irritated easily and gets low at times. She has always had a level of depression, but this has become more significant and she is less tolerant.

93. In cross-examination, Ruth confirmed that the plaintiff suffered from Covid-19, but this did not have a dramatic effect upon her. I am unable to accept this evidence because the clinical notes record that Covid-19 had a significant impact upon her and that the plaintiff has had Covid-19 at least three times.

94. Dr Atsumi Fukui, a consultant psychiatrist, was called to give evidence. She prepared a report dated 16 October 2024. She was given two letters of instructions from the plaintiff’s solicitors and the following materials: clinical notes from the GP of the plaintiff, a report of Dr Adam Skidmore, an expert retained on behalf of the plaintiff, and a report of Ms Natala Cogger, an occupational therapist. In her report, Dr Fukui set out a history taken from the plaintiff. This occurred during a 90-minute consultation via AVL. There are some inaccuracies within the history recorded. Dr Fukui accepted that the plaintiff was operating a business and was otherwise operating without any difficulties from depression or a depressive disorder between 2020 and 2022. Dr Fukui reported that the plaintiff was significantly depressed following bushfires in 2020 but that her symptoms had remitted a year later. The plaintiff was under the care of a psychologist and a dietician for an eating disorder from 2021. Dr Fukui recorded that the plaintiff had undergone a hysterectomy, a bilateral salpingo-oophorectomy operation, a breast reduction, and abdominoplasty and a cholecystectomy. The plaintiff was also suffering from type 2 diabetes and a form of arthritis.

95. The plaintiff told Dr Fukui that she felt very confused about what happened in relation to the gastrointestinal surgery which was not explained to her or that she did not register it. This is not consistent with the evidence which I accept, being that an explanation was made by the defendant to the plaintiff about the surgery. The plaintiff reported to Dr Fukui that when she has a bad reaction to food she must lie down. The plaintiff is experiencing dumping syndrome which she had not been experienced before the surgery. This occurs 4-6 times per week and she has an intolerance to carbohydrates and milk. The condition triggers anxiety and a decline in her mood. She is easily overwhelmed and experiences significant anxiety and panic attacks

96. In her summary and opinion, Dr Fukui opined that the plaintiff experiences multiple medical complications following the surgery and a significant decline in her mental health. The plaintiff has become very depressed and anxious and has been suffering panic attacks. She has limited functional capacity, and she also has an alcohol use disorder which is a comorbidity of her major depressive disorder. The major depressive disorder is an exacerbation of her pre-existing recurrent major depressive disorder which had been managed through antidepressant medication and psychological therapy.

97. Dr Fukui was asked a series of questions. She said that the plaintiff’s prognosis for her major depressive disorder is poor. The plaintiff’s current outlook on life is extremely negative and her ability to function is poor. In answer to Question 4 about the relationship between symptoms and diagnosis and the impact of the surgery, Dr Fukui opined that the episode of major depressive disorder is causally related to the impact of the subject incident. In my opinion, the expression of this opinion is of limited weight because of the failure to properly instruct Dr Fukui and the paucity of credit of much of the evidence of the plaintiff on this topic.

98. Dr Fukui was asked whether there were any pre-existing psychological factors contributing to the plaintiff’s current symptoms. She said that there was a history of developmental trauma which has rendered the plaintiff vulnerable to developing depressive and anxiety symptoms. The plaintiff had suffered previous episodes of a major depressive order in 1992 and 2020. Dr Fukui accepted the plaintiff’s statements that the plaintiff was working and functioning well prior to the onset of significant gastrointestinal symptoms which led her to undergo the surgery in 2022 and that the plaintiff’s current physical condition is primarily responsible for the impairment of her daily functioning. Dr Fukui then recommended that the plaintiff continue to engage in treatment under a psychologist and a psychiatrist, continue with her antidepressant medication and advised that the medications prescribed are likely to include a low dose antipsychotic medication.

99. Dr Fukui accepted that, in reaching these opinions, she was relying entirely upon the information given to her by the plaintiff and by the plaintiff’s solicitors. Notwithstanding that she recommended the plaintiff continue to be treated by a psychologist and that she was aware that she was already under the care of a psychologist, no information was given to her about any assessment made of the plaintiff’s pre-operative morbidity. Dr Fukui was not aware that, inconsistent with the version of events given to her by the plaintiff, preoperatively the plaintiff was assessed by a psychologist as suffering from a major depressive disorder which was diagnosed as a severe mental disorder and that she was extremely depressed. The diagnosis made by the psychologist was that, in the period leading up to 5 April 2022, the plaintiff was also suffering from an extremely severe mental disorder or a likely severe mental disorder. Initially Dr Fukui was very dismissive of any assessments made by the psychologist who had been treating the plaintiff over a long period of time. Dr Fukui suggested that she can make her own clinical assessment. The weakness of that evidence is that the assessment she is making relies upon the accuracy of information given to her by the plaintiff which I do not accept as accurate. Dr Fukui could not explain why she had failed to diagnose a preoperative severe mental disorder.

100. When answering a question from me, Dr Fukui accepted that, in light of the material prepared by the psychologist which had not been provided to her, she could not say one way or the other what the position was, because in the absence of the benefit of that material she could not thoroughly challenge or test what was being said to her by the plaintiff. It would have been beneficial to Dr Fukui to have that information. For example, Dr Fukui did know that the bee business was largely destroyed in the bushfires of 2019 and 2020 and the following floods and that very little remained of that business. Notwithstanding, Dr Fukui expressed the view that the plaintiff was active in business. Dr Fukui was aware that an assessment had been made of the plaintiff that she was suffering from adverse childhood experiences in connection with her excessive alcohol consumption. She was not made aware of the evidence given by the plaintiff that she is now much better in herself and was able to travel to Türkiye in 2024. This was after the time that Dr Fukui saw the plaintiff so she could not have taken that into account in any event.

101. There appears to be an obvious inconsistency between Dr Fukui recommending that the plaintiff remained under the care of her psychologist who had treated her for many years (and from whom the plaintiff said she had gained great benefit) and the almost pre-emptory dismissal of the measurements of the plaintiff’s mood taken by the psychologist during the treatment. In making that observation, I accept that the qualifications and roles of a psychologist and psychiatrist are different for obvious reasons. In the end, Dr Fukui accepted that it would have been beneficial for her to have had the benefit of those assessments and that information and that she could have better tested and analysed the information being given to her by the plaintiff. In her report when addressing Question 5, Dr Fukui accepted that the plaintiff had suffered episodes of major depressive disorder in 1992 and 2020. I am satisfied that, although there were significant episodes in those years, these were only two of several significant episodes in an ongoing major depressive disorder diagnosed by the psychologists and in respect of which the plaintiff received ongoing treatment.

102. Consequentially, the opinions expressed by Dr Fukui are circumscribed in several respects and the weight to be given to them is similarly circumscribed. To assist her in preparing her report, Dr Fukui was not given a full suite of information about the plaintiff. For example, Dr Fukui was not given the benefit of records maintained by a treating psychologist gathered over a long period of time and many consultations that would have assisted her in her assessment of the plaintiff. I am also satisfied that some of the information given to her by the plaintiff was inaccurate in the manner described above. As a result, I have given the opinions expressed by Dr Fukui only such weight as I consider appropriate and I did not obtain significant assistance from the opinions expressed by her for those reasons.

The Evidence of the Defendant

103. By letter dated 10 June 2022, the plaintiff’s GP referred the plaintiff to the defendant. The letter of referral asked the defendant to manage a gastroscopy to further elucidate the cause of the plaintiff’s haematemesis. The letter of referral states that the plaintiff has suffered an acute vomiting illness and has also suffered from haematemesis since 25 May 2022. It records that this condition had recurred that week in the absence of concomitant illness. The GP said that the plaintiff does not take a PPI, has never had a gastroscopy and had her stomach stapled in 1997. The GP included within the letter of referral the test results for haematology, arthritis, serum chemistry, testing for vitamin D and testing for glycated haemoglobin for the plaintiff. There were also results for C- Reactive protein, serum/plasma glucose and iron studies. The GP reported the plaintiff’s history of depression, type 2 diabetes mellitus developing in 2004, arthritis developing in 2004, Psoriatic arthritis developing in 2021 and hysterectomy in 2021. This was not an accurate recital of all the surgical and other procedures undertaken by the plaintiff which are recorded in the report of Dr Fukui and which I have set out above. The current medications consumed by the plaintiff and physical test results were set out. It records that the plaintiff was a smoker until 2021, that she consumes alcohol and it then sets out details of measurement over time of the plaintiff’s blood pressure, height, weight, BMI, waist and hip measurements, and the waist to hip ratio measurement last taken on 17 March 2022.

104. The defendant said that she read this letter before conferring with the plaintiff, described the various conditions referred to in the letter and said that she looked closely at the haematology results. These results disclosed that between 26 April 2022 and the last blood test on 8 June 2022, the plaintiff’s haemoglobin count dropped from 139 to 130 which the defendant thought could be a sign of blood loss. The plaintiff was vomiting blood. The defendant also referred to the glycated haemoglobin results. These were of particular interest because the defendant understood that the plaintiff suffered from type 2 diabetes and the defendant identified that the plaintiff’s glycated haemoglobin measure was 6.8. This is the measure of sugar molecules attached to blood cells, and it measures the severity of the diabetes. These measures of 6.8 were high as the acceptable range is 4.0-6.0.

105. The defendant’s usual practice upon receiving a referral is to examine it, identify the essential features and then formulate in her own mind potential diagnoses that she would like to explore. She keeps an open mind for consultation with the patient and once that occurs, she will then decide upon ordering further investigations. In her reading of the letter, the defendant took note of the use of the disjunctive “however” which particularly drew her attention to the fact that the plaintiff had started vomiting in the absence of any other illness. During this vomiting, the plaintiff also suffered haematemesis and so there were two major factors to be considered: the vomiting not otherwise explained by illness and then the associated haematemesis. The defendant made notes during her consultations with the plaintiff, but she cannot independently recall every conversation she had with the plaintiff. She can recall parts of those conversations and relies on her notetaking. In 2022, the defendant used a computer program to record notes and documentations from consultations and operations. She can recall the first consultation with the plaintiff on 23 June 2022.

106. The defendant’s recollection of the first consultation is that she met the plaintiff in her rooms and asked the plaintiff about her history. The plaintiff told her about the symptoms she suffered and emphasised that she vomited inexplicably after eating solid foods and also sometimes after consuming fluids. The defendant asked her how this impacted her diabetes. Both the plaintiff and the defendant expressed concern about the plaintiff not being able to tolerate fluids. They discussed the defendant and the plaintiff’s GP wanting to investigate the impact of the 1997 surgery on the plaintiff’s vomiting and nausea. There was no significant history of the plaintiff’s drug and alcohol use elucidated at that time. In their discussions, they briefly touched upon the plaintiff’s complex relationship with her father and other family issues and this played no part in these proceedings.

107. The plaintiff was referred to the defendant by her GP for investigation under a gastroscopy and potentially a colonoscopy. After a discussion with the plaintiff, the defendant informed her that she would book her into the hospital and sought her consent to perform a gastroscopy and colonoscopy. The defendant prepared the admission documents in the usual way, took the plaintiff through the contents and asked the plaintiff to sign them. When doing so, the defendant explained to the plaintiff the risks of the procedures and the preparation requirements for them. The defendant was then referred to her notes taken at the consultation. These notes were typed during the consultation.

108. The defendant was told by the plaintiff that she had developed sensitivity to capsaicin since her VBG surgery in 1997. In other records, the plaintiff told her GP that she had developed a sensitivity to capsaicin in the early 2000s. The plaintiff explained that the sensitivity has happened in the past, occasionally when exposed to capsaicin, and vomiting results. She was coughing a fair bit in May 2022, was nauseated and vomiting and was unable to tolerate fluids. She did not suggest this was associated with the ingestion of food containing capsaicin. The plaintiff contracted Covid-19 after that. She encountered more vomiting on 22 June 2022, and it had become more frequent. In normal circumstances, the plaintiff could eat about one cup of food. The plaintiff also informed the defendant that she has a lot of reflux and has epigastric and lower chest pain for which she takes Gaviscon. In her evidence, the defendant did not independently recall the plaintiff telling her about the reflux and the epigastric and lower chest pain.

109. Following a discussion about these symptoms, the defendant advised the plaintiff that she should undergo a gastroscopy and a colonoscopy. The defendant then completed a request for admission and/or procedure at the Calvary Bruce Private Hospital in the name of the plaintiff for a gastroscopy and colonoscopy. The defendant asked for a paediatric scope as she held the suspicion that the plaintiff’s os at the base of the VBG surgery was narrow. The defendant considered that the plaintiff told her that there had been a progression in her vomiting symptoms which were now more frequent. The plaintiff’s H-pylori serology tests showed no abnormality detected and so there was no bacteria identified which could be causing the vomiting. The defendant recalled that the plaintiff demonstrated the typical symptoms of gastric reflux and she identified her pain site as being where the stomach would be. Epigastric chest pain refers to pain in the upper part of the abdomen, where it meets the chest.

110. The defendant’s usual practice was to provide to patients a separate printed handout on each procedure provided by the Royal Australasian College of Surgeons. The defendant did this with the plaintiff.

111. During the first consultation with the plaintiff, the defendant recalls obtaining an understanding of the plaintiff’s 1997 surgery which was a stomach stapling surgery called VBG. In a VBG, the tube size at the bottom of the stomach, which has been narrowed by stapling, is reduced to 1 cm to facilitate weight loss. The defendant explained the VBG procedure in the following way: A part of the stomach at the top end where the oesphagous becomes the stomach is stapled over a length of about 10-15 cm to form a narrow tube. At the end of that narrow tube there is often suture material, mesh or a gastric band that is applied to ensure that the opening or the oss of this tube remains at a size of 1 cm.

112. VBG surgery is no longer supported by the American Society for Metabolic and Bariatric Surgery due to complications associated with the procedure, in particular dysphagia, which is an inability to tolerate fluids or solids. This means that a patient would have difficulty swallowing or keeping food and fluids down without vomiting. From her training and experience, the defendant was aware of this complication from VBG surgery in 2022. Page 98 of Exhibit D18 is the second page of the consent for medical and surgical treatment which is signed by the plaintiff. Immediately above the signature of the plaintiff is a series of questions which have been ticked or otherwise answered. The defendant discussed each line with the plaintiff, and the document was filled out in the presence of the plaintiff. The defendant may have earlier completed the first page and that is commonly done. The defendant submitted the form as completed to the hospital in the usual way.

113. The defendant’s usual practice was then to write a letter of report to the referring GP. She has a pro forma letter on her system for this report. Her usual practice was to copy the patient into all communications with their referring doctor. The defendant has no specific memory that in this instance her usual practice was followed. The letter is dated 28 June 2022 and it sets out the relevant medical background and the history given to the defendant by the plaintiff. It records the discussion between the plaintiff and the defendant, including the possible need for a balloon dilation of the gastric os to complete the gastroscopy. The gastroscopy was performed on 8 July 2022 at the Calvary Bruce Private Hospital by the defendant. An anaesthetist was present during the procedure. During the procedure, the defendant took a number of biopsies and, when necessary, turned the scope so that it moved back upon itself and could take photographs and biopsies of where it had come from. The biopsies were taken to provide confirmation of what the surgeon may think is seen through the scope. In that process, the endoscopist can use a number of different light bands but at Calvary Bruce only two light bands, white light and narrowband imaging, were available. On occasions when using a scope, the endoscopist may experience haptic feedback, which is resistance, and this occurred during this gastroscopy.

114. During the gastroscopy, the defendant was able to pass by the voice box easily and then saw that the plaintiff had an irregular Z-line, which is where the lining of the oesophagus meets the stomach. The line should not be asymmetrical, but the plaintiff’s Z-line was asymmetrical. The defendant switched to a narrowband light and did biopsies to exclude Barrett’s oesophagus as a query. This explains the question mark next to the entry of Barrett’s oesophagus in the defendant’s notes. The defendant placed a question mark next to any entry about which there was some query and where a diagnosis had not been confirmed. The scope used by the defendant carries a number which is the measurement of the distance between the tip of the scope back to the teeth in the mouth. This demonstrates the depth of insertion of the scope.

115. After observing the Z-line, the defendant went into the neo-stomach. This appeared dilated and the defendant could not see with a light past the opening which indicates a tightening of the os. The defendant needed to push the scope into the first chamber of the stomach, and she was able to traverse the opening with a bit of wriggling of the scope. She then went on to the first and second stage of the duodenum which she called the small bowel. The scope went into the second part of the duodenum which is standard gastroscopy practice and the examination ends at the most distant part of the second part of the duodenum. The defendant took biopsies as she progressed and was required to record where each biopsy was taken. This is checked off with the assisting nurse who labels the specimens taken at biopsy. Post-operatively, the defendant had to provide a form which matched the labelled specimens and place of biopsy.

116. During the gastroscopy, the defendant noted a mild irritation at the most distal point and so took a biopsy to corroborate previous tests. In the stomach, the defendant caused the endoscope to flex back on itself to look at the stomach stapling, and the small and large chambers created by the VBG. She saw that the opening of the VBG hugged the scope so there was no excess space. The top part of the excluded part of the stomach looked dark and she concluded that this may be an element of a paraesophageal hernia. Her impression also was that the stomach was sliding out of the abdominal cavity and into the chest. She did not see any ulcers or bleeding at this point. She then withdrew the scope and confirmed what she saw in the gastro-oesophageal junction but did not take a picture of the voice box.

117. Following the conclusion of the gastroscopy, the plaintiff was observed for a short period of time in the endoscopy suite and then taken to recovery. The defendant had a conversation with the plaintiff following the gastroscopy and relayed her general findings and thought that there was some irregularities in the oesophagus and she suspected Barrett’s oesophagus but that would need to be confirmed with biopsies. The defendant said that the opening of the VBG was hard to get through. She was aware that the usual practice of the Calvary Bruce Private Hospital was to give the patient a copy of the endoscopy report.

118. The defendant was then shown Exhibit P1 pages 131 – 132 which she said was a gastroscopy report using a pro-forma report. On page 132, there are pictures collected at the time of the gastroscopy, and one appears not to have come through because of a glitch in the hospital program. The program contains a text box and the endoscopist is required to select the photograph to match the text box. Once the box has been clicked, the photograph can be assigned to it. The defendant did not remove the text box that covered the third image and she could not record free text in the textboxes, being limited to the options available in dropdown menus within the pro forma. Therefore, she could not record, for example, the difficulty with the duodenum she experienced beyond the initial entry point and so there was no ability to make a more nuanced record of what she was seeing. The defendant’s choices were to either record “with difficulty to the duodenum” or “without difficulty to the duodenum”.

119. The defendant included a record of what she observed, being that the gastro-oesophageal junction was in an irregular place, and so there was a need to exclude the possibility of a hernia. She queried a Barrett’s oesophagus because the transition was irregular. The line between the white and pink tissues at the bottom of the gastroesophageal junction is the Z-line and the type of cells at that point could not be determined on an endoscopy, hence she took biopsies. Where there is a hiatus hernia, it is necessary to report the irregular Z-line and the location of the diaphragm to demonstrate the stomach has moved into the chest cavity. The picture in the middle line, marked number 5 on page 132 of Exhibit P1, shows where the diaphragm is cinching the excluded stomach. On the picture marked number 6, the scope is marked ‘A’ on the exhibit and the circle marked is the excluded stomach being herniated into the chest which is marked ‘B’.

120. The defendant received the biopsy histopathology reports which confirmed there was no Barrett’s oesophagus and there were no specific features of the excluded stomach. She conferred with the plaintiff on 13 July 2022 to review the results. The defendant informed the plaintiff that she did not have Barrett’s oesophagus and informed her of the other results from the biopsies. At that meeting, the plaintiff informed the defendant that her dysphagia was becoming worse over the course of the week between the time of the gastroscopy and 13 July 2022. The plaintiff could not hold down any food or water, and she had experienced increased vomiting over the week. It had become very severe on 12 and 13 July 2022. At the meeting, the defendant discussed with the plaintiff the surgical options available to her. First, the defendant offered a reversal of the gastric band surgery but explained that this could not be guaranteed to fully remedy the plaintiff’s dysphagia issue. The second alternative offered was the RYGB procedure. The defendant explained that she would make a pouch from the VBG and would then connect it to the small bowel after splitting the bowel in half.

121. Exhibit P2 contains diagrams drawn by the defendant for the plaintiff after the RYGB surgery explaining how the surgery worked. The first drawing explains the gastric outlet obstruction, the second depicts what was removed and the third depicts how the small bowel is rewired in the RYGB procedure. The defendant explained that the far side of the bowel is attached to the gastric pouch and the nearside is then attached to the far side of the bowel. Exhibit D7 is a copy of a handout prepared by the Australasian College of Surgeons on weight loss surgery, including the RYGB procedure. The defendant provided an original copy of this document to the plaintiff. It was a glossy three bifold brochure. Also at the 13 July meeting, the plaintiff and the defendant discussed the plaintiff’s hiatus hernia and her continuing reflux. During the meeting, the defendant spoke reasonably constantly and worked through with the plaintiff all the reasons why she may do one thing and not the other. The plaintiff asked questions, especially about how each option would impact her dysphagia, which was her primary concern. The defendant explained to the plaintiff that the risk of continuing gastric reflux and of weight gain was reduced under the RYGB procedure. The defendant recalled that in that discussion the plaintiff became very teary, told the defendant of her history and that she did not want to return to her previous state of being morbidly obese.

122. The defendant took the plaintiff through the process of the reversal of the VBG surgery and all of the risks involved and then did the same for the RYGB procedure. One risk in the RYGB procedure that the defendant drew to the plaintiff’s attention was something called ‘dumping syndrome’. The defendant informed the plaintiff that in dumping syndrome, the pancreas increases the amount of insulin it releases in response to carbohydrates. It leads to palpitations, sweats and diarrhoea. The defendant informed the plaintiff of the risks of developing dumping syndrome, the possibility of a hernia and the risks of developing ulcers if she drank and smoked. The defendant also advised her that other risks of the reversal of the VBG included the jamming of the stapler used in the stomach process, clinical lung collapse, bleeding and injuries to surrounding organs. The defendant informed the plaintiff that gastric outlet obstruction would be addressed by both surgeries, but that the reflux problem she suffered would be better addressed by the RYGB procedure.

123. After this discussion, the plaintiff informed the defendant that she wanted to undergo the RYGB procedure. After receiving these instructions, the defendant, in company with the plaintiff, completed a request for admission for the surgery at the Calvary Bruce Hospital. Exhibit P1 pages 135 – 136 are clinical entries made by the defendant in which the biopsy results are cut and pasted. They are the defendant’s internal records. The defendant said that the decision was made to go with the RYGB procedure because of the length of time the plaintiff had been suffering her symptoms. The defendant was so concerned that she made a proviso on the documents that if the plaintiff was not tolerating much by mouth in the next 24 hours, the defendant would look to moving the surgery forward or the plaintiff should present to the emergency department at the hospital. The plaintiff was very concerned about her inability to tolerate much at all by mouth. The defendant was making notes about her conversation with the plaintiff as the discussions developed. The plaintiff was present when the defendant typed these notes and the defendant called the GP to inform them of the advice given to the plaintiff and the plaintiff’s decision about surgery.

124. The document signed by the plaintiff and the defendant for the surgery is included in Exhibit P2 at pages 11–12. It plans surgery on 22 July 2022. It is in the defendant’s handwriting and signed by both the defendant and the plaintiff. Both signatures are dated 13 July 2022, the date on which the defendant says the form was completed. A report was made to Dr Kolos, and it is included in Exhibit P1 at pages 137–138. It is the pro forma document which the defendant had on her computer system and so dates are not necessarily accurate when there is a reference to “today”.

125. There was then an email exchange between the plaintiff and the defendant on 14 July 2022. Exhibit P2 at page 29 includes an email sent from the plaintiff to the defendant and the defendant’s response. When the defendant got time, she rang the plaintiff and asked about her symptoms. The plaintiff told her that her symptoms were now very severe and that she was terribly concerned and worried about her diabetes. The plaintiff was advised by the defendant that she should go to the Canberra Hospital or to a private hospital to seek treatment. The defendant advised that intravenous fluid hydration was the main treatment the plaintiff required and that the plaintiff may have to undergo urgent surgery, brought forward from 22 July 2022. The plaintiff instructed the defendant that she wanted to bring the surgery forward. The defendant then prepared a request for admission of the plaintiff to the Calvary John James Hospital: see Exhibit P1 pages 139–140. The defendant completed and signed this form, and it was not signed by the plaintiff on the day of preparation.

126. The defendant did not have a planned surgical list at Calvary John James Hospital on 15 July 2022 and so she spoke separately to the intensivist on call and the anaesthetist to arrange for the plaintiff to undergo the surgery. The defendant also spoke to the hospital manager on 14 July 2022, arranged for a hospital bed and for the plaintiff to present at the hospital on that day. The plaintiff attended the hospital and was admitted.

127. The defendant had a conversation with the plaintiff on 14 July 2022. At that time, the plaintiff was on a gurney and she told the defendant that she was not tolerating solids or liquids by mouth and was constantly vomiting. The defendant spoke to the resident on the ward and to the ICU consultant over the telephone. After surgery, the plaintiff would be returned to the ICU ward, and the defendant wanted to ensure that arrangements were made for that ward to manage the plaintiff’s blood sugar levels. Exhibit P1 at page 144 provides a record of a discussion between the defendant and the plaintiff. At the hospital, the ward doctor documented activity connected with the plaintiff and documented that a discussion occurred between the plaintiff and defendant on that day.

128. Exhibit P1 at pages 141–143 includes a printout of the notes from the records of the Calvary John James Hospital. It describes the name of the ward, records that the plaintiff told the defendant she had been having trouble keeping any food or water down and the transfer of the plaintiff to the ICU ward as arranged by the defendant. The defendant had conversations with the plaintiff on 14 July 2022 and then on 15 July 2022 prior to surgery. On 15 July 2022, the defendant and Dr Herrick, the anaesthetist, conferred with the plaintiff prior to surgery and went through the necessary consent checks. The defendant asked the plaintiff if she had any questions or concerns and the plaintiff did not have any. Exhibit P1 at pages 301–302 provides the hospital admission form signed by the defendant on 15 July 2022. In her discussions, the defendant confirmed with the plaintiff the choice of surgery and then again discussed risks and complications. There was a consent to a blood transfusion if necessary. Following that discussion, an intravenous cannula was inserted into the plaintiff’s arm.

129. In her planning for the surgery, the defendant intended to perform laparoscopic surgery. At surgery, the defendant realised there was what she described as a “hostile abdomen”, meaning there was a lot of scar tissue from previous surgery. The defendant then performed a laparotomy and spent between two and three hours dividing the adhesions on the plaintiff’s hostile abdomen before performing the RYGB. The defendant stapled above the obstruction of the old staple lines of the VBG and then removed the top part of the stomach that was herniated. She completed the RYGB part of the operation in about 1.5 hours. The only complication was that there was some bleeding on the spleen. The defendant did not see any sign of a food bolus. She performed leak testing and then concluded the procedure.

130. Exhibit P1 at pages 144–148 provides the operation report prepared by the defendant; her notes are recorded at pages 146–148 of Exhibit P1. Pages 149–151 of Exhibit P1 provide a further copy of the same report and under the third heading “Operation Performed” there is a handwritten entry stating, “repair of incisional hernia” and under the heading “Operative Findings” there is a second handwritten insertion stating, “incisional hernia”. Within the operative report there is an entry that “the staple lines were oversewn with Stratafix 2’0”. There is then a handwritten entry stating, “Hand-sewn gastrojejunostomy”. All of these handwritten entries were inserted by the defendant. The indication for the operation which is the second entry on the operation notes records “gastric outlet obstruction”. The evidence satisfies me that, at the time, the plaintiff was not suffering a gastric outlet obstruction. In the record completed by the defendant post-operatively, there was an initial reference to a small to moderate hiatus hernia, but the plaintiff said that the herniated stomach was removed as a specimen during the operation.

131. Exhibit P1 at page 147 provides a record of the defendant’s pre-operative and post-operative diagnosis. Each records a diagnosis of gastric outlet obstruction. There is no evidence to satisfy me on the balance that there was a gastric outlet obstruction. The defendant maintained that there was a gastric outlet obstruction at the level of the stomach stapling surgery because the small opening could have made it more difficult for food to go through to the first part of the duodenum and that, combined with gastroparesis, would make the plaintiff unwell and lead to vomiting as food would sit for hours and not move through to the duodenum. Gastroparesis is a complication of diabetes considered by the defendant when undertaking the surgery.

132. Post-operatively, the defendant in company with Dr Herrick, the anaesthetist, visited the plaintiff in the ICU ward. She observed the plaintiff was very puffy and her oxygenation was poor. A check was made of the fluid balance chart, and the defendant found that in less than 24 hours the plaintiff had gained 5 kg in excess fluid. The plaintiff told her that she was unhappy with the care received and was intending to sue the hospital. The defendant arranged for her to be transferred to the Calvary Bruce Private Hospital.

133. Post-operatively it was observed that there was no bowel movement and no sign that bowel movement would return. A CT scan was performed which identified an obstruction at the port through which the defendant had put the camera and a hernia requiring repair. The defendant elected to perform further surgery on the plaintiff and, at the same time as repairing the hernia, inserted a feeding tube. The surgery was performed on 22 July 2022. Pages 18-19 of Exhibit P2 set out the operation notes of the defendant for the subsequent surgery on 22 July 2022. The indication for the operation was an incisional hernia causing a small bowel obstruction. The operation performed was a laparotomy, a repair of the incisional hernia, the insertion of a subcutaneous drain, the insertion of a feeding tube and the insertion of two catheters. The operative findings were the identification of the collapsed bowel herniation and repair.

134. After this further surgery, the defendant continued to monitor the plaintiff’s care in the hospital and referred the plaintiff to other medical practitioners for supervision. The plaintiff remained in hospital until there was a return to gut function and the requirement was for the plaintiff to be tolerating fluids. She was placed under the care of a dietician. The defendant continued to question the plaintiff about any symptoms of reflux and the response always was that there was no reflux at the time. As well, the plaintiff’s blood sugar levels had stabilised.

135. In cross-examination, the defendant was taken to her records on page 20 of Exhibit P2. She said that she used the word “obstruction” in her records because she had difficulty passing the scope through the 10 mm os and that may have been because of things on the outside that could not be seen from the inside. The defendant denied that there was no obstruction. I am unable to accept that evidence based upon the whole of the expert evidence that I have received that there was no indication of any obstruction of the stoma.

136. At the time of the surgery, the defendant was aware of the allergies suffered by the plaintiff. The defendant was satisfied that the plaintiff was suffering from dysphagia making it less likely in the defendant’s estimation that the plaintiff’s allergies were the cause of the vomiting. The defendant did not refer the plaintiff to a dietician because the plaintiff needed to see an allergy specialist if it was a severe allergy and the defendant did not refer her to an allergy specialist because the plaintiff had a food intolerance to multiple types of food. The defendant was attempting to diagnose a reason for the vomiting and did not refer the plaintiff to an allergy specialist because there were no signs of an allergy problem. The plaintiff was suffering an inability to tolerate food and fluids, and this was the complicating feature which could not be explained by an allergy.

137. At first consultation, the plaintiff was distressed about the continuation of the haematemesis suffered by her during vomiting. This is a red flag sign of cancer. The defendant was aware of an increased level of vomiting suffered by the plaintiff from approximately April 2022. This had increased from once every few months to a couple of times a week. When the defendant first saw the plaintiff on 23 June 2022, the defendant believed the plaintiff had vomited the day before, but she has only a hazy memory of this. This was part of a discussion about what might have caused the vomiting. The defendant discussed with the plaintiff particular food textures but nothing stood out as being causative. There really was not much discussion about allergies.

138. The report of the gastroscopy is at Exhibit P1 at pages 131-132. This report is prepared by the computer system and is limited as a result. For example, the conclusions are words that are identified within the discussion and simply recorded as conclusions. The first conclusion is Barrett’s oesophagus, but a diagnosis cannot be reached conclusively through a gastroscopy. It was the defendant’s clinical responsibility to query the existence of this condition, take biopsies and form a conclusion. The defendant had the impression that, at the time, there was evidence of mild gastritis, but later pathology did not confirm this condition. The defendant accepted that there may have been better places to carry out biopsies which may have indicated mild gastritis. The defendant accepted that there was no sign of mild gastritis in the histopathology report and accepted that, based upon the biopsy, it was not necessary to carry out further investigations or treatment. The defendant’s observation at gastroscopy was that things were not completely normal and gastritis was raised as a query to be investigated. If the plaintiff had an allergy to capsaicin, there would have been eosinophils on all of the biopsies, but there were none. The indications of gastritis were, therefore, not caused by capsaicin consumption. The defendant accepted that the histopathology report indicates no disease aside from the 1997 surgery.

139. The defendant maintained that the hiatus hernia was at or above the Z-line and she would not accept that a sliding hiatus hernia did not require surgery. She believed the plaintiff had a rolling hiatus hernia. At gastroscopy and at operation, the defendant saw a small to moderate rolling hiatus hernia. At gastroscopy, the defendant identified that the Z-line was irregular. Exhibit D9 contains the photographs taken at gastroscopy. The defendant thought that the area marked ‘C’ in the photograph marked number 1 is a hernia. She said that the rugal folds are visible and if they can be seen above the gastro-oesophageal junction, then it is a hernia. She thought that the area marked ‘C’ in the photograph marked number 1 was a sliding hiatus hernia and that the photographs marked 4, 5 and 6 give a further indication of a rolling hiatus hernia. The defendant admitted that in page 11 of Exhibit P2, being the request for admission to Calvary Bruce Hospital and her response to questions, that she said that the initial diagnosis was gastric stricture. I am satisfied that there was no gastric stricture present or visible and this is supported by the expert evidence. The defendant also agreed that she told the plaintiff on 13 July 2022 that she had a hiatus hernia and gastric outlet obstruction.

140. The defendant disagreed with the assertion that the photographs marked number 4, 5 and 6 gave no indication of a hiatus hernia. She also disagreed with the suggestion that there was no indication on the photograph marked number 4 in exhibit D9 that demonstrated whether any part of the stomach was above or below the diaphragm. In answer to a question from me, the defendant agreed that would be very hard to tell from these photos in Exhibit D9 where the diaphragm was and if it was above or below the diaphragm. She said that her clinical assessment was based upon what she was seeing during the gastroscopy. She also accepted that her gastroscopy report made no reference to a rolling hiatus hernia, but she maintains that what she saw at gastroscopy was a rolling hiatus hernia. There was also a small to moderate hiatus hernia.

141. Page 139 of Exhibit P1 is the second request for admission to hospital prepared by the defendant for the plaintiff. This related to the change of date of the surgery from 22 July 2022 (the first proposed date) to 15 July 2022, the actual date of the first surgery. This request for admission identifies the provisional diagnosis as gastric outlet obstruction and not gastric stricture. The defendant used the expressions ‘obstruction’ and ‘stricture’ interchangeably. Even so, the defendant added more information to the request for admission of 14 July 2022 to reflect her intentions, such as using keyhole surgery and looking at the hiatus hernia repair. The defendant agreed that the surgery was not emergency surgery but was urgent elective surgery. She gave some evidence about the condition of the plaintiff in the hospital from the time of her admission on the evening of 14 July 2022. She saw the plaintiff at 5:30pm on that date and looked at the observations that had been made. She did not know the plaintiff ate a sandwich on 14 July 2022 at the hospital. I have no evidence to support the plaintiff’s contention that she ate a sandwich. I am not prepared to accept the evidence of the plaintiff on this topic. The defendant ensured the plaintiff had an intravenous cannula inserted and, although the defendant was not aware that the plaintiff had consumed tea with some milk at about 6pm on 14 July, the defendant thought that the plaintiff could tolerate small amounts of fluid with a gastric outlet obstruction.

142. The plaintiff’s evidence was that she had been sucking on Hydralyte during the 14 July 2022. The defendant agreed that you could not suck on Hydralyte if you had a complete outlet obstruction. A person with a gastric outlet obstruction would not be able to tolerate food and drink. The defendant was aware that the plaintiff had dry mucous membranes and she advised the plaintiff that she had to go to hospital for hydration. The defendant also agreed that she had a conversation with her anaesthetist, Dr Herrick, on 14 and 15 July 2022. She can recall no conversation with Dr Herrick about it being an emergency surgery and it was Dr Herrick who made the record of it being an emergency surgery. It was urgent elective surgery. The defendant can recall a discussion with Dr Herrick in the presence of the plaintiff and can recall telling Dr Herrick at that time that the plaintiff had frequent vomiting and was undergoing surgery for relief. At that time, the defendant had done about 15 RYGB surgical operations. The defendant did not perform a swallow study on the plaintiff prior to the surgery because the plaintiff could not swallow and it may have exposed the plaintiff to a condition of aspiration pneumonia and require treatment in Sydney. A swallow study would have required the plaintiff to consume between 300- 400 ml of material.

143. The defendant was further cross-examined about her formation of a working diagnosis that there was a tightening at the opening of the vertical band of the gastroplasty which she suspected to be the point of obstruction for the plaintiff. This was her working diagnosis. This is reflected in her answers to interrogatories affirmed on 14 November 2025 in which the defendant said that she considered the gastroscopy performed on 8 July 2022 revealed the presence of a stoma stricture or stomal outlet obstruction. This view was further confirmed in answers which she gave to a request for admission form, being that her provisional diagnosis was a stomal stricture which she considered to be a relative stricture although her affidavit said that the gastroscopy did not reveal the presence of a stomal stricture or stomal outlet obstruction. The defendant said that she formed the view that the relative stricture was at the point of gastric outlet obstruction which was, in her belief, the cause for the plaintiff’s inability to tolerate much orally. She agreed that a gastric outlet obstruction is a point where oral intake of food or fluids is unable to pass. A relative stricture is a term used to describe how much smaller that point is compared to previous parts of the path of the vertical band gastroplasty. The stricture refers to tightening and it has no minimum diagnostic diameter requiring specification.

144. The defendant confirmed her earlier evidence that she observed in the gastroscopy a tightening of the opening of the vertical band gastroplasty which she suspected to be the plaintiff’s point of obstruction. That was her working diagnosis which did not change and that is why she wrote on the request for admission to the hospital that the plaintiff was suffering a gastric outlet obstruction. The defendant was then taken to her affirmation of November 2025 where she said that she did not consider that the gastroscopy performed on 8 July 2022 revealed the presence of a stomal stricture or stomal outlet obstruction. It was put to her that this was not correct, and the defendant denied that proposition. She accepted that an obstruction is a blockage, but she denied that a stomal stricture would still allow food and liquid to pass from the stomach to the duodenum. A stomal stricture means that the stoma is relatively small compared to the function that it is required to have. There are many different physiologies that must be considered in patients who have diabetes and alternative anatomy such as the plaintiff. There is no accepted measure of the appropriate diameter of the os at the pylorus. The defendant accepted that a stomal stricture is not a complete obstruction.

145. At the time she performed the gastroscopy and then completed the application for admission to the hospital, the defendant recorded that the plaintiff was suffering ongoing nausea and inability to tolerate fluid intake and “? Gastric outlet obstruction”. This entry meant that the defendant was considering this as a diagnosis. It could be a differential diagnosis at the time. The document that she prepared following surgery (provided in Exhibit P2 at page 20) records her entry of: “gastric outlet obstruction at level of OS of vertical band gastroplasty”. The plaintiff said that this was a diagram drawn post-operatively and it was confirmed by the findings made intra-operatively. The defendant said that she did not have any other means to investigate this clinical indication further because the only other tests that she could do, the barium swallow test, had very serious risks of aspiration for someone in the plaintiff’s condition due to vomiting. These risks were too severe in the defendant’s judgment to allow her to have performed that test upon the plaintiff. If aspiration had occurred, there would have been significant damage to the lungs and oesophagus of the plaintiff. The risk to the plaintiff’s respiratory system was too severe. It was something that the defendant considered but she could not perform

146. As well, the defendant saw no clinical indication for a review by a dietician for an allergy review and, if it was clinically significant, she would have done allergy testing herself. Having done the gastroscopy and having received the results of several biopsies, there was no evidence of eosinophils which are indicative of the serious food allergy. Severe allergies can be manifested in the form of eosinophilic oesophagitis. There was no clinical indication of this condition. Similarly, there was no clinical indication that the plaintiff should be referred to a psychologist because there was no history of bingeing or purging preceding the episodes of obstruction. The defendant also did not take the precaution of the therapeutic tool of a short-term feeding tube. In her consultation with the plaintiff, the defendant informed her that she could go to the Canberra Hospital, have a period of being fed through a tube and then consult with the upper GI surgeons, or alternatively go to St George Hospital for the same treatment. The defendant chose to have the RYGB surgery. Because of her condition, the plaintiff could have the surgery relatively quickly.

147. The defendant did not perform an oesophageal manometry which measures the strength of the coordination of the muscle movements in the oesophagus. The defendant said that there were no consensus guidelines for recommending manometry for this condition. In the defendant’s opinion, the stricture or the relative stricture forming a gastric outlet obstruction was the main reason for the operation.

148. The defendant saw the histopathology report of 15 July 2022 on the resected portion of the plaintiff’s stomach removed at surgery by the defendant. In her answers in cross-examination, the defendant agreed that the report disclosed that the excluded stomach did not disclose anything abnormal. The only reported abnormality was an area of scarring consistent with previous surgical procedures. It reported no ulcers in the pathology although the defendant said that her gastroscopy identified ulcers in the excluded stomach. There is no evidence in the report of gastritis, of atrophy, of dysplasia or any malignancy and the only evidence of abnormal findings was in relation to the 1997 surgery. The defendant agreed that it was a normal histopathology report apart from the 1997 surgery.

149. I have earlier considered the evidence given by the expert psychiatrist, Dr Fukui. Other expert evidence has been led by the parties in the form of tendered reports. I will consider those reports later in this decision. I turn now to the evidence given by the two gastric surgeons called by the parties, Dr Adam Skidmore called on behalf of the plaintiff and Dr Garrett Smith called on behalf of the defendant. These two expert witnesses gave evidence in conjunction following a conclave. They were provided with assumed facts for the purposes of the conclave conducted between them prior to giving evidence and they were then asked to address 12 separate questions about which they would give oral evidence. Each of these witnesses had provided a series of medical reports which were tendered into evidence as follows: (a) Report of Dr Adam Skidmore of 13 March 2024 (as amended) (Exhibit P11); (b) Amended supplementary report of Dr Adam Skidmore of 21 July 2025 (as amended) (Exhibit P12); (c) Second supplementary report of Dr Adam Skidmore of 11 March 2026 (as amended) (exhibit P13); (d) Report of Dr Garrett Smith 18 December 2024 (Exhibit D14); (e) Supplementary report of Dr Garrett Smith 18 November 2025 (Exhibit D15); and (f) Further supplementary report of Dr Garrett Smith 16 March 2026 (exhibit D16).

150. Before proceeding to consider in detail the evidence given in conjunction by these two expert witnesses, it is first appropriate to say that I found both witnesses to be credible and reliable. Each of them gave evidence clearly and in a manner which assisted me. My decision-making process does not require me to pick between these witnesses or to prefer one of them over the other.

151. Exhibit 10 is a list of assumed facts for the expert conclave and this document provides: The plaintiff was born on 30 September 1959 and was 62 years of age in June 2022. In 1997 the plaintiff underwent a VBG in the UK when she weighed 200kg. This resulted I a weight reduction of approximately 100 Kg in about 9 months following the VBG. In about the plaintiff was diagnosed with severe depression and had been taking fluoxetine for about 30 years. As of 2 September 2021, the plaintiff was prescribed two 20mg tablets every 2 days. In 2004 the plaintiff was diagnosed in with type 2 diabetes for which in June 2022 she was prescribed insulin, metformin and Ozempic. About 2017 the plaintiff was diagnosed with Obstructive Sleep Apnoea (OSA) which remained untreated as of June 2022. On 17 March 2022 the plaintiff was 170.5 cm tall, weighed 108Kg and had a BMI of 37.2. In April 2022 the plaintiff was consulting Ms Susan Dalby, clinical psychologist in relation to her major depression and eating disorder. On 10 June 2022 the plaintiff attended her general practitioner Dr Veronica Kolos. The clinical notes of the appointment record: “25/05/2022 developed vomiting in the context of covid 19 infection Haemetemesis present Multiple vomits Recurred against (sic.) this week however at present fees completely well Nil previous gastroscopy Stomach stapled 1997 … Nil FHx of GI cancers FOBT previously negative Nil haematochaezia No melena Nil previous colonoscopy No weight loss … Management Re haematemisis … Referral endoscopic evaluation Dr C Spiro Patient to book review appt to discuss results

Reason for visit: Haematemesis On 10 June 2022 the plaintiff was referred by Dr Kolos to Dr Spiro for an opinion and further management of gastroscopy to further elucidate haematemesis. On 15 June 2022 the plaintiff attended a telehealth appointment with Dr Felicity Donaghy, general practitioner. The clinical notes record the plaintiff “Has haematemesis and is on waiting list for specialist consult and endoscopy” ’The reason for visit is recorded as “Haematemesis”. On 23 June 2022 the plaintiff consulted Dr Spiro who recorded the following findings in her clinical notes: a. The plaintiff had developed sensitivity to capsaicin since VBG b. In the past, occasionally, when she was exposed to capsaicin she would develop vomiting c. The plaintiff had suffered a condition involving coughing a fair bit in May 2022, had been nauseated and vomiting, and had been unable to tolerate fluids d. She suffered COVID after that e. She encountered more vomiting the day before, more and more frequently f. The plaintiff did not have melaena g. In more normal circumstances, the plaintiff can eat about a cup h. The plaintiff has a lot of reflux- epigastric and lower chest pain i. She was not on PPI, and was taking Gaviscon j. A test for H pylori had returned negative

Dr Spiro recommended, and the plaintiff consented to having a gastroscopy and colonoscopy on 8 July 2022 at Calvery Bruce Private Hospital. On 30 June 2022 the plaintiff attended her GP Dr Kolos in relation to her eating disorder and binge eating. At this time the plaintiff completed an Eating Disorder Examination Questionnaire, obtained a score of 63, and was given an Eating Disorder Plan. In the 6 month period leading up to July 2022 the plaintiff was experiencing “really, really bad reflux.” On 30 June 2022 Dr Kolos reviewed the plaintiffs haematemesis . On 8 July 2022 the plaintiff underwent a gastroscopy (copy of report attached). On 12 July 2022 the histopathology report from the gastroscopy was received by Dr Spiro (copy attached). On 13 July 2022 the plaintiff attended Dr Daniel Mogg, general practitioner, and provided a history of “unexplained nausea, vomiting and abdo pain. … Last couple of days has vomited every meal. Went to have breakfast this morning – little bit of milk and vomited. Now not even able to tolerate fluids – not even water . Still passing urine – not too dark currently. Feels a little nauseous but mainly just cant tolerate PO intake…” Dr Mogg noted the plaintiff was alert, not confused with moist membranes and increased the ondansetron to twice a day, added on oral famotidine twice a day, retry ondansetron orally disintegrating tablets, and could try metoclopramide, that if she was still unable to tolerate oral fluid intake by that evening or to tolerate the medications to attend an ED for IV fluids and contacted Dr Spiro. On 13 July 2022 the plaintiff saw Dr Spiro who went through the histopathology report. There is a dispute of fact as to what was discussed. Dr Spiro recorded discussing the option of a reversal of the VBG or a RYGB and the patient elected to have the RYGB because of chronicity of symptoms and higher failure rate of VBG reversal and fundoplication in controlling reflux. Dr Spiro recalls the patient being adamant she dd not want to regain weight. The patient claims she was only advised of the option of a RYGB. Dr Spiro completed a request for admission to hospital with a provisional diagnosis of gastric stricture. Dr Spiro advised the patient that if she could not tolerate much by mouth in the next 24 hours the surgery should be brought forward to two days time from the consultation. About 8.52 am the plaintiff sent Dr Spiro an email stating, “Unfortunately I’m still unable to keep anything, food, water and tablets, down. so (sic.) I may need to go on a drip for a while. Let me know what you think I should do.” Following the email the plaintiff spoke with Dr Spiro and reiterated the same information set out in her email concerning her inability to retain anything, food, water or tablets. when the same information was communicated. On 14 July 2022 Dr Spiro , as a result, arranged for a special operating list to be set up for the next day and for the patient to admitted to Calvary John James Hospital for ICU monitoring of her insulin levels. Dr Spiro completed a request for admission to hospital with a provisional diagnosis of gastric outlet obstruction. An entry in the records of Calvary John James Hospital on 14 July 2022 at 20:06 records – “Abdo soft BS present Has been tolerating PO diet” On the morning of 15 July 2022 Dr Spiro saw the plaintiff at the hospital where she obtained a signed consent for the surgery. On 15 July 2022 Dr Spiro made a clinical note as follows: “Ongoing nausea and inability to tolerated fluid intake ? gastric outlet obstruction I am concerned at Liz is an insulin dependent diabetic” The pre-operative checklist for Calvary John James Hospital signed by RN Bennett dated 15 July 2022 contains the following entry “Food: last taken at 1800 14/7 Fluid: last taken at 2100 14/7” On 15 July 2022 Dr Spiro performed a revision of the VBG to a RYGB.

152. Each of the witnesses was then asked to address 12 separate questions when giving evidence in conjunction. Set out below are the questions and my summary of the evidence given by these witnesses. Question one is in the following terms: Does the presence or otherwise of Barrett’s oesophagus have any bearing on the treatment decision making process?

153. Dr Skidmore said that Barrett’s disease makes a difference because Barrett’s is a marker of chronic reflux disease and, if a person is suffering from Barrett’s disease and chronic reflux disease, the condition is quite severe. The patient will also generally have an oesophageal problem; it is a nuanced response. Sometimes it is difficult to pick Barrett’s disease and sometimes, when Barrett’s disease appears present, biopsies indicate to the contrary. A competent surgeon will always perform a biopsy to remove any doubt about the presence or otherwise of Barrett’s disease.

154. In his evidence, Dr Smith said that the presence or absence of Barrett’s oesophagus at the time of preoperative decision-making does not really come into play or influence the decision about which operation is going to be performed. Barrett’s oesophagus is an alteration in the lining of the oesophagus and that occurs as a response to chronic reflux or to reflux; not everyone who has chronic reflux gets Barrett’s oesophagus and not everyone who has Barrett’s oesophagus reports chronic reflux symptoms. There is a disparity between the symptomatology and the pathology. Barrett’s oesophagus has a characteristic appearance where the oesophagus, rather than being white in colour, looks pink and granular and biopsies are required to confirm the diagnosis histologically. Barrett’s oesophagus therefore is a histological diagnosis.

155. In the case of the plaintiff and the question of pre-operative planning, it was known that the plaintiff had significant foregut dysfunction. She had symptomatology reflective of significant reflux disease. The plaintiff did not want to put on more weight and the plaintiff was on multi-therapy for diabetes. There were many important factors that came into play about the decision-making in the presence or absence of Barrett’s oesophagus. This was to be considered in the background that the VBG surgery was notorious for causing foregut dysfunction and that the plaintiff had significant diabetes from her ongoing obesity.

156. I asked each of the experts to address the long-term effects and efficacy of the 1997 vertical band surgery. Dr Smith explained the purpose and aim of the operation to slow the passage of food through the digestive system so that if a patient continues to eat, they will soon feel “full”. After a time, these types of restrictive operations tend to lose their efficacy as the valve at the bottom of the oesophagus, the lower oesophageal sphincter and then the oesophagus loses its propulsive action and so food can sit at the bottom of the oesophagus and patients do not feel “full”. In time patients do not feel full, their diabetes returns, their sleep apnoea returns and they develop symptoms such as vomiting, regurgitation and reflux. This is because food is sitting in the pouch up in the oesophagus and it is freely refluxing up the oesophagus.

157. If Dr Smith sees a patient who many years ago had a VBG, he assumes a restriction at the top of the stomach and the bottom of the oesophagus and the oesophagus and the valve (the lower oesophageal sphincter) and possibly that the smaller chamber are not working normally. This results in dysmotility (which is a disruption of the coordinated muscle contractions of the gastrointestinal tract causing symptoms such as nausea and vomiting, amongst others) because of the long-term restriction of food passing through the oesophagus to the stomach and to the duodenum.

158. Dr Skidmore said that he worked in a unit that was well known for performing VBG operations which rely upon the stoma or bottom part of the adjusted stomach (and which is the entrance to the pouch in a normal stomach) being made tight by the insertion of two stitches around the layer surrounding the stoma. He thought that the plaintiff obtained a very good result from the operation over a period of some 25 years. She only developed symptoms (possibly because of the failure of the VBG over time as described by Dr Smith) from May 2022. He accepted that the surgery is often followed by problems of the oesophagus and the gastric pouch emptying through the tight area.

159. The second question addressed by the experts was as follows: Would the presence or otherwise of a hiatus hernia be able to be confirmed/excluded at the time of surgery?

160. Dr Skidmore said that a surgeon would see a hiatus hernia when performing laparoscopy or open surgery. Dr Smith said that the gold standard about whether someone has a hiatus hernia is when looking at the hiatus with a laparoscope.

161. The third question addressed by the experts was as follows: Would the presence or otherwise of a food bolus obstruction and/or bowel obstruction be able to be confirmed/excluded at the time of surgery?

162. Dr Skidmore said that a bowel obstruction would be confirmed or excluded at the time of laparotomy or laparoscopy. A food bolus obstruction may be more difficult to confirm or exclude because the food pouch would be decompressed by vomiting. Typically, a blockage may cause dilation or stretching upstream from the blockage. However, Dr Skidmore said that, in this case, he would not presume that there would be upstream stretching because of the patient’s vomiting.

163. Dr Smith said a bowel obstruction causes the loops of the bowel to be distended. If a patient has a small pouch and you had good visualisation of the pouch and there was an obstructing bolus between the smaller and larger chambers, this could be identified. Decompression of the stomach by vomiting may mean that the stomach was not distended but it may be possible to identify a bolus of food at that junction. An acute obstruction could be identified at surgery.

164. The fourth question addressed by the experts was as follows: Would the presence or otherwise of a food bolus obstruction and/or bowel obstruction be able to be confirmed/excluded at the time of surgery?

165. Dr Skidmore opined that a repeat gastroscopy is the gold standard for the diagnosis of a food bolus obstruction, not laparoscopy or open surgery. A repeated gastroscopy which identifies a food bolus means that the problem can be dealt with endoscopically. Second, Dr Skidmore would have ordered a barium swallow with bread for two reasons. He would want to assess the oesophageal motility to see whether the oesophagus empties adequately because the problem may primarily be oesophageal and not a problem with the pouch. A barium swallow would show the size of the pouch which Dr Skidmore said must be determined before undertaking a complicated bariatric procedure. If the barium swallow discloses enough pouch, a gastric bypass can be considered. If a wide-open stoma is visible, the surgeon knows that relieving the obstruction by cutting the sutures around the stoma will probably not fix the problem.

166. Dr Skidmore explained the working of the oesophagus and the peristaltic operation of the muscle of the oesophagus which is not controlled by the brain. Aperistalsis is a condition where the muscular function does not work. A bypass performed on such patients would not necessarily fix problems because the operation opens onto the same pouch with a narrow anastomosis underneath onto the small bowel. According to Dr Skidmore, all these matters must be investigated before recommending surgery because there are a multitude of diagnoses which may cause vomiting in a patient with a gastric band.

167. Dr Smith said that, for the plaintiff who has a constellation of symptoms, making further investigations would not make any difference to the ultimate plan, which would be to do the RYGB surgery. The primary issue with the plaintiff was not that she had an acute food bolus obstruction, but that she had a long lead up of symptoms relating to foregut dysfunction. Performing another endoscopy would not have taken the surgeon any further forward in the decision-making process. A barium swallow or a contrast swallow could assist in assessing oesophageal physiology and assessing the motility of the oesophagus. Dr Smith said that he would assume the plaintiff already has oesophageal dysmotility. If the plan was to do a RYGB procedure, getting a contrast barium swallow to assess the motility of the oesophagus would not change the surgical approach. If motility was within normal range, the surgeon would still perform the RYGB procedure because it is the best operation to treat reflux and provides drainage for easier passage of food. If the patient has normal motility but significant reflux symptoms and in the background of type 2 diabetes mellitus which is insulin-dependent, he would still perform the RYGB procedure. A reasonable surgeon must have firmly in mind the utility of the results of the tests in terms of the surgeon’s decision-making algorithms. In the plaintiff’s case, Dr Smith said the results would not have had a bearing on the decision by a reasonable surgeon about what ultimately was going to be decided upon by the patient and the surgeon.

168. Aperistalsis of the oesophagus is generally related to a disease called achalasia which is not relevant to the discussion about this type of surgery. There are patients who have had restrictive procedures and go on to develop significant dilation of the oesophagus. Very often they present with food stuck in the oesophageal tube. According to Dr Smith, a contrast study or an endoscopy on this patient would not have any meaningful bearing on the decision-making.

169. The fifth question addressed by the experts was as follows: Comparing a reversal of a VBG and a RYGB, which procedure is likely to offer better outcomes in terms of resolution of vomiting, dysphasia, reflux, and management of diabetes?

170. Dr Skidmore said that he was not convinced that the reason for the plaintiff’s vomiting was identified as she had only been vomiting since about May 2022. Generally VBG patients who present with obstructive symptoms suffer those symptoms for years and these do not develop suddenly. The same applies to COPD disorder. A reversal of a VBG procedure requires removing the sutures and allowing the stoma to open which then stretches over time. Patients, in his experience, do very well regarding vomiting if it is related to stenosis or obstruction. Dr Skidmore could identify no reason why the plaintiff was vomiting, and he could not see any evidence of obstruction or stenosis. The plaintiff suffered from Covid-19 and there is a post Covid-19 disorder where patients vomit due to the infiltration of the nerve cells of the stomach causing a gastroparetics-type syndrome. There may be many reasons why the plaintiff was vomiting. Patients do well if they have a stenosis either with a reversal or a RYGB. Dysphagia is an oesophageal symptom which depends upon oesophageal function.

171. Dr Skidmore said he was confused about the plaintiff’s reflux because the only documented complaint about reflux was of epigastric pain and chest pain and these are atypical symptoms of reflux. Vomiting is generally not a symptom of reflux; regurgitation is but not vomiting. He criticised the lack of pre-operative work-up and ascertainment about why the plaintiff presented in the way that she did. The plaintiff had been a type 2 diabetic for over 20 years and that reduces the likelihood of her going into remission once an RYGB is performed. In this case, it appears that Dr Skidmore had not been informed that the plaintiff’s diabetes had largely resolved following the RYGB surgery.

172. Dr Smith opined that in 2022 the literature available to ordinarily competent surgeons made very clear that a conversion of a VBG to a RYGB gastric bypass was a significantly superior operation than just reversing the VBG as far as diabetes is concerned. The plaintiff was on multi-therapy for her diabetes, received many treatments and she was at significant risk of developing diabetes complications. On that basis alone, the RYGB procedure was much superior to a VBG reversal. If the only other diagnosis made by the surgeon was of a tight stomal stricture but the surgeon was able to successfully pass the gastroscope through the stricture and there was no other foregut dysfunction, he would expect a VBG reversal to relieve that, but in this case, it was not a matter of simply bypassing a stricture. Where there is reflux and known foregut dysmotility, a RYGB would be superior to a VBG reversal. If the plaintiff had insisted on a reversal of the VBG, it was necessary for a reasonably competent surgeon to make clear to the plaintiff that the reversal might make the reflux symptoms worse, she was at the risk of putting on excessive weight and that the foregut dysfunction would remain. A reversal of a VBG can make a patient’s symptoms a lot worse and the patient must be warned of this possibility.

173. The sixth question addressed by the experts was as follows: On the assumption that the plaintiff did not want to increase the chances of weight gain, an assumption that the plaintiff does not agree with, which procedure is likely to offer the better outcome?

174. Dr Skidmore opined that if the VBG is reversed the plaintiff would put on weight. The plaintiff will maintain or lose weight with a RYGB procedure. Dr Smith agreed with this opinion.

175. The seventh question addressed by the experts was as follows: On 13 July 2022, on the clinical information available would offering the plaintiff a reversal of a VBG or a RYGB be something competent and reasonable bariatric surgeons would have considered competent professional practice?

176. Dr Skidmore said that, based on the gastroscopy report, it is difficult to give a concrete answer because he would not know what he is treating. He would not know if it was true reflux or foregut dysfunction. The complaint about vomiting was of acute vomiting and Dr Skidmore would be reluctant to operate or offer surgery based upon that alone. He would want to do a bit more of a workup. It is not competent practice for a surgeon, without further work, to offer the RYGB procedure without knowing more about the diagnosis. Dr Skidmore would want to stabilise the patient. From the hospital notes on 14 July 2022, the plaintiff was on an oral diet of a small amount of fluids and Dr Skidmore could not be sure that the plaintiff was vomiting to a point where he would have admitted them to hospital. He does not know enough about why the patient presented with vomiting. He does not know the diagnosis and he does not recommend surgery when he does not know the diagnosis.

177. Dr Smith opined that it would be reasonable for a surgeon to have discussed with the plaintiff both options: the reversal of the VBG and the RYGB, and would have informed the plaintiff that there are risks and benefits of both procedures. A patient may baulk at an RYGB because of the extensive nature of the change in the small intestine. If the plaintiff then said that she would prefer the reversal of the VBG, the plaintiff would have to be told that she would not necessarily get the best bariatric result nor the best metabolic result in connection with diabetes. She would also have to be told that she may not get the best functional result because of motility problems associated with the oesophagus. A reasonably competent surgeon would discuss both options with the plaintiff under each of the clinical scenarios, and the plaintiff must understand the implications of both procedures.

178. The eighth question addressed by the experts was as follows: On 15 July 2022, on the clinical information available would performing a RYGB be something competent and reasonable bariatric surgeons would have considered competent professional practice?

179. Dr Skidmore said that he would not have been comfortable offering the RYGB procedure without a definitive diagnosis of the reason for the plaintiff’s vomiting. Operatively, there was an option for Dr Spiro to stop the operation because of the internal adhesions she discovered when she attempted to operate laparoscopically. Sometimes it is better for the surgeon to terminate the operation, seek a second opinion or help and, it appears implicitly, to then decide in concert with the patient how to proceed. That is what Dr Skidmore thinks a competent surgeon would have done. In expressing this view, Dr Skidmore did not completely address the question whether, on the clinical information available, performing an RYGB would be considered competent professional practice by bariatric surgeons. The evidence given by Dr Skidmore is confined to a repetition of his view that the surgery should not have been offered or suggested absent a definitive diagnosis for the vomiting. The opinion about whether the surgery itself was difficult does not address the question and is the expression of his personal view about what a surgeon might do when confronted with difficult adhesions from previous surgery while attempting to perform the subject surgery laparoscopically.

180. In his evidence, Dr Smith said that the vomiting, the foregut dysfunction and the reflux symptoms had been going on for some time. The plaintiff did not present with an acute vomiting illness such as gastroenteritis. She had escalating symptoms of foregut dysfunction. A reasonably competent surgeon would have assessed the plaintiff about those conditions in the context of the VBG surgery and would have been sufficiently comfortable that the surgery which had been undertaken in 1997 was the cause of the foregut dysfunction. He reiterated that the VBG surgery was notorious for causing foregut dysfunction. The endoscopy had been performed, and it had excluded other gastric pathologies such as cancer or a chronic ulcer and there was no other unrelated pathology. In those circumstances, it would have been reasonable for the surgeon to have offered the patient a RYBG procedure. He accepted that this is difficult surgery and that there would usually be dense adhesions around the area of the previous dissection. Often patients have prosthetic mesh installed to hold the stoma closed and these characteristics add complications. It was a difficult operation that would not have changed or become less difficult between July, August or September 2022 because the surgeon would always have to deal with the difficulties associated with the adhesions from the prior surgery.

181. As a result, a reasonable and competent surgeon needed to be prepared and to prepare the patient for a potential that the patient may need an operation which is open in order to complete the procedure; that is, that it could not be completed laparoscopically. An open operation is not ideal because the patient has a cut and consequential discomfort and pain together with a longer admission. There was a risk of incisional hernias as well. Dr Smith opined that, accepting all those matters, a reasonably competent surgeon would have taken the view that it is appropriate to do the open operation for the bypass procedure. The surgeon should have in mind that the procedure is difficult and should discuss with the patient that they may need to do an open operation with all the complications that may follow.

182. The ninth question addressed by the experts was as follows: On 8 July 2022, was there evidence available to Dr Spiro that the plaintiff may have had a: I. Gastric outlet stenosis II. Gastric stricture III. Gastric outlet obstruction IV. Barrett’s esophagus (sic) V. Rolling hiatus hernia VI. If so, small medium or large VII. reflux oesophagitis VIII. reflux disease

183. Dr Skidmore opined that there was no gastric outlet obstruction or stenosis; there was no gastric stricture; there was no evidence of Barrett’s oesophagus; there was no evidence of a rolling hiatus hernia and that there was evidence of a small sliding hiatus hernia. There was no evidence of reflux oesophagitis on histopathology nor on the pictures that he had seen. He had seen no evidence of reflux disease on the pictures that he had seen.

184. Before responding to this question, Dr Smith asked for clarification about the temporal context in which these questions were to be answered: whether this was prior to the plaintiff having the gastroscopy or following the gastroscopy? Counsel agreed that the intent of the question was temporally as at and after the gastroscopy. Dr Skidmore confirmed that this was the way he had addressed the question. Dr Smith said that as Dr Spiro could pass the gastroscope between the two chambers, there was no stenosis. There was no stricture. It was reasonable for the defendant to query the presence of Barrett’s oesophagus at the time of the gastroscopy and for biopsies to be taken and tested. These biopsies disclosed that the query about the presence of Barrett’s oesophagus was not confirmed. The suspicion of Dr Spiro formed at gastroscopy that there may have been a large hiatus hernia was reasonable, but this was clarified at the time of surgery and there was no large hiatus hernia. There was no small rolling hiatus hernia. A large hiatus hernia is difficult to pick endoscopically and you cannot really tell where the diaphragm is impinging on the stomach. An incorrect query about there being a large hiatus hernia is a common mistake made by surgeons. This cannot be confirmed until an operation is in process because the surgeon can look at the hiatus directly and assess whether there is a hernia.

185. Dr Skidmore asked to give further evidence on that point, and I gave him leave. He said that to diagnose a rolling hiatus hernia displays a lack of understanding by the surgeon of the relevant anatomy. Rolling hiatus hernias are quite uncommon. You must be able to retroflex the scope to see the gastro-oesophageal junction by bending the scope back and looking forwards. The picture taken by Dr Spiro shows the actual bypassed stomach and you cannot see the gastro-oesophageal junction which would require retroflex of the gastroscope within the pouch. Dr Skidmore thought that the expression of this view by Dr Spiro showed a lack of understanding of the actual procedure itself and the anatomy of a VBG. In her evidence, the defendant said that she did retroflex the gastroscope as required and this was necessary to take the appropriate photographs. This is what she did and I accept her evidence. It was never put to the defendant that she did not have a proper understanding of the relevant anatomy or that she did not understand the anatomy of a VBG. The defendant is a trained surgeon, and she is a fellow of the Royal Australasian College of Surgeons, as is Dr Skidmore. It would be very surprising that a professional person such as the defendant holding such a qualification in her specialty area of surgery would lack understanding of the relevant anatomy or of the procedure associated with a VBG or the operation of the gastroscope.

186. In his evidence, Dr Smith said that an endoscopist surgeon can only make a call as she sees things and if she sees what she thinks might be a potentially large hiatus hernia, it is always appropriate to make a note. The same applies to a suspicion of a Barrett’s oesophagus. Any such suspicion must be clarified, and this clarification sometimes proves the suspicion correct, sometimes it is incorrect and sometimes further investigations need to be undertaken. A reasonably competent surgeon will always err on the side of caution, will identify a suspicion and will test the veracity of that suspicion. This includes a suspicion that a patient may have a large hiatus hernia when that is a suspicion formed at the time of the gastroscopy. Dr Skidmore then gave further evidence that a query about Barrett’s oesophagus creates a stigma for the patient because if a patient is diagnosed with Barrett’s oesophagus then there is a significant stigma attached, such as the need for an endoscopy every 2 to 3 years for the rest of the person’s life. The person lives with the possibility of the development of oesophageal cancer. A surgeon must be sure to get the right diagnosis because, once the diagnosis is made, it is transmitted through all medical records, including the records of a GP.

187. A response to this evidence given by Dr Skidmore is that the plaintiff did not make a final diagnosis of a large hiatus hernia or of Barrett’s oesophagus which was raised as a query and was subject to the biopsies being tested. The histopathology results are the basis upon which the defendant formed her diagnosis. She informed the plaintiff of the results of the histopathology testing and, by no later than 13 July 2022, the plaintiff was aware that she did not suffer Barrett’s oesophagus. I am unable to accept that any stigma can attach to a surgeon performing her professional duties in identifying queries, having them tested and providing the results to the patient. Dr Skidmore repeated his assertion that in the absence of retroflexing of the gastroscope, the gastro-oesophageal junction was not viewed and so the defendant as a surgeon showed a lack of understanding of the anatomy. I am satisfied that this criticism is not made out on the evidence.

188. Dr Smith gave further evidence on this point following these criticisms by Dr Skidmore. He said that Barrett’s oesophagus is a histological diagnosis. An endoscopist may note an appearance of the oesophagus and query the existence of Barrett’s oesophagus, test the theory and identify whether the suspicion is correct. It is important that endoscopists make a call on what they see and then have suspicions clarified. In the exercise of due skill and care, it is better to test than not to test. If an endoscopist inserted a scope and saw what might have been Barrett’s oesophagus, formed the view that it probably was not and failed to test by biopsy, such conduct would be inexcusable and a failure to exercise due skill and care. I accept this evidence from Dr Smith, and I consider it to be a complete answer to the criticisms raised by Dr Skidmore. In all respects on this topic, I prefer the evidence of Dr Smith.

189. The tenth question addressed by the experts was as follows: On 15 July 2022, was there evidence available to Dr Spiro that the plaintiff may have had a: i. Gastric outlet stenosis ii. Gastric stricture iii. Gastric outlet obstruction iv. Barrett’s esophagus (sic) v. Rolling hiatus hernia vi. If so, small medium or large vii. reflux oesophagitis viii. reflux disease

190. Dr Skidmore said that there was no evidence of gastric outlet stenosis; there was no gastric stricture; there was no evidence of gastric outlet obstruction; there was no Barrett’s oesophagus. There was no mention of a hiatus hernia in the operation notes and so there was no notice of a hiatus hernia. If there was no hiatus hernia, it is not necessary to attempt to describe a size. There was no mention of reflux oesophagitis; and in relation to reflux disease, he agrees with Dr Smith that it is a spectrum diagnosis.

191. Dr Smith said that at the endoscopy and surgery, there was no evidence of a gastric outlet stenosis; no evidence of gastric stricture and no evidence of gastric outlet obstruction. At the time of surgery, biopsy results showed that there was no Barrett’s oesophagus. At the time of surgery, there was no note of any large rolling hiatus hernia, but endoscopic findings will very often be required to be revised at surgery. There was no evidence at endoscopy of reflux oesophagitis. Reflux is a symptomatic spectrum diagnosis and it will have to be taken to into account by the surgeon that the plaintiff had a history of reflux disease which must be raised as a query and that diagnosis may not be clarified one way or the other at the operation.

192. The eleventh question addressed by the experts was as follows: What were the findings in the histopathology report dated 15 July 2022?

193. Each of the experts said that the histopathology reports showed that the stomach was normal.

194. The twelfth question addressed by the experts was as follows: Given the available evidence, should further investigations/tests/referrals have been undertaken prior to the surgery on 15 July 2022? If so, what investigations/tests/referrals?

195. Dr Skidmore says that he thinks there should have been further investigations. He points to the fact that experts are arguing about the appropriate diagnosis. If two experts are arguing, you do not really know the diagnosis according to Dr Skidmore. From his point of view, the plaintiff should have had a further endoscopy to exclude obstruction. He said that there may have been some functional assessment in the oesophagus which may have included Barrett’s oesophagus. In his practice, he does a manometry using a nasogastric tube. Concerns about reflux can be dealt with by doing a Ph study. Dr Skidmore emphasised again the need for a surgeon to have a surgical plan because he will not know whether, in dealing with the patient, he will find enough pouch to do the operation because some are very small. He always does a barium swallow to determine the size of the pouch.

196. Dr Smith said a manometry test is when a tube is put down the patient’s oesophagus to test the strength and the coordination of the muscles in the oesophagus. He uses those investigations in his role as a foregut surgeon, but manometry causes significant discomfort and a contrast barium swallow comes with the risk of vomiting and aspiration. Generally, he will use those tests in his esophagogastric patients only if they will take him further down the decision-making algorithm about how to treat a patient. In the plaintiff’s case, she had significant foregut dysfunction because of the long-standing presence of gastric reflux and the increasing level of unexplained vomiting from April 2022 through to July 2022. He would know that the plaintiff was suffering significant foregut dysfunction, and he knew that if he had done a manometry, he would find out what he already knows, being that she had motility. If he had done a contrast barium swallow, he would have found out what he already knew, that she had a discoordination peristalsis. None of this would have changed the decision-making process of recommending and performing a RYGB procedure.

197. In relation to Dr Skidmore’s comments on the pouch size, this is a difficult operation and if a decision is made to do it, the surgeon is going to make a pouch and trim the pouch and then calibrate it with a bougie, which is a tube-shaped sleeve inserted to the stomach as a calibration guide, to define the diameter of the new stomach. These are all things done with this operation if is to be performed, so doing a contrast swallow is not going to change anything. The difficulty of the operation is determined to a great degree by how many adhesions are inside the abdomen and that can only be determined once the operation is commenced.

198. This evidence marked the end of the first part of the conclave and counsel then put questions to the expert witnesses. Dr Smith rejected propositions put to him by the plaintiff’s counsel that there was no diagnosis made by Dr Spiro or that could be made of the plaintiff explaining why the plaintiff was vomiting. He said there was a diagnosis of a previous VBG, the symptoms existing from April 2022 and following, those symptoms described in the correspondence between the GP and the surgeon. There was also an existing pathology which is the VBG and a long-standing deterioration in symptoms and then the patient presented with increased vomiting. He agreed with the proposition that this was not emergency surgery, but when a patient’s symptoms and physical condition are deteriorating then it is quite reasonable, as in this case, to find availability of theatre time and perform the surgery. Dr Smith was given the history of the background leading up to the referral to Dr Spiro. He was asked whether, given that history, he would accept that there were not sufficient symptoms and there was insufficient pathology warranting performance of the surgery on 15 July 2022.

199. Dr Smith disagreed and said, in that background, it was quite reasonable for the surgeon to do the surgery on 15 July. The two-week period leading to the surgery also had to be put in context. The patient has been suffering symptoms for a long time, is experiencing a “waxing and waning” of their symptoms, although suffering significantly from a manifestation of foregut dysfunction but with a relatively quiescent period in the first couple of weeks of July. A quiescent two-week period prior to surgery would not necessarily be a contraindication of surgery. However, I do not accept that there was such a quiescent time. Dr Smith opined and I accept, that it was apparent that the plaintiff was at the “end of their tether” and was keen to have surgery done as soon reasonably possible.

200. Dr Smith said that, when discussing a diagnosis of gastric outlet obstruction in the current matter, it is more accurate to use the term foregut dysfunction which is what he has done. There was no obstruction but there but there was foregut dysfunction. The RYGB procedure is restrictive and not obstructive. The issue was the VBG procedure performed in 1997; foregut dysfunction is a well-accepted consequence of that procedure, and it evolves over the decades. That procedure is designed to slow the progression of food, but the physical effect of the slowing down worsens to the point where the patient gets vomiting and reflux. He considered that Dr Spiro was using the expression ‘gastric outlet obstruction’ as a worsening of the passage of the food bolus through the communication between the two chambers caused by the VBG surgery. There was no obstruction or stricture but that does not mean that the expression used by Dr Spiro was wrong; rather it is an example of different professionals using different forms of expression. For example, some professionals use the expression “functional obstruction” where there is no tight narrowing at the gastric outlet but the muscles which are pushing the food bolus weaken to such an extent that they are unable to push the food through that opening.

201. Dr Skidmore said that foregut dysfunction is purely speculative and there is no evidence of foregut dysfunction except for a brief period. In his experience, patients have symptoms for several years and the symptoms are generally not chronic vomiting or acute vomiting. Generally, regurgitation is a symptom of foregut dysfunction. Dr Skidmore accepts that there is evidence of foregut dysfunction during a brief period. He suggested that there were a “a lot of holes in the story” but accepts that there was evidence of foregut dysfunction over a brief period. Dr Skidmore did not elucidate what he meant by the expression “holes in the story”, what “story” he refers to and why something was “speculative”. These propositions were not put to Dr Smith by cross-examining counsel. Each of the expert witnesses expressed diametrically opposed views about what has become the essential feature of this case, whether further testing should have been done by the defendant upon the plaintiff before embarking upon RYGB surgery.

202. In summary, Dr Skidmore opines that the plaintiff should have been stabilised by feeding through a nasogastric or other form of tube, further diagnostic tests, such as a barium swallow, should have been carried out after stabilisation of the plaintiff and if a broad spectrum problem such as reflux was suspected, then another form of nasogastric tube should have been inserted to measure the acidity rising into the oesophagus from the stomach. Implicitly, the criticism of Dr Skidmore is that none of these steps were considered by the defendant as the treating surgeon and so the plaintiff was not given the opportunity to consider and then make a choice whether to undergo those tests prior to considering and then deciding on any form of surgery.

203. Dr Smith opined that because of the medical history of the plaintiff, the 1997 VGB procedure which had been initially successful, the known history of the deterioration of the gastrointestinal system of patients who have undergone that surgery, the deterioration of the plaintiff from at least April 2022, the sharply declining health of the plaintiff through May June and July 2022 and the background of type 2 diabetes mellitus suffered by the plaintiff consequent upon her obesity prior to and after 1997, then a reasonably competent surgeon would properly have come to a number of conclusions about the plaintiff. It would not be necessary or productive to carry out further tests upon the patient because the diagnosis of foregut dysfunction is known. Any further tests would not inform the diagnosis of foregut dysfunction which was a proper diagnosis in the circumstances. It would be of no assistance to delay surgery to carry out further testing because that testing would not necessarily or at all disclose further information to assist diagnosis and decision-making. It was appropriate to form the view that the deterioration in the health of the plaintiff was because of the known and well understood deterioration in patients who have had VBG surgery several decades earlier. It is well-known that many such patients suffer foregut dysfunction. There are two means to address this foregut dysfunction, a reversal of the VBG procedure or undergo a RYGB procedure. The decision by the surgeon to recommend and perform the RYGB procedure was appropriate because there are several disadvantages of the reversal of the VBG procedure. There would be no improvement in the symptoms of reflux, in the diabetes disease and there was a significant associated risk of the re-occurrence of obesity.

204. Each of Dr Skidmore and Dr Smith were asked about the repair of a hernia during the RYGB procedure. Dr Skidmore was unable to say without more information whether, if there was a hernia present, it should have been repaired. Dr Smith said that he had seen the operative sketches supplied by Dr Spiro which demonstrated a small hernia on the left side of the plaintiff’s oesophagus. Under a revision of a VBG procedure or undertaking a RYGB procedure it is often necessary to resect that area of the stomach close to the oesophagus which can herniate. A surgeon must not leave behind gastric tissue without blood supply as it can become infected. Dr Smith understood that in the RYGB procedure it was found that there was a small herniation of gastric tissue or stomach above the diaphragm and the defendant resected that small piece of stomach.

205. Dr Skidmore was then questioned by the defendant’s counsel about reflux. He was referred to the list of assumed facts, number 14 of which states that in the six-month period leading up to July 2022 the plaintiff was experiencing “really really bad reflux”. Dr Skidmore was asked to accept the veracity of this assumed fact which is also consistent with the history the plaintiff gave her GP and her evidence. He was then asked whether that fact would undermine one of the assumptions on which he based his opinion. Dr Skidmore said that he could not see any objective evidence of reflux because the biopsies came back negative for neutrophils or the active inflammation of the gastro-oesophageal junction. He could not see any objective evidence of reflux which was a clinical, histological and endoscopic diagnosis. Dr Skidmore appears to have addressed assumed fact number 14 by dismissing reflux as a problem because he could not see any objective evidence of it, but without addressing the existence of the complaint in the context of the decision-making process of the defendant.

206. Exhibit D3 comprises a bundle of medical reports and reports from occupational therapists. I will leave to one side the report of the occupational therapist and focus here upon the reports of the medical specialists, all of which have been tendered by consent and who were not required for cross-examination. I have earlier discussed the content of the report of the psychiatrist Dr Fukui. A responding report was prepared by the defendant’s expert psychiatrist on eating disorders, Dr Bhattacharyya. She provided a report of 17 February 2025. At page 2, she reviews the opinions formed by Dr Carol Huang, a physician, the report of Dr Skidmore and the pleadings. Dr Bhattacharyya records that in Dr Huang’s recent report, Dr Huang opined that the plaintiff’s main respiratory symptoms of dyspnoea were multifactorial, including respiratory muscle weakness, which is now resolved, chronotropic incompetence and dysfunctional breathing. Dr Huang opined that an ICU admission and complications following abdominal surgery made a material contribution to the respiratory muscle weakness. In her claims against the defendant, the plaintiff makes no claim for chronotropic incompetence and for dysfunctional breathing which I understand to be separate from the issue of respiratory muscle weakness.

207. Dr Bhattacharyya then summarises the claim of the plaintiff that surgery should not have been undertaken or a lesser form of surgery should have been offered because the plaintiff’s reflux and vomiting were due to an eating disorder and binge eating. There is mention of those conditions in some of the material from Ms Embrey. Ms Cotton said she had a binge eating disorder for much of her life. Ms Dalby refers to an eating disorder management plan and the plaintiff’s history of binge eating. The notes of Ms Embrey taken in April 2022 refer to the plaintiff’s binge eating behaviours. The evidence satisfies me that the only lesser form of surgery (if that be an accurate description) was a reversal of the VBG and I have formed the clear view that this is not a viable alternative because of the complications which follow that surgery, particularly for somebody in the position of the plaintiff.

208. In her report, Dr Bhattacharyya then explains the terms ‘eating disorder’ and ‘binge eating’. At page 4 of her report, she says that the GP in her letter of referral to Dr Spiro made no note of an eating disorder nor that the plaintiff may have been treated for an eating disorder in the previous 12 months and none of Ms Embrey, Ms Dalby or the GP noted how many episodes of binging, the type of food consumed or how often the plaintiff had binge episodes. Absent that information, it was not possible to make a diagnosis of binge eating disorder. Also, vomiting (purging) is associated with bulimia nervosa and anorexia nervosa. In partial disagreement with Dr Smith, Dr Bhattacharyya said that, in her experience, vomiting and reflux are often associated with anorexia nervosa and bulimia nervosa, both of which have associated psychological issues. None of the experts have diagnosed these two conditions and there is no evidence before the court suggesting that the plaintiff suffered from these two conditions. Dr Bhattacharyya agreed with Dr Smith that haematemesis is never related to an eating disorder or psychological issues. In her evidence, Dr Fukui did not address this opinion and so did not contradict the expert psychiatrist called for the defendant. I accept Dr Bhattacharyya’s opinion. It follows that the first limb of the complaints of the plaintiff also cannot be sustained.

209. Dr Bhattacharyya went on to say at page 5 of her report that if the plaintiff had been referred following the results of the gastroscopy, she would have suggested to her that the vomiting, haematemesis and reflux could not be managed by psychiatric or psychological treatment. She agreed with Dr Smith’s statement that the symptoms of haematemesis, vomiting and reflux needed treatment that could not be provided by a psychiatrist or psychologist. She regarded constant vomiting to the point where the patient could not keep down water as requiring urgent treatment and admission to hospital. She went on to observe that following the RYGB procedure, the plaintiff did not meet any criteria for an eating disorder, for binge eating, had lost significant weight, was no longer obese according to her endocrinologist, and there was improvement in vomiting and reflux. These observations are shared by all the other treating medical practitioners.

210. Also part of Exhibit D3 is a report dated 28 February 2025 of associate Professor Saurabh Gupta, a specialist gastroenterologist who regularly performs endoscopic procedures in bariatric patients in the context of prior bariatric surgery including endoscopic management for post-surgical complications and managing patients who are obese or overweight. Dr Gupta’s report was received into evidence without objection, and he was also not required for cross-examination. Dr Gupta was asked to address a series of questions. He first addressed the cause of the plaintiff’s reflux vomiting and haematemesis. He opined that the literature discloses that the incidence of long-term complications from the VBG procedure are as high as 30.2%, including severe reflux in 15.8% of cases and that the most likely cause for the plaintiff’s persistent nausea and vomiting would be related to complications from the 1997 surgery. One known long-term complication of VBG is severe gastro-oesophageal reflux with regurgitation and vomiting. These complications are all related to mechanical and structural issues following the VBG surgery and none of them can be voluntarily induced or managed by psychological intervention. Even noting the plaintiff’s history of anxiety and depression, the symptoms do not raise suspicion of an underlying eating disorder. He agrees with Dr Smith’s opinion that these conditions of vomiting, haematemesis and reflux are rarely caused by psychological issues. He also opined that if symptoms continue despite pharmacotherapy, patients who have undergone VBG often require revisional surgery with conversion to RYGB. Inability to tolerate any oral intake due to persistent regurgitation and vomiting required urgent intervention.

211. Dr Gupta then summarised the impact of the RYGB procedure for the plaintiff. Her obesity improved from class 2 to class 1 with a reduction of greater than 6 BMI points which is associated with long-term reduction in overall mortality. Her reflux and vomiting were no longer reported as an issue. He then addressed the complaints about dumping syndrome and said that there is no record in the medical notes of the plaintiff reporting symptoms suggestive of dumping syndrome. Dumping syndrome is divided into early and late phases with early symptoms including nausea and vomiting, palpitations, facial flushing, abdominal cramps and diarrhoea. Later symptoms include diaphoresis (excessive sweating absent a cause such as heat or exercise) and light headedness or fainting. None of the symptoms were raised by the plaintiff at any stage from the records. She reported ongoing fatigue and breathlessness which are not typical symptoms of dumping syndrome. The main treatment of dumping syndrome is dietary modification and minimisation of simple carbohydrates, increased proteins and fibre and avoidance of fluids within 30 minutes of meals. Most patients prevent dumping syndrome without the need for additional interventions.

212. Dr Gupta summarised the position that the plaintiff underwent appropriate consultation and investigations prior to deciding upon revisional surgery with RYGB. Following discharge from hospital, the plaintiff has had a resolution of reflux and vomiting and impressive improvements in her weight and BMI, all of which should improve both her glycaemic control and long-term health outcomes.

213. I have earlier made reference to the report of Dr Carol Huang of 18 September 2024 which forms part of Exhibit P1. Dr Huang is senior staff specialist respiratory and sleep physician with Canberra Health Services and is Clinical Director of respiratory and sleep medicine at Canberra Hospital. At the Canberra Hospital, she provides management of respiratory and sleep disorders. Her report is based upon a detailed review of documentation and separate evaluations of the plaintiff between October 2022 and July 2024. In her report, Dr Huang summarises the history, chronology and other relevant facts concerning the treatment of the plaintiff. She attended the plaintiff on 27 October 2022, 9 February 2023, 26 July 2023 and 12 June 2024. She arranged investigations for the plaintiff’s persistent dyspnoea after her hospital discharge. She reports that the plaintiff complained of dyspnoea on all the visits including, for example, the visit on 12 June 2024. Dr Huang arranged pulmonary function testing and cardiopulmonary exercise testing to assess the plaintiff’s functional capacity and investigate the cause of the dyspnoea.

214. These investigations disclosed that the plaintiff has normal pulmonary function testing apart from mildly reduced forced vital capacity and total lung capacity consistent with a history of obesity. The plaintiff had global respiratory muscle weakness on lung function testing on 9 January 2023. The cardiopulmonary exercise testing carried out on 13 January 2023 showed that the plaintiff suffered from dysfunctional breathing and of chronotropic incompetence, which is not part of her claim.

215. Dr Huang reports that the plaintiff continued to complain of persistent dyspnoea despite objective evidence of improvement in inspiratory muscle strength by July 2023. I think it is apparent that Dr Huang expected the plaintiff to show an improvement greater than she demonstrated and that there were subjective aspects about the plaintiff’s presentation. The plaintiff was also diagnosed as suffering bradycardia which is an abnormally slow resting heart rate; Dr Huang said that this was associated with shortness of breath and treated by a cardiologist by insertion of a pacemaker. No act or omission alleged against the defendant has any connection to the bradycardia condition suffered by the plaintiff or the shortness of breath associated with it.

216. On the same measure, her lung function testing showed significant improvement in maximum inspiratory and expiratory mouth pressures so that it was in the normal range, also by July 2023. After the insertion of the pacemaker, a cardiopulmonary test was performed in November 2023, and it showed a significant improvement in exercise capacity, oxygen uptake, but with some features of dysfunctional breathing. Notwithstanding, she had a normal exercise tolerance. That is, on an objective view, she had a normal capacity for exercise for a woman of her age and station in life by no later than November 2023 following the surgery. Improvements after that time were associated with later cardiac surgical intervention associated with the heart pacemaker that was fitted. These later improvements and changes are not causally connected to the surgery, were pre-existing and no claim is made in relation to them in this action.

217. Dr Huang then addressed two questions at the end of her report. The first asked about the plaintiff’s respiratory condition. Her response must be read in the background of her report. Dr Huang opined that the respiratory muscle weakness had resolved and there was objective data to satisfy her that, following the inspiratory muscle training, there was a normalisation of her maximum inspiratory and expiratory muscle pressures. This had occurred by July 2023. Dr Huang went on to opine that exercise tolerances had significantly improved, evident in the testing in November 2023 but it is known these tests occurred following the fitting of the heart pacemaker and the improvements which followed, which are not directly related to the sequelae of the surgery, and were pre-existing conditions.

218. Dr Huang then addressed the second question, being whether the surgery materially contributed to the plaintiff’s respiratory muscle weakness. Dr Huang opines that the complications after the surgery are associated with intensive care unit-acquired weakness and made a material contribution to the development of the plaintiff’s respiratory muscle weakness. I accept this opinion expressed by Dr Huang, but that acceptance must be tempered by a number of other observations and findings based upon Dr Huang’s report. The first is that although she was not called to give evidence, I have found Dr Huang’s report to be objectively impressive and persuasive. I have deliberately used the term ‘objective’ in this part of my judgement. As I have earlier recorded, Dr Huang consistently referred to a number of aspects of the plaintiff’s presentation and then what she described as ‘objectively available data’ or similar. It is very apparent that the reference by Dr Huang to this medical data and these observations may, where appropriate according to the content of the report, be read in contradistinction to a number of the complaints with which the plaintiff presented at consultation from time to time. This observation is consistent with the findings I have made about the evidence given by the plaintiff about the sequelae of the effects of the surgery upon her.

219. In summary, I am satisfied that by July of 2023, the plaintiff had recovered to the extent that she was in no worse position than she was at the time immediately before the surgery. I further find based upon this material and following these findings, that the plaintiff’s health was greatly improved following the surgery. I make the following findings in relation to her physical condition as a sequela of the surgery. The plaintiff’s reflux condition that she had suffered since at least March 2022 had resolved. I find that the cause of her vomiting and the associated haematemesis which she had suffered since at least March 2022 had resolved. I find that the deterioration in her physical condition overall which was evident from at least March 2022 and which was connected with the breakdown of the VBG surgery in 1997 had resolved. I find that the plaintiff’s tendency to obesity which existed since her teenage years and was associated with her tendency to binge eating associated with depression and first addressed and connected with the 1997 VBG surgery has resolved and is under control.

220. On my review of the whole of the evidence, it appears that the plaintiff has suffered type 2 diabetes mellitus for a long period of time prior to the surgery. It was a period of years and was not a sudden onset of the condition some time in 2022. Doing the best I can with the evidence before me, this type of diabetes is often described as lifestyle related. I understand this to mean that it is related to lifestyle factors such as weight, height, physical activity (or the lack thereof) and may develop over the course of many years. It is to be distinguished from type 1 diabetes which is an autoimmune condition. The plaintiff did not suffer type 1 diabetes The plaintiff developed the type 2 condition, it follows logically, as a result of lifestyle choices and issues. The effect of the whole of the evidence is that from a young age, she was morbidly overweight, a heavy consumer of alcohol, briefly a consumer of drugs and a smoker of cigarettes.

221. More difficult is to identify is her present condition compared to the diagnosis and prognosis of her disease of diabetes mellitus 2 suffered by her in July 2022 which, on the balance, appears to have been caused by her lifestyle choices. As Dr Bhattacharyya records, the symptoms of her diabetes improved significantly following the RYGB surgery and she achieved a BMI within normal limits very quickly. She was able to maintain an acceptable weight and so BMI but this appears not to have lasted long. In her letter to Dr James Riddell of 29 September 2023, the GP Dr Russo reported that there is a suggestion of chronic obstructive pulmonary disease which is a feature of emphysema. Dr Russo then says that the plaintiff has developed very brittle diabetes despite her HbA1c being indicative of excellent glycaemic control. Under the care of Dr Ruth Frampton, the plaintiff has ceased taking insulin. The inference available on the evidence is that in terms of her type 2 diabetes, the plaintiff obtained an excellent result following surgery, but this has now relapsed. This is not alleged to have been caused by the anything done by the defendant.

222. The plaintiff has consistently suffered from severe depression connected with many causative features including an extremely unhappy childhood, being sent to a boarding school at a very young age, being bullied at school, a difficult paternal relationship, [redacted], alcohol abuse as a student and continuing later after university for most of her life, drug abuse commencing at about the same time and of uncertain duration, and an inability which she described as a refusal to form relationships of any kind. The plaintiff self-medicated this depressive condition with alcohol and, for a time, drugs, and she was under the care of psychologists and later psychiatrists over a long period of time. She was prescribed medication by her health professionals which she consumed over a very long time. I have earlier referred to her self-assessments which are recorded in the reports of the psychologist. These formed part of the basis of the diagnosis of depression.

223. A further part of this self-medication was the excessive consumption of food, initially up to 1997, the weight improvement after the VBG surgery and then the episodes of binge eating which followed and continuing until 2020 at least and perhaps later. I am satisfied that she was a regular smoker of cigarettes for a very long time and it is unclear if or when she ceased smoking cigarettes. This appears to have been part of the coping mechanism she used in connection with her psychological and psychiatric deficits. There is evidence that she claims to have ceased smoking in 2020 but other paramedical notes record that she admitted that she smoked at least up until the gastroscopy surgery in 2022 and perhaps later as she said that she could not kick the habit completely. In Exhibit D6 at page 12 there is a record made on 27 July 2022 by Dr Emily Lewis which records the plaintiff’s admission that she smoked continuously for the past 10 years right up to the surgery and that she is trying to “get rid of” of those two cigarettes per day which at the plaintiff’s admission was her rate of consumption of cigarettes. In so far as it is necessary, I am unable to accept the plaintiff’s evidence as credible that she did not smoke after 2020. There is no evidence about whether this had any effect on her breathlessness.

224. In ordinary circumstances, it may be expected that long term consumption of cigarettes for a person of the plaintiff’s age (born in 1959) will have some deleterious effect on lung function, even if, for a short time, her use was confined to two to four cigarettes a day. In the dietician’s notes of 27 January 2023, it is recorded that the plaintiff was being treated for emphysema but there is no other evidence on this topic although, peculiarly, this information could only have come from the plaintiff. There is no diagnosis of emphysema by any of the respiratory specialists post-surgery, and no other information about who made such a diagnosis or what treatment she may have received. Although it may be accepted that this is not a particularly major point, the plaintiff’s approach to this and many other issues is consistent; she consciously tried to minimise anything deleterious to her case which reflected poorly upon her own credibility. I have already recorded my deep dissatisfaction with the creditworthiness of much of the evidence that she gave.

225. In her reports between 24 January 2023 and 20 February 2024, Susan Dalby, the plaintiff’s treating psychologist, said the plaintiff had a history of binge eating behaviours since her teens as a response to trauma and anxiety under circumstances where she was not sufficiently protected or supported physically or emotionally, inferentially at that time but which appears to have had a lifelong effect upon her. She went on to say that the plaintiff learned to use food as a coping mechanism and experienced disordered eating through her life, confirmatory of my earlier comments that the plaintiff did not recover from but experienced a lifelong compounding effect of childhood trauma amongst other problems that have manifested in her chronic illnesses. Susan Dalby went on to say that this has been exacerbated by underlying autoimmune conditions which also impact her respiratory and gastrointestinal system but recent treatment for this condition has made a positive difference. Part of this recent treatment was the RYGB surgery and the treatment by specialists for her breathlessness associated with her heart condition which is unrelated to this action.

226. Another of the plaintiff’s coping mechanisms was the excessive consumption of alcohol. I have earlier mentioned that she commenced alcohol consumption at an early age and this continued during her university years. The early commencement of alcohol consumption appears connected to her childhood and adolescent traumas arising from her schooling, home life and other deep traumas relating to [redacted] about which no evidence was given. It appears that university life and then her life afterwards compounded these difficulties and she continued binge eating and consistently heavy consumption of alcohol and use of drugs for a limited period. These difficulties were life long and caused the extraordinary weight gain. It is not in issue as a fact, and it is not challenged, that the plaintiff informed a number of doctors, psychologists, dieticians and paramedical staff that by 1997 she had reached a weight of 200kgs and was morbidly obese. She underwent the VBG surgery in 1997 which had the effect that she could reduce her weight to 100kgs but there were still occasions when this weight increased up to around 105kgs and at worst 117kgs. I am satisfied that this weight gain at the particular times was associated with some particular personal issue with which she was struggling and she reverted to her usual coping mechanisms of binge eating and alcohol abuse. I think it is also obvious that the consumption of nicotine in cigarettes started at that time very early in her life as well and continued at least until July 2022. Insofar as the plaintiff attempted to satisfy me that she ceased smoking in 2020, I reject that evidence as being without credit. More accurately I think is that the plaintiff ceased heavy smoking in 2020 but continued smoking at least two cigarettes a day until July 2022.

227. There is a further aspect for consideration. In her evidence the plaintiff said that throughout her life, she had never formed a serious or long-lasting relationship with another person. She said that she does not form personal relationships with other humans and it became apparent that she relied significantly upon her sister for companionship. Until about 2020, she had been in some business activities connected with apiculture and the use of honeycomb and beeswax. These ended by 2019/2020 following droughts, fires and floods. In so far as the plaintiff attempted to convince me that she had an ongoing commercial business up until 2022, I reject that evidence.

228. I am satisfied that by 2022, the plaintiff had sold up the 100 acre property she owned and was living in a semi-rural property with her sister who told me, and I accept that, the plaintiff occupied a cottage at the bottom of the property and her sister lived in another house on that property. I accept that she may have maintained an interest in apiculture but only at the level of a hobby. The plaintiff and her sister maintained an interest in business as they both attended the seminar on new business opportunities on 12 July 2022. Her sister gave her great care when she was discharged from hospital after 22 days and she was heavily reliant on her sister’s care. When she was able to live independently, she saw her sister every day. In that period, she lived in the same house with her sister for a period of time that was not clear on the evidence. That ended because during that time, the plaintiff commenced consuming several bottles of wine per day. Inferentially, because of the plaintiff’s behaviour under the influence of alcohol every day, it was impossible for her sister to have the plaintiff living under the same roof. That is not an epiphany, but it is remarkable at several levels. The plaintiff was not prepared to moderate her drinking to enable her to live with her sister. As a matter of common sense and experience, these decisions by a sibling do not occur suddenly and the plaintiff made her choices which led to this result. She lives alone which has been the position for most of her adult years. Evidentiary Objections of the Parties

229. Each of the parties filed objections to the content of some of the medical reports sought to be tendered by each of them. At the time of the hearing, I decided that I would receive the evidence de bene esse and would give the challenged evidence the weight that I considered appropriate. On further consideration, I should make some findings about the evidence and the challenges of each party. I have made findings of fact earlier in this judgement and, in part, these inform my decisions here. It is worth repeating the comments I made during trial that these evidentiary issues and my decisions about them have had a most diminutive effect upon my decision in this case. I will deal first with the plaintiff’s objections by identifying the expert witness, the report and the objection.

230. The plaintiff objected to the following parts of the report of Dr Smith of 18 December 2024: (a) Page 3, question 2.a; (b) Page 4, question 3; (c) Page 4, question 4; (d) Page 5, question 5.a; (e) Page 5, question 5.a and b; and (f) Page 8, question 7.

231. The basis for the objections given was that they were opinion evidence based on incorrect facts or an incorrect presumption. The plaintiff specifically noted the following: 1. Gastroscopy on 8 July – no evidence of obstruction as the endoscope was inserted into the second part of the duodenum with no difficulty 2. Letter from Defendant to GP on 13 July by Defendant noted that the Plaintiff appeared hydrated and well. 3. Medication given by Dr Spiro on 13 July 2022 cured vomiting. 4. Plaintiff ate and drank on 14 July 2022 before Hospital admission. 5. On admission to Hospital on 14 Plaintiff MEWS were 0, nil nausea, NIL vomiting after admission at 16:15, was on free fluids at 18:43, was tolerating PO diet at 20:06 – ate a sandwich. 6. Defendant did not examine Plaintiff at all or have a conversation with Plaintiff between consultation on 13 July and commencing surgery on 15 July.

232. In respect to these objections, I make the following findings: (a) [1] is correct but irrelevant ultimately to the final opinion. (b) [2] is correct but irrelevant for the same reason. (c) [3] is factually incorrect. (d) [4] is factually incorrect on my findings. (e) [5] is incorrect on my findings. (f) [6] is wrong.

233. I have accepted the evidence, but it has not assisted my decision-making process here. The plaintiff’s objections with respect to Dr Smith’s report of 18 December 20204 fail for these reasons, but with the same overall result.

234. The plaintiff objected to the following parts of the Supplementary Report of Dr Smith of 18 November 20205 (Exhibit D15): (a) Page 7, question 8; and (b) Page 7, question 9.

235. Each of these objections are based on the opinion evidence being based on incorrect facts, namely that there was no consultation or communication between the plaintiff and Dr Spiro on 14 July 2022. These objections fail for the reasons earlier set out in these reasons.

236. The plaintiff also objected to information contained in the last sentence of the first paragraph on page 3 of the report of Dr Bhattacharyya of 17 February 2025. I accept this objection and have removed the sentence.

237. The Plaintiff’s fourth set of objections related to question and answer 5 on page 3 of the report of Associate Professor Gupta dated 28 February 2025. This objection is based on the same factual grounds I have set out at [231] of this judgment and the basis of the objection is factually wrong based upon the findings I have made. It fails for that reason.

238. There is a further objection on the same factual basis to the third paragraph on page 1 of the report of the same expert of 28 February 2025. It fails for the same reason.

239. The defendant objected to the report of Dr Gary Helprin of 7 April 2025. The report was not relied on, was withdrawn and so is not in evidence.

240. The defendant also objected to the following portions of the report of Dr Skidmore of 13 March 2024: (a) Page 4, question 7; and (b) Page 4, question 8.

241. The first portion the defendant objects to does not require discussion as I have earlier decided that it should be excluded. I reject the objection to the second portion and allow the evidence to stand.

242. In relation to the report of Dr Skidmore of 21 July 2025, the defendant objected to the following portions: (a) Page 4, answer to question 3; (b) Page 5, answer to question 3.b, first paragraph; (c) Page 5, answer to question 4.i, the words “with adequate time for informed consent.”; (d) Page 6, answer to question 4.iii – last sentence of third paragraph and all of fourth paragraph; and (e) Page 7, question 5.

243. The evidence the subject of the first portion objected to has been withdrawn. I exclude the evidence the subject of the second objection as it is incorrect following my findings. rd th th I dismiss the objections to the 3 , 4 and 5 portions having regard to the findings I have made.

244. In relation to the report of Dr Fukui of 16 October 2024, the defendant objected to question 4. The parties agreed that this portion of the report of Dr Fukui should not be taken into account and be treated as having been deleted. In my consideration of the evidence of Dr Fukui, I have proceeded on the basis of the parties' agreement accordingly. My findings reflect this approach with which I agree. Absent the parties' agreement, I would not have taken into account this part of her report as it purported to express opinions beyond the expertise of the doctor and which were matters for the Court Pleadings issues raised by the Parties

245. Mr Richards raised concerns about the content of the defendant’s pleadings. He alleged that a portion of the case led by the defendant or on which the defendant now relies has not been pleaded and must be disallowed. He relies on r 443 of the Court Procedures Rules 2006 (ACT), ‘Defence to personal injury claims’. That rule provides: (1) This rule applies to a defence to an originating claim that includes a claim for damages for personal injury. (2) The defendant must, in the defence, specifically admit or deny every material allegation of fact in the originating claim and statement of claim, including any allegation by way of particulars. (3) The allegation is taken to be admitted if the defendant does not comply with subrule (2) in relation to it. (4) A statement in the defence that the defendant does not know and therefore cannot admit a fact alleged in the originating claim or statement is taken to be a denial. (5) If the defendant wishes to prove a version of facts different from that alleged in the originating claim or statement of claim, the defendant must plead that version in the defence. (6) The defendant must plead every ground of defence to be relied on, together with the facts necessary to establish each ground.

246. The common law applicable to this rule is well settled. An opposing party must positively plead an alternate version of fact which it may seek to establish at trial so that, for example, the plaintiff knows the case she must meet and is not ambushed at trial. In this context, ambush means that the defendant is putting to her in cross-examination or in evidence a case which is novel as it is not pleaded. At many levels this is a commonsense rule. However, it cannot be used as a means of oppression of any party. Take as one example in this case: in her evidence the plaintiff contended that the defendant falsely recorded contemporaneous notes about what she was told about the procedure and whether there was only to be a laparoscopy or a far more invasive laparotomy. The plaintiff did not give evidence that she was not expecting a laparotomy or that she only chose the surgery only because it could be done laparoscopically: (cf Exhibit D7 and statement of claim paragraph 28.1). A defendant confronted for the first time by such a contention in evidence must, as a matter of fairness, be able to contradict this contention by objection or by electing to give evidence on the topic.

247. Mr Richards raised several concerns, and some preliminary comments are as follows: (a) Weight loss as a reason for the surgery: In context, I am unable to attach any significance to this complaint. The question of weight loss of the plaintiff was a live issue during the trial despite the lack of specific pleadings from the parties in connection with the earliest VGB procedure undergone by the plaintiff in 1997. As a matter of common sense, the weight issues of the plaintiff sat consistently in the background of the claim and had to be addressed by both parties in their cases. There is ample evidence in the tendered documents that before the VBG surgery in the UK in 1997, the plaintiff weighed 200kgs and was morbidly obese; after the surgery she weighed 100kgs or in that range (on one view she may have still been considered to be obese even if that surgery was viewed as a success according to the evidence of Dr Skidmore). A reversal of the VBG procedure would leave the plaintiff exposed to the risk of weight gain in a context where the plaintiff suffered psychological and psychiatric deficits which manifested in binge eating and other ways. The deleterious effect on her of weight gain in the background of type 2 diabetes was, on the balance, likely to be profound. This compounds the difficulties facing a consulting surgeon and a holistic approach was required. Returning briefly to this evidence of Dr Skidmore, whether the VBG surgery is viewed as a success can be dealt with as a question of professional view because the surgery did not resolve the underlying issues of other risks that continued. Her body weight reduced by 100kgs down to 100kgs. She later developed type 2 diabetes mellitus and suffered all the other deficits to which I earlier made reference. (b) That there was a shortage of Barium for a Barium swallow test as contended for by Dr Skidmore: This contention is correct, it has been ignored, it is irrelevant and does not form any part of my decision. The issue was the use of barium for a swallow, the chance of aspiration during the test and if so, the severely adverse consequences for the plaintiff. The defendant was on notice of the opinion of Dr Skidmore and if this alleged shortage was an issue, there should have been a pleading in response. As a matter of common sense, such a shortage, if relevant could easily have been resolved. (c) The insertion of a nasoduodenal and jejunal feed tube were only diagnostic tools: There is no pleading of this contention and no other evidence to support the contention in answer to portion of the opinions of Dr Skidmore. It is of doubtful weight and forms no part of my decision. I accept the plaintiff’s contentions (d) The contention that the 1997 VGB procedure was the reason for the plaintiff needing surgery in 2022: this assertion is not supported by the evidence. The gastroscopy performed on the plaintiff by the defendant raised several queries to be resolved when investigating the very serious symptoms suffered by the plaintiff. Everything had to be investigated and a diagnosis and prognosis formulated. The 1997 procedure was one of many features that had to be considered in this process of formulating a professional opinion. This was part and parcel of the exercise of skill of a surgeon. But the essential task was to resolve the vomiting and haematemesis issues of the plaintiff in the background of her other complex health issues. There was a “broad church” of possibilities such that it could not be said that these conditions were caused by one operative condition. That is the case here and the severity of the symptoms with which the plaintiff presented required consideration of all possibilities. I have dealt with this issue in detail later in this judgement. I do not accept the plaintiff’s contentions for these reasons. (e) Dr Smith’s suggestion of a foregut dysfunction: The views expressed by Dr Smith on this topic were largely directed to the mistaken diagnosis recorded by the defendant in her hospital notes and addressed the sequelae of that situation. The issue is what further investigation should have been done by the defendant before proceeding to the surgery in the context where Dr Skidmore said that there was no basis to proceed. His view was that the plaintiff should have been stabilised first and a further diagnosis made. Dr Smith amplified that opinion by saying that factually there was enough information available to the defendant in the circumstances to diagnose the foregut dysfunction as the basis to proceed. This was no more than saying that all the symptoms pointed in one direction only, the need for the surgery which has resolved the vomiting, the haematemesis, the most substantial and severe effects diabetes mellitus type 2 issues, any reflux problems and associated maladies. I accept that for reasons not explained in evidence, the plaintiff continued to suffer what was described as a brittle form of diabetes. That was not pursued at trial, although the tendered documents show that in 2023 her GP was looking for assistance about why that was so, given her glycaemic readings were within normal limits. It is apparent that the treating GP was at something of a loss to comprehend why this was the case. The plaintiff’s contentions are not supported on a proper consideration of the material facts and how the evidence developed at trial. (f) That reflux was a reason for the surgery: This contention suffers the same deficiencies as the previous complaint at (e) hereof. It fails for the same reason. The plaintiff complained of severe reflux on a continuing basis early in her consultations with the defendant. This was associated with vomiting problems and later the haematemesis. Dr Skidmore said that he could find no evidence of reflux disease and so thought that further investigation should have occurred. He was dismissive of any alternate view. I found his attitude and expressed views on the topic unhelpful. The plaintiff complained of severe reflux. No submission has been made that she was exaggerating this complaint or that she was using some dramatic flourish. (g) That Covid contributed to the plaintiff’s problems: The plaintiff’s tendered documents, especially in Exhibit P1, disclose that the plaintiff contracted Covid- 19 on two and possibly three occasions between 2020 and 2023. Importantly for this discussion, she contracted that virus in 2023, and this is recorded in the notes of several treating doctors and especially the respiratory physicians. At that time, there was objective evidence that her respiration difficulties due to muscle weakness suffered because of her long hospital stay in 2022 had resolved (or perhaps more accurately should have resolved) following specialist physiotherapy. It is implicit at the very least that the doctors were at something of a loss to explain the plaintiff’s ongoing complaints about her breathing and bodily oxygen levels.

248. Before announcing my findings of fact based on all the evidence, it is necessary to say something about the credibility of the witnesses. I have earlier made comments about the evidence given by the parties. I will not restate my comments, and these findings reflect my earlier discussion. I found that the plaintiff initially attempted to give her evidence truthfully but continually fell into the habit of trying to persuade me that she was the only person who is truthful and the defendant was untruthful and not creditworthy. In this she failed. As her evidence progressed, I formed the very clear view that she was prepared to say almost anything to assist her case or to damage that of the defendant. The zenith of those attempts was her assertion that the defendant falsely created notes of their discussion on the evening prior to the surgery. I found this to be a diminutive proposition and I reject it. It was the nadir of her credibility. I similarly found her to be ready to exaggerate her condition post-surgery in an attempt to maximise her claim for damages. She has now correctly abandoned a number of claims she earlier made about conditions she suffered post-surgery which had no connection to anything done by the defendant. I reject her claims about the alleged failure of the defendant to advise before surgery of the possibility of the development and sequelae specifically connected to dumping syndrome which has now largely resolved. I find that she was specifically advised of that syndrome as a sequela of the surgery. Her evidence on this and the other topics which relate to advice given to her before surgery is without any credibility. The question remains whether the syndrome is a matter for consideration in a broader context. Overall, I formed the very clear view that if the plaintiff could not recall something allegedly said to her by the defendant in the period leading up to the surgery, she decided to deny it and take her chances on the issue of credit. I accept that this is a very strong finding but in this case it is appropriate.

249. In so far as the evidence of the plaintiff is contradicted by the evidence of the defendant, I prefer the evidence of the defendant. That said, there were aspects of the evidence of the defendant which were unsatisfactory. She was dismissive of a number of aspects of the case put to her which, allowing as I must for personal characteristics, did not assist me. She attempted to maintain a diagnosis of a gastric stricture when there was no evidence justifying that diagnosis. Each of the experts called did not support her initial or later diagnoses of the plaintiff’s condition although I accept that the gastroscopy raised many issues for investigation. The histopathology report resolved these queries in the manner required of a competent surgeon in her position. In turn this required the plaintiff to address afresh her diagnosis of the plaintiff’s condition. There was no gastric outlet obstruction even though there was a narrowing of the os at the junction of the stomach with the duodenum which is standard under a VBG procedure done in 1997. I have earlier recorded the opinions expressed by the experts on this topic and I find they are correct. These address the, at times, diametric points of view though neither of them opines that surgery performed by the defendant failed to largely resolve the medical issues presented by the plaintiff from the first consultation. Dr Skidmore opined that the plaintiff should have been stabilised and reassessed for a diagnosis whereas Dr Smith said that the dysfunction was so severe that the appropriate procedure was to perform the surgery.

250. I have earlier set out a recitation of the material facts in this action, and I do not intend to repeat that discussion. The plaintiff was born and educated in the UK. She had a troubled relationship with her father, but the evidence provides no details, nor does it elucidate mentions of some form of [redacted]. She became a binge eater as part of her coping mechanisms, and she appears to have suffered some mental issues requiring psychological help. In 1997, the plaintiff was obese and underwent vertical gastric band surgery. As a result, the plaintiff reduced her weight from around 200 kgs to 100 kgs. She was diagnosed with depression in 1992 and appears to have continuously suffered from this condition intermittently over time. She migrated to Australia and worked in the public service for her career, reaching a high level of seniority.

251. After the VBG surgery, she developed a capsaicin allergy about which she informed the defendant on 23 June 2022. This allergy caused her episodes of vomiting if she consumed chilli, paprika, or cayenne pepper and the like. Separately, the plaintiff had been referred to and was seeing a psychologist and a dietician. She was referred to the dietician in March 2022 about an eating disorder. It is agreed that she developed vomiting following a Covid-19 infection but there is no evidence to support a contention that the ongoing vomiting problem was only related to this infection. At the same time, haematemesis developed and this (the associated vomiting of blood) was very concerning for the plaintiff.

252. The plaintiff first conferred with the defendant on referral from her GP on 23 June 2022. Apart from the capsaicin allergy, she complained of having coughing fits in May 2022, becoming nauseated, vomiting, and being unable to tolerate fluids. Then she contracted Covid-19 and vomiting increased up to 22 June. The gastroscopy procedure followed and the histology report did not confirm any of the queries then identified by the defendant. The defendant recorded a diagnosis of gastric stricture or gastric outlet obstruction, but the objective evidence did not support these diagnoses. Surgical intervention was planned for 22 July 2022 based upon the plaintiff suffering ongoing vomiting unrelated to any gastric cause, haematemesis and all in the background of the type 2 diabetes and the known breakdown of the gastric system following earlier intervention under VBG surgery.

253. On 13 July 2022, some days after the gastroscopy on 8 July 2022, the plaintiff presented to her GP and then to the defendant with unexplained vomiting, nausea and abdominal pain with ongoing painful reflux. She reported vomiting every day and the defendant diagnosed her as having an outlet obstruction which was not a correct diagnosis, and I accept the evidence of the expert witnesses insofar as it differs from the defendant on this issue. Based upon this diagnosis, advice was given by the defendant. Two options were given to the plaintiff to consider. The first that the plaintiff undergo a reversal of the VBG procedure. The defendant correctly identified that this procedure over time is associated with the symptoms then being experienced by the plaintiff. There were risks such as weight gain and that there would not be a resolution of the plaintiff’s diabetes as may be expected to occur with a RYGB procedure. The plaintiff denied she was given two options to consider and alleged that the defendant had falsified her clinical notes. I reject this version as completely without merit and an attempt by the plaintiff to discredit the defendant. The advice was given, considered by the plaintiff and a decision made by her.

254. The second option given was that the plaintiff undergoes an RYGB procedure and an explanation was given about the procedure, its risks, sequelae and benefits. The plaintiff decided to undergo the RYGB procedure knowing, for example, of the risk of dumping syndrome. I similarly reject the evidence of the plaintiff to the contrary about the advice she received from the defendant about the procedure and its risks for the same reasons. This included whether the procedure could be performed laparoscopically or by a laparotomy.

255. Following upon the advice of the defendant and relying thereon, an admission to hospital document for an operation on 22 July was signed by the plaintiff. At the gastroscopy stage, the defendant also diagnosed a para-oesophageal hernia in the plaintiff’s stomach region as well as a rolling hiatus hernia in the area of the junction of the oesophagus and the stomach. I accept the evidence of the expert witnesses that there was no rolling hiatus hernia present and the removal of the relevant portion of the defendant’s stomach at surgery means that I am unable, one way or the other, to make a finding on the diagnosis of a hiatus hernia at the gastroscopy. The histopathology report resolved the Barrett’s oesophagus query of the defendant, there was no evidence of this disease.

256. There was a very dramatic change in the plaintiff’s condition between the gastroscopy and 13 July 2022. The plaintiff attended a seminar on 12 July 2022 and after eating lunch she commenced a period of violent vomiting. She stayed in her room and despite refraining from eating or drinking, she could not control the episode of vomiting which included haematemesis. She could not consume food or fluids. As a result of these symptoms, the plaintiff sought advice from a GP and the defendant on 13 July 2022 as discussed above. I am satisfied that this was a severe worsening of the plaintiff’s preexisting condition. On 14 July, the plaintiff reported to the defendant that she remained unable to hold down any fluid or food and could not keep down any medications. She was a diabetic and required her medication. She suggested to the defendant that she may need to be hydrated on a drip. She was very aware of her position, and the evidence satisfies me there was a real level of desperation about her discussion with the defendant. By that time, she had been suffering unexplained vomiting, nausea and haematemesis for almost three months. She was looking to the defendant to resolve her condition in the best way possible. That decision on treatment belonged to the plaintiff on receipt of the appropriate advice from defendant under her particular expertise and upon proper explanation to the plaintiff in accordance with the professional standards applicable to that doctor patient relationship. The plaintiff had by then already received sufficiently thorough advice from the defendant about the RYGB procedure planned for 22 July and had been given a Royal Australasian College of Surgeons brochure on the procedure. The plaintiff correctly contends that this advice to the plaintiff about the procedure was based upon a misdiagnosis of a gastric outlet obstruction which did not exist. Notwithstanding, I am satisfied that the plaintiff was by then completely familiar with the risks and rewards of the RYGB procedure.

257. The defendant reaffirmed her advice to the plaintiff that she undergo the RYGB procedure and that the date for the procedure be brought forward to 15 July 2022. The plaintiff agreed and a fresh admission document was completed. On that document the defendant recorded a provisional diagnosis that the plaintiff was suffering a gastric outlet obstruction. There was no obstruction as recorded although there had been a severe deterioration in the plaintiff’s condition in the last three days which appears to have stabilised to some extent by the evening of 14 July, although I think this is not without doubt. There is some controversy about whether the plaintiff consumed food in the evening of 14 July 2022 preoperatively. I am satisfied that before midnight she took some fluids in the form of Hydralyte ice blocks. There is no hospital record of her having received a sandwich in that evening and I think that the evidence of the plaintiff on this topic is also wrong. It is also counterintuitive for someone in her state admitted in those circumstances, to have been given a sandwich.

258. The RYGB procedure was performed and post-operatively the defendant recorded a diagnosis of gastric outlet obstruction (same as the diagnosis recorded preoperatively). I am satisfied that this was not the correct diagnosis. Post-operatively the plaintiff suffered from the effects of having been given too much fluid intravenously in the ICU, was moved to a different hospital, suffered severe respiratory problems and remained in hospital for 22 days.

259. The issue for determination is whether the defendant has been in breach of duty to the plaintiff in performing this surgery in those particular circumstances. The plaintiff argues that there are three limbs of liability. The third is an alleged failure to perform first the reversal of the VBG procedure. This third limb is not supported by the evidence I have accepted. The first limb is that the duty was breached because the surgery was performed when it was unnecessary to do so. This limb relies upon the misdiagnosis by the defendant of the plaintiff’s condition. I have accepted the misdiagnosis argument of the plaintiff. However, there is a distinction to be made between surgery negligently performed and a breach of duty because of a failure to properly advise the plaintiff of all the options available to her and so performing what may have otherwise been unnecessary surgery. I accept that the 1997 VBG procedure was successful to the extent that it led to the reduction of the plaintiff’s weight from 200kgs to 100kgs. It is a matter of degree whether it can be said that the plaintiff carrying a weight of 100kgs may be viewed as successful. It was well known that over time there is a form of breakdown in the digestive tract that requires a revision of the procedure. The VBG operation is no longer performed for this and other reasons.

260. There is no evidence and it is not alleged that the RYGB surgery was performed negligently, and it appears that over time it has been completely successful. I accept the evidence of Dr Skidmore that in the usual course, bariatric surgery is not an emergency procedure. This is a question of fact and degree in this case because I am satisfied that in her communications on 13, 14 and 15 July 2022, the plaintiff was desperate to obtain an alleviation of her suffering and so agreed to the surgery.

261. I am satisfied that the first limb of breach contended for by the plaintiff is properly to be understood as another version of the second limb, namely a failure to properly advise the plaintiff that further investigations should have been undertaken in order to properly diagnose the plaintiff’s condition and to undertake those investigations and advise the plaintiff on the most appropriate form of treatment. I consider that before performing the surgery, it was necessary for the defendant to advise the plaintiff thoroughly on all of the choices she had available for treatment of her condition and this included not only the surgical option but also the process contended for by Dr Skidmore of stabilising the plaintiff using nasogastric and/or naso jejunal tubes and then performing further gastroscopy investigations. It is common ground that the defendant did not give this advice to the plaintiff immediately prior to the RYGB procedure and so the plaintiff did not have the full suite of possible treatment options to consider. There is evidence that by 14 July her condition had stabilised. Dr Skidmore said that it was necessary to advise the plaintiff of the wisdom of taking steps to stabilise her condition, repeat the gastroscopy and identify the cause of the symptoms she was suffering. The speed with which the surgery was undertaken occurred in the background of that failure by the defendant to give that advice to the plaintiff. It was incumbent upon the defendant to give the plaintiff all options for treatment and allow the plaintiff to make an informed choice about which to choose having been fully advised by the defendant.

262. I consider that a reasonable person (in this context a medical specialist) in the position of the defendant, in possession of all of the information then available, owed a duty of care to the plaintiff to give her advice about the full suite of treatment options for her condition and then to allow the plaintiff to make a fully informed decision once she understood all of her treatment options. The defendant failed to fulfill this aspect of her duty of care. The defendant understood the position of the plaintiff, her medical condition and the deterioration in that condition. I have found that the approach of the plaintiff to the defendant on 13 and 14 July 2022 carried with it a level of desperation in seeking the best treatment to alleviate her physical maladies. I accept that at that time in 2022, the plaintiff suffered a broad panoply of medical issues many of which were chronic and I also accept that the defendant wished to act quickly to resolve a major and I think very distressing condition for the plaintiff due in no small part to the associated haematemesis.

263. I am satisfied that a reasonable person in the position of the defendant as a specialist bariatric surgeon, which is the basis on which I make these findings, would have given to the plaintiff the appropriate and complete suite of advice after making a final and proper diagnosis, so that the plaintiff could then make a fully informed choice about her treatment options. The defendant failed to properly diagnose the condition of the plaintiff and did not fully or properly advise her of her treatment options. A complicating feature at the time was that, because of the breadth and number of her medical issues at the time, I am satisfied that there was a significant and foreseeable risk that the plaintiff would suffer harm if she underwent the major RYGB surgical procedure as has occurred.

264. A reasonable surgeon in the position of the defendant would have taken the precaution of properly diagnosing the plaintiff’s medical condition and taken the precaution against the risk of harm to the plaintiff by performing the RYGB surgery when another option was available that the plaintiff may have chosen if given the choice to do so. The harm suffered by the plaintiff due to these failures was causatively linked to the failures and was both serious and probable. The plaintiff suffered fluid retention, a collapsed lung, breathlessness, some physical weakness and walking instability. Each of these conditions was materially contributed to by the breach. Her pre-existing psychological condition worsened. She contracted an ICU-acquired lung weakness and these contributed to an extent to her respiratory lung weakness. I consider this problem was only of a short duration. The plaintiff’s evidence on the point was unconvincing in that the plaintiff attempted to satisfy me that her condition did not abate for a very long time and to an extent is ongoing. I am unable to accept that evidence which I found very unconvincing. I accept that it is not for the plaintiff to disprove that her pre-accident ill health would have led to the conditions of which she complains irrespective of the actions of the defendant. The application of that well settled principle does not detract from my role as the trier of fact about the complaints of the plaintiff who I found deliberately coloured her evidence on these issues. It is unnecessary for me to postulate a reason why she did so and it is only necessary for me to make the finding. I found many aspects of her evidence quite unreliable for a broad range of reasons as I discussed earlier. Her evidence on the damages claim was similarly diminished by the endemic lack of credibility of her evidence.

265. In summary, I am satisfied that my findings about the breach of duty of the defendant as I have outlined, were a necessary condition of the happening of the harm. I am also satisfied that it is appropriate for the scope of the defendant’s liability to extend to harm caused particularly because of the relationship of specialist medical practitioner and patient in the context of the condition and now complaints of the plaintiff. The plaintiff was not given advice about conservative stabilisation in the context of the panoply of maladies she suffered when she underwent the RYGB procedure, the consequences of which caused the claimed injuries. Each of the limbs of s 45 of the Civil Law (Wrongs) Act have been satisfied. I turn then to damages.

266. The plaintiff no longer makes a claim for any alleged consequential cardiac issues which fell under the general rubric of chronotropic incompetence or for any past or future treatment expenses relating to her claimed aggravation of her psychological condition. Notwithstanding, she claims general damages for the aggravation of her psychological condition. I am unable to accept this claim. It relied in large part on the evidence of Dr Fukui whose evidence I have earlier assessed. I am satisfied from the evidence of Dr Fukui that she expressed a medico legal opinion without being given the benefit of all the psychological evidence on the plaintiff’s condition between 2020 to July 2022. In evidence it became necessary for me to ensure that Dr Fukui addressed these issues when giving her evidence. This was unsatisfactory at so many levels including an aspect of embarrassment for her. She then candidly accepted that, at least to that extent which she thought significant, she could not provide a meaningful assessment of the plaintiff. As a result, I am unable to give sufficient weight to the opinion expressed by Dr Fukui which would otherwise enable me, without more, to make a finding on balance that as a matter of general damages, there was a worsening of the plaintiff’s psychological condition. I am not satisfied that such a claim can be made out based upon the evidence of the plaintiff. For the same reasons I am satisfied that no consequential claim based on this head of damage has been established.

267. The plaintiff made a separate claim for respiratory issues that were described as ‘breathing difficulties’. There is only one expert witness who provided written evidence on this topic, Dr Carol Huang and the defendant called no expert evidence in response. The report of Dr Huang was received into evidence, and she did not give viva voce evidence. She opines that the plaintiff developed several complications post-surgery, in particular muscle weakness and consequential respiratory symptoms. I am satisfied on this evidence that in the usual course such conditions are associated with a weakness acquired as a result of admission to intensive care following surgery such that there is a causative relationship between the surgery, the admission for a long period in intensive care and the development of the condition as a matter of common sense and experience. Dr Huang opined and I accept that these made a material contribution to the development of the respiratory muscle weakness. Dr Huang then opined that by 12 June 2023 the respiratory muscle weakness had resolved. There has been no challenge to this evidence and I accept it. That said, the plaintiff appeared to attempt to use this evidence as a springboard to make a claim for the condition of dyspnoea (shortness of breath) and other breathing difficulties she appears to suffer. The evidence does not support this approach.

268. In her evidence the plaintiff accepted that the dyspnoea and the other breathing issues had not been investigated to the point of identification of their cause. In limine, it is therefore not arguable that the causative link has been made out based upon the plaintiff’s admission that there has been no identification formally of the cause. I do not think this admission can be viewed ‘in a vacuum’. There is evidence that on 3 April 2023 the plaintiff was referred to a Dr Ting for a “fourth opinion” about her dyspnoea. The letter of referral from her GP makes clear that the plaintiff is suffering difficulties, but the aetiology is unknown. The GP is “not sure what is going on”.

269. Dr Ruth Frampton is an endocrinologist who specialises in treatment of diabetes. Until this RYGB surgery, the plaintiff had suffered type 2 diabetes mellitus. On 10 August 2023, the plaintiff’s GP wrote to Dr Frampton, questioning if the plaintiff’s breathlessness “may be attributable to an automatic neuropathy due to her T2DM”, being type 2 diabetes mellitus. This was not pursued. This is the only evidence on such a possible connection, and it carries no weight greater than a specialist medical professional postulating one possibility. This does not assist the plaintiff as it shows that the possible resolution of the condition she suffered has caused her treating doctors and specialists in 2023 and well after the surgery to postulate the aetiology of conditions, she has suffered well before surgery and apparently having no connection to the surgery.

270. That view is borne out further by later correspondence. In a letter from the respiratory specialist Dr Carol Huang to Dr Miriam Russo dated 12 June 2024, Dr Huang reports on her review of the plaintiff who she had not seen for 11 months, on the insertion of a heart pacemaker by Dr Pathak in October 2023 with improvement in symptoms, that the plaintiff had COVID-19 in June 2023 and reports significant issues with dyspnoea afterwards. Cardiopulmonary testing done in November 2023 showed an objective improvement (my emphasis) in exercise capacity by 37% compared to January 2023 with persistent chronotropic incompetence and erratic breathing pattern consistent with dysfunctional breathing. Dr Huang then adds that: “Dysfunction breathing pattern has been reported in the literature as one of the causes of persistent dyspnoea after COVID- 19 infection”. Issues connected with the plaintiff’s chronotropic incompetence do not form part of the plaintiff’s claim here. Dr Huang reports that the balance of the plaintiff’s tests were within normal limits. The plaintiff’s respiratory muscle weakness had improved significantly since January 2023 (six months post-surgery) following specialist treatment and she is seeing a psychologist about her dysfunctional breathing. There is no other evidence about the involvement of this psychologist, and it has not formed part of my considerations.

271. I am satisfied from this evidence of the plaintiff’s treating medical specialist that the onset of COVID-19 in June 2023 had some specific and other unspecified influence upon the health of the plaintiff. It caused significant issues with dyspnoea from that time and continuing. It appears to have had some effect on the other maladies suffered by her. Following the provision of specialist physiotherapy care, she made a very good recovery in inspiratory mouth pressures by some time in 2023 and before June of 2024 (and at least since the time she had that assistance). Consequently, she had made a very good recovery in her respiratory muscle weakness which is a head of claimed damage in this case. That recovery is not to be assimilated to the date of this letter which merely carries the date of the report of Dr Huang following a further review. The evidence satisfies me that she had made this recovery connected with these complaints, the subject of this claim, during the 2023 calendar year.

272. I turn then to the other heads of claimed damage. I consider that the plaintiff has made out a case for damages under s 100 of the Civil Wrongs Act. Her sister Ruth gave evidence about the assistance she had given the plaintiff following her discharge from hospital. This evidence was not seriously challenged, and I accept it as truthful and reliable. I put to one side that, in time, there was a breakdown in their relationship due to the plaintiff’s behaviour and alcohol consumption. Ms Natalie Cogger, an occupational therapist, provided a report of 15 August 2024 in which she assessed the care provided by Ruth Cotton to her sister. The defendant made criticisms of this report and suggested that Ms Cogger had not been properly instructed but I am unable to accept these criticisms. I consider the report of Ms Cogger to be reliable, but the final assessment is a matter for me. If there was a proper basis for these criticisms, I would expect cross-examination of the witness, but this did not occur. I would allow past domestic assistance at a rounded-up figure of $55,500, bearing in mind the concession by the defendant that the figure per hour of $51.09 should be rounded up to $52 per hour. I think that concession was appropriate and correctly made.

273. I have formed the view that the plaintiff has not established on the balance any claim for dyspnoea, dysfunctional breathing after the 2023 calendar year or the aggravation of any psychological condition. The evidence satisfies me that the plaintiff continues to suffer a number of very serious medical conditions, none of which have any connection to the conduct of the defendant and which require a long period of ongoing treatment. I am satisfied that the test of causation connected with the surgery, the 22 days in hospital and the later period of convalescence has been established by the plaintiff and I reject the defendant’s submissions on that topic. Notwithstanding, it remains my task to assess damages taking into account, inter alia, that finding.

274. I have allowed the amount of $55,500.00 for domestic assistance. This amount, which I have slightly elevated as explained, reflects the domestic assistance I am satisfied was given to (and was required to be provided to) the plaintiff following surgery and the complications which followed.

275. For the reasons earlier discussed, I am not satisfied that the plaintiff’s claim for future care can be substantiated. I have already explained and made findings about the credibility of the plaintiff and separately about the other various medical conditions from which she suffers. I am not prepared to accept the evidence of the plaintiff on this topic. As a matter of course I would make only a small assessment under this heading which reflects the very small possibility of some need for future care connected with the surgery and in respect of which there may be some aspect of causative effect. I would only allow $30,000 under this heading.

276. For the same reasons, I am not satisfied that any large allowance should be made for future out of pocket treatment costs. I would make only a modest allowance of $5,000.

277. Past out of pocket expenses are said to be agreed at $96,000.

278. I turn then to the final aspect of assessment of non-economic loss. I accept that post surgery, and as a result of mistreatment within the ICU post operatively, the plaintiff developed an acute pulmonary oedema (APO), a left sided acquired pneumonia and later a small bowel obstruction. Upon her eventual discharge from hospital, she suffered chronic tiredness such that she could not care for herself and undertake her usual activities of daily life. She attempted to satisfy me in her evidence that prior to the surgery she had led an active and full life and had been involved in various home-based businesses. Upon closer questioning it became clear that these activities had largely been carried on prior to the 2020 calendar year and that her interests were very adversely affected by both droughts and then floods which followed. Each had a very significant adverse effect upon her, and she eventually sold up some of the land used for these pursuits and focussed her interests into a smaller area. I find that very little of these business interest survived those events and so her activities were very circumscribed as a result. Up to a point which I discuss below, she remained active and walked regularly and maintained an interest in horses but rarely rode them as a form of recreation.

279. There is another consideration that cannot be overlooked in a discussion of these issues. I am satisfied that by April/May 2022 the plaintiff had become a chronically sick person who very reasonably was seeking a diagnosis and treatment of her medical issues. By May 2022, she found that coughing fits led to episodes of vomiting and this in turn led to haematemesis which on any objective view would have been particularly distressing. It was in the context of that diagnosis that she was referred to the defendant and underwent the gastroscopy in July 2022. This referral followed the treating GP taking the usual conservative approach to investigation and diagnosis. The Australian medical system requires this conservative approach be taken and this is what occurred and so much is obvious from the very detailed letter of referral sent by the GP to the defendant.

280. The plaintiff’s symptoms continued and eventually worsened after the gastroscopy and before the defendant could give any definitive diagnostic advice to the plaintiff. The plaintiff’s worsening condition deteriorated dramatically in July 2022 such that by 12, 13 and 14 July she was vomiting uncontrollably, haematemesis was consistently present and she was unable to obtain the benefit of her diabetic medication because she could not hold anything in her stomach, including water. Dehydration was a real possibility, as well as the effect upon her of being unable to consume medication. It was the plaintiff who suggested to the defendant at that time that she may need to attend hospital for the insertion of a “drip”. The plaintiff was continually suffering, in her words, very, very bad (gastric) reflux, associated to some extent with her chronic vomiting.

281. I am satisfied that prior to the surgery performed by the defendant, the plaintiff was experiencing very poor physical health which is properly described as chronic ill health. By the time of the surgery and notwithstanding her evidence to the contrary, she had become focussed entirely upon obtaining relief from the effects and symptoms of her very poor medical condition and her chronic ill health. As I have found, there was a (understandable) level of desperation in her approach to the defendant to alleviate her suffering. This discussion is not directed to the issue of liability but rather to damages and an assessment of the plaintiff pre- and post-operatively. I do not accept that at any time from April 2022 the plaintiff was as robust and in good health as she may have been in, say, 2019 or 2020. In making my assessment of general damages these very peculiar circumstances must be considered. Although I have made findings about the causative effect of the surgery and accept that the defendant takes the plaintiff as victim as she finds her, that approach does not obviate the position of the plaintiff pre-operatively that she was chronically ill with a condition requiring attention. This finding is not inconsistent with the fact that in the week of 12 July 2022 the plaintiff attended a seminar about other possible commercial opportunities. It was during that week her physical health almost collapsed completely, a development possible at any time given her condition.

282. In that background, I accept that in reliance upon the defendant’s medical advice as her treating bariatric surgeon, she underwent a form of corrective abdominal surgery in November 2022 and this left her with a chronic respiratory condition, dyspnoea, weakness and fatigue. All these conditions persisted through at least until July 2023 and then there was a dramatic improvement in the period until December 2023. I also accept that she suffered a major depressive disorder, however I am unable to place significant reliance on the opinions of Dr Fukui for the reasons explained. That said, some provision should be made for this development.

283. The parties agreed on the operation of s 99 of the Civil Wrongs Act and I have taken those matters into account. Doing the best I can in these factual circumstances, I would assess the award to the plaintiff for non-economic loss in the amount of $125,000. In light of the above, I will hear the parties further on the question of interest and then costs.

284. The award of damages reflected in these reasons, and subject always to the caveat that if a figure for past out of pocket expenses is in dispute and a further hearing required, is as follows.

Total Damages

285. The total sum of damages to be awarded will be: 1. Non-economic loss $125,000.00 2. Interest TBD 3. Past out of pocket expenses $96,000 4. Future expenses $ 30,000.00 5. Domestic assistance $55,500.00 6. Interest on past assistance TBD 7. Future commercial assistance $ 5,000.00

286. I will hear parties on costs and interest.

Orders

287. The orders of the Court are: (1) Judgment is entered for the plaintiff in the sum of $311,500. (2) All questions of costs and interest as between the plaintiff and defendant are reserved. (3) The plaintiff and defendant are to exchange and file written submissions and calculations of interest and submissions on costs by 25 September 2026, and exchange and file any submissions in reply by 2 October 2026, and, subject to any further orders of the court, those issues will be dealt with on the papers.

I certify that the preceding two hundred and eighty-seven [287] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Slattery.

Associate: Date: