General (Grounds 1, 2, 5, 6, 7, 8, 9, 11, 13, 14, 15, 16, 17, 18, 19)
- The remaining grounds of appeal were to the effect that his Honour erred:
1. in "reversing the onus of proof":
1. by finding that the appellant could not demonstrate that the left Filshie clip was completely closed and locked over the tube, in circumstances where the evidence did not demonstrate that it was not (Ground 1(a));
2. by finding that the appellant could not demonstrate that the left clip as depicted on HSG was closed, when the evidence could not demonstrate that it was open (Ground 1(b)); and
3. by not accepting the evidence of Professor Cooper and the appellant and finding that that meant the opposite of their evidence had been proven and that the evidence of Dr Jeri and Professor O'Connor could be accepted without further analysis (Ground 1(c));
1. in accepting Dr Jeri as reliable and preferring his evidence to that of the doctor (Ground 2);
2. in failing to consider how the clip could have come off the tube (if the tube remained entirely intact) without springing open when the evidence did not suggest that it was open (Ground 5);
3. in finding that the clip was improperly or partially closed rather than that it had been properly applied, correctly occluding the tube and thereafter migrated remaining closed (Ground 6);
4. in finding that the left clip was improperly or partially closed while appearing to be closed and not open without identifying how the appellant should or could have identified the incomplete closure (Ground 7);
5. in accepting that the tube remained intact despite no clip being found on it, the appellant's evidence that it was closed and intraoperative photographs and HSG images demonstrating it remained so "and thereby failing to resolve the ineluctable inconsistency between the respondent's theory and the evidence that evidence that the clip remained closed" (Ground 8);
6. in finding that the clip had become detached from the respondent's tube without postulating or seeking to identify the mechanism by which that could have happened and therefore failing to assess its plausibility (Ground 9);
7. in failing to have any or proper regard to the actual depiction of the images in the HSG when compared to those in evidence of an open Filshie clip and the exhibited specimen clip, as being closed (Ground 11);
8. in failing to have adequate or proper regard to the various possible non-negligent causes of the respondent's pregnancy identified by the experts in their joint report and in the literature, while proceeding to infer inadequate application of the left Filshie clip by the appellant (Ground 13);
9. in finding that the appellant did not follow her usual practice as described by her in applying Filshie clips, including "flipping" and checking them after application (Ground 14);
10. in finding that the appellant breached her duty of care by choice of location of her placement of the left clip (Ground 15);
11. in finding that the appellant breached her duty of care by failing properly to close the left clip (Ground 16);
12. in finding that the appellant breached her duty of care by the manner of her placement of the left clip (Ground 17);
13. in finding that the manner and location of the placement of the clip was the cause of the pregnancy (Ground 18); and
14. in failing to have regard in a circumstantial case to the fact that the appellant had never had a previous instance of a failed sterilisation following application of a Filshie clip (Ground 19).
- Notwithstanding the number and detail of these grounds, they cannot avail the appellant unless they vitiate the trial judge's conclusion that, more probably than not, the patient's pregnancy post tubal ligation was attributable to a departure by the doctor from proper professional practice in the application of the left Filshie clip, in particular by failing to achieve proper and complete closure of the clip. Essentially, these grounds attack various aspects of his Honour's reasoning underpinning that conclusion. As has been noted, that conclusion was an inference drawn from the circumstances. As the competing cases of the parties, earlier summarised, [79] indicate, the significant integers were:
1. the potential explanations as to how the patient could have fallen pregnant some nine months after tubal ligation with Filshie clips;
2. the doctor's account of the performance of the procedure;
3. the appearance of the left clip on the intraoperative photographs;
4. the findings at caesarean section and salpingectomy; and
5. the appearance of the clip on the HSG.
- In a circumstantial case such as the present, it is the ultimate question - not the various intermediate facts - which must be proved according to the balance of probabilities. A set of circumstances may be explained, more probably than not, by an hypothesis which includes matters which, standing alone, seem improbable. Thus it is essential not to be distracted by irrelevant questions on subsidiary issues, such as whether on the HSG (or on the intraoperative photos) it was more probable than not that the clip was open; or whether on Dr Jeri's evidence it was more probable than not that he found the tube to be intact. That is because resolution of the question whether, more probably than not, the clip was not properly closed, depends on the mutually supporting effect of the whole of the circumstances, and not on one or more of them in isolation.
- That is subject to this exception. An hypothesis otherwise capable of explaining the circumstances may be excluded if it appears to be inconsistent with an irrefutable fact. Thus the hypothesis which his Honour ultimately accepted - that the doctor failed to achieve complete closure of the left clip - would have had to be excluded if the intra-operative photographs conclusively demonstrated that complete closure was achieved, or if the HSG conclusively showed that the clip remained fully closed. However, if the evidence fell short of being conclusive of those issues, the hypothesis remains an available one, to be considered and weighed with the alternatives.