George v Biggs - [2015] NSWDC 11 - NSWDC 2014 case summary — Zoe

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George v Biggs

[2015] NSWDC 11

District Court of NSW|2014-12-17

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At a glance

Source facts

Court

District Court of NSW

Decision date

2014-12-17

Source

Original judgment source is linked above.

Judgment (83 paragraphs)

[1]

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 De La Espriellavelasco v The Queen [2006] WASCA 31 Dobler v Halvorsen [2007] NSWCA 335, (2007) 70 NSWLR 151 Elayoubi v Zipser [2008] NSWCA 335 Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 F v R (1983) 33 SASR 189 Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345 Gaio v The Queen (1960) 104 CLR 419 Goddard v Central Coast Health Network [2013] NSWSC 1932 Jackson v Verco, unreported, 17 January 1992, Full Court of the Supreme Court of South Australia Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA 117 Leotta v Public Transport Commission of NSW: (1976) 9 ALR 437 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mason v Demasi [2009] NSWCA 227 Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273 Neville v Lam (No 3) [2014] NSWSC 607 Paul v Cooke [2013] NSWCA 311 Penrith City Council v Parks [2004] NSWCA 201 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v Attard (1958) 43 Cr App R 90 R v Saraya (1993) 70 A Crim R 515 Reece v Reece [1994] NSWCA 259 Richard Evans & Co Ltd v Astley (1911) AC 674 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Shoalhaven City Council v Humphries [2013] NSWCA 390 State of NSW v Fuller-Lyons [2014] NSWCA 424 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Australian Law Journal, the Hon PW Young QC, (2014) 88 ALJ, November 2014 Final Report of the Special Commission of Inquiry into Campbelltown and Camden Hospitals; B Walker SC, 30 July 2004, Chapter 10 NSW Health Privacy Manual (Version 1) 2004 Wigmore on Evidence, 4th ed (1985) vol VI Category: Principal judgment Parties: Sandra George (Plaintiff) Dr Nigel Biggs (First defendant) St Vincent's Hospital Sydney Limited (Second defendant) Representation: Counsel: Mr J Anderson (Plaintiff) Ms L Young (Defendants)

[3]

Table of Contents Nature of case [1] - [5] Factual background [6] - [29] Case for the plaintiff [30] - [33] Case for the defendants [34] - [39] Issues [40] - [45] Evidence overview on liability issues [46] - [60] Evidence ruling on usual professional practice [61] - [66] Unavailability of some of Dr Biggs' notes / correspondence [67] - [69] Entries in hospital records [70] - [74] Credibility and reliability of testimony [75] - [190] Plaintiff [78] - [132] Professor Paul Fagan [133] - [140] Dr Nigel Biggs [141] - [167] Dr Payal Mukherjee [168] - [178] Professor Thomas Havas [179] - [181] Dr Warwick Stenning [182] - [184] Ms Kate Morris [185] - [187] Dr Michael Schultz and Professor Vincent Cousins [188] - [189] Expert reports on damages [190] Amendment to particulars of negligence [191] - [207] Facts [208] - [397] Plaintiff's pre-operative health history [209] - [217] Consultation with Professor Fagan on 6 March 2009 [218] - [248] Consultation with Dr Biggs on 3 April 2009 [249] - [265] Dr Biggs' usual professional practice [266] - [281] Letter advising of operation on 2 November 2009 [282] - [283] Pre-admission clinic events on 14 October 2009 [284] - [327] Plaintiff's presentation for cancelled operation [328] - [350] Cancellation of operation on 2 November 2009 [351] - [354] Re-booked operation on 30 November 2009 [355] - [373] Potential witnesses not called to give evidence [374] - [377] Plaintiff's post-operative course in hospital [378] - [388] Subsequent problems and remedial treatment [389] - [397] Issue 1 - Findings: Due incorporation of second defendant [398] - [401] Issue 2 - Findings: Whether plaintiff was a public patient [402] - [415] Issue 3 - Findings: Relationship of doctors and the hospital [416] - [448] Issue 4 - Findings: Duty of care owed by defendants [449] - [458] Issue 5 - Findings: Content of duty: Consent [459] - [475] Issue 6 - Findings: Content of duty: Intra-operative events [476] - [480] Issue 7 - Findings: Conversations through interpreters [481] - [543] Issue 8 - Findings: Appropriateness of the surgical option [544] - [573] Issue 9 - Findings: Consent issues [574] - [830] Consultation on 6 March 2009 [580] - [629] Consultation on 3 April 2009 [630] - [697] Pre-admission clinic 14 October 2009 [698] - [779] Pre-operative admission 30 October 2009 [780] - [826] Cancelled operation 2 November 2009 [827] Operation 30 November 2009 [828] - [830] Issue 10 - Findings: Alleged negligence: Consent [831] - [917] Particulars of negligence as to adequacy of consent [833] - [836] Legal principles [837] - [841] Statutory preconditions: s 5B of the CL Act [842] - [846] Whether precautions were required: s 5B(2) of the CL Act [847] - [851] What constituted adequate information and advice [852] - [856] Validity of consent: 6 March 2009 - Professor Fagan [857] - [865] Validity of consent: 3 April 2009 - Dr Biggs [866] - [875] Validity of consent: 14 October 2009 - Pre-admission [876] - [884] Validity of consent: 30 October 2009 - Dr Mukherjee [885] - [913] Validity of consent: Operation dates [914] - [916] Conclusion on consent issues [917] Issue 11 - Findings: Mechanism of facial nerve injury [918] - [962] Issue 12 - Findings: Alleged materialisation of inherent risk [963] - [996] Issue 13 - Findings: Alleged intra-operative negligence [997] - [1063] Construction to be placed on the operation note [1018] - [1030] Appropriateness of imaging investigations [1031] - [1053] Whether intra-operative negligence occurred [1054] - [1061] Conclusion on alleged intra-operative negligence [1062] - [1063] Issue 14 - Findings: Causation [1064] - [1142] Issue 15 - Findings: Injuries and disabilities [1143] - [1171] Issue 16 - Findings: Assessment of damages [1172] - [1197] Life span [1173] Mitigation [1174] - [1176] Non-economic loss [1177] - [1183] Future domestic assistance [1184] - [1190] Future out-of-pocket expenses [1191] - [1195] Past out-of-pocket expenses [1196] Summary of assessment [1197] Disposition [1199] Costs [1199] Orders [1200]

[5]

Factual background

The plaintiff's acoustic neuroma was located in the cerebro-pontine angle within the right intra-auricular space within the cranium adjacent to the pons and cerebellum. The 8th cranial nerve is also known as the auditory or vestibular nerve. The right 8th cranial nerve was in close anatomical proximity to the right 7th cranial or facial nerve, which tracts from the brain stem to enervate the muscles of the right side of the face.
The following photograph which comprises an extract of Exhibit "F", is of an anatomical model showing something of the general area in question, including the internal auditory canal in which part of the neuroma was located. The translucent end of the blue tipped flag on that exhibit displays the relative location of the internal auditory canal when viewed from above and inside the cranium:
The surgery for removal of the neuroma was performed on the plaintiff at St Vincent's Hospital by a team of surgeons provided by that hospital. The perspectives and the descriptions of the procedure within the evidence reveals the surgery to have been complex, in which deep and delicate neurological structures of importance to normal physiological function were at risk of injury by reason of the nature and the location of the surgery.
The following photograph, which comprises an extract of Exhibit "G", shows an anatomical cross-section model of portion of the brain demonstrating the perspective locations and relative juxtapositions of the cerebellum, the pons, the medulla, and part of the spinal cord as well as the nerves as they exit the brain stem:
The surgical team who performed the operation on the plaintiff was led by Dr Biggs, a specialist neuro-otological surgeon who was at the time, and still is, the surgical head of the department of otology at St Vincent's Hospital. In addition to the anaesthetic and theatre staff present at the time, the surgical team also comprised Dr Phillip Chang, Dr Channa Panagamuwa and Dr Leo Pang, all of whom were also versed in specialised neuro-otological surgery. They had varying experience and hierarchical professional status at the hospital at that time.
The pre-surgical work-up took place over a period of months, during which steps were taken aimed at obtaining the plaintiff's consent for the recommended operation. Those steps were said to have been incrementally or cumulatively undertaken by Professor Paul Fagan, Dr Biggs and a hospital registrar and trainee ENT surgeon, Dr Payal Mukherjee, in that order. That process occurred after consideration of the results of a number of relevant investigations and tests, and various interpreted discussions with the plaintiff.
The discussions leading to the plaintiff agreeing to have the surgery were complicated by the plaintiff's language difficulties. The plaintiff required, but did not always have, the services of a professional Macedonian interpreter. The plaintiff said she agreed to have the subject operation because she believed, based on her understanding of what she had been told by Professor Fagan, through her accompanying friend who did the translating, that she had a tumour in her brain, which she had understood to have required removal.
That stated belief was mistaken. In fact the plaintiff had a benign tumour near her brain, located on the sheath of the right 8th cranial nerve, but not in her brain. The plaintiff said she would not have had the operation if she had understood this to have been the case. That evidence must be evaluated according to the requirements of s 5D(3)(b) of the CL Act.
The subject operation required considerable skill on the part of the operating surgeons. It was conducted in two identified phases. The first phase involved obtaining access to and exposing the operative field. This was achieved by Dr Biggs as the lead surgeon. He incised the skin behind the plaintiff's right ear and then drilled away and removed part of the right petrous temporal bone of the skull and then cut through the dura mata, which comprises the membranous covering of the brain to expose the neuroma in preparation for its removal. This was achieved in a trans-labyrinthine surgical approach. The second phase was carried out by one or more of the three other surgeons present, and involved the use of an operating microscope and other appropriate instruments to both view and manipulate the relevant structures, and to gradually dissect, cut away, and remove the neuroma.
By those means, the neuroma was apparently removed by a combination of progressively paring, peeling and suctioning morsels of it away from the sheath of the affected 8th cranial nerve.
The plaintiff's facial nerve injury occurred after Dr Biggs had left the operating theatre in order that he attend to the needs of his other patients at his rooms. He did so because his role in exposing the operative field for the other surgeons to work on had been completed. He left the other surgeons who were then present to undertake the remaining dissection, morselisation, suctioning and removal of the neuroma from the right 8th cranial nerve.
The reason the operation was carried out in two phases with different lead surgeons in each phase was that the operation was a long one, and after some hours, in this type of surgery, a surgeon's fine motor control can become fatigued when working around delicate structures for prolonged periods of time. The final part of the subject procedure involved dissecting the tumour off the acoustic nerve, which can take some hours.
Dr Biggs said that after he had completed his part of the operation, he handed over responsibility for the operation to Dr Chang. As has been acknowledged by several medical witnesses, the second defendant's operating theatre records relating to the identification of the respective roles of the other three surgeons are in a confusing state of completion. It is not entirely clear from the documentary evidence as to whether, when Dr Chang took over from Dr Biggs, he then continued the procedure to completion, or whether at some stage the other surgeons then present were delegated to perform particular parts of the remaining procedure. Apart from Dr Biggs, none of the other surgeons were called to give evidence concerning the sequence or the details of the intra-operative events.
The subject procedure was undertaken in conjunction with the use of a sound emitting externally placed facial nerve monitor as was described in the evidence. The purpose of that physiological monitor was to objectively detect stimuli to the facial nerve, including potentially injurious stimuli, and to provide an audible and recognisable warning to the operating surgeons to let them know if they were operating near the facial nerve.
When Dr Biggs left the operating theatre, the plaintiff's right facial nerve was intact. He said he had not been operating anywhere near that nerve, which was later found to have been divided or transected in the region of the neuroma, and not in the area he had exposed.
The plaintiff makes no criticism of the role of Dr Biggs in relation to the manner in which he fulfilled his role in the surgery. There is no suggestion that he had done anything other than to skilfully perform his part of the operation.
The precise circumstances or the sequence of events that led to the division of the plaintiff's right facial nerve remain unknown. A number of inferences were possible in that regard. The resolution of that question cannot be resolved by unreasoned speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. No interrogatories had been directed at establishing those matters.
After the division of the facial nerve was recognised intra-operatively, Dr Biggs was called back to the operating theatre to perform a microsurgical cable graft repair of the severed nerve. This involved harvesting a portion of the right greater auricular nerve. The plaintiff makes no criticisms of Dr Biggs in relation to his attempted repair of the severed nerve.
The primary operation was expected to take up to 12 hours. In fact the entire operation, including the attempted nerve repair, took 7 hours and 55 minutes. On the evidence, nothing turns on the length of that time interval.
Over time, the nerve repair procedure proved to be unsuccessful, and the plaintiff required several subsequent remedial plastic and reconstructive procedures to her right eyelid, mouth and face. Despite a degree of improvement in the cosmetic appearance of the paralysed right side of her face following a number of plastic surgery procedures, she nevertheless still suffers considerable residual disabilities of a physical, cosmetic and psychological nature.
The plaintiff gave her evidence effectively and responsively through the assistance of a skilled and NAATI accredited professional Macedonian interpreter, Mr Boris Petrusev.
This case appears to have arisen in part because of difficulties with doctor / patient communication issues. This is because despite the plaintiff's request, an accredited Macedonian interpreter had not been made available to assist the plaintiff at the pre-hospital admission consultations, at which important aspects of her condition and its proposed treatment were being discussed with her.
On those occasions, it would ordinarily have been expected that material information, advice and warnings would have been provided to the plaintiff to assist her in making a decision as to whether or not to undergo the surgery that was recommended to her, as opposed to considering alternative treatment options, including the option of non-operative conservative management.
The plaintiff claims she was either not given information to that standard, or alternatively, whatever information was given to her, was given in a manner and in circumstances that did not lead to her acquiring a proper and confirmed understanding of what was involved in the subject surgery, including the risks and the potential adverse sequelae.

[7]

Case for the defendants

The defendants made numerous attacks on the plaintiff's credit as a witness. Those matters will shortly be considered in the course of these reasons.
The case for the defendants was that the plaintiff had in all appropriate respects, been properly and materially advised of the risks involved in having the recommended surgery; that the subject surgery had been carried out competently; that the plaintiff had been treated appropriately and in accordance with the contemporary standards of practice of peer professional surgeons in Australia performing neuro-otologic surgery of the kind in question: s 5O of the CL Act. Those matters require evaluation.
In particular, the defendants claim that the plaintiff had been adequately informed of the risks involved with the subject surgery, and that such information had been given to her with the assistance of Macedonian interpreters on the crucial occasions when the plaintiff was at the second defendant's hospital, and when consent issues were discussed with her. Significantly, although those interpreters who had provided that assistance to the plaintiff in the hospital setting were identifiable in the evidence, they were not called to give evidence of such interpreted conversations and information.
The defendants also maintained that there was no intra-operative breach of duty of care owed to the plaintiff, and that the plaintiff's facial nerve injury was simply the materialisation of an inherent risk of the surgery she had agreed to undertake, and in respect of which, it was argued, she had been sufficiently informed beforehand: s 5I of the CL Act. The defendants submitted that the proceedings should be resolved in their favour on this preliminary point of claimed inherent risk: Paul v Cooke [2013] NSWCA 311, at [53] - [54].
In the alternative, the defendants disputed the construction sought by the plaintiff concerning that expression appearing within in the operation record as being "inadvertent division" of the facial nerve. The defendants disputed the proposition that the terms and the context of that note constituted an acknowledgment of any intra-operative carelessness or negligence on the part of the hospital or the surgical team that operated on the plaintiff.
In the context where no oral evidence was called from the author of the note, Dr Panagamuwa, or any other person who had been present during the second phase of the operation to explain the factual significance of the note made by him, this raises factual questions concerning the meaning and the significance of the cited note, as well as the conclusions that could reasonably be drawn from its content and context.

[8]

Issues

This case raises multiple and complicated issues with repeated recurring themes that need to be addressed in relation to a number of relevant dates. This has inevitably influenced the length of these reasons: Paul v Cooke [2013] NSWCA 311, at [112]. At the commencement of the hearing the parties adopted something of a minimalist approach to the identification of the issues calling for decision: T7.47 - T8.4; MFI "2". On examination of the pleadings, the evidence and the submissions of the parties, I consider that the issues arising for determination in these proceedings can be conveniently stated to be as follows: Issue 1 - Whether the second defendant was duly incorporated as alleged by the plaintiff and denied by the defendant; Issue 2 - Whether the plaintiff was a public patient at the second defendant's hospital; Issue 3 - The relationship between the second defendant hospital, Dr Biggs, Dr Panagamuwa, Dr Chang and Dr Pang, and the legal significance of that relationship; Issue 4 - The nature of the duty of care the defendants owed to the plaintiff in respect of each component of the medical services that had been provided to her; Issue 5 - The scope of the duty of care the defendants owed to the plaintiff in respect of the pre-operative information, advice and the consent component of the medical services that had been provided to her; Issue 6 - The scope of the duty of care the defendants owed to the plaintiff in respect of the intra-operative component of the medical services that had been provided to her; Issue 7 - The evidentiary value and admissibility of accounts of clinical conversations conducted with the plaintiff through interpreters, where those interpreters were not called to give evidence of those discussions and the interpretation of those discussions; Issue 8 - Whether the surgical procedure recommended to the plaintiff was appropriate to her circumstances, having regard to the duty of care owed to her, and having regard to the provisions of s 5O of the CL Act; Issue 9 - Determination of the relevant facts surrounding the provision of material information to the plaintiff which preceded her consent being obtained to undergo the surgical treatment in question, and the adequacy of that information, as was interpreted to her. This issue involves recurring themes concerning the events of 6 March 2009, 3 April 2009, 14 October 2009 and 30 October 2009, 2 November 2009 and 30 November 2009, individually and in combination. I shall shortly return to expand upon this issue after identifying the further issues that follow; Issue 10 - Whether the defendants departed from the standard of care expected of them concerning the provision of information, advice and warnings at times when the plaintiff's consent to the subject surgery was being obtained, documented and confirmed, and if so, should this be characterised as having occurred due to negligence on the part of the defendants; Issue 11 - The determination of the most probable mechanism and manner by which the plaintiff's right facial nerve came to be severed intra-operatively; Issue 12 - Whether, having regard to the terms of s 5I of the CL Act, the plaintiff's right facial nerve palsy was due to the materialisation of an inherent risk associated with intra-cranial surgery using the trans-labyrinthine approach for the removal of an acoustic neuroma located in the cerebro-pontine angle; Issue 13 - Whether, having regard to the terms of s 5O of the CL Act, the defendants had departed from the standard of care expected of them in the circumstances so as to justify a finding of negligence on their part, and if so, in what particular respects: s 5B of the CL Act; Issue 14 - On the assumption of a finding that there had been a relevant breach or relevant breaches of duty of care owed, whether the harm suffered by the plaintiff was caused by the negligence claimed: s 5D of the CL Act; Issue 15 - Following a review of the evidence of the plaintiff, and a review of the medical evidence, the determination of the extent to which the plaintiff's claimed injuries and disabilities were relevantly caused by the events in question; Issue 16 - The assessment of the plaintiff's entitlement to damages, including whether the plaintiff has incurred an injury-caused need for domestic assistance.
A consideration of Issue 9 involves a number of sub-issues. These relate to the provision of information, advice and warnings to the plaintiff that would have been material to her decision to consent to undergo the surgical treatment, and the content and the adequacy of the respective interpretations of the communications passing between the plaintiff and those advising her in respect of risks associated with the treatment options that had been recommended to her.
A further matter requiring consideration is the significance of the notes made by those respectively consulting with, treating and advising the plaintiff, and the interpretations and inferences to be drawn from those notes.
That lastmentioned matter also involves a consideration of the significance of the absence of any notes of a consultation the plaintiff had with Dr Biggs in Moree on 3 April 2009, and the absence of any related correspondence from Dr Biggs concerning that consultation, and the role of evidence of usual professional practice in determining, on the balance of probabilities, what had been relevantly told to the plaintiff in the course of that consultation, before she indicated her consent to have the operation.
A related consideration is whether the matters discussed in consultation with the plaintiff were properly understood by her, having regard to the language and the interpretation issues which prevailed at the relevant times.
Before setting out my findings on factual matters, and then moving on to address the above issues, it is convenient to first identify an overview of the evidence on the liability issues; to identify a ruling made on the admissibility of evidence of usual professional practice in the absence of a relevant recollection and relevant records; and to make some observations about entries in medical records. It is also necessary to outline my impressions on the credibility and reliability of testimony of the respective witnesses before engaging with the issues identified at paragraph [40] above.

[9]

Evidence overview on liability issues

In addition to the plaintiff's own evidence, in the case for the plaintiff, expert oral evidence on the liability issues was given by Professor Thomas Havas, a consultant otolaryngeal, head and neck surgeon, and by Dr Warwick Stenning, a consultant neurosurgeon. Both of these experts identified criticisms of the care that the defendants had provided to the plaintiff. They were cross-examined in respect of that evidence. As the criticisms by the experts were based on assumed facts, those experts properly conceded variations in their opinions on an assumed acceptance of the different factual scenarios they were asked to consider.
In the case for the defendants, factual evidence as to matters of pre-operative assessment, information, advice, warnings and the consent process, was given by Professor Fagan and by the first defendant, Dr Biggs, both of whom are well recognised specialist otological surgeons skilled in base of skull surgery, and by Dr Payal Mukherjee, who was at the relevant time a surgical registrar in Dr Biggs' team, and who at that time, had almost completed her specialist training.
The defendants contended, based on the evidence of those practitioners, and upon the contents of the pre-operative clinical notes and progress notes, that there had been no relevant failures within the process by which the plaintiff's consent had been obtained for the subject surgery.
An issue arose in that regard because of the limited content of those notes, and because, unfortunately, Dr Biggs' notes and subsequent correspondence concerning his consultation with the plaintiff at the Pius X Clinic at Moree on 3 April 2009, or copies of those documents, could not be located.
A further issue arose in that there were no notes made by Dr Biggs in the second defendant's hospital progress notes concerning the plaintiff's attendance at the hospital pre-admission clinic on 14 October 2009, at which time the plaintiff's consent for the operation was said to have been formally documented by the fact of her signature on a consent form requesting treatment.
On the issue of whether there was a relevant breach of the duty of care owed, the defendants relied upon two expert otolaryngeal surgical opinions contained in the respective reports of Dr Michael Schultz and Associate Professor Vincent Cousins. In essence, based on the assumptions they had been asked to make, those experts stated that in their respective opinions, there had been no relevant departures from the expected standard of care.
The assumptions the defendants' experts were asked to make on instructions from the defendants' solicitors raised a discrepancy between the evidence of Dr Biggs and those assumptions. The assumptions referred to the actual recollections of certain matters by Dr Biggs, whereas in his oral evidence, no such recollections were claimed. This is a matter that requires a more detailed analysis.
Neither of the defendants' experts was required by the plaintiff for cross-examination on the content of their respective reports. Those reports, and the opinions expressed in them, therefore stand to be evaluated according to their contents and the underlying assumptions on which they are based, alongside the other expert evidence and the facts as they are ultimately found.
That evaluation was rendered more difficult in this case because the authors of the defendants' expert reports were not called to give evidence. In those circumstances, despite the inherent difficulties, the exercise is one that must nevertheless be undertaken within the limitations imposed by those circumstances.
As seems to be increasingly more common as the default position in personal injury cases conducted in this court, it becomes necessary for the court to engage with, and if not resolve, then reconcile conflicting opinions in medical reports as best can be achieved in circumstances where some of the authors of the opinions in conflict did not give oral evidence, either in chief or in cross-examination.
That task requires an examination where relevant, of the underlying assumptions upon which those opinions were based, in order to determine whether, on the basis of the admissible material tendered by the parties, those assumptions have a reasonable foundation in the evidence: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [35], [39], [91] and [92]; K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA 117, at [25]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [64]; Shoalhaven City Council v Humphries [2013] NSWCA 390, at [36], and in other cases along those lines.
As a result of the forensic decisions made by the parties, there had been no pre-trial arrangements made to convene a conference between the respective experts as contemplated by UCPR r 31.24(1), and in the circumstances, where it had been decided that the defendants' experts would not be called or required to give oral evidence, it was therefore not feasible to require or to arrange for the experts to give their evidence concurrently, as contemplated by UCPR r 31.35. Those forensic decisions did nothing to shorten the length and the cost of the trial.
The plaintiff's court book, which comprised the expert reports and the clinical notes, comprised 632 pages in two volumes: Exhibit "C". The defendants' court book, including the expert reports and copies of clinical records, comprised 416 pages: Exhibit "3". The parties had not taken any pre-trial steps to seek to co-operate to avoid the inclusion of significant and unnecessary overlap in the content of those volumes. Unfortunately, some of those records had been poorly and incompletely photocopied, and in parts, inaccurately transcribed. Such surplusage has from time to time been the subject of critical comment, the latest such comment being the observations made by the editor of the Australian Law Journal, the Hon PW Young QC, at (2014) 88 ALJ, pages 763 - 764, November 2014.
A number of packets of miscellaneous medical records and subpoenaed documents were also tendered. These will be referred to in appropriate detail, where it becomes relevant to do so.
The resources available to the Court comprised some anatomical models which were made available to the parties to assist with the understanding of the factual and expert evidence. The parties obtained photographs of those models to enable the photographs to be tendered to form part of the record of the proceedings, if required. The photographs were ultimately tendered: Exhibits "F" and "G".

[10]

Evidence ruling concerning "usual professional practice"

During the course of evidence by Professor Fagan, Dr Mukherjee and Dr Biggs, in the absence of their specific recollections on particular matters of historical fact concerning their professional dealings with the plaintiff, objection was taken to those witnesses giving their evidence based, not on their recollections of what actually occurred in those dealings, but on what they described as their usual professional practice in such circumstances. Each of those witnesses gave such evidence.
In the evidence of Professor Fagan, this was at T208.24 - T209.33 and following, to T222. In the evidence of Dr Biggs, this was at T308.30 - T320; T325.21 - T329.26; T343.15; T345.26; T352.3 - T357.42; T364.13 - T364.16; T367.26; T371.26 - T371.30. In the evidence of Dr Mukherjee, this was at T190.15; T242.19 - T245; T248.14.
On behalf of the plaintiff it was submitted that in the absence of any notice served pursuant to s 97 of the Evidence Act 1995 concerning tendency evidence, such evidence of usual professional practice should not be allowed.
Although there was some force to that submission, in the circumstances of this case, a ruling was made that evidence along those lines should be admitted as it was not only relevant to a fact in issue, namely whether or not the events occurred as claimed in the evidence of those witnesses, but also because such evidence was relevant to an assessment of the credibility and the reliability of the evidence of those witnesses.
In making that ruling, I considered that although the evidence was admitted, it still required evaluation as to its relative weight and probative value. This was the approach taken in Elayoubi v Zipser [2008] NSWCA 335, per Basten JA, at [86], and in Neville v Lam (No 3) [2014] NSWSC 607, per Beech-Jones J, at [103] - [108] which followed Elayoubi. In Elayoubi, at [86], Basten JA stated: "…Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with a mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward."
Accordingly, reliance on evidence of usual professional practice by Professor Fagan, Dr Biggs and Dr Mukherjee stands to be evaluated in the course of determining whether, in each claimed instance, where reliance was placed on those usual practices in the absence of an actual recollection of events, the claimed usual practices were in fact more probably than not, followed by those witnesses. My consideration of those instances is set out in the context in which such questions arise for determination.

[12]

Entries in hospital records

Some of the significant handwritten entries in the second defendant's hospital records had been left in a state of incomplete annotation.
The general subject of legible completion of medical records where those making the relevant entries are required to identify themselves by name and designation, as well as by signing, dating and timing those entries, has previously been the subject of sharply pointed remarks and a plea for compliance with the requirements of the NSW Health Privacy Manual (Version 1) 2004, as was referred to in the Final Report of the Special Commission of Inquiry into Campbelltown and Camden Hospitals; Brett Walker SC, 30 July 2004, Chapter 10, pages 139 - 141.
The second defendant's records in this case comprising the handwritten hospital progress notes indicate that the letter and the spirit of that plea has, at times, been met with mixed degrees of compliance, or non-compliance, despite the fact that at the top of each page of the second defendant's form for hospital progress notes, compliance is stipulated by the second defendant to be a mandatory requirement of practitioners making entries in the hospital's patient notes: Exhibit "3", pages 98 - 131.
The subject matter of the Special Commission of Inquiry referred to above, concerned the treatment of some 68 patients at the identified hospitals involved in the NSW Public Health System between 2000 and 2002. It may be reasonably assumed that not too long after publication in 2004, the findings and recommendations of that Commission of Inquiry would have been disseminated to other area health services and public hospital administrators in NSW, including to the second defendant.
However, it is not necessary to invoke that assumption in this case as at the relevant time, the evidence comprising the progress notes in Exhibit "3" shows it was the second defendant's stated mandatory requirement of practitioners and staff that the hospital records should be appropriately noted in the manner described above.

[14]

Plaintiff

At the hearing, the plaintiff was aged 68 years. She arrived in Australia in 1998 and she became a citizen in 2003. She has been widowed since the death of her second husband in 2006. In Macedonia, she had trained and had worked as a nurse, including carrying out triage and reception work in a radiology clinic. At the time of the events in question in these proceedings she was not working, and she was living in Moree, where there was limited access to tertiary specialist medical services.
After making due allowance for the fact that the plaintiff gave her evidence through an interpreter, and that she was at times upset, and in eye discomfort, needing eye drops (T127.1), matters that can pose difficulties in assessing oral evidence and demeanour, I nevertheless concluded she was an impressive, intelligent, honest and careful witness concerning the factual matters in issue between the parties.
Although the subject matter of the plaintiff's evidence was at times visibly upsetting to her, and although she was clearly embarrassed by her facial appearance, she gave her evidence in a reasonable, moderate, calm and non-histrionic manner. That aspect of the assessment of her demeanour and her credit as a witness was necessarily limited, given her limited use of English.
Nevertheless, through the sworn interposition of the interpreter, the plaintiff gave cogent details of her medical history, and her background. This included her experiences concerning the respective terminal illnesses suffered by each of her parents, and the effect the deaths of her parents had upon her thinking about the subject of cancer. Her mother had died of uterine cancer in her fifties and her father had died of lung cancer in his seventies. She thought that in her family, cancer might be hereditary.
On account of those factors, I am persuaded that the plaintiff had good reason to accurately focus upon matters of detail that concerned her health such that her evidence on those matters was likely to be reliable insofar as she was able to understand what was said to her in that regard, both in terms of her hearing problems, and on account of translation issues.
On critical matters of her recollections of relevant events, I considered the plaintiff had a generally reliable recollection of the key events as she understood them in the context of what she was told by way of interpretation of what was said to her by her doctors. Her evidence in that regard chimed true, and it was not inherently improbable on its face.
The plaintiff had kept a diary of significant health events whilst she lived in Moree, including the events the subject of this litigation. In the post-operative period, she was required to leave her housing in Moree in distressing circumstances that meant she needed to abandon some of her belongings so as to take minimal essential possessions with her when she moved to her present and much smaller accommodation in Liverpool. She destroyed her diary in the course of those events: T97.16 - T97.17; T99.19 - T99.21.
The plaintiff was cross-examined closely on that evidence. In that regard, it was suggested to her she had invented her evidence about the diary and its destruction in an endeavour to make her evidence seem more credible. She rejected that assertion: T103.40 - T104.5. On behalf of the defendants it was submitted that the evidence of the plaintiff on those matters was "incredulous".
In rejecting that submission, it is sufficient to record my impression that her evidence in that regard was not inherently improbable. In my view her explanation was within the array of understandable reactions to the stressful circumstances she found herself in at the time.
I am satisfied that the plaintiff's account of why her diary was no longer available to her was truthful. In any event, I considered the plaintiff to have a good recollection and grasp of significant health-related events in her life. I do not consider that the absence of her diary raised a true issue on her credit or on the reliability of her evidence.
The plaintiff's credit was also attacked on the issue of whether she had exaggerated her evidence as to the post-operative difficulties she described in connection with the wearing of dentures: T565 - T570. In my view, there was clearly a semantic misunderstanding between the plaintiff and the cross-examiner as to whether an upper denture (which incorporated a full set of upper teeth) was a singular denture or more properly described as being dentures in the plural sense. In my view there was no relevant exaggeration. No adverse credit implications flowed from that evidence.
The plaintiff's credit was further attacked with the suggestion she had made an error in her evidence regarding the date on which she claimed to have been diagnosed with a tumour in her brain. It was suggested that she had then tailored her evidence to seek to excuse that purported mistake: T123.38 - T124.44. In my view, when that evidence is read as a whole it is clear the plaintiff was talking about tracing her diagnosis back to its foundations, namely to 5 December 2008, which was the date when she had an MRI brain scan, and that the diagnosis she was referring to was the date of the scan, as was recounted to her in later consultations where that scan was discussed. In my view, no relevant credit issue arises on this point.
In the defendants' initial written submissions (MFI "7") it was claimed that there were examples of matters in the evidence that reflected poorly on the plaintiff and which, it was argued, diminished the credibility and the reliability of her evidence. Those matters are analysed in the paragraphs that follow.
First, it was claimed that because the plaintiff claimed, at T43.33, that she was a regular church-goer before her surgery, and attended pensioner groups, and yet said at T177.20, there were no church pensioner groups in Moree, there was an inconsistency in her evidence. Several matters need to be stated with regard to that submission. At T43.38 the plaintiff said she "used to go to the church". She did not say she went to a church regularly in Moree. Furthermore, part of her answer at T43.37 was unfortunately not transcribable. In my view, the claimed inconsistency does not necessarily arise. The church attendances the plaintiff was talking about were not necessarily restricted to Moree. The issue is peripheral, and in my view, it is irrelevant.
Secondly, it was suggested that the plaintiff's credit had been diminished because of her evidence at T185.17 to the effect that she thought Dr Moisidis, the plastic surgeon who carried out reconstructive surgery on the plaintiff's facial deformity resulting from facial nerve palsy, had used her as an experiment in carrying out that remedial surgery. It was submitted that such evidence was illogical. I do not accept that submission. In the context, the plaintiff was in effect, taciturnly, and with some bitterness, expressing her opinion in ironical terms on the results of the attempted remedial surgery carried out by Dr Moisidis, and her realisation of disappointment with those results. It was an opinion she was entitled to hold. In making that finding I do not intend that this finding be read as any direct or implied criticism of Dr Moisidis, who was not called to give evidence. The basis of the plaintiff's opinion concerning that treatment was not explored in detail in the evidence, and in the circumstances, I consider that it would be unreasonable to describe her evidence as illogical, as was suggested in the submissions of the defendants.
Thirdly, it was suggested that the plaintiff's actions in interrupting a consultation that Dr Biggs was having with another patient in Moree reflected poorly on her credit. I do not consider that submission to be the inevitable consequence of her self-described actions. This is because to the extent the issue was explored in evidence, it does not exclude the possibility of a misunderstanding having arisen as to her entitlement to enter the consulting room. It is also consistent with her evidence that she was concerned about delaying her accompanying friend Mr Ljubomir Madjistorov, a diabetic, who was to act as her informal interpreter, and who was getting tired while they had been kept waiting, and where the appointment time had passed, and no-one had been seen entering or leaving the room whilst they had been waiting: T118.40 - T118.47. In my view, this is a peripheral matter which has been overstated as being a matter affecting the plaintiff's credit as a witness. I do not accept the submission.
Fourthly, it was also submitted that the plaintiff's evidence to the effect that the neuroma, referred to in the consultation as a tumour, would grow if not operated upon within 6 months, reflected poorly on her credit. I do not see the force of that submission, as the phenomenon of the growth of tumours is a common perception in the community. That phenomenon of tumours growing over time is recognised in the report of the defendants' expert, Dr Schultz: Exhibit "3", pages 7 and 10. Furthermore, in considering the issue, there must be some scope allowed for the plaintiff's emotional response to the diagnosis, based on what she had understood from what had been said to her by Mr Madjistorov on that matter, especially having regard to language issues. The defendants' submission makes no such allowance. In my view, the plaintiff's perception of the circumstances was not an irrational one as was submitted on behalf of the defendants. I therefore do not accept the submission.
Fifthly, it was submitted the plaintiff's evidence of only ever having been told there was a 1 in 1000 chance of death from the surgery in question, despite seeing three separate surgeons, reflects poorly on her credit. In considering that submission I do not overlook the scope for interpretation confusion to have arisen over the 1 in 1000 figure. The factual evidence that this was the figure for a lifetime chance of developing an acoustic neuroma, although there is no need to decide that point. In my view, the submission is overstated. In fact, the plaintiff only saw two surgeons, not three, namely Professor Fagan and Dr Biggs. Dr Mukherjee was not a surgeon at the time. She was a registrar. This issue is not determined by a credit assessment alone, but also in the context of the other evidence, including out-of-court interpretation issues, which will be taken up in connection with my reasons concerning Issue 9, dealing with the plaintiff's consent to the subject operation.
Sixthly, it was submitted that there was a credit inconsistency between the evidence of the plaintiff of having been told by Professor Fagan there was a 1 in 1000 chance of death, and her evidence at T90.28 - T90.29 to the effect that she wouldn't have accepted the operation if it could have led to a fatal outcome. In my view, the submission misunderstands the two different contexts of the evidence cited. According to the plaintiff's evidence, Professor Fagan had also explained to her that he had not experienced a death from such surgery, or at least that was the plaintiff's understanding of what he had said, as was related to her by her friend Mr Madjistorov in his interpretation of what Professor Fagan had said. In my view the submission should not be accepted for reasons associated with the need to make due allowance for the difficulties associated with the interpretation of what Professor Fagan had told her. This is a matter which will be further developed in my findings of fact.
Seventhly, it was submitted that the plaintiff's evidence to the effect that Mr Madjistorov had left Australia in 2010, was inconsistent with the clinical records. An examination of those records does not satisfactorily demonstrate the claimed inconsistency. The evidence invoked by the defendants in support of that submission was not compelling. At pages 647 and 673 of the plaintiff's evidence bundle, which comprised Exhibit "C", the copies of the records kept by the treating general practitioner made reference to "Lou" as the plaintiff's contact person in 2011 and 2012. It may be reasonably assumed that this was a reference to Mr Ljubomir Madjistorov.
In my view, for a number of reasons, the credit conclusion contended on behalf of the defendants in respect of the above points should not be sustained. First, the records in question were not prepared or maintained by the plaintiff, so the entries relied upon by the defendants should not be regarded as an admission as sought by the defendants in respect of the above points. Secondly, when the purpose of the records is considered, it is apparent that the purpose was to record and maintain the plaintiff's medical records, and not to necessarily record or maintain the details of her contact person: Mason v Demasi [2009] NSWCA 227, at [2]. Thirdly, it would appear from an examination of the documents that the reference to "Lou" on the document may be a replication of a document header as would be expected as a pre-set word-processing formatting function. Fourthly, and more importantly, the allegation made in the course of this submission was never put to the plaintiff in order that she could have the fair opportunity to be confronted with the assertion in order to have the opportunity to answer it: Browne v Dunn (1894) 6 R 67.
In the defendants' initial submissions on the plaintiff's credit, the final matter relied upon by the defendants in the form of an adverse credit submission concerning the plaintiff was the fact that the plaintiff had given conflicting answers to the same question asked of her in cross-examination, which, it was submitted, rendered her evidence unreliable.
At T54.43 the following evidence was given by the plaintiff: "Q. Didn't Professor Fagan ask you whether the balance issues you were having were getting so bad that it warranted surgery? A. INTERPRETER: No."
In contrast, at T80.11, the plaintiff gave the following evidence: "Q. Did Professor Fagan ask you whether the balance was bad enough to warrant surgery? A. INTERPRETER: Yes."
Whilst it is true that these two pieces of evidence were in apparent irreconcilable conflict, I consider that, in the context that all other credit challenges have been shown to be without foundation, this one piece of conflicting evidence does not render the plaintiff's evidence unreliable when read as a whole.
I came to this view because the subject of the conflicting testimony was a matter that involved the plaintiff in expressing an opinion on whether she thought her condition warranted surgery. This involved a question requiring medical expertise. There was also a slight change in emphasis between the questions, the first involving the concept of "so bad" and the second "bad enough".
Furthermore, the question asked of the plaintiff in cross-examination at T80.11 was based on Professor Fagan's notes concerning the cause of the plaintiff's balance issues (T80.9), whereas the question at T54.43 was based on a question of whether the plaintiff was told her tumour was next to, or on the brain, and on the issue of whether she would have had the surgery: T54.40.
Given the differing contexts, and given the fact that the inconsistency relied upon by the defendants had not been put to the plaintiff to ask her whether she was able to reconcile those statements, I do not consider this particular credit submission to have a fair basis: Browne v Dunn (1894) 6 R 67.
In light of those matters, after taking into account the nature and extent of the conflicting testimony referred to, and after taking into account the interpretation difficulties that prevailed at Professor Fagan's consultation with the plaintiff on 6 March 2009 (which are analysed in connection with Issue 7) I did not consider this matter relied upon by the defendants to represent a sufficient basis upon which to render the plaintiff's evidence unreliable where it was otherwise credible.
The suggestion that the plaintiff gave untruthful or unreliable evidence was contrary to my overall impression of her evidence, which was that her evidence was truthful and reliable.
On 5 December 2014, at the resumption of oral submissions on behalf of the defendants, a schedule of further transcript references was put forward as showing argued inconsistencies in the evidence of the plaintiff in order to support a submission that the evidence of the plaintiff was unreliable on key matters of controversy: MFI "11".
Some of the matters within that schedule had already been the subject of oral argument already considered in the foregoing paragraphs: [95]; [96]; [100] - [106].
Having considered the remaining matters in MFI "11", for the reasons that follow under the 9 identified italicised sub-headings extracted from MFI "11", I do not accept that those further matters raised, represent material inconsistencies that should be seen as detracting from the credibility or the reliability of the testimony of the plaintiff. (1) Evidence at T17.20 as against T122.11 and T123.42
It was argued that the plaintiff's description of her 9 December 2008 discussion with her general practitioner concerning the result of the 5 December 2008 MRI scan, which she had understood to mean that there were some problems with her right ear for which she needed further medical follow-up (T17.20), was inconsistent with her evidence variously, at T122.11 and T123.43, to the effect, that she already knew from her general practitioner that she had a brain tumour, compared with her evidence that it was Professor Fagan who was the first one to tell her she had a brain tumour.
One of the difficulties of seeking to rely on the plaintiff's out-of-court discussions with medical practitioners is that the prevailing interpreting arrangements at that time were likely to be less than satisfactory. A comparison based on those matters could give rise to unfairness. It is for this reason that the plaintiff's evidence as interpreted in court should be read as a whole.
In that regard, the assessment of the plaintiff's evidence relied upon to the effect that Professor Fagan had "repeated this terrible diagnosis for the second time" does not necessarily mean the general practitioner had given the plaintiff a diagnosis of a tumour. It is also possible that the plaintiff had conflated some events at this point because that evidence was given at a time when she was emotionally affected by the subject matter of the questions.
On balance, I do not consider the point raised as being a pivotal credibility question. The general practitioner's role was to refer the plaintiff for specialist consultation. In those events, the plaintiff saw Professor Fagan and she believed he told her she had a tumour in the brain. It is plain from the medical witnesses who were asked questions on this topic that an emotional reaction to receiving a diagnosis of neuroma, putting to one side the interpreting issue, can give rise to misperceptions as to what was said. As to what the general practitioner had said beforehand was peripheral. I do not consider that this matter materially affects assessment of the reliability of the plaintiff's evidence when read as a whole.
Also relevant to this aspect of the consideration are the matters already referred to at paragraph [98] above. (2) Evidence at T18.26 and T58.33 as against T47.43, T78.23 and T90.16
It was argued that the plaintiff's evidence of her specific recollections of having been told by Professor Fagan (through an unskilled interpreter) that she had a "very bad" brain tumour that was amenable to surgery, and there was a 1 in 1000 risk of death (T18.26; T58.33) was inconsistent with other evidence she had given at T47.43; T78.23; T80.6; T85.10 and T90.16.
In summary, those matters of argued inconsistency related the plaintiff's account of her symptoms to Professor Fagan of hearing, dizziness and balance problems, her medical history, her medications, the results of an MRI scan, and her ability to drive. The suggestion in the submission was that the plaintiff had a variable, and therefore, an unreliable recollection.
In my view, the submission is not sustained. This is because the conversation the plaintiff had with Professor Fagan was through an unskilled interpreter. This matter is the subject of a more detailed consideration in connection with Issue 7.
Furthermore, it is not necessarily inconsistent that the plaintiff would be able to provide more detailed answers to questions asked in cross-examination according to the agenda of the cross examiner when compared to the answers to more restricted questions that had been asked of her in her evidence in chief. In my view, the credibility or reliability of testimony point raised in this context is not sustained. (3) Evidence at T48.43, T56.42, T54.3, T58.50 as against T85.40 and T109.6
Challenge was made to the credibility of the plaintiff's evidence to the effect that at the consultation with Professor Fagan at the Moree Clinic on 6 March 2009, she had asked him for a month to think about what she had understood to have been a recommendation for surgery based on her understanding she had a brain tumour: T48.43; T56.42; T58.50.
In my assessment, the evidence which the defendant relied upon to argue alleged inconsistency, namely the plaintiff's understanding that she had cancer, and that her parents had died of cancer, thereby influencing her decision to have what she understood to have been a recommendation for surgery (T85.40: T109.6), was not an inherently improbable explanation, particularly as she was very upset, crying, trembling and scared at the time. This is a matter considered in more detail in the consideration of the interpreting arrangements, which is the subject of Issue 7. (4) Evidence at T59.1 as against T78.44 and T79.15
The challenge made to the plaintiff's testimony, in answer to a double question asked at T59.1, compared to her evidence at T78.44 and T79.15. The argued inconsistency was that on the one hand she claimed her recollection of the consultation with Professor Fagan "was accurate and complete" according to her understanding, yet she could not recall what she had told Professor Fagan whether she had a problem with her thyroid, or whether Professor Fagan had raised with her a question about the cause of her hearing loss on her left side.
In my view no relevant credit issue arises on these peripheral matters, especially since the conversation with Professor Fagan had proceeded through the intervention of an unskilled interpreter.
Furthermore, and of some importance to the question of the plaintiff's recollection of the consultation with Professor Fagan was the likely effect of her shut down emotional reaction to her belief that she had been told she had a tumour in her brain. That factor, which was the subject of discussion with the medical witnesses in the proceedings, together with the interpreting issue, indicates that this peripheral matter relied upon by the defendants should be considered in light of the plaintiff's evidence as a whole. (5) Evidence at T21.48, 22.47, T109.4 as against T105.50, T106.45, T111.17, T114.41
Challenges were made to the credibility of the plaintiff's evidence to the effect that when she saw Dr Biggs at the Moree Clinic on 3 April 2009, there was no discussion about alternatives to surgery, and that the consultation had only lasted about 10 minutes, after which she was told she would be placed on a waiting list for surgery, and that she had introduced herself as the one who was to have the operation: T21.48; T22.47;T109.4.
The defendants placed reliance on the plaintiff's inability, through the interpreter, to recount her recollection of the remainder of the consultation, which contrasted with further details that emerged in answers to cross-examination concerning the symptoms she had recounted to Dr Biggs in that consultation: T117.17; T114.41.
In my view, no relevant inconsistency has been demonstrated by reference to the evidence cited. It is entirely understandable that in answers to probing questions asked in cross-examination such additional details would be likely to emerge. The fact that the conversation with Dr Biggs was taking place through the intervention of an unskilled interpreter is a matter of some significance on this point. This is a matter considered in more detail in the consideration of the interpreting arrangements, which is the subject of Issue 7. (6) Evidence at T25.35 generally
The plaintiff said when the interpreter at the hospital gave her the consent form to sign, she had understood this document to be an authority for the subject operation to proceed, and she said that Dr Biggs was not present at that time: T25.35. That evidence was not inherently improbable. This is a disputed factual question to be resolved, and it is a matter considered in more detail in the consideration of the consent process, which is the subject of Issue 9. (7) Evidence at T27.46 generally
The plaintiff said that when asked why she had presented at the second defendant's pre-admission clinic on 30 October 2009, she said she had a brain tumour: T27.46. In light of the plaintiff's evidence of her belief that she had acquired that belief as a result of her consultation with Professor Fagan through the intervention of an unskilled interpreter, the evidence cited was not inherently improbable. This is a matter considered in more detail in the consideration of the interpreting arrangements, which is the subject of Issue 7. (8) Evidence at T51.4 as against T74.50
It was submitted that the plaintiff's evidence that she was very close to her friend Ms Kulbicki (T51.40) was inconsistent with her evidence that she did not want to discuss medical issues in front of Mrs Kulbicki(T74.50). There is no relevant inconsistency demonstrated. It was not inherently improbable that the plaintiff would be reluctant to discuss personal matters of a medical nature in the presence of a close friend. (9) Evidence at T181.20 as against T47.37
It was submitted that the plaintiff's evidence that she took prescribed medications (T181.20) and her evidence that she took Panadeine Forte (T40.37) raised an inconsistency. I do not see the inconsistency. It is beyond controversy that Panadeine Forte contains a restricted narcotic drug and is therefore only available on prescription.
In view of the foregoing consideration of the plaintiff's credit as a witness, I conclude that the plaintiff gave her evidence honestly to the best of her recollection, and unless where convincingly contradicted by other evidence, I conclude that her evidence could be satisfactorily relied upon in assessing and resolving factual matters in dispute.

[15]

Professor Paul Fagan

Since 1976, and until his recent retirement from surgical practise, Professor Paul Fagan has been an eminent skull base surgeon. That specialty combined the skills of microsurgery of hearing and neurosurgery of the base of the skull. In that capacity he performed his first acoustic neuroma operation in 1974, and he has performed about 1900 such procedures since then. His CV attests to his extensive qualifications: Exhibit "1".
Professor Fagan described the historical association between the otology department at St Vincent's Hospital and the Pius X Aboriginal Medical Centre in Moree as one by which monthly visits were made to that outreach clinic by ENT consultants from St Vincent's Hospital to assist indigenous and non-indigenous communities in alleviating the disadvantage that rural patients had regarding access to specialist ENT treatment that was otherwise not readily available to such patients.
In 2007, Professor Fagan had resigned as head of the otology department at St Vincent's Hospital in order to make way for a younger colleague. It appears that colleague was Dr Biggs. Professor Fagan retained his role as an honorary medical officer at St Vincent's Hospital. He had ceased operating at St Vincent's Hospital in early 2009. It was in his honorary capacity that he visited the Moree clinic when he saw the plaintiff in consultation on 6 March 2009. Copies of his handwritten notes of that consultation were tendered in evidence: Exhibit "C", pages 378 - 379; Exhibit "3", pages 361 - 362.
Although Professor Fagan had reviewed copies of those notes for the purposes of giving his evidence, at the time of the hearing, fairly and understandably, he said he did not have a retained memory of that consultation with the plaintiff: T206.1; T205.
Furthermore, Professor Fagan had no recollection of having attended the Pius X Medical Clinic on that day: T205.9. In his oral evidence he identified and interpreted his handwritten notes of the consultation on 6 March 2009. A transcript of those notes was prepared in conjunction with solicitors, albeit with minor errors of transcription: Exhibit "2"; T206.25. The related letter he subsequently sent to the referring general practitioner also shed some light upon what had occurred at that consultation: Exhibit "3", p 386.
Professor Fagan described the manner in which his notes would have been constructed according to his usual professional practice during that consultation: T206.50 and in the pages following. Due to his lack of recollection of his consultation with the plaintiff, Professor Fagan's evidence along those lines was necessarily based upon his belief as to his usual professional practice in such circumstances: T209.40.
The plaintiff made no attack on Professor Fagan's credibility as a witness. Far from it, the plaintiff said although she was scared, crying and shaking at the consultation with Professor Fagan, by his manner, appearance and his manner of talking, she felt that she was in the right hands: T48.43.
On behalf of the plaintiff it was contended that in the circumstances of this case, notably the interpreter issues and the plaintiff's reaction to Professor Fagan's diagnosis, by which she thought she had a tumour in her brain, the evidence of Professor Fagan based on his usual professional practice at the time, was not an appropriate basis upon which to reject the plaintiff's otherwise not improbable evidence of her factual perceptions, understandings and recollections of the circumstances of the consultation with him at Moree on 6 March 2009.

[16]

Dr Nigel Biggs

Dr Biggs has been a consultant in otolaryngology and neck surgery since 1999: T301. He has been in private practice since 2001: T303.17. He is presently the head of the department of otology at St Vincent's Hospital and he also holds appointments at other hospitals: T301.49 - T302.1.
There is no question concerning Dr Biggs' qualifications and expertise. He is a skilled neuro-otologic surgeon with significant experience in the management and surgical removal of acoustic neuromas. His colleagues hold him and his skills in very high regard: T402.37; T417.39; T417.45 - T417.46; T418.35 - T418.37. His professional training and skills are not in issue in these proceedings.
Dr Biggs' experience in treating acoustic neuromas has been extensive. He explained that such neuromas develop in the population in approximately 1 in 1000 as a lifetime chance. Such tumours are not common. Of the tumours that occur in the head, they are amongst the most common: T303.4.
Since commencing in private practice, Dr Biggs has kept his own database of his acoustic neuroma patients for follow-up and monitoring purposes. Of the 400 or so patients he has treated for this condition, over 350 of them are on his database. As at 2009, he had performed over 200 operations for the removal of acoustic neuromas: T303.15 - T303.35.
Dr Biggs' connection with the Pius X Clinic at Moree is because it was part of a former Catholic mission and because of the Catholic origins of St Vincent's Hospital, from about 2002, that hospital has provided an ENT outreach programme to the Pius X Clinic so that individual members of the St Vincent's ENT team, by rotation, consult in that community about 5 - 6 times per year: T303.41 - T303.50.
Dr Biggs had only limited recollections of seeing the plaintiff at the Pius X Clinic at Moree on 3 April 2009. He had no recollection of seeing her at the St Vincent's Hospital pre-admission clinic on 14 October 2009. He had no notes in relation to those consultations. He said his notes of the 3 April 2009 consultation were inexplicably unavailable.
Although the absence of those notes is unusual, as has already been observed, it was not suggested by the plaintiff that there was anything sinister about the absence of such notes. Nor was it suggested that Dr Biggs had been in any way disingenuous with regard to the absence of his notes and relevant correspondence.
On behalf of the plaintiff, it was submitted that the focal point of a consideration of Dr Biggs' consultation with the plaintiff on 3 April 2009 is what, if anything, Dr Biggs said to the plaintiff on the key topics of the need for her to have surgery given her presenting circumstances, the likelihood of surgery ameliorating the plaintiff's problems with disequilibrium, and the risks of the proposed procedure.
Absent the availability of Dr Biggs' notes of the consultation, his evidence on those factual matters was largely based on what he described as being his usual professional practice in such circumstances.
To the extent that Dr Biggs gave evidence of his recollections of his 3 April 2009 consultation with the plaintiff, there was no reason for concluding that he gave that evidence other than truthfully and to the best of his recollection. The area of controversy within the evidence of Dr Biggs was whether, in the absence of specific recollections, his evidence of his usual professional practice was indicative of him having followed that practice in the circumstances that are in contention. That evidence stands to be evaluated for its reliability alongside the other evidence.
In that regard, on behalf of the plaintiff, it was submitted that Dr Biggs' account of the events of his 3 April 2009 consultation with the plaintiff was incorrect, and was founded upon honest, but nevertheless inaccurate reconstruction which, it was argued, in an evidentiary analysis, rendered his account of events that was contrary to the plaintiff's evidence on key matters, to be unreliable.
In that sense, on behalf of the plaintiff, it was submitted that the evidence of Dr Biggs on critical matters of factual dispute, was unreliable both in terms of evaluating the events of his consultation with the plaintiff in Moree on 3 April 2009, and also the circumstances surrounding the plaintiff's consent to the operation when she signed the hospital's consent form on 14 October 2009: Exhibit "C", pages 69 - 70.
A matter that was relevant to the assessment of the reliability of Dr Biggs' recollection of the details of his consultation with the plaintiff on 3 April 2009, and therefore the reliability of his evidence based on his usual practice, was his acknowledgement of an error in his post-operative correspondence to the referring general practitioner. Significantly, that acknowledgment came to light in the course of his evidence, and had not been beforehand communicated to the legal representatives of the plaintiff.
That error related to the description of the pre-operative size of the plaintiff's neuroma. On 6 March 2009 Professor Fagan wrote to the plaintiff's general practitioner describing the neuroma as being small: Exhibit "3", p 394. The other experts who considered that issue agreed with that description on a consideration of the MRI scan dated 5 December 2008.
In contrast, in Dr Biggs' letter to the referring general practitioner dated 10 September 2012 reporting the progress of the plaintiff, some two and-a-half years after the subject operation (Exhibit "C", p 303), Dr Biggs described the neuroma as having been large, and in that letter he went on to suggest that during the subject operation there was an inability to preserve the plaintiff's right facial nerve during neuroma removal: Exhibit "A". In his oral evidence, Dr Biggs acknowledged that the description "large" was incorrect.
That 2012 letter was apparently based on Dr Biggs' recollection of the events of 2009, which by that time, had been shown to have been incorrect with regard to that important aspect of the plaintiff's history. This raised an issue of the reliability of his recollection generally, and the need for caution in considering reliance on matters of usual professional practice in the absence of specific recollections on key matters of fact in dispute.
The comment made by Dr Biggs in that letter concerning the asserted inability to preserve the facial nerve was not supported by any evidence, either as to that asserted fact, or as to the identification of the source of that statement of belief.
Given Dr Biggs' absence from the operating theatre when the facial injury occurred, that information would ordinarily be expected to have come from the operating surgeons who actually did the dissection, and who made the transection, or perhaps another eyewitness to such an event.
As Dr Biggs did not identify the source of that information, accordingly, the comment must be assessed for its evidentiary weight.
Whilst on a superficial analysis the erroneous description of the size of the plaintiff's neuroma as having been "large" may be regarded to be of doubtful significance, as was stated by one of the defendants' experts (Dr Schultz, Exhibit "C", p 10), on another level, it demonstrated the potential dangers of assuming, in the course of fact-finding, that described usual professional practices, implying invariability of action or accuracy generally, had been followed. It also demonstrates the need for the exercise of caution before accepting evidence of usual professional practice on matters in contention in the absence of contemporaneous records.
Before evaluating the evidence of Dr Biggs in conjunction with the evidence of the plaintiff and the available medical records, it is appropriate to identify Dr Biggs' relevant recollections of his pre-operative assessment of the plaintiff.
In relation to the consultation at Moree on 3 April 2009, Dr Biggs said he specifically recalled: 1. being consulted by the plaintiff: T304.5; 2. the consultation being in the late afternoon: T304.8; 3. the plaintiff's English was not very good and therefore he remembered she was with another person who was helping her with communication: T304.14; 4. the plaintiff was quite anxious about the whole process of diagnosis and treatment, and that it took "quite some time to deal with her": T304.25; 5. the plaintiff's clinical details were that she had a balance problem which was the primary issue with her acoustic neuroma, which he said he considered to be not common in patients with acoustic neuromas as a lot of patients accommodate their balance problems: T305.15.
Dr Biggs identified the above matters as being the extent of his actual recollection of the plaintiff's presenting details on 3 April 2009: T304.2; T305.20.
During the course of Dr Biggs' evidence in which he explained his recollections in the context of his usual professional practice, at T316.38 - T316.42, a further recollection concerning the plaintiff's pre-existing balance problem was identified, as follows: "Q. Are you able to say, having regard to your specific recollection, why it is you recommended surgery to Mrs George in April 2009? A. I felt, I - from my recollection, I felt her balance was quite a significant issue for her and that she was having difficulty with that and it was at a point where I felt treatment was necessary to try and address that issue for her."
When those recollections were explored, Dr Biggs was asked (at T305.25) if there was anything else he recalled discussing with the plaintiff in connection with why she had consulted him on that day, at T307.15 - T308.1, it was clear that Dr Biggs needed to rely on a process of reconstruction: "… A. I recall recommending to her treatment based on her symptomology and I felt that though she did not have a large tumour, she had a tumour that was causing significant symptoms with regards to balance and in my clinical experience that is a - that is one of the reasons that we will recommend surgery to a patient. We feel that by removing the tumour you alter - you can change - sorry, you stop the rapidly altering balance function going through to the brain that the tumour causes. So, you can actually stabilise a patient's balance function with - with that form of treatment. So my recollection is - is recommending to her that that treatment was the appropriate way to go. YOUNG Q. Was that the extent of your discussion with Mrs George about the treatment options on that day? A. I - I can't remember the exact detail of every word I said, but my usual practise in any patient in this situation is to discuss all three treatment options with them which is conservative treatment, surgery and radiotherapy. Most of - a lot of our patients we will recommend conservative treatment, but I always discuss with them because a lot of patients will read or look at alternative treatments and want to know why they've been recommended one or another. So, I - my usual practise would be to discuss with them. I would also normally - advise the patient that this is a benign tumour, one of the other common concerns for patients and that causes a lot of anxiety is the patients worry that this tumour is somehow malignant and to reassure them that this is a benign process and is something that can be managed. Q. Just before we move on from your actual recollection to your usual practise, Dr Biggs, other than what you've already told the court that you specifically recall speaking with Mrs George about, that is, recommending the surgery to her and that she had a problem with her balance, was there any other - I withdraw that - apart from the severe imbalance and the recommendation that surgery was the appropriate way to go, do you have any other specific recollection of discussing with Mrs George anything on 3 April 2009? A. As - as to specific words that I said, no, I cannot recall the exact words in the conversation that - that long ago."
Dr Biggs stated that the consultation with the plaintiff on 3 April 2009 took longer than normal. Understandably, he was not prepared to venture a guess on the amount of time taken, however he indicated that by reference to normal consultation times, he meant 15 - 20 minutes for a review patient, and up to half an hour for a new patient: T308.24.
In his evidence in chief, Dr Biggs was then taken through the detail of his usual practice in April 2009 in conducting a consultation with a patient with the same presenting complaints as the plaintiff: T308.30 - T320.17. Dr Biggs said that the salient features of his usual professional practice in that regard, as it applied then, still applies now. Those matters involve considerable inter-related sequential detail. For the purpose of analysis, the elements of those matters will be separated out and listed in that part of these reasons which set out the factual matters concerning the consultation with Dr Biggs that took place in Moree on 3 April 2009.

[17]

Dr Payal Mukherjee

Dr Payal Mukherjee was working at St Vincent's Hospital on 30 October 2009. On that day she was working in the capacity of the surgical registrar to Dr Biggs. At that time, she had completed the formal parts of her specialist otolaryngeal training and she was awaiting receipt of the formal letters entitling her to practice as a consultant in her own right.
At the time of the hearing, which was some 5 years after the events in question, Dr Mukherjee was in private practice as an otological surgeon. She was asked to provide a factual account based on her recollection of her involvement in the plaintiff's work-up for surgery in the context of obtaining the plaintiff's consent for the planned operation. She gave that account by reference to a copy of the notes she made in the second defendant's clinical records relating to the plaintiff: Exhibit "3", pages 100 - 101.
Dr Mukherjee's evidence was in part based on some limited recollections she had retained of the plaintiff. Significantly, her evidence was also in part based on matters she had assumed by way of reconstruction as to what would have occurred in accordance with what she understood to have been her usual professional practice when she saw the plaintiff and made her notes on 30 October 2009.
Dr Mukherjee said that she recalled the plaintiff being seated in the consultation on 30 October 2009 because, as part of her training and as the ENT registrar on duty at that time, she had been looking forward to being part of the surgical team that would operate on the plaintiff to deal with her neuroma, and she was disappointed when the operation had to be postponed: T194.47 - T195.9.
The consideration of Dr Mukherjee's evidence as to her usual practice at the time, as distinct from any specific recollections she had concerning the plaintiff, must proceed in the context of a recognition that her usual practice was as a senior registrar working under supervision, and not yet formally qualified to practice in her own right at that time. Given that Dr Mukherjee had acknowledged that her exposure to the management of acoustic neuromas had been limited, this suggests that her usual practice in that regard may not have been extensive as at 30 October 2009.
Dr Mukherjee's communications with the plaintiff on 30 October 2009 were in part based on her direct communication with the plaintiff (T194.9 - T194.15) and in part based on a process of telephone interpretation: T189.47 - T190.6.
Dr Mukherjee's evidence of her recollections of having seen the plaintiff have to be viewed against the background of having since that time seen "hundreds" of patients for whom English was not their first language, and where "tens" of those patients required the use of an interpreting service: T193.16 - T193.33.
Dr Mukherjee explained that her evidence was based partly on her recollections of the plaintiff (T194.50) and partly in expansion of the notes she made in the hospital's clinical records: T194.22; Exhibit "3", pages 100 - 101.
A transcript of Dr Mukherjee's handwritten notes as recorded in the second defendant's progress notes formed part of the assumptions put to the experts retained by the defendants for the purposes of providing their reports: Exhibit "3", para 14, at pages 26 - 27.
Dr Mukherjee's evidence was directed at the nature and the likely content of her communications with the plaintiff on 30 October 2009. This was part of the defendant's case that the plaintiff had been incrementally or cumulatively provided with the required information in discharge of at least the second defendant's obligations to provide information that was material to the plaintiff's own assessment of the risk of the subject surgery relevant to her decision on whether or not to accept those risks, and her decision to undertake that surgery with knowledge of those risks.
I considered that Dr Mukherjee gave honest evidence to the best of her recollection. As with any reconstructed evidence based on considerations of usual professional practice, that evidence must be carefully evaluated in the light of other relevant evidence when making fact-findings on the balance of probabilities as to what had actually occurred during the events in question.

[23]

Amendment to particulars of negligence

After the close of evidence, on the 13th day of the trial, the plaintiff applied for leave to amend the pleadings to allege an additional particular to the particulars of negligence in the statement of claim, as follows: "(l) Failure to advise the plaintiff as to the need for the surgical removal of the neuroma, or as to the respective advantages of, or risks associated with such surgery, within 48 hours of the need for such surgery": T751.10
In support of an amendment being made at that late stage, the plaintiff relied on the position stated in the joint judgment by Stephen, Mason and Jacobs JJ, in Leotta v Public Transport Commission of NSW: (1976) 9 ALR 437, at page 446; [1976] 50 ALJR 666.
In allowing the amendment, I indicated that my reasons for doing so would be included in my reasons for judgment: T752.47. Those reasons are as follows.
In Leotta v Public Transport Commission of NSW, the High Court stated that at the conclusion of the evidence, and on relevant emergent facts, the clear duty of the trial judge is to permit any necessary amendment to the pleadings to make the pleadings conform to the evidence that has emerged for the purpose of determining the real questions in dispute between the parties: Leotta v Public Transport Commission of NSW, at p 446.
The need for the amendment arose from some evidence given by Professor Fagan at a time clarification was sought from him as to his view of the parameters for timing in obtaining patient consent for the surgery of the kind under consideration in these proceedings: T230.36 - T230.42.
The application was made in the context where the evidence disclosed that the last discussion between the plaintiff and a medical practitioner concerning consent issues occurred in the second defendant's hospital on 30 October 2009. This was 3 days before the scheduled surgery on 2 November 2009, and where the scheduled operation was cancelled on that date, and then rescheduled to take place on 30 November 2009. In the intervening period there was no evidence of there having been any further discussion of the kind relied upon in argument on behalf of the plaintiff.
An application of the principle Leotta v Public Transport Commission of NSW involves the exercise of discretion, which requires consideration of a number of limiting constraints.
The first such limitation requires that the amendment should only reflect the expression of the course of events so that the facts pleaded would conform to the evidence given rather than to raise a fresh issue based on a different duty of care: Leotta v Public Transport Commission of NSW, at p 446. In that regard, in my view, no fresh duty of care issue arises from the amendment sought by the plaintiff. The need for the amendment arose because of what fell from a witness qualified to speak on the matter so raised. If the matter so raised was thought to be contentious, it was open to the defendants to re-evaluate the strategy of deciding not to call oral evidence from the experts retained by them in order to explain a contrary viewpoint, whether as a matter of practice, or to support an argument based on s 5O of the CL Act.
The second such limitation relates to whether the second defendant, as the affected party, would suffer significant prejudice if the amendment sought by the plaintiff were to be allowed. In that regard, in my view, no relevant prejudice has been demonstrated. Rebuttal evidence could have been called, including by way of seeking further clarification from Professor Fagan, if this was thought necessary.
The third such limitation relates to procedural considerations. Leotta v Public Transport Commission of NSW was decided in the context of the then prevailing provisions of Pt 20 r 1(2) of the Supreme Court Rules 1970, whereas the question arises in the present case in the context of sections 56, 57 and 58 of the Civil Procedure Act 2005, the Uniform Civil Procedure Rules 2005, and cases involving the application of the considerations stated in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.
In appropriate cases, s 64 of the Civil Procedure Act 2005 permits the amendment of pleadings at any stage, even at a late stage, of the proceedings. Amongst the relevant considerations for determining whether a late amendment should be allowed is the overriding purpose of facilitating a just, quick and cheap resolution of the proceedings according to the requirements of s 56 of the Civil Procedure Act 2005, and the dictates of justice according to the requirements of s 58 of the Civil Procedure Act 2005.
The argument against the grant of leave to amend at a late stage is based upon the need to adhere to the discipline imposed by case management orders and the related arrangements for the orderly dispatch of litigation. The refusal of leave in that situation may be applied as a sanction to be imposed against the defaulting party: Aon Risk Services Australia Limited v Australian National University, at [98].
However, that is not the only consideration, particularly where the trial was estimated to proceed for 4 days, and the application was formally made on the 13th day. Without seeking at this point to apportion blame for those circumstances, it is sufficient to state that case management considerations in this case did not seem to have placed any strictures on the parties in their approach to the contest of the issues raised in the proceedings.
Balanced against those considerations, and in my view compellingly, a case has been made out for the grant of leave for the plaintiff to amend.
This is because in my assessment, the dictates of justice require that the amendment be allowed: s 58(1) of the Civil Procedure Act 2005. I have come to this view because of the complexity of the case, and because at an interlocutory stage, the defendants opposed an order for the service of evidentiary statements. In my view, had comprehensive evidentiary statements been served at an earlier stage, this would most likely have brought to light the need to clarify the appropriate timing for valid consent, and at a time when the amendment now sought, could have been more readily facilitated.
Furthermore, the additional costs incurred by the need for the late amendment would seem to be relatively minor and difficult to identify for apportionment. The defendants were invited to make submissions on this cost issue and acknowledged that such costs were not capable of reasonable assessment: T746.44 - T746.50.
Accordingly, I allowed the amendment on the above formulation without the need for filing an amended statement of claim.

[25]

Plaintiff's pre-operative health history

In about 2005 the plaintiff began to notice an abnormal sensation in her right ear, similar to the presence of a foreign object inside that ear.
Following the death of her second husband in 2006, the plaintiff took time to travel to Macedonia to visit her sons from a previous marriage. She stayed there for several months, and whilst she was there, she had some hearing tests, following which she was provided with hearing aids.
On the plaintiff's return to Australia in September 2006, she noticed that her hearing was worsening. On 26 October 2006, she attended her general practitioner at the Bale Street Medical Centre in Moree, at which time she was referred for a specialist ENT consultation.
On 11 October 2007, the plaintiff underwent an audiogram at the Community Health Centre in Moree. Around that time her hearing problems had continued to worsen. The audiogram result reveals that the plaintiff had significant hearing impairments at that time. Accordingly, on 2 June 2008, her general practitioner referred her to the Pius X Aboriginal Corporation Clinic in Moree for an ENT consultation.
On 15 October 2007, the plaintiff's general practitioner gave the plaintiff a specialist generic referral to "St Vincent's ENT": Exhibit "3", p 357. I infer that the intention was for the plaintiff to be seen by a visiting specialist from St Vincent's Hospital, but that for convenience, the consultation would take place at the Pius X Clinic in Moree.
On 22 August 2008, the plaintiff attended the Pius X Clinic by appointment and she was seen there by Dr Megan Hobson, an otolaryngologist, for the assessment of the hearing and balance problems she was experiencing at that time.
The plaintiff's problems at that time comprised feeling that she had a stone-like foreign object in her right ear, including a hearing problem in her right ear, along with a ringing sensation, the onset of hearing problems in her left ear, a feeling of nausea, and associated balance problems.
Dr Hobson referred the plaintiff to have a diagnostic MRI scan that was performed at Tamworth. That scan was carried out on 5 December 2008, and was reported on by a radiologist, Dr Philip Janke, who diagnosed the plaintiff to have a right acoustic neuroma. Dr Janke's report was in the following terms: "There is an 18mm x 12mm x 13mm right acoustic neuroma with extra-canalicular component contacting the cerebellum and pons but without mass effect on either structure. Left IAM normal. No other abnormality identified. Conclusion Right acoustic neuroma."
On 9 December 2008, after reviewing Dr Janke's MRI report, the plaintiff's general practitioner advised her there was a problem with her right ear that required that she have a further medical referral to an ENT specialist.

[26]

Consultation with Professor Fagan on 6 March 2009

Following some further attendances by the plaintiff on her general practitioner, on 6 March 2009, the plaintiff saw Professor Fagan at the Pius X Clinic at Moree.
Beforehand, the plaintiff, and it appears, her general practitioner, had requested the reception staff at the Pius X Clinic that a Macedonian interpreter be provided in respect of her consultations with specialists because she could not speak English: Exhibit "C", Volume 1, p 285. However, it appears from the plaintiff's evidence, that no interpreting services had been arranged, notwithstanding such requests.
When the plaintiff went to see Professor Fagan at the Pius X Clinic on 6 March 2009, she was accompanied by a friend, Mr Madjistorov, who spoke her language. He was present at that consultation, and to the limited extent permitted by his capacity to do so, as it appears his English proficiency was also limited, it fell to him to assist the plaintiff to some uncertain degree of success with interpreting what was being discussed in the course of her communications with Professor Fagan.
In the plaintiff's opinion, Mr Madjistorov was "a little better" than the plaintiff herself in the use of the English language, and she observed that he was not a qualified interpreter: T18.10 - T18.17.
Mr Madjistorov was not available to give evidence of the content of those communications because, in 2010, he had travelled to Serbia, where he has remained in an aged care facility, where he is apparently suffering from dementia: T18.22.
In his evidence, Professor Fagan stated that whilst he could not recall the detail of his consultation with the plaintiff at the Pius X Clinic in Moree on 6 March 2009, he nevertheless described what he said was his invariable professional practice on such occasions.
Based on the plaintiff's history, he said he would have had a discussion with the plaintiff along the lines set out in his notes, which were copied at Exhibit "3", pages 378 - 379, and transcribed albeit with a degree of inaccuracy, in Exhibit "2"; T206 - T227.
Professor Fagan stated that he took notes in his consultation as was his "invariable practice": T207.1. He considered the practice as important as patients diagnosed with acoustic neuromas [can] believe they have a cancer on the brain (T207.9) and they are [generally] very nervous: T207.15.
Professor Fagan said that if, in such a consultation, he felt the translation was not good enough, he would make a note to that effect, based on his feeling for the situation, and he had not made any such note in relation to his consultation with the plaintiff on 6 March 2009: T207.20 - T207.31. It is difficult to know how, without satisfactory feedback, he could have arrived at a conclusion that the interpreting arrangements were satisfactory without sharing a common language with the plaintiff.
That explanation, when viewed alongside Dr Stenning's explanation of how he seeks to explore the understanding of his patients on his explanations of the risks of surgery (T496.17 - T496.33; T497.25 - T497.26) exemplifies how subjective (T210.19) and how variable the interpreting and feedback process can be.
The end point of such an analysis is that it is necessarily difficult for even a skilled medical practitioner to acquire a reliable indication of the level to which the patient, who is not proficient in the English language, understands what is being said. This is especially so when the conversations in question proceed through the filtered conduit of an untrained interpreter acting as an intermediary.
Against those background considerations, Professor Fagan explained the notes he made of the consultation with the plaintiff on 6 March 2009 in terms of his usual professional practice: T209.37 - T210.9; T211.27 - T211.46; T211.50 - T212.30; T214.15 - T214.31; T215.2 - T215.39.
Professor Fagan described the plaintiff's acoustic neuroma as being a small tumour. He explained that it was his philosophy to try to talk people with such small tumours out of surgery: T215.47.
Significantly, at the consultation on 6 March 2009, Professor Fagan stated it would have been his practice to gloss over complications of surgery because from the beginning, in the case of a small tumour, his aim was to avoid surgery, and conversely, if the patient was going to have surgery, they would have "got to go [into it] with their eyes wide open": T218.40 - T218.2.
In my assessment, that evidence, taken together with the content of Professor Fagan's letter to the referring doctor dated 6 March 2009, which was not immediately encouraging of surgery, and with Professor Fagan's comment that the plaintiff had been, in his perception, sent away on this occasion (T215.39), suggests that Professor Fagan followed that part of his usual practice of not trying "to frighten an already frightened patient with things that are unlikely to happen", as his view was that surgery was, at that stage, to be avoided: T218.23; T218.46.
Professor Fagan said that his consultation with the plaintiff on 6 March 2009 was only the first step in the process of providing the plaintiff with information required to make a decision on whether or not to have surgery: T231.3. He also agreed that as at 6 March 2009, the plaintiff's decision not to accept the surgical treatment option at that time, was clinically warranted and appropriate, having regard to the relevant assessment factors as he had understood them: T233.21.
The content of Professor Fagan's evidence in that regard stands to be analysed according to whether, what he described as being his usual professional practice accorded with what, on the balance of probabilities, was likely to have occurred at that consultation. That assessment must also necessarily take into account the language and interpretation issues which prevailed in that consultation.
An illustrative example of why evidence of usual professional practice should be evaluated with caution rather than uncritical acceptance comes from the evidence of Professor Fagan.
That illustration arose during a discussion with Professor Fagan as to the objective he had in preparing his notes of the 6 March 2009 consultation: T221.33 - T222.22. In describing his note as representing a summary of "The relevant points of the discussion", he said that his note was not intended to be a transcript, but more a note of the ebb and flow of the meeting, so that some "bits that were said were not recorded".
In that context, Professor Fagan said that in his discussions with the plaintiff he had referred to the risk of facial paralysis. He also said that his discussion with the plaintiff on the risks of surgery was in accordance with his usual practice, and in the context of recognising that facial paralysis is "the very major problem" of such surgery. He said he would "always discuss it and usually first". Significantly, he acknowledged he had "neglected to record it" although his note said "all complications discussed" whereas he had only written down the potential complications of death, stroke and meningitis: T222.16.
That example demonstrates how a skilled professional, trained to pursue a routine pattern in the clinical setting, can at times innocently depart from a standard routine, yet maintain the belief that the pathways of the standard routine had been followed, when objective analysis shows that it had not been fully followed.
That illustration also provides a background understanding of what Professor Fagan described as the "ebb and flow and meeting the concerns of the patient" (T222.4), which suggests that the events of the consultation would have involved the possibility or the likelihood of a departure from usual practice because it did not involve mechanical or routine tasks: Elayoubi v Zipser, at [86].
Professor Fagan also acknowledged, fairly, that "all mistakes are possible" although he did not concede that with his training, a communication mistake of this kind would have occurred: T223.17.
The plaintiff's recollection of the 6 March 2009 consultation with Professor Fagan was that she believed he had told her, through Mr Madjistorov, that she had a brain tumour which "was very bad", and that the tumour could be removed by an operation: T18.30.
The plaintiff stated this as being her perception of what was said at that time. That evidence must be considered in the light of the prevailing interpretation issues. She said that she believed Professor Fagan told her there was a 1 in 1000 risk of death in such an operation. She said he told her that he and his team would perform the operation. Upon the plaintiff hearing what she had understood the diagnosis to be, she became very upset whilst she was still in his presence, and had started to cry and shake, and she then asked Professor Fagan for a space of a month in which to think it over before making a decision on whether or not to have the operation he was contemplating: T18.33 - T18.38.
The plaintiff's described state of upset on learning of the diagnosis of the tumour in the terms in which she had understood it, namely a tumour in her brain, was understandable when viewed against the background that both of her parents had passed away from cancer in the circumstances which she had described and which had caused her distress: T18.41.
I find that in the process described in the preceding paragraphs, as a result of an imperfect and flawed process of interpretation with Mr Madjistorov acting in the role of an intermediary, the plaintiff acquired the mistaken but genuinely held belief that she had been diagnosed as having a tumour in her brain, which she thought was a cancer, and which she thought was the subject of a recommendation by Professor Fagan that it be surgically removed.
The plaintiff's erroneous belief was not something which could be fairly described as necessarily involving fault on the part of Professor Fagan. Instead, it arose from a combination of the interpretation difficulties identified by the plaintiff due to the unavailability of a Macedonian interpreter despite the plaintiff's request that there be one, and the plaintiff's emotional reaction to what she was given to understand Professor Fagan had said as to her diagnosis, and which she misguidedly thought to involve a cancerous tumour in her brain.
The plaintiff's emotional reaction that arose during the course of her consultation with Professor Fagan, albeit based on a misunderstanding that she had a tumour in her brain, in conjunction with Professor Fagan's mention of an operation to remove the tumour, is consistent with the experiences related by the medical witnesses concerning the phenomenon of patient reactions in such situations.
This phenomenon was described in the evidence of Professor Fagan (T207.9; T216.11), Dr Stenning (T537.5 - T537.10) and Dr Biggs (T307.39) on the subject of how such consultations can possibly become sidetracked by erroneous beliefs on the part of the patient as to the true nature of the diagnosis.
Following the plaintiff's consultation with Professor Fagan, the plaintiff's general practitioner again referred her for a further ENT consultation at the Pius X Clinic. The plaintiff was next seen at that clinic one month later, on 3 April 2009, at which time Dr Biggs was rostered to be in attendance.

[27]

Consultation with Dr Biggs on 3 April 2009

When the plaintiff attended at the Pius X Clinic on 3 April 2009, she again came with her friend, Mr Madjistorov, who again assisted her to interpret the ensuing discussion with Dr Biggs.
The plaintiff's recollection of that occasion was that she attended the clinic in order to indicate her decision to agree to have the operation that she thought had been recommended by Professor Fagan. Her attitude in that regard was founded upon her belief that she had a brain tumour which required removal.
The plaintiff recalled the consultation with Dr Biggs at the Pius X Clinic on 3 April 2009. She recalled telling him that she wanted to have the operation recommended by Professor Fagan after having given the matter some thought: T109.5 - T109.10. She agreed that by the time she had first seen Dr Biggs she had already made up her mind to have the operation: T113.45 - T113.50.
It is plain from the plaintiff's evidence, which I accept, that she did so because she believed she had a tumour in her brain. She held that belief based on her understanding of what Professor Fagan had told her, as was apparently related to her by Mr Madjistorov at the consultation with Professor Fagan: T54.34 - T54.41; T120.24; T122.9 - T122.27; T123.43.
The plaintiff said that on 3 April 2009, Dr Biggs did not say anything to her about any alternative treatments for her condition: T21.5 - T21.48; T116.49.
The plaintiff estimated that the consultation with Dr Biggs on 3 April 2009 was of about 10 minutes duration: T22.47. Dr Biggs was unable to shed any detailed light upon that matter absent any recollection or notes of that consultation. Neither party was able to call upon any appointments diaries or other documents to aid the analysis of that evidence.
Having regard to the way in which Professor Fagan left the consultation on 6 March 2009, as described in paragraphs [218] - [248] above, several matters become apparent.
Professor Fagan left no note to the effect that he had not been encouraging the plaintiff to pursue the surgical options. To derive an understanding to that effect, any specialist medical practitioner who subsequently examined the plaintiff with a view to considering surgery, would have to have personally consulted Professor Fagan to obtain an understanding of his clinical impression. Alternatively, such a practitioner would have to have read Professor Fagan's letter of 6 March 2009, which makes it clear that he was not immediately encouraging the plaintiff to have surgery.
I do not discount the possibility that Dr Biggs was familiar with the note taking style of Professor Fagan, and that he was in effect reading between the lines of Professor Fagan's notes, to have arrived at an interpretation of those notes. However, there was no evidence to support that conclusion. A further possible alternative would have been for Dr Biggs to have undertaken his own full assessment of the possible need for the plaintiff to have surgery.
The foregoing survey describes the background position that Dr Biggs would have found himself in when the plaintiff came to see him on 3 April 2009 to indicate her wish to have surgery based on her mistaken belief Professor Fagan had advised her that surgery was indicated in her circumstances.
Before considering Dr Biggs' evidence concerning the events of the consultation on 3 April 2009, it is necessary to outline the plaintiff's evidence on the events of that occasion. The detail that emerged from the plaintiff's evidence concerning the consultation with Dr Biggs at Moree on 3 April 2009 is outlined in the following paragraphs.
The plaintiff said that on 3 April 2009, there had been no discussion from Dr Biggs on the possibility of her incurring facial nerve damage, or the possible loss of her senses of taste and smell, or the possibility of difficulty drinking liquids and of the need for her to use a straw to do so, or that after the operation for which she was to give her consent, she might need cosmetic or plastic surgery to her face: T22.13 - T22.47.
The plaintiff said that at the end of the consultation on 3 April 2009, Dr Biggs had told her that her name would be placed on a waiting list for surgery at St Vincent's Hospital, and that she would be informed by letter as to when the operation would take place. She understood that Dr Biggs and Professor Fagan were part of the same surgical team: T117.24; T120.41 - T120.49.
The plaintiff said she asked no questions of Dr Biggs concerning the surgery: T117.41. She said she was in no doubt about the advisability of the operation on the occasion that she saw Dr Biggs: T118.26. The plaintiff's view in that regard must be seen in the context of her mistaken belief that she had a tumour in her brain. It was plain that at that consultation, the plaintiff had developed a rapport with Dr Biggs, and she had placed her faith in him and in his surgical team due to his calm and patient manner: T109.45.
Dr Biggs' factual account concerning the 3 April 2009 consultation was limited by the fact that he had very little independent recollection of the occasion. He could not recall much of the specific details of what he had said to the plaintiff or what was said to him on that occasion: T304.16 - T304.19.
At this point it is relevant to observe that the position as summarised in the preceding paragraph was contrary to the assumptions which Dr Schultz and Professor Cousins had been asked to make at the request of Dr Biggs' solicitors. In this context, it must be assumed those assumptions had been prepared on the instructions of Dr Biggs: Exhibit "3", pages 23 - 33, at paragraphs 9, 10, 11 and 13 of those assumptions.
Dr Biggs' evidence of what had transpired at the 3 April 2009 consultation was therefore in large part limited to what he described as being his usual professional practice at the time.

[28]

Dr Biggs' usual professional practice

It is therefore relevant to set out the detail of Dr Biggs' evidence of his usual professional practice at the time. That evidence is set out as follows: 1. to first assess the patient to determine the key criteria that will drive the treatment strategy, the main criteria being: 1. the size of the tumour; 2. the hearing status of the patient; 3. the balance status of the patient; 4. the age of the patient; 5. the general health of the patient; 6. the wishes and desires of the patient; 1. to discuss with the patient three main options for treatment, these being: 1. conservative monitoring, this being to "wait and watch" in conjunction with repeat MRI scans to determine whether that approach remains justified; 2. deciding whether conservative management should continue, or whether intervention is required; 3. if intervention is required, to decide between the treatment options of radiotherapy or surgery, according to a number of factors; 1. before deciding on the recommended intervention, an assessment must be made of a number of factors that include: 1. the age, general health and well-being of the patient; 2. the size of the tumour; 3. the patient's balance function; 1. discussion of treatment options with the patient, including: 1. where surgery is recommended, the identification of three different surgical approaches to removal of acoustic tumours, and identification of the approach that is best suited to the patient's circumstances, having regard to balance and hearing issues; 2. the trans-labyrinthine approach compared to the retro-sigmoid and middle fossa approaches, as the trans- labyrinthine approach enables an improved ability to look after the facial nerve during surgery; 3. where preservation of hearing is not an issue due to hearing problems in the affected ear, the trans-labyrinthine approach is the preferred approach; 1. when discussing the surgical options, the surgical approach is outlined, this being: 1. two surgeons will be operating because the operation is very long, and the provision of two surgeons improves outcomes in surgery that can take from 5 to 12 hours in which the hardest part is the final stage of removing the tumour from the nerve, which can take 7, 8 or 10 hours, and after a few hours of operating with the operating microscope, a surgeon's fine motor control is no longer as good when dealing with the tumour, presumably due to fatigue; 2. the location of the incision is mentioned, as is the need to harvest a graft of abdominal fat to protect the defect remaining in the skull after the surgery; 3. the resultant period of hospitalisation, including a period in intensive care; 4. the risks of the procedure, and the risks of non-treatment; 1. discussion of the important risks of the procedure, which would include: 1. the risk of injury to the facial nerve, as this is the primary concern; 2. an attempt to quote an approximate figure of the risk of facial nerve injury relative to tumour size; 3. a discussion about the facial nerve. At T310.47, in abbreviated form, Dr Biggs said " we talk about facial". He then went on to talk about risks to the facial nerve. I took that explanation to be a reference, but without content, to the risk of a facial nerve injury and the effect that such an injury might have; 4. the effect upon hearing. This was later elaborated upon (at T314.2 - T314.10) to refer to the fact that in the trans-labyrinthine approach, all residual hearing would be lost on the affected side in any event, and this applied to tumours over the size of 1.5 - 2cms; 5. the risk to balance. This was later elaborated upon (at T314.12 - T314.25) to refer to the phenomenon that in the first few months post-operatively, the patient is often quite off-balance, and it takes about two months for the balance to return to normal, and that perfect balance would not be achieved, but this was relative; 6. the risk of a brain fluid or CSF leak. This was later elaborated upon (at T314.27 - T315.44) to refer to the fact that in the unit at St Vincent's Hospital, this was regarded as a very low risk, but if it occurs, it can lead to a second operation to correct that problem; 7. the risk of infection. This was later elaborated upon (at T314.46 - T315.10) to refer to the fact that following the occurrence of a CSF leak, this could lead to a one per cent risk of meningitis, which could make the patient "very sick"; 8. the risk of stroke. This was later elaborated upon (at T315.16 - T315.35) to refer to the fact that there is a 1 in 500 risk of stroke unrelated to the anaesthetic due to the fact that the operation takes place in proximity to blood vessels at the base of the brain, and this needs to be borne in mind; 9. the risk of deep vein thrombosis. This was later elaborated upon (at T315.39 - T316.45) to refer to the fact that the risk of this occurring was considered to be very low, or quite uncommon, and that calf compressors are used to avoid such an occurrence. 1. at T313.5, Dr Biggs resumed the earlier discussion of the consequences of facial nerve injury which was truncated at T310.47, as referred to in sub-paragraph (6)(c) of paragraph [266] above, and in returning to that topic he outlined the consequences of damage to that nerve as including: 1. loss of movement of the muscles of the face; 2. loss of the ability to close the eye; 3. a description of facial paralysis by reference to the analogous appearance of someone suffering from the effects of facial paralysis from a stroke; 1. in elaboration of the discussion on possible facial nerve injury, Dr Biggs said his explanation of that risk would have included discussion to the effect that: 1. the facial nerve is the most important structure associated with acoustic neuroma; 2. the task of removing the tumour "on the facial nerve" (T311.25) involves delicacy, and this is why injury to the facial nerve is the most important risk to the patient; 3. injury to the facial nerve, which has the function of moving the muscles of the face, can be either very temporary where the nerve becomes paralysed for a short period of time, or it "can be a more permanent thing": T311.28; 4. in the case where the paralysis is of the kind that is permanent, Dr Biggs said "…I would explain to the patient then, if that was the case, that we would undertake means to repair the nerve and I'd also explain - so they understand that the facial nerve is the nerve that moves the muscles in the face, that they need to, you know, they need know that what the facial nerve actually does and that's moving the muscles in the face.": T311.29 - T311.33;
In that part of Dr Biggs' discussion on what his usual practice was in telling his patients about the effect of damaging the facial nerve, Dr Biggs used the qualifying term "normally": T313.5. Clarification of what he meant by that qualification was sought (at T313.13 - T313.43), as appears from the following extract of his evidence: "Q. I'm just wanting to clarify what you mean by that description, because you prefaced it by saying, "Normally" this occurs. Now, normally of course gives rise to a number of other possibilities, including what may sometimes abnormally happen for a variety of reasons. So what determines the delivery of the normal explanation and what is the scope for the variation and why? A. I think the scope for variation would be if I had a patient who had an exceptionally large tumour. The larger the tumour the greater the chance of facial nerve injury once a tumour is over 4 centimetres, 5 centimetres, there's about a fifty percent chance you will not save the facial nerve and so you will be having a discussion with the patient saying this is a very, very likely possibility, but you've got a 5 centimetre tumour that needs to be removed and you're going to die if you don't actually remove the tumour, so we don't have a great range of choices here, and so in a patient in that situation I would be having a, quite a frank discussion about the fact that the facial nerve is very seriously at risk. The other situation would be if we're not quite sure about the pathology. We have the imaging which will say to us we know that this is likely to be an acoustic neuroma, but until we actually operate on the patient, we're never one hundred per cent sure, and on rare occasions we might encounter, it's actually a facial nerve tumour, and if it's a facial nerve tumour you have no choice but to actually divide the facial nerve and remove the tumour and the patient will lose their facial nerve function. We repair it, but in those cases - so if there were some suspicion about perhaps the pathology or something might be a bit variant there. Q. Are there any other circumstances that require a departure from what would normally be conveyed? A. I can't think of any on clinical grounds."
Dr Biggs was asked whether his explanation to the patient covering the potential for injury to the facial nerve simply meant that the fact of such a risk existed, or whether the explanation also covered the question of the manner in which such an injury could occur. At T311.35 - T312.37, Dr Biggs' evidence on that matter was as follows: "Q. Does that explanation of the potential for injury to the facial include simply the fact that there is such a risk of something like that occurring? Or does it also cover the territory of the manner in which the injury can occur? A. No, we - we, your Honour, we don't normally talk about how that injury may occur. Essentially the, the injury, where, where it's done along the facial nerve will result in the same outcome, so whether or not that injury occurred at the very start of the operation or the very end of the operation, or it was at a different point along the nerve pathway, would not actually alter the outcome and whether or not it was injured with a drill or a diathermy or a particular type of instrument, again, would not alter the outcome. The outcome is, is loss of facial nerve function so we wouldn't get into the detail of the actual mechanism of how that - the, the primary discussion when explaining the facial nerve is how the facial nerve is stretched over the tumour and how we have to very, very carefully peel the tumour off the facial nerve without damaging the facial nerve, and that would be the way I would explain it to the patient. Q. That's if it was on the facial nerve? A. No - they were - sorry, your Honour, they're all on the facial nerve. The hearing imbalance nerve and the facial nerve essentially run together in everybody and so as soon as you have a tumour on the facial nerve, I'll literally show them this, the, the, the facial nerve stretched around the tumour. And the larger the tumour, the more the facial nerve is stretched and that's why it's more difficult in the larger tumours to preserve the facial nerve. But yeah, the, the, the nerve actually gets stretched around it, so all acoustic neuromas, the facial nerve is in contact with."
In the above description, Dr Biggs used a closed fist to represent the mass of the tumour, and with a finger he traced a semi-circumferential line around his closed fist to demonstrate how the facial nerve could be stretched around the tumour. His evidence then continued as follows: "YOUNG Q. In answer to his Honour's question you refer to "That's how I would explain it to the patient", having regard to your usual practice in 3 April 2009, can you tell us the words you would use to the patient to explain that? You've got part of it but the remainder of the facial nerve thing that you've just gone through there? A. I would, I would say that - to the patient that, you know, the most important aspect of this, this procedure is we have to look after your facial nerve. We will do everything that it takes to preserve the facial nerve and even if it gets to the point of having to leave a little bit of tumour behind in order to save the facial nerve we would do so. So I [our] primary concern with this operation is to preserve facial nerve function and we won't sacrifice the facial nerve to remove the last bit of tumour in that case, and in our experience, if we have had to leave a couple of millimetre bit of tumour behind on a facial nerve, in our experience normally that doesn't grow. So I would be - that's what I'd be saying. I'd say there are some cases where manipulation of the tumour will cause some temporary weakness of the facial nerve, but we have a special monitor called the facial nerve monitor that we use during the operation that we will have a good idea of our - how well we've looked after the facial nerve, and certainly, one of the last things we do at the end of the procedure is test the facial nerve so we can know what to expect and we know what to explain to the patient, or to them, about what to expect as far as their facial nerve function." [Transcript correction incorporated]
Dr Biggs said that on the occasion of his consultation with the plaintiff at Moree on 3 April 2009, he would have adhered to his described usual practice. That evidence, and his reasons for that view, were explored (at T315.47 - T315.22) as follows: "Q. Do you say that with your consultation with Mrs George on 3 April 2009 you adhered to your usual practice in respect of explaining the risks that we've just discussed of this type of surgery? A. I would have adhered to my usual practice. HIS HONOUR Q. What is it about the circumstances of a conversation [consultation] that leads you to presume that you would have adhered to your usual practice? A. I, I, I cannot imagine a reason why I would not discuss such a serious procedure in great detail with a patient. This is a very big procedure, it's a - there are risks associated with it and I, I could not imagine a circumstance where I would not be discussing this with a patient. This is one of the largest, longest procedures that we do, it's not to be - we would not take this very lightly. Q. Looking at the potential circumstances, obviously you have discussions of this kind in your consulting rooms where your paraphernalia is ready available to you, does the same apply to the Moree clinic? A. The Moree clinic literally only has one of the pictures of an ear when it has a sort of basic structure with the cochlear and the inner ear and so forth. The only extra paraphernalia that I actually use in my rooms is a skull where I can actually show inside the skull where the tumour sits, but otherwise I use a picture in my rooms as well, just to show where the inner ear is and where the nerve runs, but it is a difficult thing to conceptualise for people and so I, I try to keep in fairly understandable, or not too complex for the patient." [Transcript correction incorporated]
When the topic of how the patient's reaction was explored in relation to advice of the kind outlined above (at T317.20 - T317.37), Dr Biggs explained his process of interaction with the patient, and he referred to his sense or perception of patient understanding, as follows: "Q. How do you gauge the patient's reaction to that advice? That is, on the topic of non-malignancy? A. I think it, it comes down to your interaction with the patient. I think if patients ask me further about that or, or why I think that, I, I explain the fact that I've only ever seen three malignancies that occur in that part of the, the brain - part of the - before and everyone of those patients we knew had malignancy elsewhere in their body. The other thing that I always - if there's any doubt, say to the patient is, malignancy in that area causes significant pain. Whereas acoustic neuromas don't. Q. What I'm getting from you here is that you supplied this additional information only when asked questions, is that the correct impression? A. I, I, I would - in my normal practice I would explain to the patient that I'm, I'm very confident it's not malignant and yes, if, if I had any sense that the patient was not sure about that response or, or answer, I would expand on that further."
The impression given by Dr Biggs' explanation of his usual professional practice regarding clinical discussions with the patient was that such discussions, if followed along the lines described above, and set out at paragraphs [266] - [267], would occupy a significant period of time. It follows that if there were language difficulties, it was possible that such time could be shortened as a result of such difficulties, or lengthened, if an interpreter was required. Within those possibilities there was obvious scope for variation from usual professional practice, depending upon the available time, a decision on what the patient ought to be told, and the efficacy of the interpreting arrangements.
Turning to Dr Bigg's clinical consultation with the plaintiff on 3 April 2009, he said that following the above explanations, which he considered he would have given, from his recollection, he had recommended the surgery to the plaintiff as he felt that her balance problems were quite a significant issue for her. His reasoning was that as the recovery period from the recommended surgery was a couple of months, and that it was his expectation that the surgery would stabilise her balance issues, and that hopefully, this would enable the plaintiff to more manageably carry on her normal day-to-day activities: T316.44 - 316.50.
Dr Biggs considered that at the time of his consultation with the plaintiff on 3 April 2009, he would have had available to him the notes made by Professor Fagan on 6 March 2009, and he would have read those notes as he saw the plaintiff: T318.13; T318.26. There is no evidence that he had at any stage discussed the plaintiff or the management of her condition with Professor Fagan before the subject operation.
Dr Biggs said it was his usual practice to make contemporaneous notes during consultations of the kind he conducted with the plaintiff on 3 April 2009: T318.47 - T319.7. As has already been observed, he could not explain why there were no notes made by him of that consultation within the Pius X Clinic notes: T319.7.
Similarly, although it was Dr Biggs' practice to report details of such consultations to the referring doctor as the primary carer and as an essential part of medical communication to keep them informed of management plans that may or may not have been instituted, in the instance of the plaintiff's consultation with him at Moree on 3 April 2009, he said he could not account for why there was no such letter. His evidence on that topic (at T319.29 - T319.49) was as follows: "Q. What were the logistics of that communication? From where was the letter generated and sent? A. The letter - because of the typing situation out at, at Moree. There were some practical issues and often I was taking a photocopy of the notes with me back to my rooms back in Sydney and dictating after the fact based on, on those notes because they, they don't a formal typist and I was - often take notes back because it's more efficient for my secretary to, to type out those, those letters and forward it back to Pius to, to be mailed out. Q. Do you have any recollection of what occurred in this instance regarding your report letter? A. No, I, I really don't know why there is no - there, there should have been - there should have been notes and there should be a letter. I - perhaps the two - because there was no notes, there was letter dictated. The, the written - the explanation why, I, I can't account. The dictation - we got up on a Friday, the dictation would main - would not normally happen until early the following week and my presumption is because I didn't have a note in front of me to dictate, there was no dictation following that note. But where those notes went, I, I really cannot account for."
Dr Biggs described (at T320.1 - T320.17) the process by which the subject surgery would have been arranged for the plaintiff, as follows: "YOUNG Q. Dr Biggs, I want to move on now to the next time that you - sorry, I withdraw that and start again. You said that you recommended during your 3 April consultations with Mrs George surgery. What steps in your usual practice in 2009 did you take with patients after they had agreed to surgery? A. With, within the public hospital system, we have a waiting list and so there would be a form that had to be filled out and the patient would be placed on the, on the waiting list and categorised according to the urgency of the procedure. What follows is, when the patient then comes to - for surgery, they come to preadmission clinic where their examined from an aesthetic and a medical perspective to ensure that they are fit for surgery. That all their appropriate investigations are done. They understand what's going on. Consents and everything are done to ensure, because the public hospitals now essentially admit patients day of surgery and they no longer come in the night before, so the - when a patient comes in on the day of the operation, there's not a lot of time for anything to happen, so."
Dr Biggs said that following the 3 April 2009 consultation with the plaintiff in Moree, he next saw the plaintiff at St Vincent's Hospital in the ENT pre-admission clinic on 14 October 2009 when he said he "consented her": T320.21.
There was controversy in this evidence relating to that occasion as the plaintiff maintained she had not seen Dr Biggs at all on that day. The evidence surrounding that dispute will be evaluated and resolved in connection with the consideration required for determining the matters arising in Issue 9
The question of whether, on 3 April 2009, and on 14 October 2009, Dr Biggs had actually followed his usual professional practice as he had described, are factual matters also to be determined in the consideration of Issue 9.
The remainder of the evidence of Dr Biggs related to the post-nerve resection and repair events, and did not involve controversy.

[30]

Pre-admission clinic events on 14 October 2009

On 14 October 2009 the plaintiff attended both the pre-admission and the pre-anaesthetic clinics as had been arranged.
This was the first occasion on which an opportunity was taken to arrange for a Macedonian interpreter to be made available to assist all concerned to manage the inherent language difficulties regarding the content of medical consultations in which discussions occurred on the subject of medical treatments planned for the plaintiff.
I infer from the content of Exhibit "5", that at some stage before 14 October 2009, someone on behalf of the defendants had made contact with the Health Communication Interpreting Service ["HCIS"] to book a Macedonian interpreter for two separate face-to-face interpreting sessions for the plaintiff on that day.
The first interpreter session was booked for 10:00 for a scheduled 60 minutes. The second interpreter session for that day was booked for 13:00, also for a scheduled 60 minutes. Both sessions were scheduled to take place with Mr Levko Romanovski acting as the Macedonian interpreter.
It seems that although Mr Romanovski had checked in for the morning appointment on 14 October 2009, which had been scheduled for 60 minutes, that appointment was only left open for 30 minutes between 10.00am and 10.30am. A copy of a note within Exhibit "5" suggests that this session may have been rescheduled to the afternoon session "as the patient was from Moree". This suggests the possibility that the morning session may not have proceeded according to plan with the interpreter present for the whole period. This may also explain the partly erroneous note made by the resident medical officer in the pre-admission clinic records which stated "husband (translating)": Exhibit "3", p 98.
That rescheduling may also have been necessary because the plaintiff was required to undergo various tests during the time allocated for the morning interpreting session. This is consistent with the evidence of Dr Biggs cited at paragraph [277], where he stated that "Consents and everything are done" at the pre-admission clinic: T320.14. The afternoon interpreting session was noted to have proceeded for 30 minutes, which was also less than the scheduled 60 minutes.
The afternoon interpreting session with the plaintiff on that day appears to have occurred after the plaintiff had left the pre-admission clinics as the records show that she had been checked out of those clinics at 12 noon: Exhibit "3", p 97. The records do not establish what was done in the afternoon session, or with whom attending.
A confounding factor in the analysis of the possible times at which the plaintiff could have been "consented" by Dr Biggs is the matter recorded in Exhibit "B", which comprised the hospital records of the plaintiff's outpatient appointment bookings for 14 October 2009.
Those records referred to appointments the plaintiff had with a registrar at St Vincent's Hospital at 09:00 and 13:00 on that day, at which times the recorded comment in each instance was that the matter for discussion was the proposed excision of the plaintiff's right acoustic neuroma.
The confounding factor was that in each instance, the specified duration of the time taken for each of those appointments, was only 15 minutes. This raises the question of whether it was the registrar rather than Dr Biggs who discussed those matters with the plaintiff as is suggested by what is recorded in Exhibit "B". Further, if it was Dr Biggs and not the registrar who consulted with the plaintiff, a question arises as to whether the 15 minutes described in Exhibit "B" was a sufficient period of time for Dr Biggs to have followed his usual professional practice in obtaining patient consent, which he described at T308 - T320, and which has been laid out in detail in paragraphs [266] - [281] above.
The plaintiff said that on 14 October 2009 she had seen an unidentified older male doctor in the hospital in the presence of an interpreter: T24.8 - T24.31. I take this to be a reference to the plaintiff's attendance at the pre-admission and pre-anaesthetic clinics where it would seem reasonable that she would have been seen by at least two doctors, one being an ENT resident, and another being an anaesthetist or an anaesthetics registrar. Either way, the relative description from the plaintiff of an older man does not seem to be an apt description to be applied to Dr Biggs. In those circumstances, I consider the plaintiff may have been referring to either Dr Spalding, or to someone else, such as an anaesthetist, or an anaesthetic registrar.
The discrepancy between the plaintiff's evidence to the effect that she only saw one doctor at the hospital on 14 October 2009, in contrast to what appears from the records to be two doctors, will be taken up in the consideration of Issue 9.
Unfortunately, from the perspective of a time analysis, the progress notes written up by Dr Spalding within the St Vincent's Hospital records for 14 October 2009 are untimed, and there are only limited other timed records that could possibly shed light on when it might have been possible for the plaintiff to have been seen for a sufficient period of time to have been adequately "consented" by Dr Biggs on that day, as he claimed occurred: T320.43 - T320.47. In contrast to Dr Biggs' account of that occasion, the plaintiff's evidence was that she had not seen Dr Biggs in that clinic on that day: T25.42.
As evidence in support of the possibility that Dr Biggs saw the plaintiff in the clinic on that day, the defendants point to the pre-admission summary form: Exhibit "3", p 97.
That document shows that the plaintiff entered the St Vincent's Hospital combined pre-admission and pre-anaesthetic clinics at 8:45 on that day, and remained there for 195 minutes, and then left the clinic at 12:00. The defendants also point to two other entries on that form to suggest Dr Biggs would have had ample time on that day to have "ducked down" to see the plaintiff in those clinics and to obtain the plaintiff's consent to surgery as he claimed.
The first such entry is in that portion of the form with a box ticked for the option "Consent correct": Exhibit "3", p 97. A possible inference from that entry was that the consent form had already been signed. The second such entry is the time when the data on that form was "Entered" by the nurse who carried out the data entry task. This was stated as being at 14:52:49: Exhibit "3", p 97. The inference from that entry is that the consent form had been sighted and assessed by the person entering the data at 14:52:49. However, this gives no reliable indication of the time when the consent form had actually been signed.
A difficulty associated with the defendants' submissions on this point is that none of the second defendant's documents relating to 14 October 2009 made reference to Dr Biggs as having been present at any time when the plaintiff was there. Nevertheless, in support of the defendants' submission to the contrary is the fact of Dr Biggs' dated signature on the consent form, together with the signature of the plaintiff and that of the interpreter, albeit undated: Exhibit "3", pages 69 - 70; Appendix (signatures redacted).
The plaintiff said, through an interpreter, that on 14 October 2009, a doctor at the clinic had given her a consent form to sign to indicate her approval for the operation to take place. She said she then signed that document: T25.33 - T25.38. She was adamant that this did not occur in the presence of Dr Biggs: T25.41.
The implication of that evidence, if accepted, is that contrary to Dr Biggs' usual professional practice, and his evidence on that matter, Dr Biggs must have either pre-signed the consent form and asked someone else to ensure the plaintiff signed it (something he said he would never do), or alternatively, Dr Biggs must have signed and dated the form after the plaintiff had signed it, and after the plaintiff had left. According to the evidence of Dr Biggs, he considered the latter proposition unlikely.
The consent form contains some unexplained irregularities, which in light of the plaintiff's evidence, requires careful evaluation of the likely circumstances of the completion of that form. This will be examined in connection with the consideration of Issue 9.
The plaintiff said that following the events of 14 October 2009, she then travelled to her home in Moree with the understanding that her operation was planned to take place on 2 November 2009: T26.47 - T27.18.
The factual dispute over whether the plaintiff in fact saw Dr Biggs on 14 October 2009, and whether on that occasion he provided the plaintiff with the necessary information that was material to her condition, and to the option for surgery, and for her to be able to make a properly informed decision on whether or not to submit herself to the surgical treatment option, is a pivotal matter that requires resolution in the consideration of Issue 9.
At this point, it is appropriate to set out the known and indisputable facts surrounding the events of 14 October 2009, and to more precisely define the disputed matters calling for findings of fact.
When the second defendant's clinical records for 14 October 2009 are viewed in isolation, it is evident that at 08:45 on that day, the plaintiff attended the St Vincent's Hospital pre-admission clinic, where she was seen by a resident medical officer. This is plain from the pre-admission summary form and from the pre-admission summary form and from the handwritten notes of Dr Spalding: Exhibit "3", pages 97 - 99. Dr Biggs suggested that Dr Spalding was a resident medical officer: T321.6 - T321.24. Dr Biggs also stated that a resident medical officer was an unsuitable person to obtain the consent required for an operation for removal of an acoustic neuroma: T320.45 - T320.46.
Dr Spalding's handwritten admitting notes at the St Vincent's Hospital pre-admission clinic contained apparent historical errors. Although those notes correctly recorded the background of the plaintiff as being Macedonian, the plaintiff was incorrectly described as having come from Taree and not Moree, and it was also noted that she attended with her "husband" as translator, which on the evidence, seems to have been an unlikely item of personal history to come from the plaintiff. Instead, it appears that it was an erroneous assumption made by Dr Spalding: Exhibit "3", p 98.
The plaintiff submitted that if Dr Biggs had been present at the time Dr Spalding made those notes the "Taree" error would have been corrected by him. I do not consider this to have necessarily been the case as, for example, Dr Biggs may not necessarily have checked Dr Spalding's notes.
Dr Biggs could not recall whether, on that date, he had brought the consent form with him to the pre-anaesthetic clinic: T322.11. However, he, or someone on his behalf, would necessarily have done so because the document signed by the plaintiff had been pre-filled by Dr Biggs' secretary. Otherwise, it would have been more likely that a blank hospital pro-forma would have been used.
I infer from Dr Spalding's notes, that on 14 October 2009, he saw the plaintiff in the morning before an interpreter was available. That inference is based on the reference to the "husband" being the translator, and because according to Exhibit "3", p 97, the plaintiff had attended the clinics before the time booked for the morning interpreter, and because of the timing of certain tests performed on that day. Furthermore, if an interpreter had been present at the time Dr Spalding saw the plaintiff, it is most probable that this fact would have been recorded, and similarly, if the interpreter was present, it would have been improbable that the identified errors recorded in the notes would have been made.
Dr Spalding's pre-admission notes for 14 October 2009 copied at p 99 of Exhibit "3", indicate that after making notes of the plaintiff's blood pressure, her medical history, her diagnosis, her medications and her social history, he identified the details of a prospective plan for the further management of her admission, as follows:

Patient to bring CT to OT
Anaesth R/V
consent
bloods and G & M
audiol r/v
CXR
Reg meds

The evidence does not disclose whether that plan was documented on the basis of Dr Spalding's own assessment, or whether it had been formulated by someone else such as Dr Biggs, or his registrar, and if so, whether Dr Spalding was merely minuting a plan formulated by someone else.
There is no note or minute appearing in that portion of the St Vincent's Hospital clinical records for 14 October 2009 to suggest or to indicate that Dr Biggs was present at any stage of the consultations that took place in the pre-admission clinics on that day.
A possible explanation for the absence of any notes made in the pre-admission clinic is the entry in the pre-admission summary form could be the entries in three places stating "No Records": Exhibit "3", p 97. However, I discount that possibility as unlikely in view of the detailed notes made by Dr Spalding on that occasion, which suggests he was writing in the hospital's clinical records relating to the plaintiff: Exhibit "3", pages 98 - 99.
Dr Spalding's notes made reference to the need for the plaintiff to have a blood test. This matter provides some indication of the likely timing of that consultation. This is because it appears that a blood sample was taken from the plaintiff for analysis at 10.02am on that day: Exhibit "C", Volume 2, p 540. Surprisingly, that document was not otherwise replicated in the defendants' evidence bundle, Exhibit "3".
The timing of any other tests that might have been performed on the plaintiff at the hospital on that day was not precisely recorded in the hospital notes.
One of those other tests was an audiogram. The result of the audiogram test performed on the plaintiff on 14 October 2009 is copied at Exhibit "3", p 185. A rough indication of the timing of that test comes from a timed facsimile signature annotation on the copy of the report of that test. The bottom of the page of the report of that test suggests that the report had been faxed to an undisclosed recipient at 10.22am on that day.
I infer from the timing of the plaintiff's admission to the pre-admission clinic at 8.00am on 14 October 2014, and from the timing of the blood test at 10.02am, and the timing of the audiogram report facsimile time of 10.22am, that the note made by Dr Spalding as cited at paragraph [312] above which included "consent" meant that at the time the word "consent" was written, the plaintiff had not yet been "consented", which most likely means she had not yet been seen by Dr Biggs at that time.
In submissions, the defendants pointed to an entry in the Medicare payments schedule for 14 October 2009 in relation to a test ordered in the name of Dr Biggs to suggest the plaintiff had been seen by Dr Biggs on that day; Exhibit "4".
In my view, that evidence is at best equivocal, as it could also relate to the fact that although Dr Spalding saw the plaintiff in the pre-admission clinic on that day and had documented the need for the plaintiff to undergo tests, in circumstances where Dr Biggs was the admitting medical officer. It is also possible that the tests in question would have been ordered in the name of Dr Biggs: Exhibit "3", p 98.

[31]

Plaintiff's presentation for cancelled operation

On Friday 30 October 2009, the plaintiff returned to St Vincent's Hospital at the appointed time and date in readiness for the operation that was planned to take place on 2 November 2009. On this occasion, the plaintiff was seen by an ENT registrar, Dr Mukherjee.
The HCIS records show that a Macedonian interpreter had been booked to assist with clinical communications with the plaintiff on this occasion by means of an interpreter being available on the telephone: Exhibit "5"; Exhibit "3", pages 414 - 415.
Those records show that between 9.59am and 10.14am on 30 October 2009, Ms Velicka Pejoska provided 15 minutes of telephone interpreting services to the plaintiff whilst the plaintiff and Dr Mukherjee were located at Level 3 of the St Vincent's Hospital ENT outpatient and ambulatory care section of the hospital.
The plaintiff said that a Serbian interpreter, not a Macedonian interpreter, had been provided on the occasion of the consultation with Dr Mukherjee: T27.39 - T28.8. According to the evidence of Mr Petrusev, the court interpreter in these proceedings, there is a difference between those languages, despite some degrees of similarity: T155.21 - T155.25. In light of that evidence I do not discount the possibility that although a Serbian interpreter had been provided on that occasion, that person might also have been able to effectively communicate with the plaintiff in the Macedonian language.
Dr Mukherjee's notes of the consultation on 30 October 2009 (at Exhibit "3", pages 100 - 101) show that at an unidentified time, and for an unknown duration of time, Dr Mukherjee had a consultation with the plaintiff.
A hindsight analysis of the notes made by Dr Mukherjee reveals them to have been composed in 6 recognisable parts, as follows:

The first part of those notes stated the purpose of the plaintiff's presentation to be for removal of a right acoustic neuroma on the following Monday, namely 2 November 2009;
The second part of those notes reiterated a brief summary of the history, which was stated to be tinnitus, balance disturbance over some years, with reduced hearing, leading to the diagnosis of the neuroma in Moree in 2008;
The third part of the notes reviewed the plaintiff's past investigations and noted first, that she had a previous audiology test which was interpreted as showing "R dead ear", secondly, that MRI investigations had revealed a tumour symbolically described as being of a size greater than or equal to 1.5cm located in the right cerebello-pontine angle with an intra-canalicular component just sparing the fundus;
The fourth part of the notes reveal that Dr Mukherjee had ascertained that there had been no CT scan performed of the petrous temporal bone, and she then noted that this scan had been organised for that day. It is not apparent from the notes whether it was Dr Mukherjee or someone else who had arranged for that CT scan;
The fifth part of the notes stated "Phone interpreter service", and in that portion of the notes Dr Mukherjee wrote "Consent discussed", following which she wrote "op & peri op care", followed by a note of what the plaintiff could expect whilst she remained in hospital in the 6-7 days following the operation;
The sixth part of the note concerned the operation itself, and mentioned the incision, the facial nerve, and other matters relating to possible risks, as well as the chance that the operation might be cancelled on account of non-availability of post-operative intensive care beds.

As the interpretation of the sixth part of those notes was the subject of contention, that portion of Dr Mukherjee's note is reproduced in the following extract taken from Exhibit "3", p 101:
Prior to making that note, Dr Mukherjee made the notation "Consent discussed". A transcription of the risk component of the above extract is as follows: "OP - Incision - facial nerve - no hearing (dead ear anyway) - post op bleed / stroke general anaesthetic - cardiac / respiratory …"
Dr Mukherjee gave oral evidence in which she explained the significance of those notes, both in terms of her recollection of the occasion, and on the basis of what would have been her usual practice at the time: T248.13 - T249.42.
Dr Mukherjee's explanation of the meaning and the significance of the reference in her note to "facial nerve", and as to whether this referred to a possible facial nerve injury or to the use of a facial nerve monitor in the operation, is a matter that stands to be analysed in connection with the consideration required for Issue 9 on the matter of consent and the provision of information that led to consent for the subject operation.
The dispute between the evidence of the plaintiff and that of Dr Mukherjee relates to whether or not a discussion had taken place regarding the potential for injury to the facial nerve in the operation.
Dr Mukherjee had a specific recollection of the plaintiff asking her a question indicating she was concerned about her dizziness: T249.47.
Dr Mukherjee said she did not discuss anaesthetic risks with the plaintiff because she considered that this was a matter that should be left to the anaesthetist: T249.40. She said that she did not ask the plaintiff to sign another consent form on 30 October 2009 because she felt this had already been done on 14 October 2009, and she saw no need to duplicate the paperwork: T249.13 - T249.16. The basis for her understanding of the content or details of those previous discussions, which necessarily involved other practitioners, was not explored in the evidence.
In her oral evidence (at T196.19 - T196.49) Dr Mukherjee elaborated upon the explanation she said she had given the plaintiff of the risk of intra-operative injury to the facial nerve and the consequences of that injury. That explanation was drawn from both Dr Mukherjee's recollection, and from her understanding of her usual practise at the time. Her evidence in that regard was in the following terms: "Q. You said a moment ago that you recall the discussion of the facial nerve monitor and is that what you were referring to on the second line of the second page of the notes? A. Yes. Q. Do I take it you told her that it was customary to use a facial nerve monitor in the operation? A. Yeah. So when I talk about my incision, I go through anything, any bits and bruises that might be any scars and then go on to problems that, a danger to the nerve, danger to hearing, balance, et cetera. So, with my incision, I say you're going to have an incision around your eye [sic for ear] and you're also going to have some mosquito bites on your face that might give you some little bruises. That's going to be from the facial nerve monitor. The reason we needed to have a facial nerve monitor is because this tumour wraps around your facial nerve, it's one of the risks that - of removing this tumour, we're peeling the tumour off the facial nerves, that there's a danger of damage to it. The danger [sic for damage] is most often temporary. It will recover. Sometimes it can be permanent in which case we need to repair the nerve. Q. All that discussion you've just given us, is that from your recollection or is that your usual practise? A. Both. Q. Are you able to identify what was recollection and what was usual practise? A. I - that's what I do for every patient. It's very difficult to sort of - you know, that's my spiel for every patient with an acoustic, so I don't - that's my recollection. Q. Are you able to say [if that was] the full extent of any discussion concerning - that day, with you concerning the term facial nerve or facial nerve monitor? A. As far as I can recall, it was, yes." [Emphasis and transcript corrections incorporated]

[33]

Re-booked operation carried out on 30 November 2009

The form requesting admission for the procedure on 30 November 2009, copied into part of Exhibit "3" at p 64, has a handwritten note on it stating "Interpreter booked at 7 am on 30/11/2009". That note appears to be in the form of an attached sticker. It is not clear as to when that note was appended. A screenshot printout of the interpreting service records shows a booking for an interpreter remained open between 7.30am and 8.20am on that day: Exhibit "5". The inference that arises is that an interpreter was available to be utilised up until the time the plaintiff was anaesthetised. It is not clear as to whether this was for a face-to-face interpreter, or for an interpreter to be available by telephone.
The operating theatre nurse's notes record that the plaintiff was in the operating theatre at 08:09 hours and induction of the anaesthetic commenced at 08:15: Exhibit "3", p 164.
The pre-operative checklist records that nurses had confirmed the issue of consent initially with the patient both prior to transfer to the operating theatre and later verified at admission to the operating theatre: Exhibit "3", p 165. It is not known whether this was with the assistance of an interpreter, and as to what level of detail this confirmation occurred, or whether this simply involved a check that the consent form had been signed. The anaesthetic record shows that anaesthetic drugs were being administered to the plaintiff by 8.30am, and that the plaintiff's eyes had been taped: Exhibit "3", p 157.
The previously planned but cancelled operation then took place. The known details of the procedure have already been described at paragraphs [1] - [20] above, and in the extract copy of Exhibit "3", pages 98 - 99 comprising the operation record.
After the operation, as noted in Exhibit "3", at p 102, the ICU registrar, Dr Rebecca Prentice, wrote the following note: "… Procedure / - 8 hour procedure - Grade 1 laryngoscope - R translabrynthine approach excision of R CPA tumour * inadvertent division R VII CN -1 repaired with cable greater auricular nerve graft …"
The ICU note made by Dr Prentice suggests that the surgeons who operated on the plaintiff were Dr Biggs and Dr Chang: Exhibit "3", p 102.
Somewhat differently, the operation note dated 30 November 2009 stated that the surgeons involved in the procedure in question were "Biggs / Chang Panagamuwa / Pang".
The tissue excised at the operation was sent for histopathological examination. The report of that specimen was described in Exhibit "E" as follows: "CLINICAL DATA R acoustic neuroma NATURE OF SPECIMEN R acoustic neuroma MACROSCOPIC Labelled "R acoustic neuroma", the specimen consists of multiple fragments of tan soft tissue 25x20x5mm in aggregate. All embedded. Block 1A. MICROSCOPIC The sections confirm schwannoma. There are no atypical features."
The expert evidence given in the proceedings is to the effect that only limited conclusions as to the size of the neuroma can be based on that report. Professor Fagan explained that there was no co-relation between the tumour size identified on MRI scanning and the size of the representative sample sent for pathological examination: T236.29 - T237.3. The evidence of Dr Stenning was to the same effect: T530.18.
According to the times that were recorded in the notes kept by the operating theatre nurses, the plaintiff's procedure commenced at 8.55am and was completed at 4.50pm, a period of 7 hours and 55 minutes: Exhibit "3", p 164.
The operation record copied at pages 154 and 155 of Exhibit "3" names the operating surgeons as "Biggs/Chang and Panagamuwa/Pang". A section of the operation record form requiring the identification of the Assistants has not been completed. That record is in the handwriting of Dr Panagamuwa.
The anaesthetic record written up by an anaesthetist, copied at p 157 of Exhibit "3", identifies the surgeons as "Biggs/ Panagamuwa/Pang". There is no mention of Dr Chang on that record.
The operating theatre registered nurse's report copied at p 164 of Exhibit "3" identifies the admitting medical officer as Dr Biggs, the surgeon as Dr Pang, and three assistant surgeons listed as Dr Panagamuwa, Dr Biggs and Dr Chang, in that order.
The latter document was signed by the instrument nurse, the scout nurse and there is a signature in the space provided for signature by the surgeon.
The surgeon's signature on that document has not been identified. It is not possible to decipher that signature as there is no printed name next to it. It appears to be different to the signature of Dr Biggs, as is seen in other documents: Exhibit "3", pages 69, 385, 389. It also appears to be dissimilar to the signature of Dr Panagamuwa at p 155 of Exhibit "3". It also appears to be different to the signatures on the pages of the progress notes where Dr Mukherjee identified handwritten notes made by Dr Pang (at T257.12 - T257.27) and where Dr Pang's signature appears: pages 105, 120, 122, 124 and 127 of Exhibit "3". It is difficult to draw conclusions on the identity of the operating surgeon from those documents.
The evidence disclosed that at the time of the plaintiff's surgery, Dr Panagamuwa was an otolaryngeal surgeon who was spending time at the second defendant's hospital as a visiting surgical Fellow from Birmingham in the UK: T333.39.
According to the evidence of Dr Biggs, Dr Panagamuwa had returned to the UK where he continues to practise: T341.4 - T341.10; T379.11. There was no application made on behalf of the defendants for any evidence from Dr Panagamuwa to be given by means of a tendered statement, or by means of audiovisual or telephonic methods. In such proceedings, it is not unusual for medical and factual evidence to be given by those means if a party considers it relevant or necessary to seek that course: UCPR r 24.13.
The evidence disclosed that Dr Chang still works at St Vincent's Hospital: T379.29-30. The evidence also disclosed that Dr Pang was the senior ENT registrar at the second defendant's hospital at the time of the plaintiff's surgery, and he now practises in the western suburbs of Sydney: T379.17.
These matters will be revisited in conjunction with the consideration of the facts relating to Issue 11 concerning the most probable mechanism of the plaintiff's right facial nerve injury.

[35]

Post-operative course in hospital

Post-operatively, whilst the plaintiff was in the Intensive Care Unit, she was noted to have had weakness on the right side of her face: Exhibit "3", p 103.
The plaintiff wore a head bandage for 72 hours: Exhibit "3", p 108. Her right eye was swollen and it was difficult to see the pupil of that eye: Exhibit "3", p 103. The plaintiff's evidence was that her right eye was bandaged and her left eye was open: T30.45. This may be explicable either by reference to the plaintiff's right eye being taped at some point, or because the swelling to the right eye may have given her that impression. Either way, I do not consider that a credit issue arises from that evidence.
Dr Biggs did say that in cases of weakness of the facial nerve, the head bandage can assist a little with eye closure: T342.48 - T343.32. Dr Biggs also said that it was not routine to patch an eye following such surgery: T342.33 - T343.27. However, in submissions, the defendants did not seek to develop a credit issue on that evidence.
Dr Prentice, the ICU doctor, arranged for lubricants to be applied to the plaintiff's right eye and an ophthalmic consultation was arranged by a neurosurgeon: Exhibit "3", p 104. The ophthalmic consultation resulted in the suggestion that the plaintiff be given a gold or platinum implanted weight in her right eyelid as part of the treatment for her right-sided facial droop: Exhibit "3", pages 105 - 106.
A speech pathologist saw the plaintiff and recorded that the plaintiff had right-sided facial asymmetry, difficulty holding liquids in her mouth and difficulty with swallowing liquids. It was also noted she was receiving food via a tube: Exhibit "3", p 109. The speech pathologist also noted the plaintiff had food spillage and lip-seal issues when eating and drinking, and required food to be specially prepared: Exhibit "3", pages 112 - 113.
Following an ophthalmic review on 4 December 2009, it was noted the plaintiff's right eye was ordered to be taped shut at night: Exhibit "3", p 119. This may also explain why the plaintiff reported that she was not able to see out of her right eye at some stage post-operatively: T30.45.
A physiotherapy review on 7 December 2009 noted the presence of significant facial nerve palsy. At that time it was noted "Dr reports facial nerve [had] been severed and grafted …": Exhibit "3", p 123. It is not clear as to whether this was a summation based on the operation record or some other note, or whether this was as a result of something a doctor had told the physiotherapist. The use of the words "Dr reports" suggests this history was conveyed by a doctor who knew of those facts.
On a further ophthalmic review on 8 December 2009 it was recommended that a 1g gold/platinum weight be implanted in the plaintiff's right eyelid, along with other plastic surgery procedures: Exhibit "3", p 125.
Before her discharge from hospital, the plaintiff was given some exercises by the attending speech pathologist. She was also provided with instructions, strategies and dietary advice to assist her in coping with her oral difficulties relating to her facial palsy: Exhibit "3", p 126.
On 11 December 2009, Dr Mukherjee discussed the plaintiff's situation with Dr Biggs. The plan written up by her in the progress notes at that time was for the plaintiff to be discharged that day, with a follow-up to be arranged with Dr Moisidis, a plastic surgeon, on the following Thursday, and a for subsequent ENT review to take place at the clinic in Moree: Exhibit "3", p 131.
Clearly, the plaintiff had a turbulent and distressing post-operative course.

[36]

Subsequent problems and remedial treatments

Between 8 December 2009 and 22 February 2010 the plaintiff remained in Moree. She continued to experience the adverse effects of her right-sided facial palsy and the continued CSF rhinorrhea from her right nostril. She found these problems very distressing. She was also upset about her altered facial appearance in that period. She was to undergo three further hospital admissions for remedial treatment.
Between 18 and 23 February 2010 the plaintiff was admitted to St Vincent's Hospital for a second time. This was for an elective repair of the cerebro-spinal fluid leak that had been detected following the removal of the neuroma: Exhibit "3", pages 186 - 233. This repair procedure involved a partial resection of her temporal bone with mastoidectomy under general anaesthetic, also described as a right sub-total petrosectoy and blind sac closure of her ear canal, including the harvesting of further fat graft material from the abdomen: Exhibit "3", pages 187 - 188.
The progress notes for that admission identified the background to the admission as being "R acoustic neuroma resection 30/11/2009" with a 6 week history of CSF rhinorrhea from the right nostril: Exhibit "3", p 195.
The CSF leak repair procedure was carried out by Dr Biggs and it was uneventful. The discharge plan was for Dr Biggs to review the plaintiff at a later date in Moree.
On 25 May 2010, the plaintiff was admitted to St Vincent's Hospital for a third time. This was for a plastic surgery day procedure performed with general anaesthesia by Dr Moisidis. The procedure consisted of a unilateral brow lift and implantation of a platinum weight into her right eyelid and some sling suspension procedures to her face: Exhibit "3", pages 235 - 282.
Between 9 and 11 November 2010, the plaintiff was admitted to St Vincent's Hospital for a fourth time. This was for a further brow lift procedure under general anaesthesia. This procedure also involved some sling suspension procedures to her face requiring the harvest of the palmaris longus tendon of her right wrist which was used as the material for the suspension slings. This procedure was performed by Dr Moisidis: Exhibit "3", pages 283 - 329.
That procedure also involved an incision in the naso-labial fold of the plaintiff's right cheek, and the use of the transferred wrist tendon to try to suspend and rectify the droop of the plaintiff's upper and lower lips: Exhibit "3", p 287.
The plaintiff remains unhappy with the results of those surgeries.
The plaintiff continues to experience ongoing disabilities and distress relating to the surgery on 30 November 2009. She also needs ongoing treatment in a number of modalities. These matters will be more fully described in my findings concerning Issue 15 with regard to the plaintiff's ongoing disabilities.

[38]

Issue 2 - Findings: Whether plaintiff was a public patient

The plaintiff was admitted to the second defendant's hospital under the care of Dr Biggs for excision of her acoustic neuroma.
On the pleadings Dr Biggs conceded the plaintiff was admitted as a public patient: Paragraph 5 of the first defendant's amended defence filed 4 April 2014.
Although the second defendant conceded the plaintiff was admitted to its hospital under the care of Dr Biggs it did not admit that the plaintiff was a public patient at its hospital: Paragraph 6 of the second defendant's defence filed on 16 April 2013.
There was nothing within the hospital records comprising part of Exhibit "3", or the evidence of Dr Biggs, to indicate that the plaintiff was a private patient of Dr Biggs. In my view, for the reasons that follow, the evidence compels the conclusion the plaintiff was admitted to St Vincent's Hospital as a public patient.
In the course of the investigation of the plaintiff's ENT problems that led to the diagnosis of the neuroma and the recommendation for its surgical excision, her general practitioner referred her to the "St Vincent's ENT" clinic: Exhibit "3", p 357. I infer from that evidence, and from what followed, that St Vincent's ENT was in fact the second defendant's ENT clinic at St Vincent's Hospital.
For convenience, and through the longstanding arrangements described by Professor Fagan and Dr Biggs, that clinic conducted its outreach consultations at the premises of the Pius X Clinic at Moree: T303.41 - T303.50. It was there, in succession, that the plaintiff was seen by St Vincent's specialists, including Dr Hobson, Professor Fagan and Dr Biggs, all of whom were assigned to see her as a public patient on behalf of the St Vincent's ENT clinic.
Dr Biggs' position with St Vincent's Hospital was that at all relevant times, he was the head of the department of otology in the hospital. That position, together with the fact that he held an appointment as an honorary medical officer at the hospital, gave Dr Biggs the right to admit patients whom he had selected for treatment at the hospital, including public patients, such as the plaintiff.
Dr Biggs maintained a private practice in addition to whatever duties were required of him as the head of department at St Vincent's Hospital. However, there is no evidence to suggest that when Dr Biggs either saw the plaintiff at Moree, or at the time when he arranged to admit the plaintiff to the second defendant's hospital, the plaintiff was to be categorised as his private patient rather than as a public patient of the St Vincent's Hospital.
Dr Mukherjee confirmed that the plaintiff was admitted as a public patient under the care of Dr Biggs: T250.25.
On the basis of the evidence summarised in the preceding paragraphs, I find that at all relevant times, the plaintiff was accepted and admitted as a public patient of the second defendant, St Vincent's Hospital.
In arriving at that finding I have not overlooked the fact that in his oral evidence, Dr Biggs stated that his private practice secretary had attended to his (now unavailable) correspondence relating to the plaintiff after he had seen her at Moree, and that on his behalf, she had pre-filled part of the hospital's consent form which the plaintiff ultimately signed: Exhibit "3", pages 69 - 70. In my view that evidence does not derogate from the plaintiff's status as a public patient at the second defendant's hospital.
If the plaintiff was classified as a private patient of Dr Biggs, it would have been most unlikely that she would have been asked to sign a consent form that acknowledged "another doctor may perform the procedure": Exhibit "3", p 69.
The written request for the plaintiff to be admitted to St Vincent's Hospital made no mention of the plaintiff's patient classification as a private patient: Exhibit "3", p 371. In fact she was admitted as a pensioner: Exhibit "3", p 89.
Instead, it appears from the entries in Section 3 dealing with financial classification, that the plaintiff was to be treated as a Medicare patient. I infer this to be so because although the provision in Box A for "Yes" was not ticked to indicate the plaintiff's Medicare status, her Medicare number was nevertheless inserted, and the box for "No" remained unticked. Furthermore, there was no Box G, which required completion absent a Medicare number. The hospital had ascribed the plaintiff the financial classification "MA": Exhibit "3", pages 67, 72 - 74; 77; 81; 89; 93; 95; 98 and other pages in the progress notes. When this matter was raised in final submissions I was informed that this was a code for a public patient Medicare admission, as was the related code "MW": Exhibit "3", p 61: T727.31.

[39]

Issue 3 - Findings: Relationship of doctors and hospital

The plaintiff's claim against the two defendants has been framed on the basis that there was doubt as to which, if either of the defendants, would be found to be liable to her in negligence, and if so, to what extent in each case. Accordingly, each defendant has been joined so that those matters could be determined in the proceedings: Paragraph 1 of the plaintiff's statement of claim filed 29 December 2012.
The documentary evidence in this case did not traverse the details of what, if any, contractual relationships or any other hospital by-law arrangements might have at the relevant time existed between either Dr Biggs or Dr Chang and the second defendant hospital, such as was, for example, the case in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.
Accordingly, the relationship between the hospital and those practitioners, and any other named practitioners mentioned in the evidence, stands to be determined from the limited evidence adduced on that issue, and on the basis of the reasonable inferences available from such evidence.
When the second defendant accepted the plaintiff for admission as a public patient for surgical treatment in it's hospital, it assumed obligations pursuant to the well-settled overriding, comprehensive and continuing duty of care owed to the plaintiff in such circumstances.
Those obligations included the provision of appropriate medical, surgical, nursing and allied care along the lines described by Reynolds JA in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, at pages 562 - 536, on the following terms: "… The hospital, by admitting the appellant, could be regarded as undertaking that it would take reasonable care to provide for all her medical needs; and, whatever legal duties were imposed upon those who treated, diagnosed or cared for her needs from time to time, there was an overriding and continuing duty upon the hospital as an organization. It was not a mere custodial institution designed to provide a place where medical personnel could meet and treat persons lodged there, as it might have been regarded in years long since gone by."
That formulation has at times been taken to mean that a public hospital should be taken to be vicariously liable for the acts neglects and defaults on the part of the medical staff assigned by hospitals to treat public patients whilst they remained in the care of the hospital.
This occurs because when a hospital accepts a patient for admission for treatment involving "the benefits of the medical and surgical cornucopia within it", the hospital "remains responsible to ensure that whatever treatment or advice the horn disgorges is given with proper care; its duty cannot be divested by delegation": Ellis v Wallsend District Hospital, per Samuels JA, at page 605B, Meagher JA agreeing.
On behalf of the plaintiff, it was argued that in the present case, on an application of those principles, the second defendant should be found to be vicariously liable for any negligence that might be found to have occurred on the part of Dr Biggs and Dr Mukherjee in respect of advice, investigations and when obtaining consent in the hospital, and on the part of Dr Biggs, Dr Chang, Dr Panagamuwa and Dr Pang in respect of any negligence that might be found to have occurred in the course of the subject operation.
The importance of this issue concerns the extent of the potential liability of the second defendant. This is because although a hospital is bound to ensure that reasonable care is taken in providing the treatment it undertakes to carry out, it has been said in some cases, that duty does not extend to treatment performed by a medical practitioner pursuant to a direct engagement with the patient, and not on behalf of the hospital: Ellis v Wallsend District Hospital, per Samuels JA at 604F, Meagher JA agreeing.
An exception to that statement arises where the patient went to the hospital for advice and treatment, and where by way delegation, the hospital arranged for a doctor to provide advice and treatment. That arrangement gives rise to the "special duty" assumed by the hospital for the provision of "complete medical services" as referred to in Ellis v Wallsend District Hospital, at pages 604B to 605A, per Samuels JA, Meagher JA agreeing.
In my view, the determination of the factual question of which of those two alternative propositions applies to the circumstances of this case is readily found in Exhibit "3", p 357.
The referral of the plaintiff to "St Vincent's ENT", the acceptance of the plaintiff as a patient of that clinic, the successive provision of St Vincent's ENT specialists to consult with, to assess and to review the plaintiff, and the subsequent admission process to the second defendant's hospital as a public patient, indicates that the second defendant undertook to provide the plaintiff with complete medical services as a public patient pursuant to the special duty it thereby assumed, as described in the preceding two paragraphs.
In the case of Dr Biggs, his relationship with the hospital at the relevant time has already been identified as the head of the otology department at the hospital, but in addition, he was in private practice.
The evidence is scant concerning the respective relationships between the hospital, Dr Chang, Dr Panagamuwa and Dr Pang. However, it is reasonable to infer from the presence of those three doctors in the operating theatre for the purpose of fulfilling the roles that had been assigned to them during the events comprising and surrounding the subject operation, that they carried out whatever tasks were performed on the plaintiff with the permission of, and under the direction of, the second defendant hospital, as may have been from time to time delegated either by Dr Biggs, or later, by his intra-operative successor, Dr Chang.
That said, other than the evidence of Dr Biggs to the effect that when he left the operating theatre, he left the remainder of the operation on the plaintiff in the hands of Dr Chang, there is no evidence as to which of the three remaining medical practitioners carried out any particular part or parts of the procedure to the point where Dr Biggs was later recalled in order to undertake an attempted repair of the, by then, transected facial nerve. This is a matter that will be taken up in further detail in the consideration of Issue 11.
The operating theatre records are somewhat confusing as to the respective roles of those remaining practitioners following the departure of Dr Biggs from the operating theatre.
To the extent that Dr Biggs and Dr Mukherjee sought to explain the confusion identified in that documentation to suggest that Dr Chang was the operating surgeon, in my view those explanations do not carry any persuasive weight because neither Dr Biggs nor Dr Mukherjee were present in the second phase of the subject procedure. It follows, that they cannot provide reliable evidence on that issue.
This must be so, particularly as none of the three named medical practitioners present at the operation were called to give evidence, and where neither Dr Biggs nor Dr Mukherjee provided any evidence to identify the source for their evidence seeking to clarify the operating theatre records as to the hierarchy of the surgeons present.
Accordingly, on the state of the evidence, the cited explanations proffered by Dr Biggs and Dr Mukherjee must be seen to have been based on speculation rather than actual knowledge or other unidentified representations made to them of the circumstances that prevailed during Dr Biggs' absence from the operating theatre.
In those circumstances, although the evidence of Dr Biggs and Dr Mukherjee on this point was unchallenged, in the absence of cogent explanations grounded in fact, that evidence seeking to explain the operating theatre records concerning the respective roles of those present should be seen as being speculative and non-probative.
In my view, the evidence comprising the operating theatre records permits the inference that the second defendant hospital gave either Dr Chang, Dr Panagamuwa, or Dr Pang, permission to operate on the plaintiff.
I infer from the circumstances that such permission must have come either through the actions of authorised individuals whom the second defendant employed for that purpose, or to whom that function had been delegated on behalf of the hospital in accordance with the hospital's practice in that regard.
This view is consistent with what was anticipated in the hospital's consent form concerning the variable position as to who might perform the actual procedure (Exhibit "3", p 69), and as was acknowledged by Dr Mukherjee: T251.12.
The relationship between the hospital and Dr Mukherjee is clear. She was employed by the hospital as an ENT registrar working under the control and direction of senior medical staff at the hospital.
Dr Pang was also a registrar employed by the hospital, and I therefore infer that he was in a similar position to that of Dr Mukherjee.
The position of Dr Panagamuwa was that of a Visiting Fellow from Birmingham, in the UK. He was present in a training position at the hospital. I infer from that evidence that his position with the hospital was therefore also similar to that of Dr Mukherjee and Dr Pang.
I infer from the presence of Dr Chang in the operating theatre, and from the fact that when Dr Biggs left the operating theatre he handed over his role as operating surgeon to Dr Chang, that Dr Chang was also there as a surgeon who had been assigned by the second defendant hospital to operate on the plaintiff. This seems the most likely explanation as there is no evidence that the plaintiff had any pre-operative consultations or clinical relationship with Dr Chang.
Those conclusions raise questions concerning potential vicarious liability and responsibility for delegated authority involving the second defendant.
I consider that within the described circumstances, it was implicit within those arrangements that if Dr Chang chose to do so, he might have assigned certain parts of the required intra-operative tasks to other medical staff who were also present, in the manner that was described by Dr Biggs in his evidence: T333.11 - T333.17.
Whether or not he in fact chose to do so during the subject operation remains uncertain, and to the extent that it is claimed by the defendants that he did not delegate any intra-operative tasks, the operating theatre records appear to suggest otherwise. That said, nothing seems to turn on that matter, as whoever carried out any intra-operative tasks in the subject operation was bound by the same intra-operative duty of care.
The possibility of delegation of intra-operative tasks to surgeons other than Dr Biggs was also disclosed in the terms of the hospital's consent form, which the plaintiff had signed, and in which she acknowledged that different doctors might be assigned to operate upon her rather than the particular surgeon named on that consent form: Exhibit "3", p 69.
In my view, the legal consequences of those arrangements meant that by reason of the application of the principles of vicarious liability, the actions of medical staff in obtaining the plaintiff's consent whilst she was within the hospital, and the actions of all present in the operating theatre during the plaintiff's operation were subject to, and were engaged by, the duty of care owed to the plaintiff by the second defendant hospital when it agreed to provide the plaintiff with complete medical services as a public patient.
In the paragraphs that follow, the respective duties of care that the defendants owed to the plaintiff are identified as a precursor to a consideration of the scope of such duties, and whether the plaintiff has proven any relevant breaches of such duties.

[40]

Issue 4 - Findings: Duty of care owed by defendants

There are two components of the single comprehensive duty of care that the defendants owed to the plaintiff.
The first component of the duty related to all phases of the pre-operative consultations, investigations, advice, recommendations for treatment and the preparation of the plaintiff for the subject surgery, including the process of obtaining her consent for that surgery.
The second component of the duty owed related to intra-operative events, including the manner in which the subject operation was carried out in the circumstances in which the plaintiff incurred a transection of her right facial nerve.
The first component of the duty, which required that the plaintiff be provided with relevant information, advice and warnings concerning proposed treatment, has been authoritatively considered and determined in Rogers v Whitaker, at [16]; p 490, where that duty was identified as being in the following terms: "… The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege."
In the present case, there was no suggestion of a claim by the defendants of a relevant therapeutic privilege to withhold information from the plaintiff about her condition or relevant aspects of the treatment and possible sequelae.
Since the decision in Rogers v Whitaker, the principles there stated have been applied in a number of different factual circumstances. The most recent authoritative restatement of the duty to inform and warn of material risks was the decision in Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375, at [8], as follows: "The common law duty of a medical practitioner to a patient is a single comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment. A component of that single comprehensive duty is ordinarily to warn the patient of "material risks" of physical injury inherent in a proposed treatment. A risk of physical injury inherent in a proposed treatment is material if it is a risk to which a reasonable person in the position of the patient would be likely to attach significance, or if it is a risk to which the medical practitioner knows or ought reasonably to know the particular patient would be likely to attach significance in choosing whether or not to undergo a proposed treatment. The component of the duty of a medical practitioner that ordinarily requires the medical practitioner to inform the patient of material risks of physical injury inherent in a proposed treatment is founded on the underlying common law right of the patient to choose whether or not to undergo a proposed treatment. In imposing that component of the duty, the common law recognises not only the right of the patient to choose but the need for the patient to be adequately informed in order to be able to make that choice rationally. The policy underlying the imposition of that component of the duty is to equip the patient with information relevant to the choice that is the patient's to make. The duty to inform the patient of inherent material risks is imposed to enable the patient to choose whether or not to run those inherent risks and thereby 'to avoid the occurrence of the particular physical injury the risk of which [the] patient is not prepared to accept'." [References omitted].
For present purposes, it is not necessary to comparatively examine the factual circumstances of the other cases in which those principles have been applied since the resolution of those cases was largely dependent upon the intrinsic facts of each case.
The cited extracts from Rogers v Whitaker and Wallace v Kam in paragraphs [452] and [454] above remain the relevant guiding principles for the assessment of the alleged breach of the duty to provide information, advice and warnings in the process of obtaining the plaintiff's consent. Those matters will be taken up in the consideration of Issue 9.
In respect of the second component of the duty owed, the defendants concede that the medical practitioners who operated on the plaintiff, including the first defendant, owed the plaintiff a duty to exercise reasonable skill and care according to the standard expected of medical practitioners of ordinary skill and competence holding themselves out as possessing the skills of neuro-otologic surgeons carrying out surgery to remove an acoustic neuroma. Those matters will be taken up in the consideration of Issue 13.
Although the duty of care owed to the plaintiff was single and comprehensive, for the purposes of analysis in this case, it is convenient to separate out the components of the scope of that duty into that part which deals with pre-operative information and advice, or consent issues (Issue 5) and that part which deals with intra-operative issues (Issue 6).

[41]

Issue 5 - Findings on scope of duty: consent issues

On all occasions upon which medical practitioners had the opportunity to communicate with the plaintiff in order to provide her with relevant information, advice, treatment recommendations and material information as to the risks of treatment as a prelude to obtaining her consent to surgical treatment for the excision of the neuroma, the scope of the duty owed by those practitioners, and therefore the respective defendants, was essentially the same.
Dr Biggs has said, and I accept, that at the forefront of any agenda for such communications, would have been a consideration of the risks of such surgery including the potential for injury to the facial nerve, and the potential deleterious consequences of such an injury: T310.42; T311.20 - T312.37.
In that regard, at the commencement of any professional consultation with the plaintiff, her language difficulties would have been immediately apparent to any medical practitioner seeking to communicate with her on matters of history, diagnosis and treatment.
Those difficulties, together with the plaintiff's documented hearing difficulties, for which she was seeking treatment, would have inevitably posed significant challenges to any interactive process of communication between the plaintiff and those seeking to professionally assess her for the purpose of giving her medical advice regarding her need for a diagnosis and a plan for treatment. Such challenges would have also applied in respect of the associated management and treatment of her condition.
For both the plaintiff and her doctors, those language difficulties had the very real potential to give rise to fundamental misunderstandings in the course of doctor / patient communications with the plaintiff. This would have been particularly so concerning matters to do with the plaintiff's history, her complaints or symptoms, the relative importance she placed on those symptoms, the findings on examination, and the communication of any consequential advice and treatment recommendations, and related information, including as to risks and consequences.
In the present case, the type of clinical challenges posed by the plaintiff's language difficulties were helpfully described, with anecdotal examples drawn from the practical setting, in the evidence of Dr Stenning at T496.8 - T497.37. Also relevant to that issue is the summarised analysis of the evidence of Dr Biggs which has been set out and enumerated at paragraphs [266] - [267] above.
The effectiveness of any such communications would obviously be predicated upon the clinician reaching a state of mutual understanding between doctor and patient on matters of significance.
The salient features of Dr Biggs' description of his usual professional practice entirely accords with a common sense analysis. Furthermore, none of the expert witnesses called by the plaintiff sought to criticise that evidence.
The content of the summary appearing at paragraphs [266] - [267] above comprises what Dr Biggs described as his usual professional practice in discussing with a patient the process and the options for the management and the treatment of an acoustic neuroma.
In those circumstances, where there was no criticism of that part of the evidence of Dr Biggs, it seems appropriate that the summary referred to should be taken to be the definition of the terms of the scope of the duty of care the defendants owed to the plaintiff with respect to pre-operative investigations, advice, treatment recommendations and the procurement of the plaintiff's informed consent to surgery.
When analysed, the interactive doctor and patient communication process as described by Dr Biggs is complex, and can be seen to comprise a number of identifiable elements.
Whilst it may appear to a degree artificial, to seek to analyse the precise sequence of those elements of the communication process that would have been expected to take place in the setting of a clinical consultation, in my view the evidence of Dr Biggs, as summarised at paragraphs [266] - [267] above, permits a broad sequential analysis along those lines in order to achieve an understanding of what would ordinarily have been involved in the process of obtaining proper patient consent to treatment.
In setting out the analysis which shortly follows, it is not intended to represent a rigid or constrained sequence, or a precise template for how the clinical discussions should proceed. Instead, it is recognised that allowances must inevitably be made for an acceptable degree of variation, coalescence or merger of some elements, and possibly some shorter or passing emphasis on other elements, tailored according to the ebb and flow of the doctor / patient discussion, taking into account the understanding of the patient, as assessed at various points along the discussion as it proceeds.
A significant complicating feature of the clinical consultations involving the plaintiff relates to the interpretation of the particular language and expressions employed by the medical practitioners and by the plaintiff during the subject consultations.
An associated factor in this context is the question of the skill, or lack of skill, of the person carrying out the interpreting services aimed at assisting with the communications between doctor and patient. These matters will be taken up in the consideration of Issue 7.
Against that background, I consider that from the perspective of the practitioner, the identifiable elements of the communication process in the consultation, where consent is to be obtained, can be broadly outlined according to commonsense, and along the lines of the following segments and descriptions: I - Achieving a background understanding 1. Review and assimilation of previous medical communications and test results to achieve an initial understanding of the relevant historical and diagnostic background; II - Taking some time to establish rapport with the patient 1. Some initial, preliminary or introductory verbal and non-verbal communication would be required. This would be aimed at establishing a communication platform for personal rapport, confidence and trust with the patient in order to establish, develop, promote and to then explore a reasonable and effective baseline upon which to build the clinical relationship. This need not take up much time, but the interposition of an interpreter would necessarily involve some extra time; III - Assessing capacity for comprehending verbal communications 1. Some moments would be spent by the practitioner making an initial assessment based upon an impression of the level at which communications to the patient ought to be pitched to ensure the patient is likely to understand the subject matter of the required discussion, and so as to constitute proper disclosure of information and discussion where this is both relevant and required. Ascertaining patient comprehension through an interpreter may take some time and questioning; IV - Assessing how to achieve effective communication feedback 1. The practitioner would have to assess how to best achieve an effective method by which to acquire, through the communication feedback process, an understanding of the patient's ability to absorb, assimilate and confirm what was being conveyed by way of material clinical information. A variable course of questions and answers through the interpreter would have been inevitably required; V - Pursuing the process of obtaining information from patient 1. The practitioner would have to take the opportunity to progressively explore and work through matters of patient history for relevance and significance to matters of diagnosis, advice and treatment, in order to frame the necessary advice and treatment recommendations. This would not be a mechanical process as it would be unlikely to follow a scripted course; VI - Providing patient opportunities to clarify/ask questions 1. Whilst it is difficult to predict matters of patient understanding or misunderstanding, or to predict the need to seek clarifications or to ask questions, provision for some time should be allowed for such a process to proceed according to the complexity of the subject matter and the potential serious adverse outcomes that need to be considered by the patient. An emergent conversation along those lines could not be properly described as a standard mechanical process; VII - Conveying / condensing important information to the patient 1. The role of the practitioner in the clinical setting under present consideration would be to set out the achieved diagnosis in plain language, and to guide the discussion aimed towards fulfilling the need to make mutually understood decisions on matters of management and treatment. That discussion would ordinarily be expected to including such things as, the significant treatment side effects and complications that the practitioner would know about, and which a person in the position of the patient would expect to be told. In this case, such a conversation would have to include a broad but sufficiently specific discussion of the risks and consequences of consequential facial nerve damage, along with the risk of death, stroke and meningeal infection. This would not be a mechanical process; VIII - Ascertaining patient understanding of information conveyed 1. Questions from the practitioner would be expected to arise, directed to the patient. The purpose of such questions would be so that the practitioner could be satisfied that the patient had understood the detail and the ramifications of what was being discussed. This may well take some time, patience and persistent questioning over an unpredictable course, especially where an interpreter is involved; IX - Revising steps VII and VIII to ensure patient understanding 1. Effective communication between doctor and patient would most likely require a degree of repetition to rehearse or recapitulate the matters discussed. The purpose would be to reinforce and check patient comprehension of the matters discussed. The extent of this would be difficult to predict as assessment of the patient's level of comprehension of what was being discussed would be more difficult due to language difficulties. This would not be a mechanical process; X - Summarising the information and patient understanding 1. At some stage or stages of the consultation, the practitioner would need to summarise the discussion as part of the process of ascertaining the patient's progressive level of understanding of the matters being discussed. This interactive process would not be a mechanical recitation; XI - Ascertaining patient wishes, expectations and concerns 1. At some point in the consultation, if not at several points, there would be a need for the practitioner to ascertain and assess the reactions of the patient to what was being discussed in order to continue to guide the subject matter of the discussion and the progress of the consultation. There may also be a concomitant need to manage and direct any emotional reactions on the part of the patient. These matters are neither predictable nor mechanical in nature; XII - Relating patient wishes and expectations to clinical possibilities 1. The interactive communication process would require that the practitioner take the time and opportunity to gauge the patient's expectations of the possible treatments and their alternatives being discussed in order to determine whether those expectations were considered to be realistic, or whether any further guiding discussion was still required, and to then pursue any such further discussions that would become relevant and necessary. This too would be an unpredictable and non-mechanical process; XIII - Providing opportunities for patient questions and clarifications 1. Opportunities would have to be provided to the patient to progressively ask questions, either ad hoc, or at the end, with allowances made for pauses to assist the patient to absorb and process what is being said, and for the practitioner to gauge patient comprehension. This would not be a mechanical process; XIV - Reaching a common understanding between doctor and patient 1. At some point towards the conclusion of the consultation, an assessment of the state of common understanding or consensus on important issues between doctor and patient would need to be achieved and acknowledged, as a consensus, or disagreement, or non-comprehension, as the circumstances may require. In this way, the scope for fundamental misunderstandings could be minimised, if not avoided; XV - Recording the fact and details of common understandings 1. Once a consensus had been reached as to diagnosis, management and treatment, it would be useful, prudent, but not necessarily mandatory, depending on the gravity of the subject matter and potential consequences, for the practitioner to take a moment to record a note, not a transcript, of the matters of significance that were discussed and agreed upon in the consultation, and perhaps even dictate or write a letter recording such matters for the benefit of the referring doctor, or for the information of others also involved in the treatment. This would not be a mechanical process; XVI - Setting arrangements in train for the agreed treatment course 1. Once a treatment regime had been mutually agreed upon, some explanation of the further anticipated steps and actions that are required to be pursued in furtherance of the agreed course would need to be discussed, and any necessary arrangements that would need to be made would require documentation, and then acted upon.
Given that in the plaintiff's circumstances, all those steps in the communication process would have required the interposition of an interpreter, any consultations aimed at informing, advising and warning the plaintiff of material matters in the discharge of the duty of care owed would not have been a simple or straightforward mechanical exercise. The question of whether the defendants properly discharged the duty of care owed to the plaintiff along the above lines in the circumstances of the present case is the subject of the consideration of Issue 10.

[43]

Issue 7 - Findings: Conversations through interpreters

The plaintiff's consultations with the various medical practitioners involved in her care posed particular communication challenges to all concerned because of her lack of proficiency in her use and understanding of the English language. This placed her in a position of significant disadvantage in her dealings with the specialist medical practitioners who sought to assist her with information and advice concerning recommendations for treatment.
At an early stage in the course of the ENT investigation of the neuroma, the plaintiff understood this disadvantage. She therefore sought, unsuccessfully, to address this disadvantage by seeking to secure the services of a Macedonian interpreter to assist her at the consultations at the Pius X Clinic.
The nature of the plaintiff's linguistic disadvantage was not an uncommon phenomenon confronting medical practitioners in the course of consultations with patients in a multi-cultural society. The evidence disclosed that in the health care setting, there were facilities that existed to obtain the assistance of skilled and accredited interpreters from the HCIS in such situations: Exhibit "5".
It must be recognised that the concept of language interpretation is not necessarily the same as translating a written document word for word. The process involves the engagement of a linguistically capable intermediary to transfer meaning and nuance from one language to another, and vice versa, to achieve effective mutual understanding.
In that way, persons who cannot ordinarily communicate with each other in a common language can nevertheless convey to each other meanings and messages in an endeavour to achieve the equivalent of communication in a shared language.
This case highlights a potential difficulty that can arise in the evaluation of evidence of out-of-court clinical conversations between medical practitioners and their patients on critical matters concerning the explanation of risks of treatment, where the task for analysis is to ascertain whether the claimed explanations, if given, were conveyed in a manner where the content was likely to have been properly understood by the patient concerned. The difficulty arises in this case in two ways.
First, a difficulty arose at the initial specialist consultations the plaintiff had with Professor Fagan on 6 March 2009, and with Dr Biggs on 3 April 2009, both at the Pius X Clinic in Moree, where the possibility of surgical treatment was being discussed with the plaintiff. Those consultations proceeded with the assistance of the plaintiff's friend, Mr Madjistorov, a well-intentioned but unskilled intermediary who spoke Macedonian.
Although Mr Madjistorov spoke some English, and did so to an extent that was a little bit better than did the plaintiff (T18.10), nevertheless he was not a skilled or an accredited interpreter or translator: T18.10. He drove and accompanied her to the appointments and helped her physically so she would not stumble due to her balance problems. He did not attend the appointments in the role of her interpreter: T53.47; T77.8 - T77.11. His level of education and the level of sophistication of his bilingual or trans-language vocabulary were not known.
The plaintiff described the method of communication as one where the doctor would speak to Mr Madjistorov, who would then speak to her, she would then answer Mr Madjistorov, following which he would then speak to the doctor: T110.1-2. She estimated that the time spent with Dr Biggs at the Pius X Clinic at Moree was no more than 15 minutes: T143.37 - T143.39.
Unfortunately, Mr Madjistorov is no longer available to give evidence to clarify either the detail or the substance of the relevant conversations. I do not accept that an adverse inference should be drawn against the plaintiff for failing to call evidence from him. I consider the plaintiff's explanation for his absence from the jurisdiction to be a satisfactory basis upon which to counter and reject such an inference.
On the evidence adduced, doubt therefore arises concerning the effectiveness of the communications in the consultations on 6 March 2009 and 3 April 2009 because when the plaintiff's consultation with Professor Fagan concluded, she believed that she had a tumour in her brain, and when she saw Dr Biggs, she still held that belief, as well as the related belief that she needed an operation to remove that tumour.
Secondly, in the hospital setting, where individually named and identifiable professional interpreters were variously enlisted to assist with communications with the plaintiff in her own language, in both face-to-face discussions (on 14 October 2009) and by telephone (on 30 October 2009), those interpreters were not called to give evidence as to either the detail or the substance of what had occurred, or as to what had been discussed, and with whom, at the times they were engaged in interpreting the clinical discussions between the plaintiff and her medical attendants.
With regard to the discussions in the hospital setting, the way the evidence has been left, Dr Biggs and Dr Mukherjee have each said that they believed, based on their understanding of their usual professional practice, that they had informed the plaintiff that the surgery in question posed a risk of injury to her facial nerve. That evidence, if accepted was necessarily based on the circumstances, which involved intermediary interventions with interpreters in their discussions with the plaintiff.
On the basis of those factors, the effect of the evidence of Dr Biggs and Dr Mukherjee was, essentially, they had each concluded, before the plaintiff had given her consent to the subject treatment (in the case of Dr Biggs) or confirmed consent (in the case of Dr Mukherjee), that she had understood the substance of what they had been imparting to her concerning material matters of risk associated with the subject operation then under consideration, including the risk of an injury to her right facial nerve.
When those circumstances are analysed, it is apparent that important and unaddressed evidentiary gaps, emerge within that evidence.
When the necessary conversational sequences involved in those communications are critically examined, it becomes apparent that the respective beliefs of Dr Biggs and Dr Mukherjee as to what they said to the plaintiff through the interpreters, necessarily involved assumption-based beliefs that the respective interpreters had faithfully interpreted what they had said to the plaintiff, and similarly, in the reverse manner, they had obtained an understanding from the interpreters as to what the interpreters had perceived the plaintiff to have said in response to what they had imparted to the plaintiff, but in her own language.
Emergent gaps become apparent in the chain of evidence because there was no evidence or no notes from either of the interpreters concerned that indicated, either in detail or in summary form, what had been respectively said by the interpreters to the plaintiff, and vice versa in those pivotal conversations.
The absence of such evidence arises notwithstanding that the HCIS agency that provided the interpreting service for the plaintiff is an organisation that is known, at least to the second defendant, if not the first defendant, and where each of the interpreters concerned were identifiable by their names in the records tendered: Exhibit "5". In the circumstances, those interpreters are presumed to have been available if required to give evidence: cl 4(2) of Pt 2 of the Dictionary to the Evidence Act 1995.
Absent the evidence of those interpreters, which would ordinarily be expected to provide an evidentiary link between what was respectively said in the conversations that passed between the clinicians and the plaintiff, this calls into question the evidentiary and probative value of the respective beliefs of Dr Biggs and Dr Mukherjee as to the state of the plaintiff's understanding concerning the material matters of risk she was undertaking in agreeing to have the surgery that was recommended to her.
In approaching that factual evaluation, a survey of what is involved in the interpretation of an interactive conversation in the clinical setting assists with an understanding of the process and the emergent problem.
The process of interpretation of spontaneous or responsive oral interchanges is unlikely to involve word-perfect accuracy from one language to the other. For its efficacy, the process is dependent on the choice of words and the clarity of expression employed by the person seeking to convey the message, and in the context of available time constraints, the accuracy of the impressions gained by the interpreter as to what was said by the respective participants.
Also relevant is the factor of the level of skill, training and linguistic ability of the individual interpreter to carry out the task under the constraints of time, and to effectively call upon an appropriate range of vocabulary in two languages in order to transmit the messages so gained to the intended recipient, and vice versa.
Added to the above mix of factors is the need, in the clinical setting, for the interpreter to be able to select appropriately equivalent expressions and technical terms where required, and the facility for all concerned in the process, including the interpreter, being able to seek clarifications by asking questions where this may become necessary during the interactive communication process in which information is transferred.
The headnote of the decision in R v Attard (1958) 43 Cr App R 90 exemplifies the common law position. In that case the circumstances were that the accused, a person who spoke Maltese, was alleged to have made a confession to a police officer. The prisoner spoke only Maltese and the police officer did not. An interpreter, who spoke English and Maltese, acted as the intermediary between the prisoner and the police officer when the former made the alleged confession. The prisoner did not understand either the questions which the police officer instructed the interpreter to put to the prisoner, nor the answers made by the interpreter to the police officer. Those questions and answers were in English. It was submitted on behalf of the accused that the questions and answers were therefore not admissible as statements made in the presence and hearing of the accused. It was held that the police officer's evidence of what the accused had said to the interpreter was inadmissible as hearsay and that the only proper witness as to what the accused had said was the interpreter.
Wigmore on Evidence, 4th ed (1985) vol VI, para 1810 states that the hearsay rule applies to interpreters. At para 811(3) it is stated that what constitutes proper interpreting depends upon the circumstances, and this is to be determined by the court. In that context, interpreted evidence was characterised as comprising the substance of what was said, rather than the exact words.
In Gaio v The Queen (1960) 104 CLR 419, at pages 420 - 421, Fullagar J referred to the process of interpretation of evidence as being a circumstance where a party gives evidence through an interpreter as if what is interpreted is a continuous conversation in the language of that party but in the form of the language of the court.
There can be no difficulty in a court relying on that process because, by reason of the interpreter's oath, the process is verified as a correct and faithful interpretation of the evidence. In that situation the interpreter serves as the means by which to facilitate an accurate means of communication: Gaio v The Queen, per Menzies J, at pages 433 - 434.
Gaio v The Queen, and in a number of subsequent immigration cases, there is a highlighted distinction between evidence given in another language that has been interpreted according to the interpreter's oath and an account of an out-of-court conversation that may or may not have been accurately interpreted at the time the conversation took place.
As evidence of the latter kind cannot be tested, the consideration of evidence of that kind involves an evaluation as to its weight, putting aside questions of whether the interpreter of the out-of-court conversation should be deemed to be the agent of the party using the intervention of that person as a means of communication: Gaio v The Queen; Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273. In the latter case, at p 279.35-40, Hill J cited the remarks of Dixon CJ in Gaio v The Queen in the following terms: "Dixon CJ, while agreeing with Fullagar J, added (at 421) the following comment which makes it clear that his Honour rejected the view that evidence of the conversation by a participant (and evidence of the translator) was hearsay: I think that the translation word by word or sentence by sentence by the interpreter is not an ex post facto narrative statement of an event that has passed within the rule against the admissibility of hearsay but is an integral part of one transaction consisting of communication through the interpreter. It is therefore enough if it is proved that what he did was to interpret faithfully. The version as spoken and heard in one language or the other - in the present case English - can then be given in evidence." [Emphasis added]
The emphasised statement in the cited text in the preceding paragraph highlights the need to call evidence from the relevant interpreters on contentious matters of fact for which proof is required before such matters can be considered to be reliable.
In Ming v Uvanna Pty Ltd t/as North West Immigration Services, at p 280, Hill J summarised the common law position as follows "In summary, the common law rule can be stated as follows. Evidence by one party to a conversation which was carried on through the medium of an interpreter is admissible and not to be regarded as hearsay, for it is an inadequate analysis of that evidence to say that it is evidence of what another person, the translator, said that he or she had heard from the other party to the conversation. The translator is not a narrator but the means whereby one party to the conversation communicates with the other and the translation is an integral part of the transaction consisting of that communication. Proof of the accuracy of the translation will, however, be necessary. That proof will usually be by evidence given by the translator but, at least in a civil case, need only be on the balance of probabilities and can arise by inference. Proof of the accuracy of the translation would not, however, be necessary where the circumstances are such that either the parties to the litigation, or at least the person against whom the evidence is tendered, constituted the interpreter as agent to interpret the conversation between them." [Emphasis added]
In De La Espriellavelasco v The Queen [2006] WASCA 31, at [45], Roberts-Smith JA cited a decision of the NSW Court of Criminal Appeal, in which Badgery-Parker J (with whom Kirby ACJ and Loveday J agreed) in which it was stated that "… it would be unfair if the interpreter lacks the skill and ability to translate accurately the question asked … and the answers given…": R v Saraya (1993) 70 A Crim R 515, at p 516.
The statement cited from R v Saraya related to evidence given in criminal proceedings and it identified unfairness to an accused person if deprived of the assistance of a skilled interpreter.
The relevance in citing that statement is to make the comparison to the circumstances in this case, where the plaintiff did not have the assistance of a skilled interpreter when she respectively saw Professor Fagan and Dr Biggs in Moree on 6 March 2009 and 3 April 2009. The circumstances of Mr Madjistorov's role as informal interpreter demonstrates that unfairness. The manner in which that unfairness could operate is explained in the example provided by Dr Stenning: T494 - T496.
In my view, the analogy in R v Saraya demonstrates the unfairness to the plaintiff of an acceptance of the submission on behalf of the defendants to the effect that the interpreting for the plaintiff by Mr Madjistorov was adequate such that the plaintiff should be taken to have understood what was said by Professor Fagan and Dr Biggs on those occasions concerning the risks of injury to the facial nerve in the recommended surgery.
In De La Espriellavelasco v The Queen, at [17], Gaio v The Queen was considered in the following terms: "[17] The first Australian authority of note concerning interpreters was Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419. Remarks from the judgments in that case have often been taken as authority for a proposition that an interpreter must interpret into the target language, "word for word", exactly what is said in the source language and vice versa. That proposition is founded upon a misconceived understanding that the process of interpreting from one language to another is purely mechanical. As Ms Crespo made clear in the present case, the process is much more complex than that, which itself bears upon the issue of the quality or standard of interpretation. I shall return to this shortly, but make the point here that the judgments in Gaio were not concerned with any consideration of the linguistic, cultural or social aspects of the interpretation process. The question in that case was confined to an objection that evidence given by a patrol officer of a confession made to him through a native interpreter was inadmissible as hearsay. The observations by the members of the Court that the process was analogous to use of a machine were directed to the legal distinction between a witness recounting what someone else has told him (hearsay) and a witness recounting a conversation held with an accused through the medium of an interpreter (direct evidence of what the accused said). Thus, it was in that context that McTiernan J, who was in dissent, said (at 422) that in his opinion there was no analogy between the mechanical reproduction of a verbal statement and the translation by an interpreter from the language in which it is made to him, into the language of the third person; whereas Kitto J, one of the majority, said (at 431) that the interpreter acted only as a translating machine ("so to speak"). As Kitto J went on to say, on that view, the evidence was not hearsay because what the interpreter said to the patrol officer had none of the subjective elements which characterises the giving of a person's own account of something that person has seen or heard."
Since 1995, evidence of interpreted out-of-court conversations needs to be viewed from the perspective of s 64 of the Evidence Act 1995, which provides: "64 Exception: civil proceedings if maker available (1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. Note : Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection. (3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made. (4) A document containing a representation to which subsection (3) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. Note : Clause 4 of Part 2 of the Dictionary is about the availability of persons."
In the context of this case, I construe the reference to "otherwise perceived" in s 64(1)(a) to be the perception of a representation capable of being understood in a common language.
In Ming v Uvanna Pty Ltd t/as North West Immigration Services, Hill J also considered s 59(1) of the Evidence Act 1995 (Cwth) which is in the same terms as s 59(1) of the Evidence Act 1995 (NSW). In that case, at pages 281 - 282, Hill J stated: "The legislation distinguishes between first-hand hearsay, that is to say, a reference to a previous representation made by a person who had personal knowledge of an asserted fact on the one hand, and more remote forms of hearsay on the other. It is only first-hand hearsay which can fall within the exceptions contained in the Act. The argument that evidence of a conversation through a translator is evidence of a representation made by the translator to prove the existence of a fact, namely that words were spoken by another party to the conversation in another language, suffers the same difficulty as is suffered by the common law argument that such evidence involves hearsay in the ordinary sense. The translator does not act as a narrator but merely as a person who makes the language of one party intelligible to another as uttered. The evidence is not put forward as evidence of a representation made by the translator as to what was said by a party to the conversation, but as direct evidence of the conversation itself through the medium of the translation. The relevant fact to be proved in the present case is not merely whether particular words were uttered by Mr Alexander, but rather whether there was a communication of language between Mr Alexander and the relevant applicant. Provided the process of translation was accurate, that communication is proven and goes beyond the evidence of a representation to which s 59(1) refers. Proof of a translation will be shown by calling the translator. But that is not the exclusive means of proof. An alternative means of proving accuracy of the translation is to show that the interpreter was put forward by the person against whom the evidence is tendered as the person whom that person accepts as a translator and is admitted to be a qualified translator. That is, of course, the present case. I am accordingly of the view that s 59(1) of the Evidence Act does not exclude the evidence of the conversations being admitted. If I should be wrong in holding that s 59(1) has no application, I turn to consider whether I should direct, under s 67(4) of the Evidence Act, either that s 63(2) or 64(2) apply, despite the failure on the part of the applicants to give the notice required under s 67(1) of the Evidence Act. As an exception to the hearsay rule, hearsay evidence is permitted to be given either where the person who made the relevant representation is not available to give evidence about the asserted fact or where, while that person is available, the circumstances are such that it would cause undue expense or undue delay or would not be reasonably practicable to call the person. Section 67(1) requires, in effect, that if s 63 or s 64 is to be availed of, then the parties seeking to avail of them are to give reasonable notice in writing to the other parties of the intention to adduce the evidence. The Rules of the Court provide for the giving of the relevant notice. It is common ground between the parties in the present case that no notice was given. …" [Emphasis added]
It appears self-evident from the above descriptions, that the process of interpreting is a very complex one, involving many steps, which for effectiveness and accuracy, would require the assistance and involvement of persons possessing the necessary linguistic qualifications and skills.
The emboldened text in the passage cited in paragraphs [509], [511] and [519] above is instructive insofar as the role of Mr Madjistorov is concerned. Mr Madjistorov was not a qualified translator.
Mr Madjistorov took the plaintiff to the appointments, he was not engaged as the interpreter: T18.5 - T18.10. He drove her to the appointments because she needed to be helped due to her balance problems and so she would not fall: T18.8; T53.48; T77.8 - T77.11. The conversations between the plaintiff, Mr Madjistorov and the doctors were convoluted, in that the plaintiff spoke to Mr Madjistorov who conveyed the gist of what was said to the doctors, and vice versa: T115.3; T143.22. In the case of the consultation with Dr Biggs, the consultation was for less than 15 minutes: T143.39. Questions arise as to the effectiveness of the communications in those circumstances.
An assessment of the effectiveness of the involvement of the plaintiff's friend Mr Madjistorov at the consultations with Professor Fagan on 6 March 2009 and Dr Biggs on 3 April 2009, must take place with those considerations in mind.
In those consultations, on the case for the defendants, Professor Fagan and Dr Biggs necessarily relied upon Mr Madjistorov's role as an intermediary and interpreter to assist them to discharge their respective duties of care to the plaintiff concerning communication issues, and to try and achieve a mutual understanding, particularly in the case of Dr Biggs with regard to seeking and obtaining valid consent from the plaintiff for the proposed treatment.
Mr Madjistorov's role was in effect that of accidental translator who was enlisted to make the best of the prevailing communicating difficulties. In those circumstances, I do not consider it reasonable to deem him to be the agent of the plaintiff for the accurate translation of what Professor Fagan and Dr Biggs were seeking to convey to the plaintiff in the consultations at Moree on 6 March 2009 and 3 April 2009: Ming v Uvanna Pty Ltd t/as North West Immigration Services, at p 280; Gaio v The Queen, cited at paragraph [509] above.
The position with the HCIS interpreters is somewhat different. These interpreters were arranged by St Vincent's Hospital as an incident of the need for the defendants to ensure that the matters to be translated to the plaintiff in the Macedonian language were done so accurately in order to fulfil the duty of care that was owed to the plaintiff. In that sense, it cannot be reasonably said that the HCIS interpreters engaged for those purposes were the agents of the plaintiff. Rather, if they were agents at all, they were agents of the second defendant.
Both defendants rely upon those discussions as the sub-stratum of the later consultations that Dr Biggs claimed to have taken place with the plaintiff on 14 October 2009, and with Dr Mukherjee on 30 October 2009, when HCIS interpreters were engaged to assist in the hospital setting. For the reasons outlined, I consider that the claimed reliability of that sub-stratum to be flawed.
The involvement of professional interpreters from HCIS to assist with interpreting medical communications with the plaintiff on 14 October 2009 and 30 October 2009, which were respectively, in person and by telephone, requires that an assessment be made of the likely accuracy and efficacy of that process.
In order to assess the evidence of those interpreting interventions, it is appropriate to examine and evaluate what occurred on each occasion, in turn. The detail of this task will be taken up in the consideration of Issue 9.
This is necessary because the defendants seek to rely on what is said to have been the cumulative communications that took place on each of those occasions to show that the plaintiff had been properly informed and advised of the risks of the subject operation, and in particular, the risk of damage to her right facial nerve, and the potential for lasting sequelae from such an injury.
The advantages of engaging the assistance of skilled professional interpreters are obvious. These include promoting more accurate doctor / patient communications concerning matters of diagnosis, mutual understanding of what is said in consultation, and reducing the scope for misunderstandings, including serious misunderstandings between the patient and the doctor.
The disadvantages of using an unskilled interpreter in the health care setting are also obvious, and hardly need stating. Those disadvantages include permitting or creating room for significant misunderstandings with regard to any attempts at the clarification of matters of medical history and explanations of symptoms on the one hand, and explanations of diagnosis and treatment recommendations on the other, as well as the attendant risks. The scope for misunderstanding to occur in the health care setting seems inherently likely to increase where complex matters such as technical or anatomical and physiological terms are necessarily used in the course of such communications.
Use of an unskilled interpreter also has the inherent scope to permit or create room for inaccuracy of communications. This can occur through processes such as filtering or playing down what is said, altering, censoring or diluting the message to be conveyed in clinical communications, and in some instances, subtly altering the content of the communications on account of perceived sensitivities, sensibilities or cultural factors, including such as those which were explained in the evidence of Dr Stenning: T494 - T496.
Such matters may well affect the validity of any consent procured from a patient using an unskilled interpreter. This may well be so if the result of the intervention of an unskilled interpreter was that either the patient or the practitioner or both had obtained or had been left with an incorrect or incomplete understanding of what was actually said.
Furthermore, in cases of inaccurate or sub-standard interpretation, a patient may, for example, lose the opportunity to ask pertinent questions on material matters of concern, and which may have otherwise arisen if an accurate rendition of the relevant conversations had been provided by a skilled interpreter versed in the nuances of communicating on health care matters in the clinical setting.
It is against those background considerations that the individual occasions, on which doctor and patient interaction occurred with the plaintiff and those who gave her medical information and advice is to be evaluated.
I consider that on 6 March 2009, and again on 3 April 2009, when Mr Madjistorov took on the well-meaning role of intermediary to seek to assist the plaintiff in the consultations with Professor Fagan and Dr Biggs, this was a very poor substitute for professional interpreting services in the health care setting.
I consider this to have been so because of the very specific nature of the matters for discussion between those doctors and the plaintiff, and because the unchallenged evidence was that Mr Madjistorov was only slightly more proficient or a "bit better" (T18.10) in the use of the English language than was the plaintiff. I accept the plaintiff's evidence in that regard.
It follows, on language considerations alone, without further considering the factor of the plaintiff's described emotional reaction of crying and shaking in response to what she had understood Professor Fagan to have told her regarding her diagnosis of having a tumour, there is considerable room for doubt that the plaintiff would have accurately understood much of what was said by Professor Fagan.
I consider this to be especially so concerning matters of the nature of her condition, the risks associated with treatment options and the reasoning behind the treatment options discussed, and more importantly, on material matters concerning the risks associated with the treatment being recommended to her, which in turn influenced her decision on whether or not to undertake the risks of the subject surgery.
The evaluation of the facts involving the interpreter interventions in the plaintiff's discussions at the second defendant's hospital on 14 October 2009, and the circumstances in which she had placed her signature on the consent form, and later, during the consultation with Dr Mukherjee on 30 October 2009, when the HCIS telephone interpreting service was utilised, and where those matters relate to the validity of consent obtained from the plaintiff for the subject operation, will be taken up again in the consideration of Issue 9.
For present purposes, it is sufficient to identify my view that the above analysis leads me to conclude that in the absence of evidence from the respective interpreters, the respective evidence of Dr Biggs and Dr Mukherjee in relation to in-hospital communications as to their perceptions that the plaintiff had materially acquired an understanding of the risk of injury to her facial nerve, should be given significantly reduced weight due to uncertainty in the communication process between those doctors and the plaintiff. There was no evidence pointing to any specific responses of the plaintiff which would serve to indicate that she had understood what was being set out for her to comprehend in those discussions, and as to whether she had in fact comprehended those matters.
These findings lead into the evaluation of the evidence relevant to the consent process, which is the subject of Issue 9. Before considering that issue it is relevant to consider the appropriateness of the surgical option that was offered to the plaintiff.

[44]

Issue 8 - Findings: Appropriateness of the surgical option

In considering whether the option of surgical treatment for neuroma excision had been appropriately recommended to the plaintiff, it is necessary to review the context of that recommendation against the array of other potential treatments or methods of management.
For that limited purpose, the consideration set out in the following paragraphs does not take into account the plaintiff's subjective reactions to what she understood she had been told in the various clinical consultations with Professor Fagan, Dr Biggs and Dr Mukherjee. Those matters will form part of the consideration of Issue 9 concerning the consent issues.
In 2007, 2008 and 2009, the plaintiff had understandable concerns over her persisting hearing and balance symptoms, and some related falls. This led her to seek medical advice from her general practitioner, and to then accept specialist referral for assessment and treatment to see whether those symptoms could be alleviated.
In the events that followed, once the plaintiff's right acoustic neuroma had been clinically diagnosed following the MRI scan investigation carried out on 5 December 2008, because of her rural location it seems inevitable that her general practitioner would again refer the plaintiff to the St Vincent's ENT team at the Pius X Clinic for the specialist assessment, advice and further management that her condition required.
Once Professor Fagan saw the plaintiff at that clinic and had categorised the plaintiff's neuroma as being relatively small, the array of potential treatment options were, either, stereotactic radiotherapy, an invasive operation to remove the neuroma, or a conservative wait and watch approach in conjunction with the plan for obtaining a further MRI scan in 12 months time.
In his 6 March 2009 letter to the treating general practitioner, Professor Fagan said the neuroma was not large enough to consider intervention on account of its size alone. However, he added that the plaintiff's additional severe problems of imbalance would occasionally justify intervention, but he nevertheless thought that a wait and see approach was advisable, and that a review and re-assessment should take place in the following month.
That advice appears to have been based on the reasonable premise that on the clinical evidence available to Professor Fagan, together with his experience of such neuromas, namely that they were considered to be slow growing, and that that patients could tolerate a small acoustic neuroma for many years, which justified a wait and watch approach: T212.6 - T212.30. If surgery was immediately required, he would not have suggested a repeat MRI in 12 months to monitor the extent of progress, if any.
On that premise, from a technical viewpoint stereotactic radiotherapy was problematic and was therefore not a viable option. This is because small tumours were not suited to such treatment, and were better managed conservatively. Furthermore, if surgery was later required after radiotherapy, this could be made more difficult due to scarring from radiation treatment. In that regard, I accept the combined effect of the respective opinions of Professor Havas (T415.4 - 415.36) and Dr Stenning (T490.22 - T490.40).
Once Professor Fagan made the assessment that stereotactic radiosurgery was not an option that he would recommend, on the evidence, it was appropriate that he would offer the plaintiff the two remaining management options, either to monitor the neuroma over time in conjunction with a further MRI scan scheduled to be carried out in a further 12 months, or to plan for an earlier surgical intervention if warranted. The clinical justification for that latter course would be the plaintiff's ability to cope with her balance, or disequilibrium problems.
The wait and watch option appears to have been preferred by Professor Fagan on the basis of the plaintiff's hearing problems. However, it appears that it was the plaintiff's balance problems, or the combination of the two, that may have swayed Professor Fagan's views more towards surgery although he did not think it was immediately necessary: Exhibit "3", p 386, paragraph 2. A difficulty in relying on that conclusion is the flawed interpreting arrangements which prevailed at Professor Fagan's consultation with the plaintiff on 6 March 2009.
Based upon the content Professor Fagan's notes made at the Pius X Clinic on 6 March 2009, I am satisfied that Professor Fagan offered the plaintiff both options. In my view, those notes indicate that he had spoken to the plaintiff about those two specific options. Whether the plaintiff understood all of what Professor Fagan was saying to her through Mr Madjistorov is another matter altogether, which will form part of the subject matter for the consideration of Issue 9.
Having heard Professor Fagan's explanation of the terms and the structure of his notes of 6 March 2009, which are copied at Exhibit "3", pages 378 - 379, I am satisfied that that with the albeit limited interpreting assistance of the plaintiff's friend Mr Madjistorov, Professor Fagan told the plaintiff that she had a non-cancerous tumour which was near her brain, but not in her brain, and that this had affected her hearing, and that the treatment options were either a surgical operation to remove the tumour or to wait for 12 months, and have a further MRI scan before deciding what further course to follow. At this point in the consideration it is not necessary to review the plaintiff's understanding of what had taken place at that consultation.
The consultation between the plaintiff and Professor Fagan on 6 March 2009 was not the occasion on which the plaintiff's formal consent to surgical treatment was being sought or obtained, although in hindsight, at the hearing, he said it was the first step in the process. Professor Fagan had retired from surgical practice in early 2009. In those circumstances he would not have been the one carrying out any surgery on the plaintiff. It is unlikely that in those circumstances he would have engaged the plaintiff in the detailed formalities of the consent process to its completion, as that was the obligation of the treating surgeon, and there was no objective evidence to suggest that he was recommending surgery in the immediate short term.
In that regard, on 6 March 2009, further steps were still required. The plaintiff was yet to agree to the operation. Her name was yet to be placed on a waiting list for that purpose. The time had not yet arisen for those steps to be taken.
It seems to me that the 6 March 2009 consultation with Professor Fagan, although diagnostic and important, was not an occasion where he was asking the plaintiff whether she would be committing herself to have surgical treatment for removal of the neuroma, and therefore I consider that he was not seeking her formal consent to that procedure at that time.
Even when viewed prospectively, without the analytical bias that can come from a hindsight evaluation, the consultation with Professor Fagan on 6 March 2009 was a long way away from the step of imparting to the plaintiff, in a definitive way that was capable of being understood by her, information, advice and warnings that would be considered by a reasonable person in her position to be material to the decision on whether or not to accept a recommendation for surgical treatment, knowing the material attendant risks of the contemplated surgery.
Instead, in my view, it seems more likely from the plaintiff's emotional reaction to what she understood Professor Fagan to have told her through Mr Madjistorov that she was not ready to make any decisions other than to seek to have a further consultation. She said she had suggested this take place a month later so she could think about the implications to her of the diagnosis. That view is, in substance, reading between the lines, consistent in the terms of the letter Professor Fagan wrote to the plaintiff's general practitioner on 6 March 2009, when he wrote "Could we reassess the situation here next month this in mind": Exhibit "3", p 386, para 2.
Were the position to have been otherwise, on 6 March 2009, Professor Fagan would most probably have arranged to have the plaintiff's name placed on the St Vincent's Hospital waiting list for neuro-otologic surgery in the manner that was subsequently arranged by Dr Biggs at the consultation, which took place in Moree one month later.
Once Professor Fagan had determined that in his view the plaintiff was a possible candidate for surgery to remove the neuroma, and because she had been referred to the otology team at St Vincent's Hospital for advice, treatment and management, the type of the operation she was going to be offered by the St Vincent's otology team became crystallised, namely the trans-labyrinthine approach to removal of the neuroma.
The association between the Pius X Clinic and the St Vincent's Hospital otology team meant that once the plaintiff accepted the surgical treatment option, the choice of operation she would be offered became limited by that referral.
This was because the otology team at that hospital preferred the trans-labyrinthine approach to acoustic neuroma removal as distinct from the retro-sigmoid or the middle fossa approaches practised in other surgical units, such as for example, at the Prince of Wales Hospital, or other tertiary treatment centres.
The perspective differences in the benefits and relative disadvantages of the various surgical approaches and the rationale for each of those different approaches, was variously explained in the evidence of Professor Fagan, Professor Havas and Dr Stenning.
In essence, the longstanding surgical approach adopted by the otology unit at St Vincent's Hospital was the trans-labyrinthine approach introduced in Australia by Professor Fagan. That approach involved necessarily sacrificing any residual hearing of the side being operated upon by removing part of the internal ear structures, including sacrificing the auditory nerve. That approach also posed a risk of injury to the nearby facial nerve by reason of its close proximity to the auditory nerve. This fact made it important that the significance of this be adequately explained to the plaintiff by way of information, advice and warnings. This is so particularly if the choice was between a translabyrinthine surgical removal of the neuroma or a "wait and watch" approach. Whether injury to the facial nerve was an inherent risk of the surgery within the meaning of s 5I of the CL Act, is a question requiring separate determination, which will be the subject of the consideration of Issue 12.
The alternative surgical approach practised at the Prince of Wales Hospital, as explained by Professor Harris and Dr Stenning, involved the retro-sigmoid surgical approach. The rationale behind that approach was the aim of seeking to preserve any residual neurological function of hearing in the affected ear. The further alternative of the middle fossa surgical approach was not explored in detail: T414.4.
However, based on the above consideration, I find that in this case there was no basis upon which it could be reasonably argued or found that the exercise of reasonable skill and care in the giving of pre-operative advice required that one of those surgical approaches was to be preferred over the other, especially where the plaintiff's hearing in her right ear had already been tested and found to have been significantly impaired.
In my view, for the above reasons, the St Vincent's Hospital otology team should not be found to have been in breach of a duty of care owed to the plaintiff in respect of the recommendation to the plaintiff for the trans-labyrinthine approach to the removal of her acoustic neuroma. This is because on the evidence, it is plain that it was an approach that rationally accorded with contemporary peer professional practise in Australia: s 5O of the CL Act.
Accordingly, on the evidence addressed in this case, I find that there is no sound basis upon which to conclude in this case, that the particular surgical treatment offered to the plaintiff by Professor Fagan, and which was also later recommended to her by Dr Biggs, and then performed on the plaintiff by Dr Biggs and the other members of the surgical team at the St Vincent's Hospital without the offer of an alternative surgical approach, could reasonably support a finding of breach of the duty of care owed to the plaintiff by the defendants.
I find that the operation in general, and the type of operation in particular, was properly recommended to the plaintiff as being within the array of appropriate surgical options for her to consider in the described circumstances, including the option of a wait and watch approach. The plaintiff's level of understanding of these matters, and why she opted for the surgical option, involves entirely different questions.
These findings lead to an examination of the issue of the nature of the plaintiff's consent to surgery, and whether the plaintiff was given sufficient information, advice and warnings material to the decision of a reasonable person in her position for the purposes of deciding whether or not to undergo the recommended surgery.
In that context, the question of whether the plaintiff should have been encouraged to proceed along the pathway of conservative management rather than surgical treatment is a matter that requires a consideration of the matters discussed and understood in the course of obtaining the plaintiff's consent to the subject surgery: Issue 9.

[46]

Consultation with Professor Fagan at Moree on 6 March 2009

Whilst it was unfortunate that the plaintiff's prior request of the Pius X Clinic reception staff that a Macedonian interpreter be available for the consultation with Professor Fagan was not acted upon, that matter is not a head of negligence, nor is it a criticism of Professor Fagan.
In the circumstances that presented themselves to Professor Fagan at the consultation on 6 March 2009, it seems unlikely that Professor Fagan could have effectively resolved that problem without postponing the consultation once the communication problem had been recognised by him.
There is no suggestion that he was at all involved in the administrative functions of the Pius X Clinic. However, it appears that once he had realised the communication difficulty, he proceeded with the consultation as best he could in the circumstances, and with the limited assistance of Mr Madjistorov as an intermediary.
However, the discussions between Professor Fagan and the plaintiff on 6 March 2009 give rise to the controversy in these proceedings concerning the issue of consent to surgery, because, as was contended by the defendants, those discussions were the starting point of the consent process.
In my view, for the reasons that follow, the consultation discussions between the plaintiff and Professor Fagan at Moree on 6 March 2009 could not be properly described as a process that involved standard, mechanical or routine tasks: Elayoubi v Zipser, at [86].
The agenda of that consultation included the need to review the plaintiff's history and presenting problems in light of the investigations that had already been undertaken in order to achieve a clinical diagnosis, to identify a management plan for her acoustic neuroma, to discuss this with the plaintiff, and to report back to the referring doctor.
Whilst those objectives might have been considered by Professor Fagan to have involved relatively routine tasks within his undoubted experience and expertise, it nevertheless also necessarily involved ebb and flow discussions that were facilitated through an unskilled intermediary who was interpreting the doctor patient exchanges with an unknowable degree of insight and accuracy. On the evidence of the plaintiff, which I accept, I consider that it would be unsafe to assume that the discussions she had with Professor Fagan on that day were being interpreted accurately. This was not a standard or routine situation.
The exchanges that took place between Professor Fagan and the plaintiff on that day concerned matters of important health information that carried the very real potential for patient misunderstanding and misperception regarding the true nature of the plaintiff's diagnosis and the related treatment recommendations.
I accept that Professor Fagan had told Mr Madjistorov to tell the plaintiff, that she had a non-malignant tumour near her brain, which could be removed by surgery. Whichever way that information may have been interpreted to the plaintiff by Mr Madjistorov, I also accept that the plaintiff had heard and had understood from the discussion with Mr Madjistorov that she was being told that she had a tumour in her brain, which was "very bad", and which required surgical excision: T18.30.
In that regard, I find that in the consultation with Professor Fagan, a fundamental misunderstanding had arisen on the part of the plaintiff. I find that what then followed was the plaintiff's emotional response to that misperceived information. She described her reaction as feeling scared, devastated, very upset, shaking, crying and trembling: T48.43; T56.41; T57.6 - T57.8; T57.38 - T57.39; T57.43 - T57.44; T57.49; T80.23. I consider that it would have been most unlikely for Professor Fagan, as an experienced clinician, not to have observed that reaction, although he made no note of it.
The plaintiff also said, and I accept, that she had understood from Mr Madjistorov's interpretation of what Professor Fagan had said in the consultation, that there was a 1 in 1000 risk of death from the subject operation, but that Professor Fagan had not experienced such a complication in his practise. Given the plaintiff's description of Mr Madjistorov's limited English language abilities, it is not glaringly improbable that such a misunderstanding could have occurred.
The scope for patient misunderstanding on such matters of detail when discussed in consultations of the kind under present consideration is a well recognised phenomenon in specialist medical practice involving this subject matter: T207.9 - T207.15; T307.39; T537.5 - T537.10. The plaintiff's reaction was consistent with that experience. Although a concluded view on the point cannot be formed, it is possible the plaintiff's reference to a 1 in 1000 risk could have been a confused reference to the possible mention of a number of that kind being the lifetime chance of incurring an acoustic neuroma, as was later described by Dr Biggs in his evidence. It is possible that Professor Fagan could have related a similar figure.
I accept that if Professor Fagan had reason to believe (in a non-urgent case, as was the case here) the plaintiff had not properly understood what he had been saying to her, or if he had considered that the interpreting arrangements were not satisfactory, he would have terminated the consultation and taken a different course: T211.6.
However, on the evidence, and without evidence of the detail of him having pursued a process of question and answer with the plaintiff along the lines explained by Dr Stenning (T496.8 - T497.32), it is difficult to see how he could have satisfied himself that the plaintiff had accurately understood what he had been telling her regarding such important aspects of her health and well-being.
Professor Fagan's general evidence to the effect that he considered that he could "get a very good feel" for patient understanding of discussions through interpreters from whether there was a need for him to "go back over ground already covered" (T210.30 - T210.50) is not probative of whether he in fact had such a "feel" for the standard of Mr Madjistorov's interpretation that prevailed on this particular occasion. The consultation was not a standard routine or mechanical process. There were subjective factors at play, including interpretation issues.
There is no contemporaneous evidence of any process of communication feedback that would have suggested to Professor Fagan that he could have been satisfied the plaintiff had properly understood the relevant details of discussions on material matters concerning the risk of the contemplated surgery, including the risk of injury to the facial nerve, and the deleterious consequences of such an injury.
I do not take the absence of a note by Professor Fagan to the effect that there were language difficulties evident at the consultation to be indicative that there were no such difficulties. The evidence of the plaintiff, which I accept, indicates otherwise.
The conclusion contended for by the defendants was that at the 6 March 2009 consultation, Professor Fagan had satisfactorily engaged with the plaintiff to the point where a state of mutual understanding had been reached on the matters discussed.
Without intending any criticism of Professor Fagan, absent any specific recollections on his part concerning the ebb and flow of the consultation in question, I do not consider that the content of his notes, his explanatory evidence based on those notes, and what he described as being his usual professional practice, fairly enables the contended conclusion sought on behalf of the defendants. I consider this to be particularly so on the subject of the potential risk of intra-operative injury to the facial nerve during surgery for the removal of an acoustic neuroma.
I am reinforced in that view by reference to the significant omission from Professor Fagan's notes of any reference to a discussion of the acknowledged risk of the major potential complication of facial nerve injury. Professor Fagan accepts that this omission was a departure from his stated invariable usual professional practice to record such matters: T222.16; T207.1.
I am further reinforced in that view by Professor Fagan's acknowledgment that although his notes had stated that all complications of neuroma removal surgery had been discussed with the plaintiff, this should be interpreted to refer to the main or major complications. Consequently, this must mean that not all complications were discussed.
This raises the question of whether Professor Fagan had actually broached with the plaintiff the subject of the risk of injury to the facial nerve as he thought he would have done in the course of his usual professional practice.
Relevant to the evaluation of that question is the evidence of Professor Fagan to the effect that, where he thought it appropriate, he would adopt a filtering approach to discussions with patients about the risks of treatment.
This suggests that within Professor Fagan's usual professional practice there was some scope for significant departures from the described usual professional practice: Elayoubi v Zipser, at [86]. This conclusion arises in view of Professor Fagan's evidence that some patients "are not really wanting to hear more" after having heard the major complications such as stroke, death, living in a vegetative state, and facial nerve paralysis: T216.10.
The omission in Professor Fagan's notes of any mention of the major complication of facial nerve injury highlights the need for caution to be exercised in drawing positive inferences concerning absent information in such notes.
This is especially so where the positive inference sought to be drawn by the defendants is a finding that the subject of facial nerve paralysis was discussed with the plaintiff. That submission is founded upon an absence of relevant recollections on the part of Professor Fagan, and an assumption that he had adhered to usual professional practice.
In my assessment, because of the very real scope for departure from the identified usual professional practice, and the fact that the process in which Professor Fagan was engaged was not one that could be properly characterised as being standard, routine or mechanical in nature, taken together with the fact that no note was made by Professor Fagan concerning facial nerve issues, suggests that his usual professional practice was not followed in this instance.
In those circumstances, I therefore decline to draw the inference as sought by the defendants to the effect that Professor Fagan had followed his usual professional practice in his consultation with the plaintiff and discussed facial nerve issues with the plaintiff at that time: Elayoubi v Zipser, at [86].
I am reinforced in that view because Professor Fagan had characterised the plaintiff's acoustic neuroma as being small in size. In such circumstances his professional philosophy was to discourage the patient from undertaking surgery: T215.47. He said that in cases of small tumours, it was his practice to gloss over complications of surgery where surgery was to be avoided: T218.46.
In that regard, his practice was not to frighten an already frightened patient with things that were unlikely to happen: T218.23 - T218.46. His letter to the referring general practitioner was consistent with that course: Exhibit "3", p 386.
At that time, the plaintiff had not yet agreed to have the surgery. She was not being asked to give her consent at that time. She wanted time to think it over before giving her consent, and the chronology of events supports that view, especially the fact of her attendance at the clinic by appointment to see Dr Biggs one month later.
Having considered the constellation of evidence and the circumstances surrounding the 6 March 2009 consultation, notwithstanding that Professor Fagan considered it was not possible for him to have failed to discuss the possible complication of facial nerve injury (T223.17 - T223.19), absent his specific recollection of that matter, and absent the existence of a specific note to that effect, and given that a decision on the plaintiff's need for surgery was not imminent, I am not persuaded that Professor Fagan had in fact discussed facial nerve complications with the plaintiff in that consultation, as he has assumed.
In that regard, in my assessment, the agenda and the likely course of the consultation with Professor Fagan on 6 March 2009, including the involvement of Mr Madjistorov as the interpreting intermediary, was far removed from a standard or routine mechanical task which would reasonably permit the reliance on a description of usual professional practice to resolve the controversy on this issue: Elayoubi v Zipser, at [86].
Should I be wrong in that conclusion, this still leaves open the question of what the plaintiff had actually understood of Professor Fagan's diagnosis, it's implications, and his suggested management plan, as conveyed to the plaintiff by Mr Madjistorov, given the unsatisfactory interpreting arrangements.
I have accepted the evidence of the plaintiff that she believed Professor Fagan had told her, through Mr Madjistorov, that she had a tumour in her brain.
On the state of the evidence, and having regard to the language and translation difficulties that existed at the 6 March 2009 consultation, I am not persuaded that Professor Fagan had taken the plaintiff through a series of questions and answers that would have reliably led him to conclude he could be satisfied the plaintiff had understood whatever it was he had sought to tell her, particularly on matters of risks to the facial nerve from neuroma removal surgery.
In coming to that conclusion, I have not overlooked Professor Fagan's evidence to the effect that he considered he would have been satisfied of those matters: T230.14.
However, given the prevailing language difficulties, on the state of the evidence, it is difficult to understand how Professor Fagan could have assessed or tested and been satisfied of the plaintiff's comprehension on the matters discussed, other than by asking Mr Madjistorov to obtain and provide feedback from the plaintiff on the content of the discussion. He had no note or recollection of this having occurred.
In coming to that view, I have also not overlooked the evidence of Professor Fagan at T231.16, where he said, in the absence of an actual recollection, reading "between the lines" of his notes, that the proficiency of the interpreter was acceptable. In the case of an important issue such as the one at stake here, I consider it to be inappropriate for such matters to be determined on the basis of an intuitive statement of that kind where doubt otherwise arises based on credible contrary evidence.
On 6 March 2009, whatever understanding the plaintiff took from the consultation with Professor Fagan at the Pius X Clinic in Moree, it is plain that at that time, Professor Fagan was not recommending surgery in the immediate future for removal of her acoustic neuroma.
I therefore consider that the consultation on 6 March 2009 was not an occasion on which definitive discussions on risks as opposed to the benefits of surgery were discussed to the point where the plaintiff's definitive consent to surgery would be obtained. In support of that view, Professor Fagan said he was not seeking an immediate answer to the question of whether surgery was warranted: T215.35 - T215.40.
Instead, he said that it was the "first step in the process" of obtaining the plaintiff's consent to surgical treatment. Further steps were necessarily required to be followed before the plaintiff could reasonably be taken to have been appropriately informed of matters material to her decision on whether or not to undertake the risks of the contemplated procedure: T231.3.
This is also evident from Professor Fagan's evidence, and from his letter dated 6 March 2009 that was addressed to the referring general practitioner. It is clear that at that time, Professor Fagan did not consider that the plaintiff was an immediate candidate for surgery.
Nevertheless, for whatever reason, and very likely due to a misunderstood communication through an unskilled interpreter, the plaintiff had become fixated upon the notion that she had a tumour in her brain. The significance of that misunderstanding is that she left Professor Fagan's consultation with that misunderstanding about the nature of her condition remaining embedded in her thinking.
This was because of language difficulties, by which the communications were sub-optimal, incomplete, and less amenable to exploration by feedback discussions aimed at ascertaining the extent of the plaintiff's understanding of what was being discussed.
The result was the plaintiff had misunderstood the initial diagnostic information that Professor Fagan had sought to provide to her through Mr Madjistorov. In fact, she did not have a brain tumour. Notwithstanding Professor Fagan's advice along those lines, unfortunately the plaintiff had gained, and had then retained, the opposite impression from Mr Madjistorov as the intermediary in the discussions.
The above analysis forms the baseline for the analysis of the subsequent clinical contacts the plaintiff had with Dr Biggs and with other medical staff at the second defendant's hospital.
Inherent in that baseline are the objective facts that Professor Fagan was not the intended operating surgeon and he was not definitively recommending an operation to the plaintiff at that time he saw her on 6 March 2009: Exhibit "3", p 386.
In that regard, Professor Fagan believed that it was the responsibility of the operating surgeon to explain to the patient the risks associated with the procedure at the time of obtaining the patient's consent to the proposed procedure: T230.30. That proposition seems inherently correct, and it was not contradicted by any other evidence. Dr Biggs also confirmed the correctness of that statement: T379.35.
In my view, it follows that whatever Professor Fagan had sought to tell the plaintiff on 6 March 2009 in the form of information as to risks of the surgery, unless Dr Biggs had specifically checked with him as to what had been said, and had obtained some reasonable confirmation that the plaintiff had understood and acknowledged what had been said, it would have been unsound for Dr Biggs to have assumed that Professor Fagan had "consented" the plaintiff for the proposed surgery.

[47]

Consultation with Dr Biggs at Moree on 3 April 2009

On 3 April 2009, Dr Biggs saw the plaintiff at the Pius X Clinic for an arranged appointment to follow the consultation with Professor Fagan. I find that at that time she still held the incorrect belief that she had a tumour in her brain that required removal.
In the intervening month that followed the consultation with Professor Fagan, the plaintiff had given the matter of tumour removal some thought and had decided she would have the operation. That decision was based upon the plaintiff's continued but mistaken belief that she had a tumour in her brain.
It was in those circumstances that when the plaintiff first met Dr Biggs, at the outset, she indicated to him that she wanted to have the subject operation, which she had understood to have been recommended by Professor Fagan: T109.5 - T109.10.
There is no evidence to suggest that when the plaintiff saw Dr Biggs a month after her consultation with Professor Fagan that her belief that she had a tumour in her brain was, at any time, pointed out to her as being incorrect.
At the time of Dr Biggs' consultation with the plaintiff on 3 April 2009, there were similar language difficulties, as earlier described in respect of the 6 March 2009 consultation with Professor Fagan where Mr Madjistorov acted as the intermediary.
Dr Biggs is unable to assist with an evaluation of whether, by the process of question and answer during clinical consultation, he had ascertained that the plaintiff held the erroneous belief that she had a tumour in her brain, and as to whether, if so, he attempted to assure her that her understanding in that regard, however acquired, was incorrect. In that regard, Dr Biggs is not able to provide factual evidence to displace the plaintiff's evidence, or render the plaintiff's evidence unreliable.
At the time of his consultation with the plaintiff on 3 April 2009, Dr Biggs had access to Professor Fagan's notes and correspondence that was kept in the Pius X clinic file relating to the plaintiff: T318.13; T318.26. In those circumstances, and in the interests of clinical efficiency, I consider it was highly probable that Dr Biggs would have accessed those notes, and in the circumstances of his consultation with the plaintiff, he would have recognised the following matters: 1. The plaintiff had stated, through Mr Madjistorov, that she wanted to have an operation of the kind previously identified by his senior colleague Professor Fagan, whose judgment he trusted; 2. The plaintiff's patient file would have revealed the report of Dr Janke dated 8 December 2009, which identified the plaintiff's MRI scan diagnosis of an acoustic neuroma which would have provided the basis for recommending such an operation; 3. The appearance and content of Professor Fagan's notes would have given the trained reader the impression that there already had been a fulsome discussion between Professor Fagan and the plaintiff about the contemplated operation. In that regard, it is noteworthy that Professor Fagan's note indicated to Dr Stenning that he had adopted a style of discussion with the plaintiff that was familiar to him: T498.7; 4. Professor Fagan's note stating that all complications had been discussed with the plaintiff, would most probably have given Dr Biggs the impression that the plaintiff had already been provided with a comprehensive discussion about risks of the contemplated procedure. Nevertheless, as the intended operating surgeon, Dr Biggs would also have understood that it was his own specific responsibility to give the plaintiff appropriate information, advice and warnings as to the risk of a facial nerve injury occurring in the operation: T379.35. As the intended operating surgeon, this was not something he could have reasonably assumed had already been definitively undertaken by Professor Fagan; 5. Dr Biggs would have encountered the same language and interpretation issues as had Professor Fagan before him with Mr Madjistorov acting as the intermediary; 6. Without asking the plaintiff specific questions and obtaining responsive answers, including by way of feedback, Dr Biggs had no way of reliably ascertaining the level of the plaintiff's understanding of the indications for and the nature of the operation she said she had agreed to undertake, let alone the risks of an adverse outcome that might follow such an operation.
After speaking with the plaintiff, with the intervention of limited linguistic assistance of Mr Madjistorov, Dr Biggs would very likely have carried out some kind of assessment of the plaintiff, considered the implications of the investigations that had already been carried out on her to that point, and determined that the plaintiff was a suitable candidate for surgery for neuroma removal. This much is evident from the fact that on this occasion he arranged for her admission to St Vincent's Hospital.
According to the expert evidence, which for present purposes includes the evidence of Professor Fagan and Dr Biggs, surgical removal of a small acoustic neuroma was not the only management option to be considered in the plaintiff's circumstances. A wait and see conservative management approach was also a reasonable option, subject to the plaintiff's feelings about the significance of her balance problems, which in a suitable case, may be a factor pointing more to the indication for surgical removal of the neuroma: Exhibit "3", p 386.
An analysis of the clinical actions and reasoning processes that Dr Biggs adopted during his consultation with the plaintiff on 3 April 2009 is necessarily hindered by the absence of his notes of that occasion, together with the absence of the photocopies he took of those notes, and the absence of the reporting letter that he would ordinarily have written to the plaintiff's referring doctor following such a consultation.
An evaluation of the evidence of the plaintiff and that of Dr Biggs on the probable events of 3 April 2009 must canvass the reliability of their respective recollections of those events in order to determine which aspects of those respective accounts is on the balance of probabilities more likely to be correct, and to what extent.
Without his notes or correspondence, Dr Biggs was able to draw on only very little material in order to assist him to explain the events of that consultation. He necessarily had to rely on his limited recollections, and on what he described as being his usual professional practice. He also said that he would have adhered to his usual professional practice when he consulted with the plaintiff: T315.47; T315.50. That evidence was necessarily based on his assumption to that effect.
Dr Biggs' evidence as to his usual professional practice has already been identified at paragraphs [266] - [271] above.
The evidence of Dr Biggs' specific recollections of the consultation with the plaintiff on 3 April 2009 (T304.32) can be identified as being limited to the following matters: 1. he recalled the consultation was later in the afternoon: T304.8; 2. he recalled the plaintiff's English was not good, and she was being assisted by a man who was helping her with communication: T304.14; 3. he recalled the plaintiff was quite anxious about the whole process of diagnosis and treatment (T304.25) just as many patients in that situation are worried about the possibility of having cancer: T368.8; 4. he recalled he took some time to deal with the whole process of diagnosis and treatment: T304.23; T308.18; 5. he could not quantify the time taken for the consultation, but stated that it was a longer time than that which would be normal for a new patient, which usually took up to half an hour: T308.24; 6. he recommended surgery to the plaintiff because her balance problems were quite a significant issue for her: T305.15.; T307.16 - T307.24; T316.40.
A question that arises from Dr Biggs' evidence is the extent to which the elements of the account identified in the preceding paragraph are likely to be based on an actual recollection of the events, as opposed to having been based on a reconstructed account. I shall shortly return to this question after identifying the plaintiff's contrasting account of these events.
In his evidence, Dr Biggs then outlined what he believed he had discussed with the plaintiff in clinical consultation, according to his usual practice. In outlining those matters he stated that he could not think of any clinical grounds upon which he might have departed from his usual clinical practice in those circumstances: T311.15 - T313.43; T316.9. That evidence does not exclude the possibility of a relevant departure or omission to act according to his usual practice.
Dr Biggs stated he did not have very many patients for whom English was not their first language: T364.2. He said he has tried to recall the facts associated with this case and has been unable to recall details. This must be seen in the context where he sees "many, many patients and in all manner of times" and he cannot recall every exact detail: T369.43. He fairly acknowledged it was possible, that in the absence of his records, he had reconstructed his recollection: T369.45 - T370.1.
In contrast to the evidence of Dr Biggs, the specific evidence of the plaintiff was that; 1. there was no discussion between herself and Dr Biggs as to: 1. alternative methods of treatment: T21.47; 2. whether she might incur damage to her facial nerve during the operation: T22.16; 3. whether she might lose her sense of smell and taste: T22.18 - T22.24; 4. there was no discussion about a possible need for cosmetic surgery: T22.28; 5. there was no discussion about the possibility of not being able to drink liquids without the aid of a straw after the operation: T22.32. 1. she estimated the duration of the consultation with Dr Biggs to have taken about 10 minutes: T22.47.
In determining the reliability of the respective versions concerning those events I have had regard to the situations and vantage points of the respective parties at the relevant time.
The plaintiff was undoubtedly anxious when she saw Dr Biggs for the first time. This is was to be expected as she had been considering the implications of what she believed Professor Fagan had told her, and she thought mistakenly that she had a tumour in her brain that required removal. In my view, after her consultation with Professor Fagan, it was understandable the plaintiff would feel that way, albeit on the mistaken belief she had a tumour in her brain. It was also therefore unsurprising she had decided that she wanted to have her tumour removed, given her family history, and her desire to see her grandchildren: T109.39-40
I consider that the aggregated effect of the plaintiff's thought processes involved in those events meant that the diagnosis as was communicated to her, or as she was given to understand it, represented a sentinel and memorable event in her life's experiences. In those circumstances I consider that provided her with very good reason to reliably recall her perception of those events because of the upsetting impression and effect the events had upon her.
To the extent that any inaccuracy of perception of what Professor Fagan had told the plaintiff through Mr Madjistorov may also have been due to her own emotional reaction rather than interpretation issues, it is relevant to also note that Dr Biggs acknowledged that patients in this category would remember such a consultation because of the circumstances, although they may not take away from the consultation every last skerrick of information: T368.46.
In considering the position of Dr Biggs, it is relevant to note that since 2001, he has treated over 400 patients who had presented with acoustic neuromas. In that context, understandably, he had only limited recollection of the pre-operative consultations with the plaintiff, and the many other consultations he has had with other patients presenting with similar problems. As a result, I consider that it is less likely that Dr Biggs would be able to recall as accurately as did the plaintiff, the salient features of the consultations that took place between them.
In reaching that conclusion I have not overlooked the fact that Dr Biggs was a scientifically trained and experienced observer of relevant details in the clinical setting. That said, given that he saw so many patients with similar presenting problems, I consider that without his notes to assist him to more accurately distinguish between patients, and to accurately reconstruct his recollection of relevant past clinical events, the accuracy of his recollection must be seen to be in doubt. On the balance of probabilities, it seems to me to be more probable that the plaintiff's recollection of the events in question, based on her more singular sentinel experience associated with the diagnosis she believed Professor Fagan had given her, and the reactive concern this provoked within her thinking, would be more accurate and correct in her recollection than was Dr Biggs' reconstructed account.
Returning then to the plaintiff's incorrect understanding of the nature of her tumour, I consider that the reason the plaintiff's perception of the nature of her tumour was wrong was materially contributed to because of the unsatisfactory arrangements for interpreting the conversations between herself and Dr Biggs, which compounded the earlier communication difficulties on 6 March 2009. In that sense, these circumstances were a replication of the same underlying language difficulty and interpretation problems that she had experienced in the earlier consultation with Professor Fagan.
Turning then to the matters of controversy between Dr Biggs and the plaintiff concerning the 3 April 2009 consultation, according to the evidence of the plaintiff, these are: 1. Whether Dr Biggs had told her that after surgery she may look as if she had a stroke, with the appearance of a drooping mouth and dribbling saliva, and that there may be bleeding near the brain: T145. 2. Whether Dr Biggs had in fact told her nothing whatsoever about the surgery: T120.45; 3. Whether it was incorrect to say that Dr Biggs had discussed the risks of surgery with her: T120.49; 4. Whether it was incorrect to say that Dr Biggs had told the plaintiff that because she had balance problems, surgery was the better option for her: T144.35 5. Whether it was incorrect to say that Dr Biggs had recommended surgery to the plaintiff: T144.39; 6. Whether Dr Biggs had told her there was a risk of injury to the facial nerve because it was near the tumour: T145.5. 7. Whether there was no discussion by Dr Biggs about alternative treatment methods: T21.48
All of these matters are also affected by the unsatisfactory interpreting arrangements that prevailed at the plaintiff's consultation with Dr Biggs.
At the conclusion of the consultation on 3 April 2009, Dr Biggs had clearly decided that as neuroma removal surgery was medically justified in the plaintiff's circumstances, he then set about arranging the placement of the plaintiff's name on the surgical waiting list for neuroma removal surgery at St Vincent's Hospital: T21.37; T117.45. This does not mean that the consent process had been completed at that time.
The plaintiff left the consultation with Dr Biggs being in no doubt that she needed to have the subject operation as she had no reason to think differently about her tumour following the consultation with Dr Biggs compared to when she left the earlier consultation with Professor Fagan: T118.25; T120.24; T120.30. Consistent with that expectation, she then acted on the subsequent request to attend the St Vincent's Hospital pre-admission clinic. Dr Biggs' evidence was that consent is attended to at the pre-admission clinic: T320.14.
This leaves open the question of the plaintiff's state of information and understanding as at 3 April 2009 of her condition, her understanding of her treatment options, and the risks of the subject surgery. This requires a consideration of the matters identified in paragraphs [643], [647] and [655] above.
In considering those matters it is plain that, just as was the case with the consultation with Professor Fagan a month earlier, the consultation between Dr Biggs and the plaintiff was far from what might be properly described as a routine mechanical process: Zipser v Elayoubi, at [86].
This was because the same challenging language and interpreting issues existed, the plaintiff had identified her understanding of there having already been a recommendation for surgery, and because at the outset of the consultation, she was indicating her acceptance of a previous suggestion for surgery. There were many unstated assumptions implicit in that presentation which indicated that the ensuing consultation would not be routine in nature. Because of the plaintiff's presentation in which at the outset she stated she wanted the operation, the consultation had not taken a standard or routine course of examination, followed by assessment, discussion and advice leading to a decision. The decision had already been made by the plaintiff, albeit on a flawed basis.
If Dr Biggs had explored the plaintiff's understanding and acceptance of the need for surgery in her circumstances, this would have been a difficult exercise. Because of the language difficulties, I consider that lingering uncertainties would have been likely to remain as to whether the matters explored and discussed had been properly understood both by Mr Madjistorov and by the plaintiff in the course of such discussions.
In normal circumstances, such discussions would have been facilitated and achieved by using the services of an interpreter trained and skilled in the nuanced communication of health care issues, along the lines identified by Dr Stenning at T494.40 - T496.
Turning then to the matters of controversy arising from the details of the consultation on 3 April 2009, namely: (1) whether there was adequate mutual understanding of matters communicated; (2) the reliability of the respective accounts of the plaintiff and Dr Biggs; (3) whether Dr Biggs had provided a reliable reconstructed account of the events of the consultation; (4) whether Dr Biggs had conducted the consultation in accordance with his usual professional practice such that it could be reliably accepted that his evidence of his usual professional practice was a satisfactory basis upon which to make findings, given his lack of a detailed recollection of the events, also given the absence of his notes and correspondence relating to those events. (1) Communication/understanding difficulties prevailing on 3 April 2009
As to the communication and understanding challenges and difficulties posed by the absence of a qualified and skilled interpreter, I find that on 3 April 2009, Dr Biggs faced similar significant communication challenges as Professor Fagan would have experienced before him, as described at paragraphs [580] - [629] above. I consider that those challenges made it doubtful that the plaintiff had a proper understanding of the true indications for, and the implications of, the surgery for which she was presenting herself when she first saw Dr Biggs.
I have accepted that following her consultation with Professor Fagan the plaintiff retained the misperception, however acquired, that she had a tumour in the brain, requiring removal. I consider that if there had been an opportunity for an accurately interpreted communication on the occasion of the consultation with Dr Biggs, with appropriately asked and answered questions, Dr Biggs would have realised that the plaintiff's desire for surgery was based upon an erroneous belief as to her need for such surgery, and that this desire was based upon an incomplete understanding of the risks of that surgery, especially concerning the risks it posed to her facial nerve.
In those events, Dr Biggs would have realised that despite the content of the notes made by Professor Fagan, the plaintiff was labouring under fundamental misapprehensions as to the nature and implications of her ENT problems. Those matters required detailed exploration and discussion in a consultation where a qualified interpreter, who was skilled in the communication of health care issues, was available to assist with that process. Unfortunately, that facility was not available to Dr Biggs for his consultation with the plaintiff at Moree. As a result, the consultation was an unsatisfactory foundation for informed consent to surgery. (2) Reliability of the respective accounts of the plaintiff and Dr Biggs
The remaining factual matters of controversy outlined in paragraphs [643], [647] and [655] above require reasoned resolution. Those reasons are as follows.
As to the likely time the consultation took place, as identified in sub-paragraph (1) of paragraph [643] above, it is not improbable that the consultation took place in the afternoon. The plaintiff's evidence that she interrupted Dr Biggs because her friend Mr Madjistorov was tired and needed to take food because he was diabetic, does not serve to necessarily contradict Dr Biggs' evidence. This point is therefore not a true issue.
As to the likely length of time taken for the consultation, as identified in sub-paragraphs (4) and (5) of paragraph [643] above, it has to be recognised that the plaintiff had not marked the time taken, and her estimate of about 10 minutes was only an estimate, which I take to mean she had in mind a shorter period of time than that which was implied from the evidence of Dr Biggs, in which he said he took the time to deal with the whole process of diagnosis and treatment, and a recommendation for surgery.
In context, Dr Biggs' account, if accepted, suggests that he had undertaken his usual professional practice in relation to such matters, as has been set out at paragraphs [266] - [269] above.
In my assessment, having due regard to the fact that absent his notes and correspondence, Dr Biggs' evidence necessarily depends and draws upon what was described as his usual professional practice at the time, in the circumstances, given the non-routine and non-mechanical nature of the inter-active ebb and flow communication process that would have been required for him to have followed that course, and on account of the same communication difficulties already analysed, and where Dr Biggs has acknowledged the plaintiff was being assisted because her English was not good, I consider that it is very unlikely that Dr Biggs would have satisfactorily got through such a detailed agenda in his consultation with the plaintiff. On the evidence, I consider that the plaintiff's account of a much shorter consultation was the version that is more probably than not the correct one. This is the more likely consequence of the plaintiff's statement at the outset of the consultation where she indicated to Dr Biggs that she wanted to have the operation mentioned to her by Professor Fagan.
In circumstances where Dr Biggs' notes and correspondence are unavailable as a possible source of contradiction of the plaintiff's account, and since the plaintiff's account is not otherwise improbable, I consider that the plaintiff's account is more likely to be correct compared to Dr Biggs' reconstructed account. (3) Whether Dr Biggs has reliably reconstructed his account of events
In my view, absent his notes and correspondence, for the reasons already outlined, I consider that Dr Biggs has necessarily reconstructed his recounted recollections: T369.45 - T370.1. Insofar as there is a material difference between Dr Biggs' recollections and those of the plaintiff, I prefer the plaintiff's account as being more likely to be accurate and correct.
In coming to that view I have had regard to what has been said in the cited authorities concerning fallible memory, as summarised at paragraph [77] above.
I consider that the significant matters of health the plaintiff understood to be impacting on the plaintiff's thinking at the time she saw Dr Biggs represented a sentinel event in her life which made it highly probable that she would recall such details accurately.
In contrast, Dr Biggs' facility for accurate recall of those events would more probably than not be impaired by the absence of contemporaneous notes and correspondence, together with the fact that he saw many patients presenting for treatment for acoustic neuroma. In my view, this made it very difficult and problematic for him to reliably distinguish his recollection between his respective patients.
In those circumstances, it is understandable that Dr Biggs would have to seek to reconstruct his understanding of the events according to his usual professional practice. The consequential question is whether such a recourse is in this case a reliable means by which to contradict the plaintiff's otherwise credible account of the events.
Having assessed the plaintiff as a credible and reliable witness, I consider that if the contested matters identified at paragraphs [643], [647] and [655] above, had been discussed by Dr Biggs and relayed to the plaintiff by Mr Madjistorov, she would have recalled them as being significant. (4) Reliability of evidence of usual professional practice in the described circumstances
A convenient focal point for the analysis of whether, on 3 April 2009, Dr Biggs had actually followed his usual professional practice for consultations involving discussions with patients with acoustic neuromas, or whether he perhaps modified parts of that practice, or decided not to follow other parts, is to compare an important element of that practice with the plaintiff's evidence.
The plaintiff said that at the consultation on 3 April 2009, Dr Biggs did not discuss with her the alternative non-surgical forms of management for her tumour. I considered that evidence to be plausible on its face, and to have been given in the sincere belief that the evidence was correct.
In contrast, as can be seen from sub-paragraphs (1) and (2) of paragraph [266] concerning Dr Biggs' usual practice, his usual professional practice was to assess the patient for suitability for conservative monitoring which involves a wait and see approach to tumour management.
It can also be seen from sub-paragraph (2)(c) of paragraph [266] above, that another component of Dr Biggs' usual professional practice was to consider and discuss with the patient the option of radiotherapy and surgery if intervention was thought to be required.
The evidence of the plaintiff was that Dr Biggs had not discussed with her either the conservative management treatment option, or the radiotherapy treatment option.
If neither of those options were discussed in a consultation with the plaintiff, according to an agenda aimed at providing the patient with information that was material to a reasonable person in her position determining, with knowledge of the adverse risks of the contemplated treatment, that she would undertake that risk, then this would necessarily mean that usual professional practice had not been followed.
Given Dr Biggs' evidence that he believed that he would have adhered to his usual professional practice, but has no recollection of having done so, and given that he was disadvantaged by the absence of his notes and correspondence which might provide assistance to resolve that uncertainty, this also raises another possibility for consideration.
It is also possible, given the language and communication problems that prevailed at the consultation on 3 April 2009, and having regard to the form and content of Professor Fagan's notes and correspondence, that Dr Biggs may have considered, since the plaintiff qualified as a candidate for surgery on grounds of her reported or recorded symptoms, that the need for surgery was not pressingly urgent, and in the face of the communication difficulties evident at the consultation in Moree, that the process of providing the plaintiff with the required level of information for consent purposes in a manner she would be likely to understand, would be better and more effectively achieved by her attendance at the pre-admission clinic of St Vincent's Hospital.
In identifying that possibility, it must be immediately categorised as speculative and disregarded because there was no evidence for that view other than the obvious language and communication difficulties that existed at the 3 April consultation. Furthermore, the possibility was not canvassed with Dr Biggs in his evidence.
Be that as it may, I am satisfied that just as there were communication difficulties in the plaintiff's consultation with Professor Fagan, similar communication difficulties prevailed at the consultation with Dr Biggs.
In that regard, the plaintiff's ability to communicate in English had not changed in the intervening month, and Mr Madjistorov was again enlisted to assist with communication at the consultation with Dr Biggs, according to his limited ability to do so.
In those circumstances, notwithstanding Dr Biggs' belief that he had adhered to his usual professional practice in his consultation with the plaintiff on 3 April 2009, and as a result of the sub-optimal interpreting arrangements that prevailed at that consultation, the plaintiff still believed she had a tumour in her brain, and that she needed surgery to remove it.
I accept that the plaintiff did not understand that there were alternative treatment options available for her to consider. Whether this was due to the unsatisfactory interpreting arrangements that prevailed at the time, or whether this was because the matter was not discussed, or communicated to the plaintiff, the result was the same.
Apart from Dr Biggs' evidence that it was his belief that he adhered to his usual professional practice at the consultation with the plaintiff on 3 April 2009, there is no objective evidence, which supports that belief. Against that belief is the plaintiff's evidence to the contrary, where that contrary evidence is not otherwise improbable.
The language difficulties that prevailed at the 3 April 2009 consultation with Dr Biggs indicate that the consultation proceeded in a non-standard or non-routine fashion: Elayoubi v Zipser, at [86]. Those difficulties created scope for significant departures from routine professional practice. In those circumstances, I am not satisfied that on this occasion Dr Biggs in fact followed his usual professional practice.
There is no reliable evidence relating to the period between 3 April 2009, and the plaintiff's attendance at the St Vincent's pre-admission clinic on 14 October 2009, that she had any further contact with either Professor Fagan, Dr Biggs or any other medical practitioner who was in a position to provide, or who was duty bound to provide her with information about the risks of the subject operation and material to her consent to undergo that operation. (5) Summarised findings on consent matters in controversy
In light of those findings, I consider that the matters of controversy relating to the consent issue as identified at sub-paragraphs (1) to (7) of paragraph [655] above, should be resolved as follows, using the same sub-paragraph identifiers which appear in that paragraph: 1. It is improbable that Mr Madjistorov told the plaintiff that Dr Biggs had outlined the detail of the complications of a facial nerve injury as there described, namely the possibility of a stroke-like appearance, with a drooping mouth dribbling saliva, with possible bleeding near the brain. If the plaintiff had been given such details, I consider that she would have recalled them as being significant matters for consideration at the time; 2. It is more probable than not that Mr Madjistorov did not pass on to the plaintiff the detail of whatever Dr Biggs had indicated about the details of the surgery. In my view the plaintiff's account is credible and should be accepted. She came to the consultation to indicate her wish to accept the surgical option, and the consultation was relatively short, which indicated considerable scope for departure from usual professional practice: Elayoubi v Zipser, at [86]; 3. Whilst it was possible that Dr Biggs may have discussed some of the risks of surgery with the plaintiff, I find that it is unlikely that Mr Madjistorov had passed such details on to the plaintiff. Were it otherwise, I consider the plaintiff would have recalled such matters as being of significance; 4. Whilst it was possible that Dr Biggs discussed balance problems with the plaintiff, it is uncertain as to whether Mr Madjistorov passed those details on to the plaintiff. I accept the plaintiff's evidence that this matter was not discussed; 5. It is not possible to definitely determine whether Dr Biggs had directly recommended surgery to the plaintiff. However, I accept the plaintiff indicated at the outset she was there to indicate her agreement to have surgery. In those circumstances, with the content of Professor Fagan's notes and correspondence at his disposal, Dr Biggs may have felt that he would not have needed to pursue such a recommendation in detail; 6. [As in (1) above]; 7. In my view, the question of whether any alternative tumour management options had been discussed by Dr Biggs should not be resolved in his favour as Dr Biggs cannot recall such details, he has no documentation to suggest or which tends to suggest that the plaintiff's account is inherently wrong, and in my view, the plaintiff's account is not inherently wrong. I accept the evidence of the plaintiff that the non-surgical option was not identified to her.
The next opportunity for the discussion of consent issues occurred when the plaintiff attended the St Vincent's Hospital pre-admission clinic on 14 October 2009.

[48]

Pre-admission clinic visit on 14 October 2009

It is common ground between the parties that at some stage when the plaintiff attended the second defendant's hospital on 14 October 2009, she signed the hospital consent form entitled Request/Consent for Medical Procedure Treatment: Exhibit "3", pages 69 - 70.
It is also common ground between the parties that portions of that form had been pre-filled with the handwriting by Dr Biggs' secretary. The form was signed and dated by Dr Biggs, and it was signed and dated by the plaintiff. An "INTERPRETER" sticker had been attached, and it was also signed, but not dated, by Mr Romanovski, a, HCIS Macedonian interpreter: Appendix (signatures redacted).
The controversies between the parties concerning the plaintiff's attendance at the St Vincent's Hospital pre-admission clinic and pre-anaesthetic clinic on 14 October 2009, involve the following matters: 1. The particular location of the place where the form was signed by the plaintiff, and the timing of that signature; 2. Whether the form was signed by the plaintiff in the presence of a medical practitioner other than Dr Biggs, and if so, the identity of that medical practitioner; 3. Whether Dr Biggs saw the plaintiff at all for professional purposes on that particular day; 4. Whether the form was signed by Dr Biggs either before or after the plaintiff had signed it; 5. Whether the plaintiff had been provided with a discussion along the lines of that described by Dr Biggs at T320.20 - T327.25, and T371, and set out in analysed detail at paragraphs [266] - [270] above by way of discussion and information as to matters of risk that a reasonable person in the position of the plaintiff would have considered to material to making a decision on whether or not to undergo the subject surgery, namely, whether the plaintiff had been properly "consented".
The consideration of those controversies appears in the paragraphs that follow, under the identified italicised sub-headings that follow the same enumeration as outlined above. (1) Location and timing of the plaintiff's signature on the form
The purpose of the plaintiff's attendance at St Vincent's Hospital on 14 October 2009 was to attend the hospital's pre-admission and pre-anaesthetic clinics for assessment, for the necessary pre-operative checks, tests and for the fulfilment of the hospital's requirements for consent to treatment, as it was thought to be inappropriate for those things to be left to be attended to on the day of admission for surgery: T320.15.
The content of the hospital's combined pre-admission clinics summary form suggests that the plaintiff attended those clinics for a period of 3 hours and 15 minutes between 8.45am and 12 noon on 14 October 2009: Exhibit "3", p 97. The same document contains a ticked box which indicates that whilst the plaintiff was in the pre-admission clinic, the provision on the form for indicating the correctness or the fact of consent for surgery was marked with a tick symbol. This indicated on the face of the document that the hospital's requirements for consent had been completed before the plaintiff had left those clinics at 12 noon. That said, this conclusion sheds no light on the factual details of what may have been discussed in the process of obtaining such consent.
Dr Biggs stated he had a recollection that he came down to the pre-admission clinic on that day and that he had "consented" the plaintiff at that clinic: T320.20 - T320.50. He was unable to indicate a time when this had occurred. If his evidence is to be accepted on this point, then I infer from Exhibit "3", p 97, that this must have occurred at some time before 12 noon. Were it otherwise, the form is unlikely to have been completed in that way.
If he had "consented" the plaintiff at a later time, Dr Biggs' recollection must have been wrong as to where he had "consented" the plaintiff as he claimed. In that event the pre-admission clinic summary form would also have to be wrong in respect of that detail.
It is possible that Dr Biggs may have been referring to the pre-admission clinic and the pre-anaesthetic clinic as a single pre-admission clinic. That possibility was not explored in the evidence. In any event, the record of that clinic indicates that consent had been obtained by 12 noon on that day.
By Dr Biggs' use of the expression that he had "consented her", he explained that was referring to the process of not only signing the consent form, but also ensuring that the plaintiff understood the operation, that the site and side of the operation is properly identified, and that an explanation of the details and the risks of the procedure were provided to the plaintiff: T320.3 - T320.37; T323.25 - T323.38.
I infer from Dr Biggs' evidence as to the nature of those matters, that the degree of doctor patient interaction that was required for this essential formality to be achieved, must have involved the allocation of some dedicated or uninterrupted time, and that the occasion was accompanied by some professional formality, including allowing time for questions or further explanatory clarifications through the interpreter, if that became necessary from the content of the interchanges. This was not a discussion that could be reasonably achieved on the run as it were, or within a few hurried minutes, especially given the need for an interpreter to assist with communication difficulties, and with questions if they arose.
When looking at the consent form itself, the fact that it bears the signature of Dr Biggs, and that it had been pre-filled in parts by Dr Biggs' secretary, implies that either Dr Biggs, or someone on his behalf, may have brought the form to the clinic to be signed by the plaintiff. I consider that whether or not is was Dr Biggs who brought the form to the clinic to be signed is immaterial. On the evidence, either possibility could have occurred. On the evidence adduced, that question cannot be resolved.
Someone brought the form to the clinic. Given the purpose of the plaintiff's visit to the pre-admission clinic, the filling out of that form was in conformity with the nature and purpose of her visit to the clinic, and it was consistent with the evidence of what Dr Biggs expected would have occurred.
The defendants submitted that notwithstanding the stated time on the form, it may have been signed at some time after 12 noon but before the mechanically printed time signature of 14:52:49 hours was applied on 14 October 2009 as appears on the summary form from the combined clinics: Exhibit"3", p 97.
If that submission were to be accepted, this would permit a possibility contended for on behalf of the defendants to the effect that the plaintiff's signature could have been placed on the consent form at any time up to shortly before 14:52:49 hours, and not necessarily in the clinic before the stated 12 noon clinic discharge time.
A necessary consequence of that argument is that the stated 12 noon clinic discharge time in the summary form must therefore be incorrect on its face. No evidence was called by the defendants to suggest that the stated time of 12 noon was incorrect.
When that submission by the defendants is considered on its own, the inference sought by it seems unlikely. This is because the form suggests, reasonably so, the consent was signed before the plaintiff left the clinic at 12noon on that day. It would have been improbable for the plaintiff to have left the clinic with that matter outstanding in view of the notation of the outcome of the visit to the pre-admission clinic as being "Ready to Proceed", which I infer relates to a state of readiness for the anticipated hospital admission for surgery scheduled for 2 November 2009. The very purpose of the plaintiff's attendance at the clinic on that day was to have such formalities completed.
Furthermore, the 14:52:49hrs timed entry on the summary form as relied upon by the defendants refers to the time the data was entered by Marie Walsh RN. The defendants did not call any evidence from Ms Walsh to support their contention as to the possible timing of the plaintiff's signature on the consent form.
In those circumstances, I see no sound reason to reject the timing of 12 noon stated on the pre-admission summary form. I therefore find that the plaintiff signed the hospital consent form whilst she was in the St Vincent's Hospital pre-admission clinic on 14 October 2009 at some time between 8.45am and 12 noon on that day. (2) Whether the consent form was signed by the plaintiff in the presence of a medical practitioner other than Dr Biggs
Dr Biggs disagreed with the proposition that he was not present when the consent form was signed by the plaintiff: T380.20.
The evidence of the plaintiff was that whilst she was at the pre-admission clinic on 14 October 2009, a doctor other than Dr Biggs had given her the consent form to sign: T25.41. Given that the summary form at page 97 of Exhibit "3" suggests that there were two clinics combined, I consider it reasonable to assume the plaintiff was referring to her entire visit involving both clinics on that day, her attendance at both clinics having concluded at 12 noon.
In contrast, Dr Biggs said that when he "ducked down" (T320.46) to the pre-admission clinic and "consented" the plaintiff (T320.21), a matter denied by the plaintiff. He said he would have been with a resident or a registrar who would have been taking notes at the time: T323.10.
In resolving the controversy between on the one hand, the plaintiff's oral evidence to the effect that Dr Biggs was not present when she signed the consent form, and that she had not been seen by Dr Biggs in the pre-admission clinic, and the contrary evidence of Dr Biggs on the other hand, which was based on his recollection and on his understanding as to how he would have proceeded according to his usual practice, it is necessary to commence the analysis by looking to the more objective evidence comprising the hospital and related records. Such a recourse raises some difficulties with a time analysis.
I accept the evidence of Dr Biggs to the effect that the process of the pre-admission clinic required that the plaintiff's consent to the surgery be documented. I also accept his evidence that if a resident or a registrar had been present, that person would have taken notes to minute the discussion that led to the completion of the consent process: T323.10. This is an important consideration, as Dr Biggs said he recalled that he "consented" the plaintiff at a time when both the interpreter and the resident were present: T321.4.
Dr Biggs' recollection was that when he "ducked down" to consent the plaintiff, he was with the resident, whom he seems to have identified from the notes as Dr Spalding, and with an interpreter, whom he did not know: T321.1 - T321.24. The signature of the interpreter on the consent form, and the content of the HCIS records, identifies the interpreter on that occasion as being Mr Romanovski.
In my view, a fair reading of the objective records prepared by Dr Spalding at Exhibit "3", pages 98 - 99, does not confirm that Dr Biggs was present either when those notes were made, or on the occasion to which those notes refer. Unhelpfully to this analysis, there is no timing on those notes made by Dr Spalding.
Although the commencement of Dr Spalding's notes at page 98 of Exhibit "3" contains the handwritten words "ADMIT BIGGS", I interpret that entry to mean that the plaintiff was to be admitted to the hospital under the care of Dr Biggs. The notes made by Dr Spalding do not compel the inference that Dr Biggs was present when those notes were being made.
I also infer from the content of Dr Spalding's notes, that at the time he made those notes, the issue of consent was yet to be addressed, and that there were a number of tests to be performed, as already explained. Furthermore, from the content and the context of Dr Spalding's notes, I do not take the entry comprising the word "consent" to mean that it had been discussed in a way that was described in the evidence of Dr Biggs as to his usual practice or the requirement for obtaining consent already referred to. If the contrary position was correct, it would be expected that the fact of such a consent process having taken place would have been documented in the notes.
Other than the fact of the signature of Dr Biggs on the consent form, and a ticked box at Exhibit "3", p 97, there is no documentary evidence of there having been a discussion between the plaintiff and anyone on behalf of the defendants concerning the risks and benefits of the subject surgery. A question that arises is whether the ticked box referred to is a reliable indicator that the required consent process in fact occurred to the extent required in the plaintiff's circumstances. This question is the subject of Issue 10.
In my view, the plaintiff's signature on the consent form, of itself, is inconclusive of the timing surrounding events that led to Dr Biggs appending his signature to the form.
The existence of other hospital records serves to confound that question. Exhibit "B" shows that the plaintiff was seen by a registrar, or registrars, unidentified by name, on two occasions on 14 October 2009. The first occasion was stated to be at 9.00am at the pre-ENT clinic. The second occasion was stated to be at 1pm at the pre-anaesthetic clinic. Each of those appointments was noted as having been of 15 minutes duration, according to Exhibit "B". The reference to there having been a 1.00pm appointment at the pre-admission clinic is inconsistent with the plaintiff having left the pre-admission clinic at 12 noon on 14 October 2009. This suggests that the times noted in Exhibit "B" were prospective appointment times rather than notes of appointments already attended.
When the times in the records comprising Exhibit "B" are compared with the hospital records Exhibit "3", it is evident that there are no corresponding notes or minutes made by a registrar or registrars concerning those appointment times. In that regard, Dr Spalding was identified as a resident medical officer, not a registrar.
The competing possibilities are either that a registrar saw the plaintiff on each of those separate occasions but the registrar failed to make a note of this fact, or that the morning appointment with the registrar was not kept, and that the plaintiff was instead seen by a resident, Dr Spalding, who did not record the time at which his consultation with the plaintiff had taken place.
An examination of the hospital's staffing rosters might have shed some light on these matters so as to identify the registrars concerned, but evidence along those lines was not introduced by either party. The analysis must therefore continue based on the limits of the evidence adduced.
Returning to the consideration of the competing possibilities identified in paragraph [730] above, a further confounding factor is the annotated content of the HCIS booking records comprising Exhibit "5". In respect of the morning appointment for the Macedonian interpreter at 9.00am on 14 October 2009, it is noted that Mr Romanovski did not check in to the hospital until 10.00am on that day. At that time, the plaintiff was most probably undergoing tests that had been ordered by Dr Spalding. In that regard, the records show that blood for testing was recorded as having being taken at 10.02am and this was followed by an audiogram, evidenced by an audiogram report being faxed to an unknown destination at 10.22am on that day.
Those matters suggest that Mr Romanovski's interpreting session scheduled for 9.00am did not take place, and that it was therefore rescheduled as stated in Exhibit "5", for an afternoon session, which was noted to have taken place between 1.00pm and 1.30pm, as is suggested by the entries within Exhibit "5". If that were so, then according to Exhibit "B", this would appear to have been when the plaintiff was scheduled to be at the pre-anaesthetic clinic, as is evident from an entry in Exhibit "B" to that effect. However, this is not borne out by the representation at p 97 of Exhibit "3" to the effect the plaintiff had left both the pre-admission and the pre-anaesthetic clinics by 12 noon on that day. No evidence was called by the defendants to clarify this ambiguity which emerged within the evidence.
I have not overlooked the possibility that the foregoing analysis raises the prospect that the stated completion time of the pre-admission process, including as to when consent had already been obtained, namely 12 noon, may have been inaccurately recorded.
The evidence in support of that proposition is found in the stated need to reschedule the interpreter from the morning session booked for 9.00am to the 1.00pm time slot. This seems to be supported by Dr Spalding's notes, where he incorrectly wrote that the plaintiff's "husband" was the translator, which was consistent with the absence of an interpreter at the morning pre-admission clinic in the morning, and which was before the consent form had been signed by the plaintiff.
However, in my view, without further evidence to clarify the point, I do not consider that to be a sufficiently sound basis for impugning accuracy of the recorded 12 noon completion time for the pre-admission clinic requirements: Exhibit "3", p 97.
That analysis reveals that Dr Biggs' recollection of having "ducked down" and "consented" the plaintiff in the pre-admission clinic on that day, in the presence of the resident, as he has stated, which must have been the morning, or before 12 noon, was an incorrect reconstruction, for reasons that I will shortly identify.
As a result of that finding, a number of further possibilities arise for consideration:

Dr Biggs may have meant to refer to the pre-anaesthetic clinic rather than the pre-admission clinic as the place where he "consented" the plaintiff. However, he did not say so, and Exhibit "3", p 97 refers to both clinics as a combined entity;
Dr Biggs may have been referring to both clinics as a single entity, as is suggested by the form and content of the summary document comprising page 97 of Exhibit "3". However, he did not say that either;
Dr Biggs may have been wrong in respect of his recollection of having "consented" the plaintiff on that day, which raises the possibility of someone else, such as the older doctor to whom the plaintiff referred in her evidence, having procured the plaintiff's signature on the consent form, as she stated in her evidence. If that is so, the presence of the signature of Dr Biggs on the consent form still requires explanation.

In wrestling with these possibilities, I discount as unlikely the first two of those identified possibilities because Dr Biggs said he recalled consenting the plaintiff in the presence of a resident or a registrar, and the interpreter. If that had occurred, I consider that in the hospital setting, on such an important issue, the event would most likely have been minuted in the clinical notes by the resident or registrar who was present, as was stated by Dr Biggs in his evidence. In my view, it is unlikely that such an important event in the pre-admission process would have been left un-minuted or un-documented: T371.30.
That leaves the third identified possibility, which I consider to be more probably than not the most likely explanation as to the circumstances where the consent form was signed by the plaintiff, namely that she first signed the consent form, and that it was later signed by Dr Biggs, but not in her presence.
The plaintiff's evidence, in which described an older doctor being present when she signed the consent form in the presence of the interpreter, was on its face, credible, not inherently improbable, and not contradicted by other evidence except for the contested evidence of Dr Biggs.
I find the evidence of Dr Biggs to the effect that he was present when the plaintiff signed the consent form to be an unreliable reconstruction on this aspect of his testimony because of the absence of any minute or note on the consent issue other than on the form itself, a matter of fact that he would have expected to have been noted: T371.30.
I find that when the plaintiff signed the consent form, it was when it had been proffered to her in the manner she described, by the older doctor present. From that description, I consider it most likely that it was in the pre-anaesthetic clinic, and most likely by someone who was either an anaesthetist or an anaesthetics registrar, as is suggested by the entry in Exhibit "B". This was unlikely to be the resident, Dr Spalding, because for reasons already identified, it is compelling that the interpreter was not present at the time Dr Spalding saw the plaintiff, and the interpreter signed the form. This could have occurred after the interpreter checked in at 10.00am, and before 12 noon. Whichever was the case, I find that Dr Biggs was not present because his attendance was not noted.
In arriving at that conclusion, I have not overlooked the evidence of the plaintiff, in which she said she only saw one doctor at the hospital on 14 October 2009, whereas she clearly saw more than one doctor on that day, namely Dr Spalding and the older doctor to whom she referred as being in the pre-anaesthetic clinic. The defendants' consequential submission concerning that evidence was that the plaintiff's evidence should therefore be seen to be unreliable.
In that regard, although I consider that the plaintiff was to a degree confused in her evidence on that account, possibly because of the context a consideration of the assertion that she had seen Dr Biggs when she denied that this was so, in the context, I do not see this as a fundamental credit or reliability of testimony issue. I consider this to be a peripheral issue, particularly since there is no documented consultation of the plaintiff having seen by Dr Biggs on that day.

[49]

Pre-operative admission on 30 October 2009

As evidence for the proposition that there had been a proper and adequate discussion with the plaintiff, including the provision of information as to risks of the subject operation, and which were material to the plaintiff's consent to that surgery, the defendants placed much reliance on the consultation that took place between the plaintiff and Dr Mukherjee at St Vincent's Hospital on 30 October 2009, and also upon Dr Mukherjee's notes of that consultation.
The controversy on this part of the evidence is the difference between the evidence of the plaintiff, who on the one hand said that she was not given warnings as to the nature of the operation, or told that there were alternatives to the surgery, or advised as to the risks associated with the surgery, including any discussion about the facial nerve (T28.10 - T28.27), and the evidence of Dr Mukherjee, on the other hand, suggesting the contrary. Those matters are reviewed in the paragraphs that will shortly follow.
In my view, that contest is not to be determined by credit factors alone. I consider that the plaintiff and Dr Mukherjee each gave evidence that they sincerely and honestly believed to be true. A question that arises is whether on 30 October 2009, in the 15 minute window of time when Dr Mukherjee utilised the telephone interpreter service, something may have been lost in translation.
The plaintiff's evidence at T27.28 - T28.49 concerning this particular occasion, was as follows: "Q. And did you attend the hospital on 30 October 2009? A. INTERPRETER: Yes. Q. Did you attend someone at the hospital on that date? A. INTERPRETER: Yes. Q. Who was that? A. INTERPRETER: I was there by myself. I reported to the reception. They had a file or a record and they send me to wait for the hearing test where I had to wait. Then I was admitted by one of the doctors, I believe that was an Indian doctor in appearance, a lady. She provided me with an interpreter, a Serbian interpreter over the phone and she asked me whether I know why I'm here present. Q. Yes. What did you say? A. INTERPRETER: For an operation. Q. Did she say anything else? A. INTERPRETER: The question she asked me was, "Do I know which part of my body would have an operation". I said, "On my head". The question, "Why", she asked me, "Why". I replied that I was told that I had a brain tumour. That's - that was it."
Another question relevant to the resolution of what as told to the plaintiff on 30 October 2009, is whether significant aspects of Dr Mukherjee's evidence were based on a reconstruction that was reliable in the evidentiary sense. In that regard, Dr Mukherjee stated she had "some" recollection of the conversation she had with the plaintiff: T194.50.
Dr Mukherjee's evidence (at T195.1 - T195.50) was as follows: "…My - I recall, I recall Sandra because - at the time because of my interest in these cases and these are not very frequent cases. I obviously took an interest in Sandra's case and as coincidence should have it, it was my great disappointment that on the day that I could not be involved in her case during the operation because the operation got delayed and I wasn't available the following Monday. So I actually recall her from that point of view cause I remember being very disappointed that I wasn't there. And I remember her in the pre-admission clinic. But, of course, I don't recall, you know, each and every single detail given. It was so long ago. Q. And by, "detail given", you mean the actual words spoken in the conversation, I take it? A. Yes. To some degree. Q. To be fair to you, I mean it was five years ago, and would it be fair to say that in terms of the content of the discussion, your memory would not go beyond the extent of the notes that you've made? A. I have some visual recollections of her face, of her body language, where she sat. So I suppose in that it wouldn't be fair to - my answer to your question would be, yes, but with some exceptions. Q. So you remember what she looked like and you remember where she sat? A. Yep. And I do remember certain things that she said cause I remember her during the conversation when I asked her - cause I always give a chance for the interpreter to sort of say, "Are there any questions?", and when I asked her that question, I remember her complaining to me about her dizziness and sort of saying, "I'm, I'm really troubled by the dizziness." And that stood out to me and I remember that clearly. But then there are other bits of the, you know, the course that I don't recall exactly. Q. Apart from the dizziness, is there anything that comes to mind that you do recall clearly about the conversation? A. Yeah. I recall that - cause I was consenting her about her - the - you know, the facial nerve monitor and it was - then I said - and gave the phone back to the patient with the interpreter and said, "Do you have any other questions?", and that was the major thing that I remember her complaining about that, "I'm really dizzy and that is quite disabling." Q. When you say, "gave the phone back"-- A. Yep. Q. --what do you mean by that? A. So it's - with the phone interpreter, I have - there's a, there's a phone on my desk and I pick up the phone, I talk to the interpreter and say, "I need to say this, this, this, this.", then I give the receiver to the patient. The patient - the interpreter speaks to the patient and then gives me the receiver back and then tells me what she said. Q. You don't use a loud speaker for that purpose? A. That phone didn't have a speaker facility. "
Dr Mukherjee stated that it was difficult for her to identify what evidence comprised an actual recollection and what was based on her usual practice: T196.42 - T196.45
The timing of the consultation with Dr Mukherjee was broadly in conformity with what Professor Fagan considered to be the 24-48 hour period before surgery as being the appropriate time to take the patient through the most detailed informed consent procedure in order to confirm the patient's consent to treatment: T230.42.
Dr Mukherjee stated that when she saw the plaintiff on 30 October 2009 she recalled providing the plaintiff with her "spiel for every patient with an acoustic" [neuroma]: T196.44. That evidence suggests that there was an element of reconstruction in her evidence. She said that in that "spiel" she had a discussion with the plaintiff concerning the facial nerve and the use of a facial nerve monitor: T196.49. Her note in the records at Exhibit "3", p 101, which is extracted at paragraph [334] above makes mention of the facial nerve.
Dr Mukherjee gave evidence in expansion of her notes and her explanation of the structure and content of her notes at Exhibit "3", pages 100 - 101. Those notes are reviewed at paragraphs [332] - [337] above.
Dr Mukherjee stated that as at October 2009, she had undertaken the consent process in over 10 cases of acoustic neuromas: T241.25. She said she understood that it was her duty to make sure the patient understood what was involved: T241.20. This was notwithstanding that there already was a signed consent form.
Dr Mukherjee said that it was her practice to talk to the patient and make sure the patient knew about the pros and cons of the procedure and to ask questions. She said she did so because she recognised that in the public hospital system, patients were seen by a lot of doctors at various stages, and it was appropriate to have such a discussion because "mistakes can happen" in the process: T197.38.
It appears that only part of Dr Mukherjee's consultation with the plaintiff was with the assistance of an HCIS interpreter on the telephone. That part of the consultation took place in a booked period of 15 minutes where Dr Mukherjee would have been able to speak to the interpreter, Ms Pejoska, by telephone. This involved handing the receiver to the plaintiff, waiting for the plaintiff to hand the receiver back to her, with repetition of that process, until the conversation through the interpreter had concluded. The plaintiff said her consultation with Dr Mukherjee was for 10 - 15 minutes.
The records do not permit a conclusion as to whether the entire 15 minute booking for the interpreter was utilised or whether it was extended, or whether it took less time than the booked 15 minutes. If the interpreter had been called to give evidence, this matter may have been clarified.
Dr Mukherjee's note of the consultation was written-up in retrospect as a point-form summary rather than a contemporaneous running record made as the consultation progressed: T249.10. In evaluating the weight to be given to Dr Mukherjee's notes it is significant that she wrote them up afterwards. In those circumstances, because her notes are untimed, it is difficult to determine when they were written up. It is not known whether or not, for example, Dr Mukherjee had seen other patients in the meantime, which may have provided some scope for confusion of recollection, or incorrect recall of relevant details.
Such things are known to occur in hospital records, as is evident in Exhibit "3", pages 119 and 122, where incorrect patient notes were entered, and then crossed out; Exhibit "3", pages 98, 120 and 123, and where incorrect notations were variously made about the plaintiff's husband. Furthermore, Dr Mukherjee acknowledged (at T197.38) that "at each step in the [public hospital] system … mistakes can happen", although one would try to ensure this would not happen.
In considering the evidence of Dr Mukherjee, it is plain that it was in part based on her recollections of consulting with the plaintiff, and in part based on her usual practice, in the context of having seen hundreds of patients with ENT problems, with tens of those patients having language problems.
Recognising those circumstances, it is natural that, independent of her notes, Dr Mukherjee would not recall the precise details of the plaintiff's consultation: T194.50 - T195.37.
In weighing clinical events that are described, not on the basis of complete recollection, but according to what is believed to have occurred based on considerations of usual professional practice, as has already been observed, it is important to consider the scope within that practice for variations and departures to have occurred: Zipser v Elayoubi, at [86].
In the present case, the untimed note of Dr Mukherjee's 30 October 2009 consultation with the plaintiff, taken together with the fact that it was written up afterwards, and the inability to differentiate which of the described parts was undertaken with the assistance of the interpreter on the telephone, raises doubts about the accuracy of the content when compared with the plaintiff's accounts identified at paragraph [783] above, which indicates the interchange was relatively brief.
For those reasons, I consider that the plaintiff's account should be preferred to Dr Mukherjee's account because I consider Dr Mukherjee's account, including her non-contemporaneous consultation notes, were reconstructions that contained significant scope for inaccuracies and misunderstandings.
A method by which that conclusion could be tested would have been to call evidence from the interpreter. As this was not the case, the analysis had to proceed on the available evidence.
Before completing the analysis of the events of the plaintiff's 30 October 2009 attendance at St Vincent's Hospital, it is necessary to review other aspects of Dr Mukherjee's evidence.
Dr Mukherjee's evidence at T187 - T200 and T240 - T260, including as referred to and as summarised at paragraphs [168] - [178] and [328] - [349] above, reveals some deficiencies relating to the issue of consent.
First, Dr Mukherjee had not noticed the irregularities that were evident in the consent form. These irregularities were that the interpreter's signature was not dated (Exhibit "3", p 69) and that the election the plaintiff was required to make was not completed as to what should happen in the event that she required a blood transfusion: T200.10; Exhibit "3", p 70.
Secondly, in one part of Dr Mukherjee's evidence, her understanding and explanation of the morphology of the plaintiff's acoustic tumour was incorrect. She had incorrectly described the tumour as wrapping around the facial nerve: T253.36. The evidence disclosed that explanation was only applicable to a very large tumour, not the plaintiff's tumour, which was small: T367.37-38, T367.46 (Dr Biggs); T210.6, T218.31 (Professor Fagan).
That incorrect understanding caused me to doubt Dr Mukherjee's understanding of the true nature of the plaintiff's presenting problem. This raises a question as to what was conveyed to the plaintiff as to the nature of the problem for treatment and the risks of such treatment. The relevant part of Dr Mukherjee's evidence which refers to the plaintiff's tumour size described it as being 1.5cm: T189.23. Other unchallenged evidence indicated that the morphology of a small acoustic tumour was that the nerve would wrap around the tumour, and not as Dr Mukherjee described it: T553.19. This also raised a potential inconsistency in her evidence.
Thirdly, Dr Mukherjee did not discuss the availability of alternative treatments to neuroma removal surgery because she thought they were inapplicable to the plaintiff's situation: T242.23; T243.48. She said she did not take that course because she considered that the plaintiff had fulfilled the criteria for surgery due to her dizziness, and because the plaintiff wanted something done about it. In those circumstances, she considered the conservative option of watching and waiting was not an option as, the plaintiff had been waiting for 12 months already: T242.32 - T242.42. Dr Mukherjee thought it was obvious the plaintiff needed surgery, so the non-surgical management discussion was not raised with the plaintiff: T244.14. This must necessarily mean that Dr Mukherjee had made assumptions to the effect that those matters had already been canvassed with the plaintiff.
Dr Mukherjee confirmed that her teaching concerning informed consent was to ensure that the patient understood salient matters concerning the underlying condition: T252.11. This meant that the existence of a signed consent form did not stop her from going through the process herself even if it appeared to have been done already: T252.17; T252.32. She said that on this occasion she did all this through the telephone interpreter: T248.44.
In addressing that controversy, the contest is between the plaintiff's adamant recollection that she was not told she might be left with facial paralysis and its consequences, and the evidence of Dr Mukherjee to the effect that there was such a discussion.
A key question that emerges, is what the plaintiff had understood from the discussion. Absent evidence from the interpreter, this has been left to conjecture. The defendants could have called evidence from the interpreter, Ms Pejoska, to shed light on this question, but did not do so.
Therefore, the consequential question on this topic is whether it is possible, without resorting to unfounded conjecture, to ascribe particular portions of Dr Mukherjee's consent discussions with the plaintiff to the period of 15 minutes when the interpreter was available on the telephone to assist with the communications. This question cannot be reliably resolved by reference to the contemporaneous record because it was written up in retrospect as a composite note of the entire consultation.
Absent any evidence from the interpreter, the analysis must be undertaken in the context of the other available evidence.
Given the plaintiff's language difficulties, and the breadth of the content of the matters covered by Dr Mukherjee's note, it is difficult to see how all of those matters could have been effectively covered in the required detail, including allowing for questions from the plaintiff, in a time slot of 15 minutes, where the interpretation portion involved passing the phone back and forth in the course of the discussion.
Accepting that the HCIS interpreter may have been skilled in communicating medical information in such circumstances, there would have been limitations on the ability to impart that information by telephone compared to a face-to-face discussion. This was alluded to in the evidence of Dr Stenning: T496.48 - T497.5; T539.3 - T539.6.
This is especially so where there would have been nuances in the content of the matters conveyed, and the potential for the plaintiff wanting to ask questions could not be gauged from body language in an interpretation process which was limited to the medium of the telephone.
In the circumstances, absent any evidence from the interpreter, I am left with doubts as to the extent to which the plaintiff understood what Dr Mukherjee had been seeking to impart to her by way of significant and material information as to the risks of the contemplated surgery.
The overview of those events has left me with the impression that the process of the discussion with Dr Mukherjee was disjointed due to the described method of communicating by telephone, in circumstances where there was a lot to discuss in the consent process, which had to be, or had been, compressed into a 15 minute time slot. That impression leads me to the view that absent contrary evidence of the interpreter, the plaintiff's evidence to the effect that she was not provided with the information contended by he defendant should not be rejected out of hand based on Dr Mukherjee's evidence.
Should I be wrong in that conclusion, it is still necessary to consider the implications of the evidence of Dr Mukherjee.
The discussion between the plaintiff and Dr Mukherjee about the surgery was the last occasion on which anyone on behalf of the defendants took the opportunity to discuss the details of the operation with the plaintiff, including any discussion of the risks as opposed to the benefits of the operation.
Looking at the end result of that discussion, contrary to the conclusions I have identified at paragraphs [813] and [814] above, and assuming for the purpose of analysis that the plaintiff had an adequate opportunity to interact with Dr Mukherjee with the assistance of the interpreter on the telephone, and that she had an opportunity to ask questions on matters that might have been significant to her decision to undergo the surgery, it is instructive to look at the content of the most recent pre-operative information, advice and warnings that the plaintiff was left to consider in determining whether she should continue on her pathway towards the surgery, recognising that based on what she was told, she could withdraw her consent at any time: Exhibit "3", p 69.
That information, relevant to the risks of the surgery, was that in the process of peeling the tumour off the facial nerves (sic), there was a danger of damage to the facial nerve, which is often temporary: T196.35. A difficulty that is immediately apparent with that information is the fact that the plaintiff's tumour, which was on the acoustic nerve, was being described as being on the facial nerves, and there was a potential for the nerves to be confused by the expression adopted. How that lack of clarity had been interpreted, if it was interpreted, cannot be resolved on the state of the evidence without evidence from the interpreter.
Quite apart from the potential for confusion described in the preceding paragraph, according to the evidence of Dr Mukherjee, the plaintiff had also been provided with two mixed messages concerning the potential result of an intra-operative facial nerve injury.
The first mixed message was that if the facial nerve became damaged, "It will recover": T196.35. The second mixed message concerned the consequences of permanent damage to the facial nerve. The second mixed message was that "Sometimes it can be permanent in which case we need to repair the nerve": T196.36.
Those two mixed messages, both individually and in combination, were apt to mislead the recipient in that they gave the impression that there would be recovery and the damage could be repaired. Those mixed messages were not truly reflective of the nature and the potential extent of the risk being undertaken by the plaintiff. There was no content conveyed on the possible lasting consequences of an irreparable facial nerve injury, whether as a result of a nerve transection or some lesser form of lasting damage and disability.
In my view, a discussion which required disclosure and understanding of material information relevant to a decision by the plaintiff on whether or not to accept the risk of a facial nerve injury as a risk she was prepared to accept as the downside of seeking the benefits offered by the subject operation, should have included a more clearly expressed rendition of the potential lasting consequences of a possible transection of the facial nerve, whether the occurrence might be due to inadvertence, or otherwise.
I find that Dr Mukherjee's discussion with the plaintiff on 30 October 2009 did not fulfil that requirement. If the discussion was translated as described in Dr Mukherjee's cited evidence, I find that it would have had the likely effect of misleadingly downplaying the risk of a potential post-operative result of damage to the facial nerve. The consequences of that conclusion requires consideration in relation to Issue 10.

[53]

Particulars of negligence as to adequacy of consent

The specifics of the plaintiff's claim on the consent issue found in paragraph 11 of the plaintiff's statement of claim allege that the defendants breached the duty of care owed to the plaintiff regarding information as to the risks associated with the subject surgery in respect of the following particulars: 1. Failed to ensure that any and all advice and consent to undergo the subject surgery was interpreted into the Macedonian language such that the plaintiff could provide informed consent: Sub-paragraph [e] of paragraph 11 of the statement of claim; 2. Failed to ensure that written consent forms were translated into the Macedonian language and explained in Macedonian prior to requiring the plaintiff to sign such consent forms: Sub-paragraph [f] of paragraph 11 of the statement of claim; 3. Failed to heed the plaintiff's request that all consultations take place with the assistance of a Macedonian interpreter: Sub-paragraph [g] of paragraph 11 of the statement of claim; 4. Further to paragraph … [2] … above, failed to ensure that advice was interpreted into the Macedonian language before obtaining consent to perform the subject surgical procedure: Sub-paragraph [h] of paragraph 11 of the statement of claim; 5. In the event the first defendant contends that the right vestibular Schwannoma had grown from a small tumour in December 2008 to a large tumour in November 2009, failed (sic) to advise the plaintiff with respect to the treatment options and risks associated with the removal of a large tumour: Sub-paragraph [j] of paragraph 11 of the statement of claim; 6. Failed to have due regard to the Plaintiff's expressed concern regarding the proposed subject surgery such as to ensure that alternate modes of treatment including stereotactic radiation therapy were offered: Sub-paragraph (k) of paragraph 11 of the statement of claim; 7. Failure to advise the plaintiff as to the need for the surgical removal of the neuroma, or as to the respective advantages of, or risks associated with such surgery, within 48 hours of the need for such surgery: Sub-paragraph (l) of paragraph 11 of the amended statement of claim: (see paragraph [207] above).
In essence, having regard to the way the parties approached the issues, the plaintiff's allegations can be taken to involve the formulation that the defendants successively failed to provide the plaintiff with sufficient information, advice and warnings as to the risks of a facial nerve injury and its consequences from surgery for removal of an acoustic neuroma according to what a reasonable person in the position of the plaintiff would have regarded as being material to her decision on whether or not to take the risks associated with the subject surgery: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479; Wallace v Kam [2013] HCA 19, at [8].
By paragraph 9 of the first defendant's amended defence and by paragraph 9(a) of the second defendant's amended defence, the defendants denied any breaches of the duty of care owed to the plaintiff.
The claim based on particular (5) of paragraph [833] above concerning growth of the size of the neuroma may be disregarded as the plaintiff did not seek to make a case that her tumour had grown from a small tumour in December 2008 to a large tumour in November 2009. That allegation of negligence appears to have been framed as a consequence of an error which appeared in Dr Biggs' letter of report dated 10 September 2010 addressed to the plaintiff's general practitioner (Exhibit "C", p 303), such error having been identified in his evidence, and explained at paragraphs [155] - [160] above. Legal principles
The plaintiff's claim of negligence in respect of information and advice that preceded her consent to the surgery must be considered in the context of the analysis required by the well-established legal principles, which also include the requirements of s 5B of the CL Act.
The fundamental statement of legal principle concerning the validity of patient consent to medical treatment comes from the decision of the High Court in Rogers v Whitaker. In that case, at page 489, the following statement appears: "…In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession." [References omitted]
In recommending neuroma removal surgery to the plaintiff, the duty on the defendants was to provide the plaintiff with adequate information, advice and warnings that such matters were conveyed to the plaintiff in terms the plaintiff would understand: Bustos v Hair Transplant Pty Ltd & Anor [1997] NSWCA 55, per Gleeson CJ, at page 4 lines 35 - 38; Bergman v Haertsh [2000] NSWSC 528, at [82].
The question of what information the plaintiff would have considered to have been material to her decision on whether or not to undertake the risks of the subject operation is a matter to be determined as a matter of fact by the court, and not by expert medical opinion: Rogers v Whitaker at p 489: F v R (1983) 33 SASR 189, at 194, per King CJ.
That question is to be determined subjectively in the light of the relevant circumstances that applied to the plaintiff: s 5D(3)(a) of the CL Act. For the purpose of that analysis, the plaintiff's evidence as to what she would have done in the circumstances, had she been informed of the risk of a facial nerve injury in the surgery in question, is not to be determinative of this question: s 5D(3)(b) of the CL Act.

[54]

Statutory preconditions for finding negligence: s 5B(1) of the CL Act

The plaintiff's allegations of negligence concerning the adequacy of advice and information relative to the risks of surgery must be considered in the context of the three essential pre-conditions that are imposed by provisions of s 5B(1) of the CL Act. Section 5B(1) provides: "5B General principles (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."
As to the first pre-condition of that section, on the evidence adduced in this case, there is no room for controversy that Dr Biggs, and all persons acting on behalf of the second defendant who were involved in the process of obtaining the plaintiff's consent to the subject surgery, knew or ought to have known that there was a risk that the subject surgery involved a foreseeable risk of harm in the form of potential damage to the plaintiff's right facial nerve. The first pre-condition is therefore satisfied: s 5B(1)(a) of the CL Act.
As to the second pre-condition of that section, the potential consequence of incurring intra-operative damage to the plaintiff's facial nerve in the course of the subject surgery involved the risk of incurring significant injury in the form of varying degrees of facial nerve palsy, including due to total resection of that nerve and its devastating consequences, all of which were well known to Dr Biggs and those persons for whose actions the second defendant was vicariously liable. The second pre-condition is therefore satisfied: s 5B(1)(b) of the CL Act.
As to the third pre-condition of that section, in the circumstances of the subject operation, and in the antecedent preparation of the plaintiff for that surgery, it is beyond argument that a reasonable person in the position of the defendants would take the precaution of providing a person in the position of the plaintiff with adequate information and advice concerning the risk of an adverse outcome due to intra-operative facial nerve injury. In this case, the rationale for taking such precautions is so that the plaintiff could decide, based on the information that was material to her decision on whether or not to take the risk and undergo the subject procedure. The third pre-condition is therefore satisfied: s 5B(1)(c) of the CL Act.
Since those statutory pre-conditions are satisfied in this case, it is appropriate to move on to apply the statutory framework provided by s 5B(2) of the CL Act to determine whether a reasonable person in the position of the defendants would, on the facts found in this case, have taken precautions against the risk of harm being a facial nerve injury resulting from surgery for removal of the plaintiff's acoustic neuroma.

[55]

Whether precautions were required to be taken: s 5B(2) of the CL Act

In undertaking the task of determining whether a reasonable person in the position of the defendants would have taken the contended precautions against the risk of harm, the provisions of s 5B(2) of the CL Act must be considered. Section 5B(2) provides: "5B General principles … (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care 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 that creates the risk of harm."
In considering and applying the provisions of s 5B(2) of the CL Act, on the evidence adduced in this case, I find that a reasonable person in the position of the defendants would have taken precautions against the plaintiff incurring the risk of adverse consequences of a facial nerve resection by providing the plaintiff with adequate information and advice about that risk so as to properly inform her decision on whether or not to undergo the subject operation. This is because: 1. there was a significant non-speculative probability that avoidable permanent harm comprising a facial nerve injury and related facial nerve palsy could occur during surgery for the removal of an acoustic neuroma if reasonable care were not taken beforehand to provide adequate information to the plaintiff as to the possibility and circumstances in which intra-operative harm may arise, so that the plaintiff could herself decide whether or not she would undertake that risk, or instead pursue alternative conservative treatment, or no treatment: s 5B(2)(a) of the CL Act; 2. the potential harm to the plaintiff of a facial nerve palsy would be very serious, and would warrant the precaution of providing adequate information and advice material to the patient's decision on whether or not to undertake such a risk: s 5B(2)(b) of the CL Act; 3. in the context of the plaintiff's pre-operative consultations with Dr Biggs. and those practitioners who consulted with her at St Vincent's Hospital, the burden of taking the contended precautions against such harm was not great, and merely involved taking some time to undertake sufficiently focussed discussions about the risks involved in the subject surgery in terms the plaintiff would understand, aided by a suitably qualified interpreter: s 5B(2)(c) of the CL Act; 4. the need for those advising the plaintiff and those who were providing treatment to her in the form of neuroma removal surgery to act prudently and to provide her with adequate advice as to the risks involved in such treatment in terms she would understand, was not outweighed by any considerations of social utility, as contemplated by s 5B(2)(d) of the CL Act.
Against the background of those statutory considerations, in the paragraphs that follow, I set out my consideration of the validity of the plaintiff's consent to the subject operation on each of the relevant dates, namely, 6 March 2009, 3 April 2009, 14 October 2009, 30 October 2009, 2 November 2009 and 30 November 2009, and whether, in respect of each of those occasions, the defendants were in breach of the duty of care owed to the plaintiff concerning the consent issue.
Before undertaking that exercise, it is necessary to identify the content of the advice that a reasonable person in the position of the plaintiff would have considered material to the decision on whether or not to undertake the subject surgery: Rogers v Whitaker, at p 489.
Whilst expert medical evidence provides an informative guide to what level of pre-operative information, advice and warnings should be provided to the plaintiff, it is for the court to determine that issue within the framework of s 5D(3)(b) of the CL Act.

[56]

What constituted adequate information and advice

On the basis of the medical evidence adduced to explain the nature of the subject surgery and its attendant risks, I consider that in broad terms, a reasonable person in the pre-operative position of the plaintiff would have expected to have been materially informed that: 1. in the case of a small acoustic neuroma, of the kind the plaintiff had, it was most likely to be a slow growing tumour; 2. in the case of such a neuroma, it was most likely not to be malignant; 3. in those circumstances, an acceptable and reasonably safe means by which to manage such a tumour would be to adopt a conservative approach of "wait and watch", subject to further reviews and further MRI imaging to check on growth over a period of 12 months; 4. the balance problems being experienced may or may not be materially improved in the short term; 5. in the event that the neuroma removal surgery was being contemplated, the surgery had an attendant risk that during the operation, the nearby facial nerve could be damaged intra-operatively in a variety of ways and for a variety of reasons; 6. the consequences of intra-operative damage occurring to the facial nerve included the following potential outcomes: 1. partial transient damage which may recover completely; 2. partial damage which may recover, but incompletely, leaving a degree of lasting neurological impairment; 3. complete severance, division or transection, however caused, which may be amenable to attempted repair, the consequences of which: 1. may result in complete recovery of facial nerve function; 2. may result in permanent neurological dysfunction in the facial nerve despite attempted repair, with the effect that: 3. the cosmetic result could have the appearance of a stroke-like half facial droop; 4. the ability to eat, drink and speak normally could be permanently adversely impaired; 5. there would be drooling of saliva; 6. further attempts at cosmetic surgery repair could be unsuccessful; 7. the foregoing matters could have adverse functional and psychological consequences for the person so affected.
The foregoing matters would have to be conveyed to the plaintiff in terms she could understand: Bustos v Hair Transplant Pty Ltd & Anor [1997] NSWCA 55, per Gleeson CJ, at p 4, lines 35 - 38. This would necessarily have required the assistance of a skilled Macedonian interpreter.
The foregoing discussion would have necessarily required the provision of a clinical opportunity for the plaintiff, through a skilled Macedonian interpreter, to ask questions and for the clinician providing information and advice as to risks and benefits of the surgery, to satisfy him or herself, through a process of translated question, answer and narrative summary, that the plaintiff had adequately understood what had been said to her, and had accepted the risks communicated to her in that fashion.
I consider that the adequacy of information and advice respectively provided to the plaintiff on 6 March 2009, 3 April 2009, 14 and 30 October 2009, 2 and 30 November 2009, should be assessed according to the foregoing standard.
The consequential analysis of the consent process in the events of 6 March 2009, 3 April 2009, 14 and 30 October 2009, 2 and 30 November 2009, is as follows.

[57]

Validity of consent : 6 March 2009 - Professor Fagan

The factual circumstances of the plaintiff's consultation with Professor Fagan on 6 March 2009 have already been identified and reviewed at paragraphs [218] - [248] above. My review and findings on the inadequacy of the interpreting arrangements which prevailed at that consultation have already been stated in connection with Issue 9, at paragraphs [580] - [629] above.
For the reasons there stated, and for the reasons stated by Professor Fagan himself, I find that Professor Fagan's consultation on 6 March 2009 was not definitive, and was just the first step in the process of informing the plaintiff of the indications for, and the nature of, the surgery as a precursor to her decision on the matter of whether or not to have that surgery: T231.3.
Professor Fagan was of the view that consent of that kind would be expected to be obtained in the period 24 to 48 hours before the actual procedure, and the expectation was that the discussion should be very detailed and should have followed previous discussion with the patient where she would have been allowed time to think about the advice given: T230.35 - T230.45.
The consultation with Professor Fagan on 6 March 2009 was not an occasion on which it could be reasonably concluded that material information at the required level and of the required kind outlined at paragraphs [849] above was reliably conveyed to the plaintiff in a form the plaintiff would understand, including through the intervention of a skilled interpreter, as would be expected for there to be valid consent.
In view of that finding, I do not accept the submission made on behalf of the defendants to the effect that the consultation with Professor Fagan on 6 March 2009 was a reliable foundation upon which information and advice of the required kind constituting incremental components of valid consent was based. I find that submitted foundation to have been flawed, on account of communication difficulties, for the reasons already identified.
As the plaintiff has made no allegations of negligence against Professor Fagan, the events of the consultation with Professor Fagan on 6 March 2009 should be characterised as being relevant as only historical background. This is because it was the obligation of the operating surgeon to make his or her own assessment, and to provide the relevant information and advice according to that assessment. Professor Fagan's consultation was not such an occasion.
On the facts as I have found them, whatever Professor Fagan may have told the plaintiff on 6 March 2009, could not have reasonably justified a subsequent examining practitioner who consulted the plaintiff assuming, without first checking the plaintiff's understanding in a reliable way through feedback, that the plaintiff had already been provided with adequate information and advice that based a valid consent to surgery for removal of her acoustic neuroma.
Neither of the defendants were responsible for the fact that the administrative staff at the Pius X Clinic had not acted on the earlier request for a Macedonian interpreter to be provided to assist the plaintiff at the consultation with Professor Fagan on 6 March 2009: paragraphs [580] - [582] above.
Accordingly, a finding of negligence against either defendant in respect of the consultation at the Pius X Clinic at Moree on 6 March 2009 is not open on the evidence. Dr Biggs was not present on that occasion and the second defendant was not responsible for making the necessary administrative arrangements for an interpreter to be made available on that occasion.

[58]

Validity of consent : 3 April 2009 - Dr Biggs

The first opportunity for the plaintiff to be provided with adequate information and advice from the operating surgeon comprising the elements of valid consent to the subject surgery was when she saw Dr Biggs on 3 April 2009.
The factual circumstances of the plaintiff's consultation with Dr Biggs on 3 April 2009 have already been identified and reviewed at paragraphs [249] - [265] above. My review and findings on the inadequacy of the interpreting arrangements which prevailed at that consultation have already been stated in connection with Issue 9, at paragraphs [630] - [697] above.
Those findings compel me to the conclusion that at the 3 April 2009 consultation with Dr Biggs, the plaintiff was not provided with adequate information and advice to the required standard (as described at paragraph [849] above) that was material to her decision on whether or not to undergo the surgery for removal of her right acoustic neuroma.
The matters that have led me to that conclusion are my acceptance of the reliability of the plaintiff's evidence, the unsatisfactory interpreting arrangements which prevailed at that consultation, the absence of Dr Biggs' contemporaneous notes and correspondence that might have suggested otherwise, and my finding that Dr Biggs had based his evidence on an unreliable reconstruction of the events.
In those events, I am satisfied that in the circumstances of the plaintiff's presentation to Dr Biggs at the consultation on 3 April 2009, in which she indicated that she wanted to have the operation, Dr Biggs did not provide the plaintiff with a discussion of the alternative conservative management option of adopting a "wait and watch" approach, to be followed by a later review, nor did he advise the plaintiff of the foreseeable potential consequences of a facial nerve injury, including potential irreparable deleterious consequences.
In those circumstances, on the authorities earlier cited in my reasons on the issue under present consideration, and having the requirements of s 5B of the CL Act in mind, I am satisfied that those omissions to provide appropriate information, advice and discussions, amounted to a breach of the duty of care Dr Biggs owed to the plaintiff in the circumstances of his consultation with her on 3 April 2009.
That breach of the duty of care owed by Dr Biggs was significant because it occurred on a pivotal occasion upon which there was an opportunity for the plaintiff's erroneous view of her diagnosis of a tumour in her brain and of the need for neuroma removal surgery to be exposed as being erroneous through the interactive process of doctor-patient discussions.
The fact that the plaintiff's erroneous view that she had a tumour in her brain remained uncorrected is not only evidence of a breach of the duty of care owed, but it also provided a basis upon which that erroneous view became further entrenched in the plaintiff's mind.
Although this historical breach of the duty of care owed cannot be overlooked, it is one that occurred in circumstances that were understandable because of the unsatisfactory interpreting arrangements that prevailed at the 3 April 2009 consultation between Dr Biggs and the plaintiff at Moree on that occasion.
The causative significance of the breach of duty of care identified above requires evaluation in connection with the consideration of Issue 14.

[59]

Validity of consent : 14 October 2009 - Pre-admission clinics

The next occasion on which an opportunity arose for the plaintiff to have been provided with the requisite information and advice that was material to her decision on whether or not to undergo the operation for removal of her right acoustic neuroma was when, by pre-arrangement, she attended at the St Vincent's Hospital pre-admission clinics on 14 October 2009.
For that occasion, pre-arrangements had also been made to obtain the assistance of a Macedonian interpreter from the HCIS to interpret the clinical discussions between the medical staff and the plaintiff.
The factual circumstances of the plaintiff's consultation with Dr Biggs at the pre-admission clinic on 14 October 2009 have already been identified and reviewed at paragraphs [284] - [327] above. My findings on the adequacy of the interpreting arrangements which prevailed at that consultation have already been stated in connection with Issue 9 at paragraphs [698] - [779] above.
When the plaintiff attended the second defendant's pre-admission clinics on 14 October 2009, this occurred 6 months after her initial 3 April 2009 consultation with Dr Biggs in Moree. In the meantime, the plaintiff retained her erroneous belief that she had a tumour in her brain that required removal. That incorrect view had remained with the plaintiff because that view had not been exposed by Dr Biggs as being wrong when he saw her at the consultation in Moree 6 months earlier.
Accordingly, when the plaintiff attended the St Vincent's Hospital pre-admission clinics for assessment as a precursor to the subject surgery, it was entirely understandable that she would continue to hold the erroneous view that she had a tumour in her brain. Unfortunately, she was never disabused of that view. That could only have occurred in a focussed and properly translated clinical discussion which included feedback with the surgeon responsible for the diagnosis of her condition, and who was recommending that the plaintiff have the subject surgery.
At paragraphs [743] - [772] above, I have recorded my findings that a consultation in the terms outlined in the preceding paragraph did not take place when Dr Biggs saw the plaintiff on 3 April 2009.
Furthermore, as I have already observed, at paragraphs [773] - [776] above, the defendants have not called any evidence from the interpreter, Mr Romanovski, or any other witness who was present on 14 October 2009, to traduce or contradict the plaintiff's otherwise credible evidence that, on that date, she had not been provided with a discussion on the potential adverse risks to the facial nerve from acoustic neuroma removal surgery.
In my view, having regard to the authorities already cited, and the requirements of s 5B of the CL Act as already considered in this section of my reasons on the consent issues, those circumstances represented a separately identifiable breach of the duty of care that both defendants owed to the plaintiff. I consider that this further failure on 14 October 2009 to provide the plaintiff with adequate information and advice of the kind outlined at paragraph [852] above, and which was material to her decision on whether or not to undergo surgery for removal of her acoustic neuroma, constituted a breach of the duty of care that had the effect of compounding the breach of the duty of care that I have found had earlier occurred on 3 April 2009.
The causative consequences of this further breach of duty of care also require evaluation in connection with the consideration of Issue 13.

[60]

Validity of consent : 30 October 2009 - Dr Mukherjee

The plaintiff's attendance at the second defendant's hospital on 30 October 2009, at which time she was seen by Dr Mukherjee in preparation for the surgery which was due to take place 3 days later, was the next occasion on which the plaintiff could have been provided with information and advice that would have been material to her decision on whether or not to proceed to undergo acoustic neuroma removal surgery.
According to the evidence of Professor Fagan, this occasion represented the appropriate timing for obtaining the plaintiff's consent to surgery as it was broadly approximate to the time frame of 24 - 48 hours prior to surgery: T230.42.
The factual circumstances of the plaintiff's consultation with Dr Mukherjee on 30 October 2009 have already been identified and reviewed at paragraphs [328] - [350] above. My findings on the interpreting arrangements which prevailed at that consultation have already been stated in connection with Issue 9, at paragraphs [780] - [826] above.
The first observation that emerges from this consultation is that it involved a segmented discussion, and it appears that only 15 minutes of that discussion involved simultaneous interaction between Dr Mukherjee, the plaintiff and a Macedonian interpreter over the telephone. I have already identified my finding that it was doubtful this interval of time was adequate for the necessary discussion in which the information and advice could take place so that the plaintiff could have been appraised of sufficient matters material to her decision on whether or not to undergo the subject operation: paragraph [852] above.
In that regard, I accept the plaintiff's evidence that she was not informed of alternative methods of managing and treating her condition. That evidence was corroborated by the evidence of Dr Mukherjee as stated at paragraph [807] above: T242.23; T243.48; T244.14. I also accept that on this occasion, any discussion provided to the plaintiff by Dr Mukherjee as to possible facial nerve issues was deficient when compared to what would have been reasonably required in the circumstances, as outlined at paragraph [852] above.
The deficiency in the detail of the information sought to be provided to the plaintiff by Dr Mukherjee on 30 October 2009 was that it contained a mixed message to the effect that if the plaintiff's facial nerve became injured in the proposed operation, that it could be repaired. That explanation by Dr Mukherjee contained the misleading impression that once repaired, such damage would have no functional significance. That would have been a profoundly incorrect impression, as has been borne out by the ultimate result of the attempted repair that was undertaken by Dr Biggs.
If the discussion Dr Mukherjee described as having been provided to the plaintiff had in fact been properly translated, a matter that has not been proven by the defendants as the interpreter was not called to give evidence, the deficiency in that information would have left the plaintiff with the wrong impression that if a facial nerve injury occurred in her circumstances, it could be repaired.
In my view, that advice, if translated to the plaintiff in the terms described by Dr Mukherjee, amounted to a breach of the duty of care owed to the plaintiff by the second defendant, through its employee, Dr Mukherjee.
When the plaintiff saw Dr Mukherjee on 30 October 2009 the plaintiff was entitled to expect that the matters identified at paragraph [852] above would be discussed and translated to her in sufficient albeit broad detail to enable her to be adequately informed on whether or not to proceed with the subject surgery.
I find that on that occasion Dr Mukherjee's explanation to the plaintiff did not fulfil the criteria described at paragraph [852] above in two important respects.
The first of those matters was Dr Mukherjee's decision not to discuss the possibility of alternative non-surgical management by adopting a "wait and watch" approach, followed by a further MRI scan to evaluate the tumour size.
In my view, the plaintiff was entitled to receive information and advice on that conservative management option as this would have been material for her decision on whether or not to proceed to the next phase and to submit to the proposed surgery. That information and advice was in my view material to the plaintiff's decision having regard to the seriousness of the potential complication of a facial nerve palsy. In my view, when that risk would have been weighed by the plaintiff against the consideration that her balance problems may not have been resolved by the suggested operation, it would have been unlikely that the plaintiff would have opted to have the surgery.
In my assessment, when Dr Mukherjee took the course of not outlining that option to the plaintiff she breached the duty of care the plaintiff was owed and which required that the plaintiff be given such information.
Instead, Dr Mukherjee determined that the conservative management option was not appropriate. In those circumstances, the plaintiff was denied the opportunity of asking questions on that option, and also denied the opportunity of making her own choice as to which treatment option she would ultimately agree to undertake: Rogers v Whitaker, at p 489.
In my view, when the plaintiff was denied a discussion on the possibility of a non-operative approach to management of her neuroma, this occurrence fulfilled all the criteria within s 5B of the CL Act and the authorities cited for the conclusion that such denial amounted to negligence.
Dr Mukherjee's reasons for not taking the course of broaching the subject of non-operative neuroma management do not justify that course. I have reached this conclusion for the following reasons: 1. The choice of treatment was one for the plaintiff to make based on the considerations identified at paragraph [852] above; 2. Dr Mukherjee's assessment that the consideration of the plaintiff's balance problems outweighed the indication for the non-operative option was a decision for the plaintiff to make, not one reserved for Dr Mukherjee to make without informing the plaintiff; 3. Dr Mukherjee's reasoning that a sufficient passage of time had passed to rule out the appropriateness of the non-operative or conservative option, is revealed as having been given in hindsight, rather than on a prospective analysis. Furthermore the time interval between December 2008 (when the tumour was diagnosed) and Dr Mukherjee's consultation in October 2009 (almost 11 months) was a matter that needed to be discussed with the plaintiff in conjunction with a further MRI scan, which had not, and was not going to be obtained.
The second reason for my finding that the content of Dr Mukherjee's consultation did not fulfil the information and advice criteria identified at paragraphs [266] - [267] and [852] above is that Dr Mukherjee's explanation of potential facial nerve complications of the proposed surgery was incomplete, and omitted an important detail.
That deficiency concerned conveying the misleading impression that if a facial nerve injury occurred, it could be repaired. That the discussion Dr Mukherjee sought to give the plaintiff along those lines did not address the potential for an injury to the facial nerve to be irreparable, thus leaving a significant and permanent palsy of that nerve, with resultant and serious functional impairments which the plaintiff would be likely to find upsetting and difficult to manage, as has turned out to be the case.
In my assessment, the omission of that detail from the information sought to be conveyed to the plaintiff by Dr Mukherjee on 30 October 2009 also fulfilled the criteria for proof of negligence pursuant to s 5B of the CL Act and the already cited authorities. If the discussion provided by Dr Mukherjee had been translated to the plaintiff in the terms described by Dr Mukherjee, it would have fallen short of what was required in that regard.
In not revealing to the plaintiff the true nature of the risk of a facial nerve injury and its consequences, when the Dr Mukherjee pursued her consent discussion with the plaintiff on 30 October 2009, the plaintiff was denied the option of choosing to decline to have the planned procedure, an option that was open to her even at that late stage.
Dr Mukherjee has acknowledged the importance of the consultation on 30 October 2009 from the perspective of obtaining patient consent to treatment. She stated that the earlier consent document dated 14 October 2009 was just a piece of paper, and was no substitute for a proper discussion on the matter of consent to treatment: T251.43 - T252.32.
Should I be wrong in the above analysis as to what Dr Mukherjee told the plaintiff on 30 October 2009. This still leaves the question of whether the information provided by Dr Mukherjee was understandable to the plaintiff: Bustos v Hair Transplant Pty Ltd & Anor [1997] NSWCA 55, per Gleeson CJ, at p 4, lines 35 - 38.
I accept the evidence of the plaintiff that in the translation or interpretation of what Dr Mukherjee was seeking to convey to the plaintiff, no discussion occurred in that consultation on the subject of alternative treatments or the effects of a possible facial nerve injury. I consider that the plaintiff's evidence, which was credible, and not otherwise inherently improbable, should not be displaced by Dr Mukherjee's reconstructed account.
If the plaintiff's evidence as to what she was and was not told at the consultation with Dr Mukherjee on 30 October 2009 was capable of being contradicted, this could have been achieved by calling evidence from HCIS telephone interpreter, Ms Pejoska. It did not fall to the plaintiff to call such evidence in order to corroborate her own testimony.
On the alignment of the counterpoints under present consideration, it was in the interests of the defendants that such evidence should be called, if such evidence existed. It must be presumed that Ms Pejoska, if required, was available to be called to give evidence concerning unavailability of persons to give evidence: Evidence Act 1995, Dictionary, cl 4(2). The forensic decision on whether or not to do so, was one for the defendants to make.
Given the language difficulties affecting the plaintiff, the defendants could not rely upon the evidence of Dr Mukherjee to show that the plaintiff had been told of the material matters affecting the plaintiff's assessment of the risks in question. Dr Mukherjee's evidence could only be limited to what she had told the interpreter in order for it to be relayed to the plaintiff in the Macedonian language.
For the next step of showing that the plaintiff had understood what had been faithfully translated or interpreted, evidence was required to be given by the interpreter. No such evidence was called.
Notwithstanding the submissions made on behalf of the defendants to the contrary, I see no sound basis upon which to reject the evidence of the plaintiff on this issue, given my assessment that the plaintiff's evidence was credible, and not otherwise inherently improbable.
The plaintiff has therefore succeeded in showing that the defendants were materially negligent in respect of the adequacy of the information given to the plaintiff at the consultation at St Vincent's Hospital on 30 October 2009. The causative significance of that finding will be taken up in the consideration of Issue 13.

[63]

Issue 11 - Findings: Mechanism of facial nerve injury

It is necessary to ascertain whether, on the evidence adduced, reliable conclusions can be reasonably drawn as to the manner in which injury was occasioned to the plaintiff's right facial nerve.
A conclusion reached along those lines does not require certainty, but requires satisfaction according to the civil standard of proof on the balance of probabilities, including by drawing reasonable inferences from proven fact, distinguished from mere conjecture: State of NSW v Fuller-Lyons [2014] NSWCA 424, at [30], following Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [87] - [88].
In my view, an evaluation along those lines must be undertaken before there can be any adequately reasoned finding concerning whether the plaintiff's facial nerve injury was due an alleged intra-operative breach of the duty of care owed, or whether that injury should be properly characterised as the materialisation of an inherent risk of the subject surgery.
Various interchangeable expressions have been used to describe the plaintiff's facial nerve injury: divided (Exhibit "3", p 154; T334.34; T334.39; T334.49; T335.17; T335.19; T378.32; T378.35; T511.47): transected (T334.39; T421.5; T528.48: severed (Exhibit "3", p 29, para 22; p 123).
The term "severed" derives not only from what Dr Biggs had been told on the telephone by someone calling him from the operating theatre shortly after the occurrence, but it is also derived from the assumptions put to the defendants' experts, which referred to the severed nerve being repaired with the assistance of Dr Biggs: Exhibit "3", p 29, para 22.
The evidence does not reveal any direct description of the events comprising the manner in which the plaintiff's right facial nerve became divided, transected, or severed.
However, it can be reasonably assumed from the presence of Dr Chang, Dr Panagamuwa and Dr Pang in the operating theatre, as well as the content of the operation note, and from the evidence of Dr Briggs, that it was by means of the intra-operative actions of one or more of those persons (other than Dr Biggs) that the right facial nerve became severed.
It may be reasonably assumed that one of those persons would have been in a position to have observed what had occurred at the time the nerve was severed.
It may also be reasonably assumed from the various descriptions in the evidence of how an acoustic neuroma is removed, that the facial nerve probably became severed at a time when surgical instruments were being used and manipulated in the vicinity of the nerve, either by direct or transferred forces: T311.35 - T312.37.
The evidence does not reveal whether the operating microscope used during the subject operation was fitted with a video recording device that was filming at the time the nerve was severed. There was no evidence as to whether discovery was pursued on that matter.
The operation note signed by Dr Panagamuwa, which indicated that the division of the nerve was "inadvertent", does not assist in achieving an understanding of how the division occurred.
No answers to interrogatories were tendered on any of those matters.
When Dr Biggs returned to the operating theatre in order to undertake the repair of the severed facial nerve, he observed that the nerve had been damaged. In my view, at that time, he was well placed to make informed observations on the nature and the cause of that damage.
Dr Biggs' description of that damage was: "the nerve was divided very close to the point where it enters the temporal bone, and that, that's basically - the tumour was removed, but the nerve was not connected": T334.49 - T335.1. He then made an assessment of how he should proceed to make the attempted repair. That description does not shed any light on how the nerve came to be divided
Dr Biggs' letter dated 10 September 2012 to the plaintiff's treating general practitioner, sent nearly 3 years after the event, stated that "… the facial nerve was unable to be preserved during the procedure": Exhibit "3", p 32. I do not consider that statement to be probative of the mechanism of injury or the reason for the injury because of the lack of detail in that description and because of the lack of reference to a reliable source of information that underpinned this statement.
Dr Biggs was asked questions (at T335.14 - T336.31) concerning the likely timing and mechanism of the facial nerve injury, as follows: "… Q. Does the location of the transection provide you with any indication as to at what stage during the surgery division occurred? A. It - as so far as it was in the intracranial component so I know without doubt that I did not divide the nerve because we had not entered that component, so yes, it was in a location where I had not even reached surgically, so I can know that it was during the tumour removal process that the nerve was divided. Q. In order to repair the nerve you would have to have observed the nature of the damage. A. Yes. Q. My understanding is there's a difference between a cut and a tear. Are you able to say what the mechanism of damage was? Firstly, is my understanding correct, and secondly, can you say what the mechanism was? A. My - you can a little bit. With facial nerves in this part of the brain, they're very thin in the first place and you, you can have, as you said, a number of different forms of trauma, whether or not it's diathermy or direct scissors, cutting it, or a tear, my recollection is that it was a tearing, you know, an accidental tear of the nerve. Where the tumour comes around, sorry, where the facial nerve comes around the tumour, there are a couple of points where it can get extremely adherent to the tumour and it can be difficult in the process of removing the tumour to actually know that you're not actually damaging the nerve, by vision. I mean, normally the facial nerve monitor tells you, but you normally - you can have a couple of points - and equally, the nerve can get very [think] thin in a couple of points where it's a bit harder to see. Q. Focussing on the repair process thought, that would have been a microsurgical procedure. A. Yes. Q. So you would have a good view of the separated ends. A. Yes. Q. Would that view have assisted you in understanding the mechanism of injury? A. Yeah, yeah. Yes it would. Q. From recollection are you now able to [enumerate] elaborate upon that? A. I think it was a, a sort of tearing sort of injury. It wasn't a direct sort of so called slip of scissors so to speak. It wasn't a direct cutting of - I think it was, from my recollection it was in the process of removing the tumour that the nerve got just progressively more and more damaged until it lost continuity there, so it's a sort of multiple little steps. Q. So you're describing a fraying process? A. Yeah, yes, that might be a better-- Q. How would that occur [interoperatively] intra-operatively? A. As I said, as you're trying to remove the tumour off - the nerve is not a cord but actually flattens out over the tumour so you can get quite a - sort of thing, and as you remove the tumour you can take little bits of the nerve and not actually realise that you're actually into the nerve. Q. You're motioning with your hands what I interpret-- A. Sorry. Q. --to be a scraping motion. A. Yes, yes. So as we try and separate the tumour from the nerve. YOUNG Q. If I can just keep on going where his Honour was, Dr Biggs. That's what you think occurred having regard to your recollection of they way it looked when you got there to do the repair? A. Yes. Q. You weren't actually in the theatre when the division occurred? A. No." [Emphasis added]
In my assessment, for the reasons I shall shortly outline, I do not consider that Dr Biggs' absence from the operating theatre at the time the facial nerve was divided necessarily precludes him from providing relevant factual observations and views on the mechanism by which the facial nerve became injured and severed, so far as is reasonably possible.
On one view, the cited evidence of Dr Biggs involved a degree of speculation, albeit informed speculation, from an experienced surgeon who was speaking from his recollection of what he had seen of the damage before undertaking surgery for its repair. In that sense, I consider that Dr Biggs was in a good position to proffer a relevant view concerning factual questions such as the nature of the damage, and what may have been the likely cause or causes of the damage.
An alternative view was that the probative value of this evidence was diminished because Dr Biggs' answer to the third question in the quotation of his evidence cited at paragraph [933] above was based on an assumed recollection. In my view there is no sound reason for discounting the plaintiff's recollection based on the assumption made by Dr Biggs.
The repair operation, and the events he observed immediately before it are likely to have remained clear in his mind because of the sentinel circumstances in which it occurred. I therefore prefer this latter view of the reliability of Dr Biggs' stated recollections of the nature of the damage to the plaintiff's facial nerve.
The cited "multiple little steps" theory of loss of facial nerve continuity (T336.5) begs other questions. Those questions are: whether the facial nerve was in fact adherent to the tumour as has been assumed by Dr Biggs; whether the facial nerve monitor was attached, and if so, was it working at the time of such events; or if it was on and working, what if any heed was given to the warnings it would have been emitting at that time. These questions will be taken up in the consideration of Issue 13 concerning alleged breach of the duty of care owed.
Dr Biggs said that it was Dr Chang who had carried out the procedure for removal of the neuroma: T334.11 - T334.12 and T334.31.
Whilst that view was consistent with the assumptions put to the defendants' experts on behalf of Dr Biggs: Exhibit "3", pages 23 - 34, paragraphs 9, 10, 11 and 13, the question is whether those aspects of the assumptions are reliable, especially since Dr Biggs was not present when the neuroma was removed, or when the nerve was severed, and there was no other evidence called to describe those circumstances.
In my assessment, the suggestion that Dr Chang had divided the plaintiff's facial nerve must be seen as being a speculative and unreliable account. There was no formal admission to that effect. In my view, it cannot form a proper basis upon which to make a reasoned finding of fact on that matter.
Dr Chang is not a party to the proceedings. There is no evidence from Dr Chang, or any other witness who was likely to have been in a position to know how the nerve was divided, and in a position to recount a relevant representation of that fact within the meaning of s 64 or s 59(1) of the Evidence Act 1995, including to the effect that it was Dr Chang who divided the facial nerve.
The potential array of such persons would have included Dr Chang, Dr Panagamuwa, Dr Pang and possibly the nursing and anaesthetic staff who were also present at the time, and who may possibly have been able to give an eyewitness account of the manner in which the injury occurred, and at whose hands.
The evidence of Dr Biggs to the effect that Dr Chang had divided the plaintiff's right facial nerve was not relied upon by the defendants for hearsay purposes, but simply as evidence of his belief as to who had carried out the procedure.
That belief was not based on evidence called in the proceedings or otherwise identified. There was no evidence of a foundation representation made to Dr Biggs that would render that evidence reliable as evidence of the fact as to who was operating when the nerve injury occurred: s 59(1) and s 64 of the Evidence Act 1995.
In coming to that view I have not overlooked the content of the second defendants' hospital records which purport to identify the respective roles of Dr Chang, Dr Panagamuwa and Dr Pang during the subject operation.
However, those records have been acknowledged to be ambiguous and incorrect concerning the identity of the operating surgeon at the time the facial nerve injury occurred, as has already been observed at paragraphs [361], [365] - [367] above.
Notwithstanding that the operating surgeon cannot be identified, this does not preclude an analysis of the possible and probable means by which the plaintiff's facial nerve became damaged.
A logical, but not necessarily exhaustive analysis of the evidence concerning the possible mechanisms of facial nerve transection in the circumstances under present consideration, includes the following: 1. a spontaneous division of the nerve. This seems an unlikely mechanism because of the reference to "inadvertent division" in the operation note written by Dr Panagamuwa, which implies the division resulted from a positive step being taken; 2. a deliberate decision may have been made by the operating surgeon to sacrifice the facial nerve during the course of the procedure. There is no contemporaneous documentary or oral evidence to support that possibility. The neuroma was not a large one, so sacrificing the nerve would not have been an intended by-product of the procedure. Sacrificing the facial nerve was not the aim of the operation, and the use of the word inadvertent in the operation note by Dr Panagamuwa tends to undermine this as a credible possibility; 3. an unknown mechanism of transection that went unobserved by all present at the time. This would seem an unlikely possibility as those operating at the time would have been carefully observing the facial nerve and surrounding structures as a precautionary measure to avoid injury because it was in a position of vulnerability, and one of the objects of the procedure was to look after and protect the facial nerve; 4. a possible thrombosis of the blood vessel adjacent to the nerve, having the effect of interrupting normal nerve function. This can be ruled out because it was not described by Dr Biggs as something he had observed when he attended to undertake the repair procedure. It can be assumed that if such a mechanism had been at play, it would have been identified as such, especially since it would not have amounted to an admission of error; 5. a possible embarrassment to the vascular supply of the nerve during the process of dissecting around it. There is no direct evidence to inculpate that mechanism, although Dr Biggs invoked a scraping and fraying procedure to describe neuroma removal. This possibility can also be ruled out because, according to the evidence, a mechanism of that kind would interfere with nerve function, but not necessarily the continuity of the nerve; 6. a momentary inattention could have occurred during the intra-operative manoeuvres undertaken by either the operating surgeon, and/or an assistant when using surgical instruments in the vicinity of the facial nerve. This could have arisen due to the long and fatiguing nature of the surgery insofar as the surgeon's fine motor control is concerned, a phenomenon which was described in the evidence of Dr Biggs (T309.38 - T309.47), and which may have been either (a), avoidable, or (b), unavoidable, by the exercise of reasonable skill and care on the part of those controlling the surgical instruments that were introduced into the operative field. The evidence adduced does not permit a reasoned conclusion or choice between those alternatives; 7. a possible crush and/or flattening of the facial nerve due to pressure, either from the adjacent tumour, or from the introduction of space occupying surgical instruments in the nearby operative field, leading to stretching, and ultimate severing of the nerve by tearing. There was no direct evidence to support this theory. This possibility could include a combination of the processes described in items (5), (6) and (7). Whilst the terms "transection" and "severed" seem to imply a cutting mechanism rather than a tear resulting from stretching, this is not definitive, and the observations made by Dr Biggs as to the nature of the damage are relevant.
The above list of possibilities is not intended to be exhaustive, but on the evidence adduced, it illustrates the speculative nature of attempting to arrive at a reasoned conclusion concerning the probable mechanism of injury. The question of how the plaintiff's right facial nerve came to be severed should not be resolved by unreasoned speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, at [8], p 358, citing a line of well-settled authority where it was stated: "…In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (1911) AC, at p 678'. (at p358)" [Emphasis added]
Turning then to the question of whether the state of the evidence reasonably permits a finding on the balance of probabilities as to how the plaintiff's right facial nerve came to be severed, I consider that the evidence of Dr Biggs does permit the identification of a likely explanation for the nerve division.
Of the 7 possible mechanisms of injury identified in paragraph [949] above, items (1), (2) and (4) can be excluded for the reasons already stated.
The generality of item (3) in paragraph [949] can also be excluded as it was Dr Biggs' unchallenged and not otherwise improbable view that the injury occurred during the process of neuroma removal: T335.19. That said the specifics of the mechanism of injury must be identified for analysis if this mechanism is involved to support a negligence finding.
Items (5), (6) and (7) in paragraph [949] in reality involve a range of variations on the same theme, and all involve the use of surgical instruments in juxtaposition or proximity to the facial nerve. Given the uncontroversial description of the procedure performed on the plaintiff, in balancing the probabilities, it seems highly likely and most probable that it was by one, or possibly several, of those pathways that the plaintiff's right facial nerve came to be severed, in a manner that can be gleaned from the evidence of Dr Biggs' observations when he attended to undertake the repair procedure. That said, the specific sequence of events within that array of variations is yet to be identified by analysis.
In those circumstances, all that can reasonably be said is that when one or more of the three operating surgeons in the operating theatre was working on removing the neuroma from the acoustic nerve, the facial nerve may well have become frayed during the process of scraping the neuroma from the acoustic nerve or even peeling off any parts of adherence to the facial nerve, and in the course of those events, the plaintiff's facial nerve was severed. This may have occurred whilst the facial nerve was in a flattened state, and whilst it may have been manipulated for the purpose of removal of the acoustic nerve neuroma.
Those conclusions come from the evidence of Professor Fagan and Dr Biggs where they have described the manner in which the surgery proceeds, and from the evidence of Dr Biggs as to his recollected factual observations of the appearance of the nerve when he returned to the operating theatre in order to undertake the repair procedure.
In that regard, Dr Biggs said that at that time, he had observed the nature of the damage: T334.21 - T334.23. He drew upon his recollection of the occasion and said that the damage appeared to him to be of the kind seen when there had been a tearing of the nerve rather than by damage from diathermy, or a cut with scissors: T335.30 - T335.32; T336.1 - T336.6. He considered and adopted the description of the nerve having become divided after it was frayed in the course of scraping the tumour away from the area: T336.8 - T336.15.
Dr Biggs said that the above conclusion of the mechanism of the division of the plaintiff's right facial nerve was assisted by the view that was available to him through the use of the operating microscope at the time he inspected the damage: T335.40 - T335.49.
In my view, a surgeon of the unquestioned training, skill, experience and clinical acumen of Dr Biggs would be expected to have been able to determine by observation and skilled deduction, whether the appearance of a severed facial nerve that he was inspecting for the purpose of repair, had been cut by scissors, or divided by the heat of diathermy, or by a tear because the nerve had become frayed in the course of being peeled off or scraped free of adherent tumour tissue, or due to transmitted force applied to a weakened, frayed or flattened structure.
That postulated mechanism is also consistent with the expert evidence which described what steps were required to remove a neuroma on the nerve sheath where nerves are wrapped around the neuroma, a procedure which involved the use of an instrument or instruments introduced into the area to pare, cut and morselise the neuroma off the nerve sheath of the acoustic or 8th cranial nerve as was described by Dr Stenning when he alluded to circumstances where it was considered to be acceptable to leave some neuroma tissue behind rather than damage the nerve: T553.19 - T553.38.
I consider that on the available evidence, and on the balance of probabilities, the mechanism described in the preceding paragraphs seems to be the most likely explanation for the division or severing of the plaintiff's adjacent facial nerve, where that nerve was not the intended target of the surgery.
That said, the significance of that part of Dr Biggs' evidence in which he expressed the view that the tear of the nerve was "accidental" rather than avoidable by the exercise of reasonable skill and care remains to be considered in respect of the determination of Issue 13.

[64]

Issue 12 - Findings: Claimed materialisation of an inherent risk

The defendants claimed that, within the meaning of s 5I of the CL Act, the intra-operative division or transection of the plaintiff's right facial nerve was the materialisation of an inherent risk of the subject surgery. The defendants therefore submitted that it is unnecessary to proceed to a consideration of whether there was intra-operative negligence because the issue of inherent risk was a convenient deciding point: Paul v Cooke [2013] NSWCA 311, at [53] - [54].
Section 5I of the CL Act provides as follows: "5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
In some cases, a shortened approach to disposition of litigation along those lines would undoubtedly be both convenient and correct. However, in my view, for the reasons that follow, the present case does not fall within that category.
In discussing the potential risks associated with surgery for the removal of an acoustic neuroma, Dr Stenning stated that in neuroma removal surgery, the facial nerve can be damaged in the very best surgical hands: T551.39. Dr Shultz commented that this type of surgery was technically demanding, with the potential for a range of post-operative complications and morbidities: Exhibit "3", p 3. Professor Cousins observed that in such surgery, the facial nerve can be injured in routine dissection of acoustic neuromas, and if the nerve is sufficiently thinned and flattened by the tumour, it can be severed in the absence of any negligence: Exhibit "3", p 37. Professor Havas identified the risk of partial or complete, temporary or permanent damage to the facial nerve in the case of small tumour, as being between 2 per cent and 10 per cent even in the best of hands: T418.23 - T418.25.
However, evidence along those lines does not mean that the very best surgical hands cannot be, or were, not negligent.
The defendants have seized upon the cited evidence of the risk of facial nerve injury being incurred without negligence to seek the benefit of what was described as a "safe harbour" defence as was referred to in Paul v Cooke, per Leeming JA, at [80].
In my view, there are two difficulties in the path of such a simplistic approach being taken on the evidence adduced in this case.
The first such difficulty was described in Paul v Cooke by Ward JA at [16], and by Lemming JA at [60] - [69], namely, that what must be identified is the particular risk that cannot be avoided with the exercise of reasonable care and skill. That requires some focus be given to the manner of the actual occurrence of the event in question to determine whether the occurrence of the event in question, was in fact the materialisation of such a risk.
The problem for analysis arises because, as has been identified by Leeming JA in the paragraphs cited, the definition of inherent risk, in s 5I of the CL Act, is circular and ambiguous. This is because "inherent" has been defined in the statute, and "risk" has not been defined: Paul v Cooke, at [60] - [61].
Recognising that analogies can at times be imperfect, in order to demonstrate the point, it is convenient to take up the analogy adopted by Lemming JA in Paul v Cooke at [62] - [63] concerning a "tree laden with fruit that hasn't been pruned" in considering the relative nature of abstract and undefined risk.
In developing his Honour's cited analogy: if a person were to stand under a tree whilst its branches are being pruned, those circumstances would carry an inherent risk of injury to the person standing below from falling branch prunings. The inherency of the risk would not be avoided by the person standing under the tree if that person was without knowledge of the pruning activity being undertaken from above. That would only affect that person's knowledge or awareness of the presence of an inherent risk.
In contrast, the person carrying out and controlling the pruning activity from above and who was allowing the pruned branches to fall below, could, by the exercise of reasonable care and skill, by several means, including by warnings or by desisting from the activity, avoid the risk of the person below incurring injury from falling branch prunings, thus modifying the inherency of the risk of injury so caused, and also modifying the likely materialisation of harm from that risk.
Returning to the present case, the unchallenged evidence of Dr Stenning, which I accept, was that in the process of taking reasonable care and skill in the removal of an acoustic neuroma which was in close proximity to the adjacent facial nerve, surgeons would leave a portion of unexcised neuroma in situ if the removal of that portion otherwise posed a risk of damage to the facial nerve: T546.3 - T546.36. In giving that evidence, Dr Stenning was stating his agreement with what Dr Biggs had indicated as being the primary concern in such an operation, namely not to sacrifice the facial nerve to remove the last bit of a tumour.
Rationales for such an approach are, first, acoustic neuromas are slow growing, and no harm would arise from leaving behind a small unexcised portion, and secondly, the consequence of leaving an unexcised portion behind is that the relative intra-operative risk of injury to the facial nerve is thereby minimised, which in turn diminishes the characteristic of inherency in that risk by taking such avoiding action.
The fact that the exercise of reasonable care and skill could avoid the risk of a facial nerve injury tends to negate the inherency of that risk: s 5I(2): Paul v Cooke at [80].
Turning then to the second difficulty in accepting the defendant's "safe harbour" submission, the analysis of that difficulty is as follows.
The means by which a defence under s 5I of the CL Act operates, is to deny causation postulated pursuant to s 5D of the CL Act, and to provide a complete answer to any claim falling within the purview of Pt 1A of the CL Act: Paul v Cooke, at [51].
In order for an application of s 5I to achieve that result, it must first be established that the particular harm in question is as a result of the materialisation of an inherent risk: Paul v Cooke, at [51]. In my view, in order to establish that proposition, both the inherency of the risk and the manner of the materialisation of the harm are both relevant lines of inquiry that must be followed to conclusion.
In the present case, I find that until those matters can be determined, s 5I cannot be conveniently invoked as a "safe harbour" defence as claimed by the defendants. In that regard, the details of the manner of materialisation of the risk must be identified in order to determine whether there was materialisation of an inherent risk.
In Paul v Cooke, at [79] - [80], the question of whether s 5I represented an actual defence to a claim was left undecided as the issue was not raised in the appeal. Therefore, the distinction between whether s 5I denoted a defence in the commonly understood sense, with an evidentiary and legal onus resting on the defendant, or whether it may instead denote a ground of exculpation which, once raised, does not shift the legal onus of displacing it from the plaintiff onto the defendant asserting it, has not yet been definitively determined.
Although Paul v Cooke left that point undecided, at [80], Leeming JA indicated by obiter remarks, that his inclination was to the view that if a defendant raised a defence under s 5I of the CL Act, it fell to the defendant to prove such a defence.
I respectfully agree with his Honour's inclination expressed in those terms. That position is consistent with approaches taken in previous cases determining which party bears the onus of proof for establishing an exculpatory defence raised under s 5O of the CL Act, for example, in Dobler v Halvorsen [2007] NSWCA 335, (2007) 70 NSWLR 151, at [60].
Turning then to the evidence of some of the mechanisms of intra-operative risk to the facial nerve, Dr Stenning described a mechanism of injury that involved neither division or tearing of the nerve.
Dr Stenning also described a mechanism of potential damage to, or thrombosis of, the adjacent internal auditory artery. He described how these mechanisms could cause an infarct to the vascular supply of the facial nerve with resultant paralysis. He identified the incidence of this happening as being quite small, and in the range of 1 in 100 or 1 in 200: T551.40 - T551.50. There is no basis from within the evidence to reasonably conclude that the plaintiff's facial nerve was damaged by those latter described means.
In the present case, neither the surgeon who divided or transected the plaintiff's facial nerve, nor the surgeon or surgeons or other persons present in the operating room who may have seen the nerve being transected, were called to give evidence. Furthermore, there was no evidence that anyone present had heard any sounds emitted by the facial nerve monitor to indicate that this had occurred.
In those circumstances, I am not prepared to uphold the defence claimed under s 5I of the CL Act because the events along the path to injury have been left unclear in the context of a number of speculative or conjectural possibilities as to materialisation. This precludes any evaluation of whether the exercise of reasonable care and skill could have avoided the materialisation.
In those circumstances, in my view, it is incumbent on the parties who seek the benefit of a s 5I defence of materialisation of an inherent risk to demonstrate something more than the simple fact that a transection or division injury of the facial nerve was a possible adverse outcome that could occur during neuroma removal surgery.
Pointing to the possibility of a materialisation of an inherent risk does not compel a finding that such a materialisation in fact occurred. For such a contention to succeed, some evidence of the detail of what was done in the lead-up to the injury would be required in order to form an assessment of how the injury in question occurred. Without evidence of that kind, there could be no rational exposition of the means by which the argued manifestation of risk, inherent or otherwise, occurred.
A defence under s 5I of the CL Act cannot be sustained by a res ipsa loquitur type argument unsupported by a factual description of what actually occurred in the events leading to the nerve injury.
Should that point require further illustration it is not necessary to go beyond the descriptions of possible nerve injury by potentially damaging the vascular supply to the facial nerve during the process of necessary dissection of the neuroma, as was for example, uncontentiously explained by Dr Stenning: T551.45. That would be the materialisation of an inherent risk. However, that process was not put forward as a credible mechanism for the plaintiff's injury in this instance.
Dr Stenning described the phenomenon of the facial nerve wrapping around the neuroma: T553.19 - T553.38. It would be readily apparent that such a phenomenon could give rise to a risk of stretching or tearing of the facial nerve. Dr Stenning also described the process where, if required, some of the neuroma could be left in situ if there was a risk of injury to the facial nerve: T553.32 - T553.38. That description readily shows how the exercise of reasonable care and skill would serve to avoid a facial nerve division.
The factual basis of the injury requires resolution, but the evidence concerning the detail of those events remains absent. Dr Biggs' evidence that the plaintiff's facial nerve transection was "accidental" rather than avoidable by the exercise of reasonable skill and care, was based on unsupported speculation, and should not be accepted as he was not present at the time the injury occurred.
On the foregoing analysis, it is plain on the evidence of this case that something more than mere proof of the fact that a nerve injury occurred during the course of the operation is required to sustain a defence claimed pursuant to s 5I of the CL Act.
I therefore find that the claimed defence of materialisation of an inherent risk of facial nerve injury must fail, and should be rejected.
I now turn to the consideration of Issue 13 concerning alleged intra-operative negligence.

[65]

Issue 13 - Findings: Alleged negligence - Intra-operative

The potential mechanisms for the occurrence of the plaintiff's right facial nerve injury have been reviewed in connection with my findings concerning Issue 11.
The findings concerning Issue 12 are to the effect that on the evidence, the defendants are unable to successfully invoke a defence of the materialisation of an inherent risk based on the provisions of s 5I of the CL Act. It therefore becomes necessary to evaluate the plaintiff's claim framed in alleged negligence on matters other than the consent issue, namely intra-operative matters.
It may seem trite to say, but nevertheless worthy of recall for the purposes of analytical focus, that in considering a claim based on alleged intra-operative negligence involving alleged lack of reasonable care, skill or judgment, where, by reason of anatomy, the targeted abnormalities for excision, the surgical plane adopted, and other exigencies that may have an impact on operative outcomes (except in a small minority of cases where admissions are made, or an inference of negligence is compelling) to sustain a finding of negligence, the factual events under scrutiny must be the subject of specific and acceptable evidence critical of the standard of care provided.
Such evidence must be analysed against the expected standard of care to identify whether the claimed departures from that standard have been satisfactorily demonstrated on the balance of the probabilities.
In an evaluation of that kind, because s 5O of the CL Act affords medical practitioners a defence to a claim of negligence if the actions in question were in conformity with rational peer professional practice in Australia, it has been observed that it may be necessary, in some cases, to allow some degree of latitude for errors of judgment that do not amount to a breach of the expected standard of care: Dobler v Halvorsen [2007] NSWCA 335; (2007) 70 NSWLR 151, at [104].
The fact that scope exists for such latitude emphasises the need for allegations of negligence to be affirmatively proven by specifically focused evidence permitting reasoned criticisms of the conduct in question, or for proof to be achieved by drawing compelling inferences that arise from the factual evidence.
It is against those background principles that the remainder of the plaintiff's allegations of negligence stand to be assessed to determine whether the plaintiff has proven those claims, according to the onus of proof that she bears: s 5E of the CL Act.
That portion of the plaintiff's claim which was based on failure to properly inform, advise and warn of the material risks of the subject surgery has already been separately analysed and determined: Issue 10. The remaining matters for analysis concern preparation for the operation and events occurring during the subject operation.
The remainder of the particulars at paragraph 11 of the statement of claim, raises those matters. For convenience I shall refer to these remaining matters as the intra-operative component of the plaintiff's claim. In that regard, the plaintiff relies on the following allegations of negligence to the effect that the defendants had: 1. Inadvertently severed the plaintiff's right facial nerve: sub-paragraph (a) of paragraph 11 of the statement of claim; 2. Failed to utilise, either appropriately or at all, a facial nerve monitor whilst performing the surgical procedure: sub-paragraph (d) of paragraph 11 of the statement of claim; 3. In the event the first defendant contends that the right vestibular Schwannoma had grown from a small tumour in December 2008 to a large tumour in November 2009, failed to advise the plaintiff with respect to the treatment options and risks associated with the removal of a large tumour: sub-paragraph (i) of paragraph 11 of the statement of claim; 4. Failed to ensure that appropriate imaging was undertaken prior to the surgery in November 2009, given the last imaging was performed in December 2008: sub-paragraph (j) of paragraph 11 of the statement of claim;
The claim of alleged failure to use a facial nerve monitor as particularised in sub-paragraph (2) of paragraph [1006] above is no longer relevant as I accept that the defendants employed a facial nerve monitor in the course of the operation performed on the plaintiff. There was no evidence called to contradict that evidence. Neither was evidence called to the effect that the facial nerve monitor was not properly calibrated to emit sound. Although it was argued that the sound of the monitor must have been ignored by the operating surgeon, there was no evidence to support such a contention.
The claim based on an assumed change in tumour size as particularised in sub-paragraph (3) of paragraph [1006] above is no longer relevant as the plaintiff did not advance a claim based on the proposition that there had been a growth in the size of the tumour between December 2008 and October 2009.
The plaintiff's remaining allegations of negligence can be conveniently divided into the following categories: 1. The proper construction to be placed upon the operation note prepared by Dr Panagamuwa; 2. Whether appropriate imaging investigations were undertaken in the lead-up to the operation; 3. Intra-operative events.
By paragraph 9 of the first defendant's amended defence, and by paragraph 9(a) of the second defendant's amended defence, the defendants denied any such breaches.
In the paragraphs that follow, those allegations are considered in the context of s 5B of the CL Act, the provisions of which have already been cited at paragraphs [842] and [847] above in connection with the evaluation of Issue 10 concerning the validity of the plaintiff's consent to surgery, and do not require replication here.
The plaintiff's claim of alleged intra-operative negligence has three components. The first component is the contended admission said to be contained in Dr Panagamuwa's operation note dated 30 November 2009 (Exhibit "3", p 154). The second component was the alleged inappropriateness of the pre-operative radiological imaging arranged for the plaintiff on 30 October 2009. The third component was argued as being the occurrence of the intra-operative transection or severing of the plaintiff's right facial nerve.
In each instance, the plaintiff claims that negligence should be inferred and therefore found as against the second defendant as a consequence of the vicarious liability the second defendant bears in respect of any negligent actions or omissions of the operating surgeons that might have occurred in the operating theatre when the plaintiff sustained her right-sided facial nerve injury: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, at p 561G - p 562A; [59].
In answer to those claims the defendants relied upon a first instance decision of Goddard v Central Coast Health Network [2013] NSWSC 1932, at [5]: "The duties [the doctor] and the [hospital] owe to the plaintiff are different. Although a hospital (for which the [hospital] is responsible) has a non-delegable duty of care to a patient, that duty does not extend to the performance of surgery with due skill and care: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 at 245 per Giles JA, Handley and Stein JJA agreeing. Because of my conclusion that neither defendant is liable to the plaintiffs, there is no reason not to refer to them collectively in these reasons, but I do so for convenience only." [Names deleted]
In the course of the plaintiff's submissions in reply, at T818, it was submitted that the above passage was not binding authority as the cited remarks were obiter dicta, the case having been decided against the plaintiff on the facts. It was also submitted that the decision was inconsistent with the decision of the Court of Appeal in Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214. That submission cannot be entertained in this case.
However, it would seem that the facts of this case are materially different to the position in Goddard v Central Coast Health Network and are more akin to the position in Albrighton v Royal Prince Alfred Hospital as cited above, where the hospital provided the surgeons to the plaintiff as a public patient as part of the duty to provide complete medical services: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at p 604B - p 605B, per Samuels JA, Meagher JA agreeing.
Furthermore, insofar as the defendant relies upon the decision in Elliott v Bickerstaff, that case is also distinguishable because it involved surgery performed on a private patient where the sponge left in the abdomen of the patient was not necessarily the fault of the defendant who had been sued, and where the surgeon was entitled to rely on other members of the team who were present in order to discharge the duty of care owed: [95] - [100]. The situation in the present case is entirely different, where complete medical services were being provided to the plaintiff: Ellis v Wallsend District Hospital, at p 604A - p 605B; Elliott v Bickerstaff, at [96].
Turning then to the components of the claim of alleged intra-operative negligence, it is convenient to first consider the implications of the terms of the operation note made by Dr Panagamuwa, and how that note should be construed.

[66]

Construction to be placed on the operation note

The plaintiff seeks a finding that the words "inadvertent division" of the 7th cranial nerve as set out in Dr Panagamuwa's operation note should be given a construction to mean that the nerve was divided in the course of surgery that was performed negligently.
I have been referred to a number of different dictionary definitions concerning the meaning of the word "inadvertent". For present purposes it is not necessary to cite those references as they are all to the same general effect.
It is sufficient to record that "inadvertent" is capable of having a range of meanings. Those meanings include unintentional, careless, and other nuanced variations within that spectrum.
The fact that "inadvertent" has a spectrum of meanings ranging from the benign, such as unintentional, or in the context argued on behalf of the plaintiff, a more ominous meaning, such as careless, which implies negligence, indicates that the construction of the word "inadvertent" as used in Dr Panagamuwa's operation note should proceed with caution in order to avoid an extreme, strained or tortuous interpretation.
I consider a cautious approach is indicated in the context of the evidence in this case where Dr Panagamuwa has not been called to explain the meaning of his note, or the context in which the word appears.
In those circumstances, I consider that a benign construction should be given to the word "inadvertent" so as to give it the meaning of unintentional, rather than taking it to mean negligence.
In my assessment, on the face of Exhibit "3", p 154, it would be an unreasonable contrivance for an inadvertent event to be characterised as negligence. This is especially so when the surrounding factual circumstances remain undefined in the evidence, and on the authorities, there must be some scope allowed for intra-operative errors of judgment or lapses that can occur without the need to characterise such occurrences as having arisen due to negligence: Dobler v Halvorsen, at [104].
It is not necessary to survey all of the evidence to demonstrate that point. A simple example taken from the unchallenged evidence will suffice.
Dr Biggs described the second phase of the subject operation, where the tumour is removed, as being one that is taxing for the surgeon, where the surgeon's motor control can become fatigued, and where the scope for this to occur can arise over the course of the several hours that the second phase of the operation may unpredictably occupy.
In the context of an operation requiring the manipulation of instruments at the base of the brain in juxtaposition to nearby delicate neurological structures that may become easily damaged by contact or by forces transmitted to those structures from instruments used in the procedure, that description readily identifies the need for allowing some scope for errors of judgment, errors of concentration, or inadvertence.
In my view, for the more ominous rather than the benign interpretation of intra-operative negligence to apply, specific evidence is required in order to support a contention of negligence.
Accordingly, I am not persuaded that the construction of the word "inadvertent" as sought by the plaintiff should be found to mean that intra-operative negligence has been admitted by virtue of the content of Dr Panagamuwa's operation note copied at Exhibit "3", p 154.
I now turn to the question raised by the plaintiff as to the appropriateness of the pre-operative radiological imaging investigations that were instituted by the defendants in the lead-up to the subject operation.

[67]

Appropriateness of imaging investigations

The particular of negligence raised by the plaintiff which relates to the appropriateness of the radiological imaging investigations leading up to the subject operation appears at sub-paragraph (4) of paragraph [1006] above, and relates to the alleged failure of the defendants to arrange appropriate and up to date pre-operative MRI scanning of the plaintiff's right-sided acoustic neuroma to determine its current size and morphology.
In the context of the plaintiff's neuroma having been first detected by Dr Janke through MRI scanning performed on 5 December 2008, it was argued that an appropriate time frame for re-imaging the neuroma would have been around the time of the subject surgery, which was about 12 months after Dr Janke's report that revealed the neuroma.
On behalf of the plaintiff, it was argued, based on Dr Stenning's evidence, that re-imaging by a further MRI scan would have been appropriate to shed light on whether the plaintiff's acoustic neuroma had grown, and whether it was still appropriate to have it operated upon: T500.25 - T501.3.
The benefit to be obtained from a further pre-operative MRI scan would have been to clarify whether the existing plan for operative treatment for neuroma removal was still an appropriate course for the plaintiff to take, as the decision on whether or not to proceed with the surgery, and to take on the risks associated with that surgery, was one which the plaintiff was entitled to make or to change at any time, even until just before the operation was due to commence. That timing was exemplified in the evidence of Dr Stenning: T540.21 - T540.22.
Another benefit to be obtained from more recent MRI scanning would have been to assist and to guide the surgeons on the most advantageous technical approach to the surgery having regard to tumour size, location to nearby structures, and the like.
In my view the fact that the defendants did not seek to pursue the benefit of a repeat MRI scan should not be necessarily seen as a departure from the expected standard of care. This is because, as was explained by Dr Schultz, the translabyrinthine approach to removal of an acoustic neuroma in the cerebello-pontine angle did not involve the need to use intra-operative image guidance technology: Exhibit "3", p 14. There was no challenge to the rationality of that opinion, and I therefore consider that the operation of s 5O of the CL Act serves as a defence that eliminates this argument as a viable head of negligence.
This nevertheless leaves open the broader issue of whether a repeat MRI scan should have been arranged pre-operatively in order to assess whether the acoustic neuroma had grown in size or in its extra-canalicular component.
On 30 October 2009, Dr Mukherjee arranged for the plaintiff to have a CT scan of her right petrous temporal bone. This created the circumstance whereby a direct comparison between what was shown on the MRI scan taken on 5 December 2008 and what was shown on the more recent CT scan was not possible, because necessarily, the comparison of MRI and CT images did not involve a comparison of like with like.
The polarisation of views within the expert evidence on the benefits of arranging a serial MRI scan was between Dr Stenning who on the one hand was of the view that there should have been a repeat MRI scan (T500.25 - T501) and Dr Schultz on the other hand, who believed that the CT scan that had been performed provided sufficient information to suggest that no major change in tumour size was apparent: Exhibit "3", p 7.
The obvious difficulty in analysing those divergent views is that Dr Schultz was not called to give oral evidence. That circumstance necessarily obviated the opportunity for a meeting of the respective experts. An exploration of the basis for the difference in those respective views was therefore unavailable for consideration.
In those circumstances, the evaluation of these differing views must proceed according to the permissible limits of a logical analysis within the confines of the uncontradicted evidence, notwithstanding the inherent difficulties with such an exercise. Those difficulties would have been avoided if the parties had pro-actively sought to use the provisions of UCPR r 31.24(1) and UCPR r 31.35 within the spirit of s 56 of the Civil Procedure Act 2005.
Be that as it may, I must grapple with the issue as best I can in the circumstances.
It is convenient to commence this portion of the analysis with the recognition of the fact that Dr Stenning's views as summarised at paragraph [1040] above were unchallenged. As there was no logical difficulty or internal inconsistency in those views, there is no sound reason why Dr Stenning's views should not be accepted, subject to the consideration that follows concerning the differing views of Dr Schultz.
In addition to the polarised views cited at paragraph [1040] above, Dr Schultz's first report stated the opinion that the CT scan performed shortly before the subject surgery had revealed sufficient detail of the tumour to suggest that it was very similar in size to when it was initially diagnosed on MRI scanning in December 2008: Exhibit "3", p 10. Dr Schultz's supplementary report went on to state that within the limitations of CT imaging of the tumour, significant progression did not appear to have occurred: Exhibit "3", p 14. Those limitations were not identified by Dr Schultz.
The evidence does not reveal whether Dr Schultz's interpretation of the CT and MRI images was based on his personal viewing of the actual films or digital images, or whether he relied upon the radiological reports of those images.
Dr Schultz's views on what constituted sufficient detail of the tumour and what constituted significant progression was not explained. The absence of such explanations does not assist the analysis.
In considering the identified polarisation of views of Dr Stenning and Dr Schultz on the utility of different forms of imaging, for the reasons that follow, I have concluded that I should prefer the views of Dr Stenning, who clearly explained his views in his oral evidence, and that evidence was not relevantly contradicted.
I find that the lack of a uniform basis for comparison between the 2008 MRI scans and the 2009 CT scans to be a compelling reason for preferring Dr Stenning's views to those of Dr Schultz on this issue. No sound reason has been shown for not accepting Dr Stenning's view to the effect that an acoustic neuroma is not well demonstrated on CT scanning compared to MRI scanning. Dr Stenning was careful to emphasise that it was dangerous to compare tumour growth rates on CT and MRI scans as these scans are complementary, and show different things. It was for those reasons that Dr Stenning maintained that a repeat MRI scan should have been performed pre-operatively: T500.25 - T501.
Dr Stenning's cited views were cogent, appeared logical, and provided no indication for entertaining doubt about them.
Accordingly, against the background of Dr Stenning's explanations, which I accept, I consider that it would be unsound to accept an invalid comparison of the differing imaging modalities to conclude that the CT images considered by Dr Schultz were sufficiently demonstrative of tumour size.
I am fortified in that view because in his evidence, Dr Stenning identified the purpose of a pre-operative CT scan in this case as being to assist the operating ENT surgeons in navigating through the plaintiff's petrous temporal bone. He said that such a scan would not help the surgeon at all with regard to assessing the size of the tumour that had been targeted for removal: T502.1 - T502.3. There was no contradictory answer to that evidence.
Be that as it may, on an overall view of the evidence, the arrangement of a pre-operative CT scan of the plaintiff's right petrous temporal bone instead of arranging for a repeat MRI scan of the tumour was, on the evidence, defensible as an acceptable method of the surgical approach by an ENT surgeon for removal of an acoustic neuroma using a translabyrinthine approach through the petrous temporal bone, which required that bone to be imaged by a CT scan prior to surgery.
As that approach, and that mode of investigation, was supported by Dr Schultz, it was therefore in accordance with rational peer professional opinion in Australia, although the debate was not fully articulated in the report of Dr Schultz. In circumstances where there is room for legitimate rational debate between the varied techniques used by neuro-otological surgeons and neurosurgeons to remove an acoustic neuroma, the fact that the defendants did not arrange a further pre-operative MRI scan in this case does not of itself sustain an allegation of negligence against either defendant: s 5O of the CL Act.

[68]

Whether intra-operative negligence occurred

The state in which the evidence has been left is that the precise manner of occurrence of how the plaintiff's right facial nerve came to be severed was left unexplained.
The plaintiff carries the legal onus for proof of allegations of intra-operative negligence: s 5E of the CL Act. It is not a sufficient discharge of that onus to simply prove factual causation as is the case where there has been a proven failure to inform, advise and warn of the risks of surgery: Wallace v Kam, at [29].
In some cases where direct proof of negligence is lacking, it may be possible to infer from the lay and expert evidence that negligence has occurred, or that a causal relationship exists: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [87] - [88].
The absence of expert evidence supporting the plaintiff's claim in professional negligence represents a subtraction from the case sought to be made by the plaintiff but the absence of such evidence is not necessarily fatal to the claim: Jackson v Verco, unreported, 17 January 1992, Full Court of the Supreme Court of South Australia, per Bollen J, at p10; F v R (1983) SASR 189, at p 201.
However, there are well recognised constraints on drawing inferences to the effect that negligence occurred where such conclusions remain unsupported by evidence, and are based on speculation that does not rise above the status of mere conjecture: Luxton v Vines.
In seeking to make a case founded on reasoned inferences, rather than conjecture, it is well understood that a party is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendants: Condos v Clycut Pty Ltd [2009] NSWCA 200, at [68] - [71]. The same principle applies concerning evidence from which reasonable inferences may be drawn: State of NSW v Fuller-Lyons, at [30] - [31]. Those matters may have been clarified by interrogatories.
I therefore conclude that in this case, the absence of any direct evidence of precisely how the plaintiff's right facial nerve came to be divided represents an insurmountable obstacle to the contended pathway of inferring that negligence occurred when the plaintiff's right facial nerve was severed intra-operatively.
This is so particularly where there must be scope for some latitude to be allowed for errors of judgment not amounting to a breach of the expected standard of care: Dobler v Halvorsen, at [104]. Before consideration can be given to whether such allowances should be made in a particular case, there must first be a factual exposition that permits the application of the criteria of s 5B of the CL Act. That evidence is lacking in this case.

[70]

Issue 14 - Causation

Following the plaintiff's failure to prove any intra-operative negligence on the part of either defendant, it remains necessary to consider the causation consequences of the findings of negligence concerning the informed consent issue.
On that issue, as with intra-operative issues, it unquestioningly remains for the plaintiff to establish causation pursuant to s 5D of the CL Act: Paul v Cooke, at [80].
The various opinions expressed by the defendants' experts on the adequacy of the consent process (Exhibit "3", p 11; p 37; p 39) cannot be determinative of questions of causation on the consent issue.
For example, in his report dated 7 November 2013, Dr Schultz stated that the apparent lack of discussion with the plaintiff of the different surgical approaches to the removal of the tumour is not materially important: Exhibit "3", p 9. Whilst that statement was not challenged by cross-examination, it must nevertheless be seen on its face to carry little weight.
In this case, it is not necessary to engage with that aspect of the expert opinions on the consent issue, although the existence of those opinions is noted.
This is because it is for the court and not the experts to objectively determine what information the plaintiff would have regarded as being material when deciding whether or not to accept the risks associated with the subject operation if she had been adequately informed, advised or warned of the material risk of a potential facial nerve palsy, and the potentially permanent deleterious consequences of such a nerve injury: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, at pages 489 - 490; Wallace v Kam, at [8] ; F v R (1983) 33 SASR 189, at 194; Paul v Cooke [2013] NSWCA 311, at [100].
A consideration of those matters in the context of a causation evaluation requires that the plaintiff's background, and the relevant subjective features of her background, be taken into account. The plaintiff's own evidence on such matters cannot be determinative of this question: s 5D(3)(b) of the CL Act.
The plaintiff gave intelligent and thoughtful consideration to the questions that were put to her. Her answers were generally responsive. This would tend to indicate that she was capable of a rational discussion on matters that were properly translated to her for consideration. In that regard, I see no basis for finding a material difference in respect of that capacity as demonstrated at the hearing, and the capacity she was likely to have had in the relevant events of 2009.
I consider that the plaintiff's background training in nursing, albeit whilst it had been obtained overseas, and her former triage work in a radiology clinic, provides a sufficiently sound basis for inferring that before the diagnosis of her acoustic neuroma, she would have been attuned to any discussion on a health issue that had the potential to adversely impact upon her wellbeing.
The plaintiff's pre-operative photographs provide a sufficient basis for inferring that before the subject surgery, she took some pride in her appearance, suggesting that being well groomed in her appearance was important to her. This also suggests that she considered aesthetic and appearance issues to be of some importance to her sense of wellbeing: Exhibit "C", pages 626 - 632.
I accept the plaintiff's evidence to the effect that when she saw Professor Fagan on 6 March 2009, as a result of what had been conveyed to her at that consultation, she harboured the belief she had a cancerous tumour in her brain. I also accept that during the discussion between the plaintiff and Professor Fagan regarding her diagnosis, she became petrified, tremulous and fearful of ending up just like her parents when they were in the terminal stages of their incurable cancers: T57.35 - T57.50.
I am satisfied that in the events of the consultation with Professor Fagan, the plaintiff was sensitised to the possibility of having a tumour in her brain because of the circumstances of the death of both of her parents from cancer, where it appeared they had been minimally treated with poor outcomes in each instance, and because of her concern that as a disease, cancer may have been hereditary in her circumstances.
I am also satisfied that pre-operatively, it was the plaintiff's desire to maintain her wellbeing. Apart from that attitude being in her own interests, she wanted to be around for her grandchildren. This, and the plaintiff's fear of ending up (with terminal cancer) like her parents, were strong influencing factors on her thinking concerning matters that were material to the maintenance of her health and wellbeing at the time Mr Madjistorov conveyed to her a filtered and miscommunicated account of the discussion by Professor Fagan. Thereafter, the plaintiff continued to hold the erroneous belief that she had a tumour in her brain, and that the tumour required removal.
I am satisfied that the plaintiff's erroneous view concerning those matters was never revealed, addressed or corrected by any interactive discussions that would have ordinarily been expected to take place in the course of any subsequent medical examinations or consultations with either Dr Biggs or the second defendant's employed medical practitioners who respectively saw her on 14 October 2009, 30 October 2009 and 2 November 2009, or at any other time up until when the plaintiff underwent the subject surgery.
Those findings provide the relevant background for assessing, as best one can, how the plaintiff would have reacted and responded to receiving correct medical information, advice and warnings on material matters which had the potential for an adverse affect on her health and wellbeing, including being informed of the potential adverse effects of any surgical treatment that she might be advised to consider.
That analysis requires the assessment of what information, advice and warnings the plaintiff would have regarded as being material to her decision on whether or not to accept and undertake the risk of incurring the potential adverse outcomes of neuroma removal surgery.
The advice that was required to be given to the plaintiff in the circumstances, has already been set out at paragraph [852] above.
In summary, the provision of adequate information, advice and warnings as to the potential risks of the subject surgery would have required that the plaintiff be told that post-operatively, she could be left with a partially paralysed face and a stroke-like appearance, with a drooping mouth and dribbling due to a damaged facial nerve that may not be repairable, despite attempts at repair by microsurgery.
Advice to that effect would also have to include some detail of the resultant disabilities from such an injury, namely, an inability to close the right eyelid, an inability to obtain a satisfactory lip seal to be able to drink liquids without a straw, and the partial loss of the senses of smell and taste on the affected side. Further relevant detail would have been to identify the possibility of facial asymmetry, scarring from remedial surgery, and the permanent need to have specially prepared food.
Neither Professor Fagan, nor Dr Biggs, provided that advice to the plaintiff in terms she understood. To the extent Dr Mukherjee gave some advice to the plaintiff along those lines through an interpreter albeit with a mixed message as outlined at paragraph [890] above, any advice she gave was materially diluted by the incorrect impression she gave that nerve damage that may occur during the operation could be repaired.
For the reasons that follow, I am satisfied that if the plaintiff had been informed, advised of, or warned of the material risk of incurring an intra-operative division of her right facial nerve, with the potential adverse complications as summarised at paragraphs [1081] - [1082] above, she would have considered those matters to be material to her decision concerning treatment of her neuroma. I find that if the plaintiff had been given such advice, she would not have agreed to accept the risks of the subject surgery. In my view, the plaintiff would have found the risk of such complications to be unacceptable in comparison to the relative advantages and disadvantages of a "wait and watch" approach to the management of her acoustic neuroma.
The first element to be considered in relation to that question is for the plaintiff to have correctly understood the true nature of her underlying condition for which operative treatment was suggested.
At the time the plaintiff saw Dr Biggs on 3 April 2009, she mistakenly thought that she was faced with a decision on whether or not to submit to the subject surgery that had been identified by Professor Fagan a month earlier. At that time, she had already faced hearing difficulties that were of a longstanding nature. She also had more recent balance problems that had been affecting her for some years. For the previous couple of years, she had also been experiencing problems with nausea, dizziness and balance: T16.33; T189.18. This was to the extent that she had experienced some falls. She couldn't drive, and she needed someone to take her to the medical examinations in question.
Clearly, the plaintiff was concerned about her otological symptoms, hence her pursuit of medical advice, including following through with her attendance at the specialist consultations to which she had been referred. The symptoms she identified clearly required specialist evaluation, especially after the results of the MRI scan taken on 5 December 2008, which identified the existence of a right acoustic neuroma.
It is common ground that the plaintiff's acoustic neuroma was either small, or at best medium in size, and to the knowledge of those whom she had consulted, it was therefore likely to be slow to grow. On that factor alone, according to the medical opinions, it was therefore suitable for adopting a wait, watch and monitor plan of management.
The plaintiff obviously had confidence in Professor Fagan, who had her test results before him. She was expecting him to provide her with advice on matters of diagnosis, management and treatment.
Due to the unsatisfactory interpreting arrangements at the consultation with Professor Fagan, the subtlety of the distinction between the plaintiff having a tumour in the brain, rather than the tumour being near the brain, was somehow lost in translation in the communications conducted through Mr Madjistorov. The plaintiff therefore received, and had thereafter retained her erroneous belief that she had a brain tumour that required removal. She thought Professor Fagan was recommending to her that she have a tumour in her brain removed.
In those circumstances, if a person in the position of the plaintiff was labouring under that misapprehension, especially having some background training in nursing, such a person would have realised that a recommendation for surgical intervention should be taken seriously. She would also have recognised that base of skull surgery was not a matter to be undertaken lightly. Unsurprisingly, she was shaken and very upset by what she believed to be the diagnosis of a tumour in her brain, and she was also upset by the treatment recommendation given to her by Professor Fagan. Understandably, she needed time to process the information in order to decide what course she should take.
The plaintiff immediately opted to take a cautious approach by seeking a delay of a month in order to think about the course she should take. In those circumstances, it would be reasonable to infer she would have taken a similarly cautious approach if she had been given the correct understanding that the tumour was near her brain, not in her brain, as there was no immediate medical need for surgery to remove the tumour.
In respect of the period between 6 March and 3 April 2009, during which time the plaintiff gave anxious consideration to whether or not to have the suggested surgery, there was no evidence of any discussions made understandable to the plaintiff, of the nature of the adverse risks of neuroma removal surgery.
The focus of the plaintiff's consideration of what she had earlier understood from the consultation with Professor Fagan, was that the suggested operation was required to remove what she believed to be a tumour in her brain. In the plaintiff's mind, the choice she was being required to make was one between whether to have the operation or not. It was not a matter of choosing whether or not to accept the attendant risks, as I have found that at that stage, those risks had not been adequately explained to her in a form which she understood.
The second element for consideration is the central question of whether (if the plaintiff had been given a proper understanding of Professor Fagan's diagnosis, and recommendation) she would have informed Dr Biggs that she wished to take the option of neuroma removal surgery as she had in fact indicated to Dr Biggs at the outset of the consultation she had with him on 3 April 2009.
That question was raised with the plaintiff in cross-examination. The plaintiff gave an understandable response and stated that she would not have undertaken the subject operation if she had correctly understood the true nature of her condition: T90.28 - T90.29.
That answer cannot be relied upon as it is open to the criticism that it represents a convenient hindsight view. Furthermore, the plaintiff's opinion or belief on what she would have done in the circumstances is, as a matter of law, deemed to be an irrelevant consideration, as that evidence is inadmissible on this issue: s 5D(3)(b) of the CL Act.
The court must instead make an objective assessment of what the plaintiff would have considered in the circumstances as being subjectively material to her decision on whether or not have the subject operation. This is necessarily a difficult exercise that must be determined on the admissible evidence considered as a whole.
The general framework for the evaluation of that causation question includes factors such as the plaintiff's apparently normal intelligence, her capacity to understand what was being said assuming proper interpretation, her previous nursing training and life experience, her perception of the problem under consideration, her relative desire for treatment to seek to ameliorate or manage symptoms, followed by an assessment on the balance of probabilities, as to what she would have decided to do in the circumstances.
I consider that a reasonable person in the position of the plaintiff, being in possession of adequate information of the material risks, as outlined at paragraphs [1081] - [1082] above, would have proceeded very cautiously before agreeing to accept the attendant adverse risk of a facial nerve injury that went with a recommendation for surgery for removal of an acoustic neuroma using the translabyrinthine approach.
A number of further elements emerge regarding the process of an evaluation of available treatment choices by a person in the position of the plaintiff.
Foremost in a case of adequately informed consent is the underlying assumption that there must be a correct appreciation by the plaintiff of the diagnosis of her condition requiring treatment. It must also be assumed that a correct understanding had been conveyed to her of alternative modes of treatment of the condition. Furthermore, it must also be assumed that with the aid of a suitably skilled interpreter, the plaintiff would have had the benefit of the interactive process that forms part of a focussed doctor / patient discussion on material matters, including risks.
By those means, in the case of adequate information, advice and warnings, it must be assumed that the plaintiff would have acquired an understanding of the benefits, as opposed to the potential adverse risks of the respective treatments that were being suggested to her.
In deciding whether or not to have the subject surgery, the plaintiff would have appreciated the obvious proposition that intra-cranial surgery performed near the base of the brain and near nerves essential for normal facial function, was not something to be undertaken lightly, especially where the potential adverse consequences could be quite disabling.
In my view, the decisive factor for the plaintiff agreeing to have the subject operation was her fundamentally incorrect understanding that she had a tumour in her brain. But for that erroneous view, I consider that she would not have agreed to submit herself to the subject operation, or to accept the attendant risk of incurring a facial nerve injury from such surgery: Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182.
I consider it would have been extremely improbable that an otological surgeon of ordinary skill and competence in the position of Dr Biggs, would have agreed to proceed to arrange and operate to remove the plaintiff's acoustic neuroma if he or she had realised the plaintiff was harbouring an incorrect belief that the indication for the subject operation was a tumour in her brain, and not near her brain, as was in fact the case.
In my view, if there had been adequately skilled interpretation of the pre-operative discussions and assessments with the plaintiff on the one hand and Professor Fagan, and then with Dr Biggs, on the other, I consider it more probable than not, that an entirely different and more conservative course would have been identified by the plaintiff. This would have been because the plaintiff would have been disabused of her erroneous understanding of her diagnoses and treatment options. If Dr Biggs had ascertained the plaintiff's misunderstood view of her need for surgery, it would have been most unlikely that he would have booked the plaintiff onto the hospital waiting list for the subject surgery.
In a properly understood discussion as to a need for surgery, the plaintiff would have been asked to consider not only the potential benefits from the subject operation but the potential adverse risks, and she would have to be told the material details of the risk of facial nerve damage as outlined at paragraphs [852], [1081] - [1082] above.
As that had not occurred, unfortunately the plaintiff retained that erroneous view when she saw Dr Mukherjee on 14 October 2009, and thereafter, that wrong view continued unabated.
Returning then to the question of risks and benefits, the central focus of the analysis would have been the combination of the plaintiff's hearing problems and her balance problems.
It was plain from Professor Fagan's notes and correspondence that the hearing problems alone would not have warranted surgery in the short term. It was the plaintiff's problem with balance that was the complicating factor that influenced the surgical recommendation.
On that latter issue, in his evidence in chief, Dr Biggs stated that he would always explain to a patient facing the subject operation that "unfortunately they're never going to have perfect balance, but I also point out that even if you treat them conservatively that they're going to have some slight impact on balance. It's all a relative thing but I just primarily point out the fact that it takes a little while for their balance to recover, but the aim of the game is to get them back to good function": T314.15 - T314.25.
In my view, a disclosure and discussion along those lines, properly translated to the plaintiff by a skilled interpreter, would have given rise to questions from the plaintiff and discussion concerning the likely nature and extent of the improvements of the balance problems that could be expected from surgery, or put differently, the chances of the problems with balance remaining, either in part or whole, despite the surgery.
The above cited evidence in chief of Dr Biggs at T314.15 - T314.25 was taken up in cross-examination. At T350.32 - T351.5, Dr Biggs' evidence on the prospect of post-operative recovery of balance problems or disequilibrium, was as follows: "Q. You said this morning in relation to that topic that it can - I withdraw that. You said that you would have told your patient that it can take up to 12 months or longer to recover, that was what you said to his Honour this morning. Do you mean to imply in that answer that complete recovery is inevitable in these injuries, but the time can vary? A. No. Q. I will just take you back to some things you said yesterday, doctor. Doctor, you gave an explanation about what you would have explained, you believe, to Mrs George when you first saw her in April 2009, in relation to the effect of the proposed surgery on her balance, and what you said was this: "I would have explained that initially after the operation, as I mentioned earlier, it takes a couple of months to recover but our expectation is with the removal of the tumour her balance would stabilise and not fluctuate, and hopefully be more manageable for her to be able to carry on her normal day to day activities." Do I correctly read from that that it's not usually expected that balance, or this equilibrium [disequilibrium] will be totally ameliorated but only improved? A. No, the - what I meant by that is severity of the disequilibrium, Mrs George had, had falls, and that is something that you're hoping to ameliorate or prevent, and - but every patient has a small degree of disequilibrium with a tumour, treated or otherwise." [Emphasis added and transcript correction incorporated]
I consider that those portions of the evidence of Dr Biggs which have been emphasised would be expected to be disclosed in a consent oriented doctor / patient discussion on neuroma removal surgery using the translabyrinthine approach.
I consider that a reasonable person in the position of the plaintiff would have questioned the matters set out in the emphasised portions of the evidence of Dr Biggs cited in paragraph [1114] above. I consider that the plaintiff would have considered it of concern, and material to her decision, that the operating surgeon was indicating that a degree of disequilibrium, the factor that militated towards the surgery, would remain despite the surgery.
On the subject of prospects of recovery from rotational disequilibrium, without cerebellar involvement (which was the plaintiff's situation), Professor Havas gave unchallenged evidence that "the results from surgery are not predictably good": T407.25.
I consider that the provision of adequate informed consent to the plaintiff should have disclosed such information as it would have been highly material to the plaintiff's decision on whether or not to undertake the risk of the subject surgery.
At T407.28 - T407.47, Professor Havas went on to identify the relevant questions concerning whether surgery for acoustic neuroma removal was indicated. In that regard, his unchallenged evidence was as follows: "Q. I'm sorry, can you just tell me if this is a correct paraphrase of what you just said? If the presenting problem is significant disequilibrium the results of surgery to remove the tumour are not universally good? A. Almost correct, but what I said was if the presenting symptom of an acoustic neuroma is a problem with the balance apparatus or the balance nerve, the results - so if a patient with an acoustic neuroma experiences imbalance, it's due to one of two things or a combination of the two things. It is more often than not, according to the literature, due to a tumour in the cerebellopontine angle which abuts onto, irritates or puts pressure on the cerebellum, which is that structure at the brain stem with which I'm sure you're all familiar. If it is confined to the internal - if it's a small tumour arising from this inferior vestibular nerve, as they often do, again, meta-analysis, everyone has different anecdotal recollections but if we look at the published data the predictive index, how likely if I operate on you am I to make your balance better, or near normal? I would suggest that the answer to that is about one in 2, maybe slightly better. So if there's a small tumour that's not pressing on the cerebellum then rotational unsteadiness I don't think would mitigate towards early intervention." [Emphasis added]
At T408.25, Professor Havas corrected a typographical error that appeared in his report dated 24 January 2013 (Exhibit "C", p 4) so that the relevant portion should be read as follows: "Q. What do you say it should read? A. I would say the treatment of Mrs - so what I was saying there was, 'Treatment of Mrs George's tumour was indicated. With regards to effective [effect of] surgery on disequilibrium, it is not reasonable to expect that the [removal of the] tumour would have improved her symptoms.'" [Transcript corrections incorporated]
Professor Havas went on to state that the published results for neuroma removal surgery for rotational disequilibrium in the case of a small tumour "are not good" and are "not predictable": T415.11. He generally agreed with the substance of Dr Stenning's view that surgery would improve 60% to 70% of the balance problems, but he thought that was an optimistic view: T415.17. No evidence was called by the defendants to contradict those statements.
Professor Havas stated that informed consent in the case of surgery for removal of a small neuroma where the main reason for operating requires disclosure that one-third of such neuromas are not actively treated: T408.49. In my view, that would have been a highly material consideration to someone in the position of the plaintiff facing the risks of neuroma removal surgery.
Dr Biggs gave his evidence after Professor Havas and Dr Stenning gave their evidence. At this point it is useful to compare Dr Biggs' evidence as to what would have been his usual practice in discussing such matters with an acoustic neuroma patient in 2009. At T316.25 - T317.37, Dr Biggs gave the following evidence: "Q. Earlier, Dr Biggs, you gave evidence that you recall recommending to Mrs George treatment based on her symptomatology. Having regard to your usual practice in 2009, what treatment options do you say you would have discussed with Mrs George? A. I would, I would have discussed the fact that we could wait and, and keep an eye on the tumour and, and rescan her. We could consider surgery or we could consider radiotherapy, but I - in my usual practice, I would have said, I, I think if we were not going to operate on it, I would have recommended a more conservative approach in - yeah, my recommendation would have been based on the fact that we feel that radiotherapy is not a particularly good modality to address balance issues. Q. Are you able to say, having regard to your specific recollection, why it is you recommended surgery to Mrs George in April 2009? A. I felt, I - from my recollection, I felt her balance was quite a significant issue for her and that she was having difficulty with that and it was at a point where I felt treatment was necessary to try and address that issue for her. Q. And having regard to your usual practice in 2009, what do you say you would have said to Mrs George about the effect on her balance of surgery? A. I, I would have explained that initially after the operation as I mentioned earlier. It takes a couple of months to recover, but our expectation is, with the removal of the tumour the - her balance would stabilise and not fluctuate and, and hopefully be more manageable for her to be able to carry on her normal day to day activities. Q. Having regard to your usual practice in 2009, when discussing acoustic neuromas with patients, what words did you use to describe the tumour? A. What-- Q. What did you call it? A. We call it an acoustic neuroma. That, that's the most - the term vestibular schwannoma is too technical for most patients, and most people would know - use the term acoustic neuroma. It's, it's widely available on the internet and in literature, so, so I would use the term acoustic neuroma. Q. And having regard to your usual practice in April of 2009, what do you say you would have told Mrs George about whether - about the malignancy or otherwise of this tumour? A. I would have reassured her that it's not malignant. That's always a major concern of patients when they are told about these tumours that it could be malignant and I, I always emphasise to the patient that this is not a malignant process. HIS HONOUR Q. How do you gauge the patient's reaction to that advice? That is, on the topic of non-malignancy? A. I think it, it comes down to your interaction with the patient. I think if patients ask me further about that or, or why I think that, I, I explain the fact that I've only ever seen three malignancies that occur in that part of the, the brain - part of the - before and everyone of those patients we knew had malignancy elsewhere in their body. The other thing that I always - if there's any doubt, say to the patient is, malignancy in that area causes significant pain. Whereas acoustic neuromas don't. Q. What I'm getting from you here is that you supplied this additional information only when asked questions, is that the correct impression? A. I, I, I would - in my normal practice I would explain to the patient that I'm, I'm very confident it's not malignant and yes, if, if I had any sense that the patient was not sure about that response or, or answer, I would expand on that further." [Emphasis added]
The highlighted portion of Dr Biggs' evidence as to his usual practice in discussing the expectation that there would be a stabilisation of the balance problem to a more manageable form, reveals it to be in very broad and general terms which in my view do not adequately reflect the matters outlined by Professor Havas as referred to at paragraphs [1115] - [1122] above.
This leads to a consideration of the extent of the plaintiff's problem with balance at the time of Professor Fagan's assessment a month before the 3 April 2009 consultation with Dr Biggs.
At that consultation, Professor Fagan, gave consideration to the question of whether the plaintiff's problem with balance warranted surgery. In that regard, Professor Fagan had recorded two similar questions in his notes. Essentially, the distilled question was whether the plaintiff's balance problems were bad enough to warrant surgery. Professor Fagan's note of his impression of his exchange with the plaintiff was "sometimes yes": Exhibit "3", p 379.
The range of circumstances which attracted the description "sometimes" as contemplated by that note were not differentially explored in Professor Fagan's evidence. At T224.10 - T224.17, Professor Fagan further explained that note as follows: "Q. So she at that point, according to this note, would have made a valued [sic] judgment on whether she wanted the surgery in the light of your description? A. I believe so, but it's - yes, sometimes but not always and that's an important point. The - the imbalance was bad enough to warrant surgery to cure it. Q. You mean, I suppose, she sometimes felt that way? A. That's as I understand it, she sometimes would want to have something done about it."
It is worthy of note that Professor Fagan saw the role of surgery as being to "cure" the problem with balance whereas the effect of the evidence of Professor Havas, Dr Stenning and Dr Biggs involved the substantially lesser expectation than a cure, which implies cessation of symptoms.
Professor Fagan explained that his record of the word "sometimes" meant this was the plaintiff's reply in answer to a question he had asked of her: T224.8. However, a further question arises as to whether the note "sometimes yes" may have also constituted Professor Fagan's opinion on whether surgery was warranted.
In my assessment, the answer "sometimes yes" should be read as being a composite of an answer from the plaintiff as well as being Professor Fagan's opinion. This is because it looks as if it was a note of his own assessment, in which he was answering his own question. The plaintiff could only have given a reliably meaningful "yes" answer to such a question if she had been given a proper understanding of the risks of the surgery in order to make such a value judgment. In view of the language difficulties that prevailed at that consultation, I consider that the weight of the evidence is against the plaintiff having acquired such an understanding. In that regard, I accept the evidence of the plaintiff as previously explained.
Furthermore, it is difficult to see how the plaintiff could have reached a conclusion that surgery was warranted where the expert understanding on that topic was that surgery may not have resolved the plaintiff's balance problems to the point of a cure.
The answer "sometimes yes" has been left undefined. That gives no useful insight into the frequency with which the plaintiff felt surgery was warranted. The answer does not assist in an understanding of the risks associated with the surgery. Professor Fagan's note does not seek to record a process of counter-weighing those matters. The absence of such a record is not remarkable, because at that time, he was not recommending surgery in the short term. If he was recommending surgery, a differential discussion on risks and benefits would have been expected in those circumstances. The significance of his note "all complications discussed" has already been analysed at paragraphs [238] and following, and at paragraph [600] above. The plaintiff was not given an understanding of the risks to her facial nerve in that consultation.
Given the unsatisfactory interpreting arrangements on 6 March 2009, and the plaintiff's described emotional reaction to what she had understood Professor Fagan to have said at that consultation, it is unreasonable to infer from Professor Fagan's note, that the plaintiff had understood Professor Fagan's discussion of her balance symptoms as a factor weighing in favour of undertaking surgery.
I am therefore not satisfied that the plaintiff had acquired from Professor Fagan a baseline understanding that an influential factor for the recommendation for surgery was the extent of her balance problems. It is difficult to infer from the words "sometimes yes" that this justified surgery. Clearly, the plaintiff did not understand the reasoning proffered by Professor Fagan, and in any event at that time she wrongly believed she had a tumour in her brain.
The objective position regarding the basis for any medical information and advice as the indications for operative treatment in the short term in the form of neuroma removal surgery, as opposed to her taking a "wait and watch" approach with follow-up reviews to monitor progress, may have been explained by Professor Fagan. However, I accept that the plaintiff did not absorb or understand that discussion. Whether this was because of her emotional state, or whether it was because of the poor translating arrangements, is ultimately immaterial.
I consider that if a reasonable person in the position of the plaintiff was provided with information, in language and in terms that she understood, broadly in conformity with the evidence of Professor Havas as referred to at paragraphs [1115] - [1122] above, where the broadly accepted view was that surgery may not resolve the disequilibrium problems being experienced, and that there were risks of the surgery along the lines summarised in paragraphs [1081] - [1082] above, and where a conservative "wait and watch" management option was also available, the plaintiff would not have agreed to the operation in view of the described risks of an adverse outcome.
In the described circumstances, I consider that the plaintiff was not provided with information to the required standard in a language and in terms that she understood.
I am also satisfied that the absence of such information, advice and warnings, amounted to a failure on the part of Dr Biggs and the medical practitioners who saw the plaintiff on 14 and 30 October 2009, and for whom the second defendant is vicariously responsible, to exercise skill and care: Findings on Issues 9 and 10: paragraphs [871]; [883]; [903] - [914] above.
Those findings satisfy the "but for" test or requirement for establishing factual causation. The harm comprising right-sided facial nerve palsy was a necessary condition of that injury which would not have been incurred but for the fact that the plaintiff had been inadequately informed of the material risks, if in circumstances where that lack of information led her to agree to have the subject surgery: s 5D(1)(a) of the CL Act.
Accordingly, the statutory requirements of factual causation demanded by s 5D(1)(a) of the CL Act are satisfied, thus rendering the inquiry demanded by s 5D(2) of the CL Act for legal causation to be irrelevant in this case: Wallace v Kam, at [29].
The plaintiff has proven that the defendants negligently failed to materially advise her of the risks of a potential facial nerve injury from the subject surgery (findings concerning Issue 10). The plaintiff would not have had the subject operation if she had been properly informed, advised and warned of such matters (findings concerning Issue 12). The materialisation of the risk of the plaintiff incurring a facial nerve injury occurred because of the failure of the defendants to adequately inform, advise and warn the plaintiff of such a risk: Paul v Cooke, at [99] - [100]. The plaintiff is therefore entitled to an assessment of damages for her facial nerve injury.
I now turn to the task of identifying the plaintiff's injuries and disabilities as a precursor to assessing the plaintiff's entitlement to damages.

[71]

Issue 15 - Findings: Injuries and disabilities

The identification of the injuries and disabilities due to the transection of the plaintiff's right facial nerve requires a review of the medical evidence relating to those issues.
Following the occurrence of the facial nerve palsy the plaintiff had an extended period in hospital and she had a series of attempts at remedial surgery. Those matters have already been reviewed at paragraphs [378] - [397] above.
The plaintiff's post-surgical medical treatment was provided principally by Dr Biggs, Dr Moisidis and by her treating general practitioners. There were no reports tendered from Dr Moisidis, although some of the experts reporting on the plaintiff's disabilities have seen reports from him; Exhibit "C", pages 155 and 169.
The plaintiff has been assessed for medico-legal purposes by a number of specialists retained by her solicitors. Reports obtained as a result of those assessments have been tendered in the proceedings, as follows.
On 28 May 2013, the plaintiff was assessed by Dr Nigel Curtis, a consultant oral and maxilla-facial surgeon: Exhibit "C", pages 156 - 158. On 12 June 2013, the plaintiff was assessed by Dr Joseph Scoppa, a consultant ENT physician Exhibit "C", pages 160 - 169. On 23 June 2013, the plaintiff was assessed by Ms Kate Morris, an occupational therapist: Exhibit "C", pages 79 - 147. On 23 August 2013, Dr Steven Stratis, a consultant prosthodontist, provided a report on the plaintiff's post-operative dental requirements following his examination of her: Exhibit "C", pages 172 - 174.
On 12 November 2013, at the request of the solicitor for the defendants. The plaintiff was assessed by Dr Andrew Dowe, a consultant ENT surgeon: Exhibit "3", pages 50 - 55.
Dr Dowe considered that there were some flickers of facial nerve function following the repair, however, he was also uncertain of this finding. He did not elaborate on how this was tested or whether this could possibly have been due to the remedial effects of the subsequent remedial sling surgery, and the mechanical involvement of other structures as a result of remedial surgery. As Dr Dowe's findings on this issue are equivocal at best, nothing of significance to an assessment of damages turns on this aspect of his opinion.
Dr Dowe took issue with the attributability of some of the plaintiff's complaints following the subject surgery. Although these two ENT specialists were not called as witnesses to assist in the resolution of the areas of dispute within their respective reports, in accordance with the authorities already cited, these differences of opinion must nevertheless be resolved as best can be achieved in the circumstances.
For the reasons that follow, I have generally preferred the views of Dr Scoppa to those of Dr Dowe where they are in conflict because Dr Scoppa's reasoning in support of his opinions has been set out in satisfactory detail, and this permits one view to be preferred over another: UCPR Sch 7, cl 5(c).
Dr Dowe raised matters of debate relating to the plaintiff's complaints of hearing loss, tinnitus, imbalance, nasal problems and facial asymmetry.
As to the hearing loss issue, Dr Dowe considered that there was little practical change in the plaintiff's pre-operative and post-operative hearing: Exhibit "3", p 52. Whilst the objective difference on testing is 8 per cent, this is a subjective matter on which the plaintiff is entitled to her opinion as to the practical effect the operation has had upon her hearing. Although Dr Dowe referred to the mechanical problem of the plaintiff's spectacle arm interfering with her left hearing aid, the correction he identifies, namely a different hearing aid, if this is found to be suitable following an audiological examination, it will come at a cost. Dr Dowe's view in that regard could not be tested because he relied upon the opinion of an unidentified audiologist for that aspect of his opinion.
In contrast, Dr Scoppa identifies the hearing loss more specifically to include difficulty locating the source of speech. The plaintiff would have had that residual 8 per cent hearing in her right ear preserved if she had not had the surgery. The reasoning adopted by Dr Dowe to the effect that the acoustic neuroma would have progressed to render the plaintiff's hearing in the right ear completely useless was based on speculation, and it fails to reflect the slow-growing nature of such a neuroma, so that even if Dr Dowe was correct in this view, the anticipated problem would not have had an acute onset.
As to the tinnitus issue, Dr Scoppa's view was that pre-operatively, the plaintiff's tinnitus only occurred 2 - 3 days per week, whereas since the operation, it has been constant: Exhibit "C", p 162. Dr Dowe stated that tinnitus is subjective, and the left-sided tinnitus was not related to the subject surgery: Exhibit "3", p 52. Whilst that may be so, he has not dealt with the change in symptoms from 2 - 3 days per week to the constant experience of tinnitus as identified by Dr Scoppa. I therefore prefer Dr Scoppa's reasoned view which addressed the plaintiff's complaint.
As to the imbalance issue, Dr Scoppa's view was that the plaintiff's imbalance may be due to poor vestibular function in the left ear which requires investigation: Exhibit "C", p 163. There is no evidence of such an investigation having taken place. Dr Dowe does not relate the imbalance or dizziness problems to the facial nerve palsy: Exhibit "3", pages 52 - 53. On reviewing this evidence I conclude that the plaintiff has not shown a relevant causal relationship between the subject surgery and her current problems of dizziness and imbalance. It must be accepted, that residual balance problems might remain despite neuroma removal surgery: Dr Biggs; Dr Havas; Dr Stenning.
As to the nasal problems, Dr Scoppa's view was that the plaintiff had a nasal deformity due to paralysis of the nasal musculature in the vicinity of the right nostril causing asymmetry comprising drooping of the right inferior external nose: Exhibit "3", p 164. In contrast, Dr Dowe stated he could not detect "undue nasal deformity apart from difficulty moving the external nose": Exhibit "3", p 63. Clearly, there is a subjective component to Dr Dowe's view. As Dr Scoppa has identified a physiological basis for the nasal asymmetry due to a muscular paralysis, his reasoned view should be preferred on this issue.
As to the facial asymmetry issue, Dr Scoppa's view was that the evident right-sided facial asymmetry was due to paralysis of the facial nerve and a right-sided tarsorrhaphy, or eyelid surgery: Exhibit "C", p 164. In contrast, Dr Dowe simply refers to the presence of scars from the ear surgery and from plastic surgery, and the partial closure of the mouth: Exhibit "3", p 54. In my view, having seen the plaintiff, I consider Dr Dowe's cited opinion serves to considerably downplay the plaintiff's plainly visible facial cosmetic deformity.
To the extent that Dr Dowe suggested (at Exhibit "3", p 54) that "some flickers in the right cheek [indicate] some facial nerve function", given that the finding was "minor", and he could not be certain of this (Exhibit "3", p 51), I find his subsequent statement (at Exhibit "3", p 54) that he "would regard it as a positive sign for further improvement" to be speculative and overly optimistic in the light of the evidence when read as a whole.
Given my acceptance of the plaintiff's credit as a witness, and my acceptance of her evidence generally, I propose to treat the plaintiff's history as summarised in the medical evidence, and as referred to in the paragraphs that follow, as evidence of the plaintiff's difficulties that she experiences resulting from the subject surgery, which I have found she would not have had if she had been adequately warned of the risks of incurring a facial nerve palsy and its related adverse effects: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
The plaintiff's post-operative treatment and post-operative social experiences, the resultant right-sided facial nerve palsy, and the resultant facial asymmetry, have been very traumatic and upsetting for her. A consequence of the facial nerve palsy has been a loss of capacity for facial expression of emotion. A residual effect of her facial palsy is that it has become difficult for her to pronounce some words.
The plaintiff had to undergo remedial surgery to address the complication of leakage of cerebro-spinal fluid from her brain, with the attendant risk of infection. The attempts at remedial surgery to improve function and cosmetics have provided only limited success.
The plaintiff has right-sided temporo-mandibular joint problems, including pain, for which a surgical procedure has been recommended. She has right-sided ear pain and facial pain. She is now unable to wear a complete set of upper and lower dentures because of altered tone of the facial muscles on the right side. She has reduced ability to chew and to swallow food, which requires that she eat pureed food for all of her meals. She has problems retaining food in her mouth when eating. She must drink through a straw. She has lost weight as a result of her changed diet. She has reduced ability to open the right side of her mouth and reduced jaw opening following the remedial surgery. She requires maxillo-facial and dental implant surgery and prosthodontic treatment to try and address this problem.
The plaintiff has a nasal deformity due to alar collapse. She has experienced a related difficulty of nasal obstruction, for which she used a steroid spray. She experiences constant dribbling from her mouth, which causes her to suffer social embarrassment. An example of the embarrassment she experiences is her perception that people avoid her at her church, and when she takes communion. She is obviously self-conscious about dribbling from her mouth, and constantly wiping her mouth and face with tissues, as was plainly apparent during her evidence. She experiences difficulty with speech due to the involvement of the peri-oral musculature.
The plaintiff also complains of hearing difficulties. Dr Scoppa has identified a total hearing loss in the right ear due to the surgery. There was a documented loss of about 92 per cent before the surgery. He obtained a history of constant bilateral tinnitus whereas beforehand, the plaintiff only experienced this every 2-3 days. The additional hearing problems cause the plaintiff difficulty in understanding speech in the presence of background noise.
The plaintiff's pre-operation problems with dizziness have deteriorated. Her balance problems cause her to fear falling, and they affect aspects of her activities of daily living.
The plaintiff has loss of sensation in the first, second and third divisions of her right trigeminal or 5th cranial nerve, and the subject operation was a materially contributing cause of this problem. She has altered sensation in the right side of her face, with dysthesia. Her sense of taste on the right side of her tongue has been considerably altered, and has been estimated to have been reduced by about one-third.
The plaintiff continues to experience corneal dryness and irritation, and as a result, she must regularly use lubricating eye drops. She experiences constant secretion of tears from her right eye, with those tears running down her right cheek, as a response to the corneal irritation.
She has significant brow, forehead and facial scarring and some residual facial asymmetry. She has had surgical part-closure of her right eyelid and part-closure of the right side of her mouth. She has an altered facial expression. These matters cause her embarrassment. She experiences difficulty wearing glasses because of problems with placement of her glasses following the effects of surgery and the facial palsy.
She needs substantial remedial dental treatment in the hope of allowing her to eat properly and to eat normal food that has not required special preparation. This will involve some oral and dental implant surgery. As a result of her need to take painkilling medication including codeine, over time the plaintiff developed constipation to the point where she required surgery for haemorrhoids.
Psychologically, the plaintiff has been greatly affected. She is obviously embarrassed about her appearance, and about the problems that are summarised in the preceding paragraphs.

[75]

Non-economic loss

On behalf of the plaintiff, it was submitted that damages for non-economic loss should be assessed at a minimum of 50 per cent of a most extreme case, which equates to a monetary assessment of $286,000: s 16 of the CL Act.
In contrast, on behalf of the defendant, it was submitted the appropriate assessment would be 27 per cent, which equates to $57,000.
The assessment of damages for non-economic loss pursuant to s 16 of the CL Act must proceed in accordance with the statutory scale of between 1 per cent and 100 per cent with its in-built threshold discounts. The factors relevant to an assessment of s 16 damages include the nature and extent of the plaintiff's injury, the ongoing effects of that injury, the plaintiff's relative age and remaining life span, and the extent to which the plaintiff's amenity and enjoyment of life have been adversely impacted by the effects of her ongoing disabilities.
The plaintiff's ongoing disabilities have been identified at paragraphs [1143] to [1171] of these reasons. Those disabilities continue to significantly and adversely affect the amenity of the plaintiff's life in the physical, psychological and cosmetic senses.
In my view, after making due allowance in the form of a discount for the factor of the plaintiff's relatively advanced age (Reece v Reece [1994] NSWCA 259) and recognising she nevertheless has a statistical life span of almost two decades ahead of her, and in which she will have to continue to endure the identified problems which include physical, emotional, cosmetic and psychological burdens, I consider that the appropriate assessment of damages for non-economic loss is 48 per cent of a most extreme case, which is the monetary equivalent of $274,500.
In arriving at that view, I have applied discounting factors to reflect the fact that, consistent with my findings in respect of Issues 10 and 11, had she not had the subject surgery, she would have a substantial loss of hearing in her right ear, possibly progressing to a total hearing loss over time, and the prospect of ongoing problems with her balance and disequilibrium.
I therefore assess the plaintiff's damages for non-economic loss in the amount of $274,500.

At T323.23 - T326.22, Dr Biggs stated he would never have signed the consent form in question in the absence of the plaintiff and in the absence of a discussion of matters necessary to the procurement of the patient's consent. He said normally the patient would sign first. In particular, he described the general course that such a discussion would have taken, as follows: "… Q. Having regard to your usual practise in 2009, prior to you signing and dating a consent form, what do you say you would have said to a patient who was to have a right excision of a cerebellopontine angle tumour? A. So, I would have explained to the patient again what we were proposing to - to do, explaining that we're removing the tumour and I actually read through what's actually written here to the patient because - and mention the fact that we'd discussed the risks and I always sort of say, you know, the risks that we had discussed such as facial nerve, brain fluid leak, stroke and - and so on. We talk about the fact there's anaesthetic, the - likely there's a chance of a blood transfusion, additional procedures we would talk about in that - in that form means that if there were some issue that needed to be dealt with at the same time we would deal with that at the same time. In that paper it says there's a risk of not getting the expected result and I explain that that is where we may not be able to remove all the tumour or the tumour may reoccur and then we discuss the fact that they - the patient understands the procedure. I ask them if they've had an opportunity to ask questions, point out that they can withdraw their consent if they want and then I would get them to sign the form. … Q. Earlier you said that when doing this consent before signing it and before having a patient sign it, it's your usual practice to go again through what the actual surgery was. Having regard to your usual practice in 2009, can you say what it is you would have said in discussing what the surgery actually was? A. I, I would've discussed the fact that we were removing the acoustic neuroma, that it was the tumour of the hearing imbalance nerve and, and would've discussed, you know, the, the fact that it, you know, was a big operation and, and, and then gone through the, the risks of the procedure. Yeah, and the fact that you would've been in hospital for a week."

George v Biggs

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Judgment (83 paragraphs)

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