Hawkesbury District Health Service Limited & Anor v Patricia Chaker

CATCHWORDS: NEGLIGENCE - surgeon carrying out varicose vein procedure - development of rare complication of lymphodoema - medical causation - failure by trial judge to analyse expert evidence - adequacy of reasons - failure to properly analyse factual evidence - breach of duty - failure to properly analyse competing medical evidence - causation - failure to provide adequate reasons for causation finding - EVIDENCE - treatment of expert witnesses - importance of expert evidence in court processes - PRACTICE AND PROCEDURE - responsibility of parties to conduct litigation efficiently - parties to co-operate in minimising expense of litigation.

Civil Liability Act 2002 LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Act 2002

Chappel v Hart (1998) HCA 55 (1998);195 CLR 232 Oshlack v Richmond River Council [1998] HCA 11, (1998) 193 CLR 72 CASES CITED: Nationwide News Pty Limited v Naidu & Anor [2007] NSWCA 377, (2008) 71 NSWLR 471 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, (2001) 53 NSWLR 116 Wilson v Peisley (1976) 50 ALJR 207

Hawkesbury District Health Service Limited - First Appellant PARTIES: Elizabeth Tompsett - Second Appellant Patricia Chaker - Respondent

COUNSEL: Ms J Sandford - Appellants Mr K Connor SC/Ms M Avenell - Respondent

SOLICITORS: TressCox Lawyers - Appellants Lamrocks Solicitors & Attorneys - Respondent

LOWER COURT DATE OF DECISION: 13 May 2009 10 June 2009

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298279

ALLSOP P BEAZLEY JA HOEBEN J

Thursday, 25 November 2010 HAWKESBURY DISTRICT HEALTH SERVICE LTD & Anor v Patricia CHAKER JUDGMENT 1 ALLSOP P: I agree with Hoeben J. 2 Hoeben J has set out in [179] my comments at the appeal. They were not directed as a personal criticism of counsel or solicitors. Many practitioners, however, still have not grasped the significance of the changes to practice generally in the last 20 years and under the Civil Procedure Act 2005. Courts are being more demanding about behaviour from clients and practitioners in order to obtain sufficient co-operation among them to enable the real issues in dispute to be litigated with efficiency and civility and in a cost-effective manner. Clients and practitioners can expect these demands for good faith and common sense in their conduct of litigation to continue and to be reinforced by orders, including orders for costs. 3 BEAZLEY JA: I agree with Hoeben J. 4 HOEBEN J: Subject matter of appeal In January 2003 the respondent consulted her general practitioner (Dr Mackay) because of problems she was experiencing with varicose veins in both her legs. Dr Mackay referred her to the second appellant (Dr Elizabeth Tompsett) who is a general surgeon. The respondent was then aged 31. She consulted Dr Tompsett for the first time on 3 February 2003. 5 Following that consultation Dr Tompsett referred her for pre-operative ultrasound investigations. On 17 February 2003 the respondent saw Dr Tompsett again with the results of those investigations. The investigations revealed incompetence (reflux) at the sapheno-femoral junction of the left groin (ie, saphenous disease affecting the left leg) and pelvic reflux. 6 On 13 May 2003 Dr Tompsett performed a high ligation of the saphenous vein in the left groin and multiple avulsions on both legs. Dr Tompsett said the purpose of this operation was to treat the respondent's saphenous reflux and the varicose veins in her legs. 7 Dr Tompsett saw the respondent post-operatively on 22 May 2003 and reported to Dr Mackay that "She still has some bruising but the legs are settling down nicely. I will see her again in six weeks' time to make sure they continue to do so". The respondent did not attend her scheduled second post-operative review on 3 July 2003. 8 On 15 September 2003 the respondent attended Dr Tompsett and presented: " … with a unilaterally swollen and painful leg on the left side which has been present for about four weeks or so. It has been going up and down somewhat and she has some pain deep in the calf".

Dr Tompsett referred the respondent for an ultrasound of the left leg which excluded DVT. 9 The respondent saw Dr Tompsett again on 29 September 2003 at which time Dr Tompsett reported to Dr Mackay: "I am rather complexed to why she still has quite a big leg swelling on that side. It has gone down a little since I last saw her but it is still quite troubling." 10 When the respondent failed to improve, Dr Tompsett referred her to Dr Malouf, a general surgeon who specialised in vein problems and venous surgery. In her referral letter Dr Tompsett said: "As requested here are the details of Patricia's varicose vein surgery on 13 May 2003. My records note that I have done a high ligation of the left long saphenous vein and that there were gross groin varicosities. The vein was stripped and then multiple avulsions performed. I have made no note of lymphadenopathy and I certainly did not excise any lymphnodes. The absence of information is significant as I tend to document any difficulties found in the procedure." 11 Dr Malouf reported to Dr Tompsett by letter dated 9 December 2003 and diagnosed the respondent as suffering from "a rather severe dose of lymphoedema in the left leg." At trial Dr Malouf defined lymphoedema as follows: "Lymphoedema is the inability of the lymphatics, for whatever reason, to carry back the fluid that remains outside the cells in the interstitial space and sometimes those lymphatics fail and leave that fluid in the leg and the leg then becomes swollen. (Black 143P) 12 Dr Lippey in his report of 2 April 2007 described the condition: "The lymphatic system is a web-like network of microscopic channels designed to remove excess fluid from the tissues. A deficiency of this draining system produces tissue swelling and is known as lymphoedema." (Blue 212M) 13 Although there was some improvement in the respondent's left leg, it remained permanently swollen and she has been left with a chronic disabling condition. 14 On 9 May 2006 the respondent commenced proceedings in negligence against the first appellant, the Hawkesbury District Health Service Limited (the hospital) which ran the Hawkesbury District Hospital where the operation took place, and against Dr Tompsett. The respondent alleged that by their negligence they had caused or materially contributed to the onset of her lymphoedema. Towards the end of the trial the respondent accepted that her claim against the hospital could not succeed. 15 The trial commenced before Judge Delaney on 19 March 2007. It proceeded for four days until 22 March 2007 when, as a result of an amendment to the Statement of Claim, the appellants were granted an adjournment. Although the trial was fixed to resume on 16 April 2007, as a result of the tender of further reports by the appellants, the trial was adjourned on the application of the respondent. 16 The trial resumed on 10 March 2008 and proceeded for four days until 13 March 2008 at which time it was adjourned part-heard to 23 April 2008. On 23 April 2008 the evidence concluded and an order was made for written submissions. Those written submissions were duly filed and served and oral submissions were made before his Honour on 20-21 October 2008. 17 On 13 May 2009 his Honour published his reasons for judgment. On 10 June 2009 further submissions were made to his Honour on costs issues and his Honour delivered judgment in respect of costs on that date. 18 The orders made by his Honour were:

(1) A verdict and judgment for the plaintiff against Dr Tompsett in the sum of $345,690.58.

(2) That Dr Tompsett pay the plaintiff's costs, to be assessed or agreed, on the ordinary basis up to and including 19 June 2007 and thereafter to pay the plaintiff's costs on an indemnity basis. The plaintiff to have 85 percent of the costs so assessed.

(3) Verdict and judgment for the Hawkesbury District Health Service against the plaintiff.

(4) The plaintiff to pay the Hospital's costs, to be assessed or agreed, on the ordinary basis to 13 October 2006 and between 13 October 2006 and 15 March 2007 to pay the Hospital's costs on an indemnity basis. The Hospital to have no costs between 15 March 2007 and 11 March 2008. The plaintiff to pay the Hospital's costs after 11 March 2008 on an indemnity basis.

(5) Dr Tompsett to indemnify the plaintiff for the costs payable to the Hospital from 15 March 2007. 19 Dr Tompsett has appealed against his Honour's judgment as to liability and as to damages. She has also appealed against order (5) that she indemnify the plaintiff for the costs payable to the Hawkesbury District Health Service from 15 March 2007. The hospital has sought leave to appeal from that part of order (4) which disallowed its claim for costs for the period 15 March 2007 - 11 March 2008.

Proceedings in the District Court 20 His Honour identified the issues as follows: "(a) The cause of the plaintiff's lymphoedema and its relationship to the operation on 13 May 2003. (b) Whether Dr Tompsett was negligent. (c) Whether if Dr Tompsett was negligent the negligence caused or materially contributed to the onset of the condition of lymphoedema in the plaintiff. (d) Damages to be assessed under the Civil Liability Act 2002 (Red 26D). 21 In relation to the first issue, his Honour set out in detail the careful analysis of Dr Malouf, which led to Dr Malouf's conclusion that the onset of the lymphoedema was caused by the operation of 13 May 2003. Dr Malouf's conclusion was based primarily on his understanding of the respondent's history as to the development of swelling in her left leg, his reading of the operation notes and his observation of the advanced state of the lymphoedema on examination on 4 December 2003. 22 At the conclusion of that analysis, his Honour said: "In my opinion Dr Malouf's view of the cause of lymphoedema was logically based and I prefer his explanation for the cause of the plaintiff's condition. However it is necessary to review the other evidence on this issue to explain the reasons for my preference for Dr Malouf's opinion." (Red 28W) 23 On this issue expert evidence had been given in Dr Tompsett's case by Dr Eagleton, a general surgeon, Dr Lippey, a vascular surgeon, and Professor Fletcher, a vascular surgeon. Their evidence was based on their understanding of the respondent's history as to the development of swelling in her left leg and on the operation notes. 24 His Honour summarised Dr Eagleton's opinion as follows: because of the delayed onset of the swelling (i.e. four months after surgery), it was probable that the lymphoedema had arisen from some infection or from some underlying condition. His Honour rejected that opinion: "However, when cross-examined Dr Eagleton was, in my view, not able to state any factual basis for his opinion, and where it conflicts with the opinion of Dr Malouf I prefer the evidence of Dr Malouf. Dr Malouf saw the plaintiff within six months of the operation and Dr Eagleton's first report was not prepared until 26 February 2007, and his opinion was based on assumptions provided by the defendant, which assumptions were not validated by the evidence." (Red 29F) 25 His Honour did not articulate the opinion of Dr Lippey but set out that part of his cross-examination where he agreed that there would have been some disruption of the lymphatic system during the course of this operation. 26 His Honour rejected the proposition that the swelling in the respondent's leg had developed about four weeks before the consultation on 15 September 2003 and found that it had developed shortly after the operation. His Honour made that finding on the following basis: "20 The sparse records of Dr Tompsett and her letters to the general practitioner taken together with the recollection of the plaintiff about her condition after the operation, in my opinion, support a finding that the operation caused the lymphoedema. I do not accept that there was a delayed onset of that condition." (Red 30K) "26 I found the plaintiff to be a truthful and reliable witness. Despite the serious condition of lymphoedema she calmly and rationally explained her symptoms and the way in which her life had changed. I have no hesitation in accepting her recollection where it conflicts with Dr Tompsett, whose note taking was admittedly inadequate, insufficient and often incorrect." (Red 31P) 27 His Honour made no reference to the evidence on this issue of Professor Fletcher. 28 His Honour then turned to the question of whether Dr Tompsett had been negligent. His Honour posed the question "Should Dr Tompsett have recognised in February 2003 that the plaintiff had pelvic venous reflux?" (Red 33F). His Honour concluded that Dr Tompsett did not make that diagnosis in circumstances where she should have and that had she made that diagnosis, she would not have proceeded with the operation as she did but would have or should have provided the respondent with proper advice about her treatment. This advice would have included a warning as to the possible development of lymphoedema and a recommendation that she see another surgeon for a second opinion about operative treatment. 29 His Honour reached that conclusion because Dr Tompsett did not examine the respondent's buttocks or vulva, nor did she mention the condition of pelvic venous reflux, nor did she mention the word "lymphoedema". Implicit in his Honour's analysis was the proposition that if Dr Tompsett had made the proper diagnosis, she would have taken those actions. The significance of examining the buttocks and vulva is that it would have confirmed the presence of pelvic venous reflux. 30 His Honour found that the evidence of all of the doctors supported the proposition that Dr Tompsett should have carried out such an examination. In relation to Dr Malouf, his Honour made the following finding: "43 Dr Malouf said the contents of the ultrasound of February 2003 should have alerted Dr Tompsett to the presence of pelvic venous reflux and if she had noted it she should have sought another opinion before proceeding with surgery. I accept this opinion (Red 35H)". 31 In relation to Dr Lippey, his Honour concluded that there was a contradiction between what Dr Lippey had said in his report about referral to a vascular specialist if pelvic reflux existed and what he said in his evidence. In relation to Dr Lippey, his Honour concluded: "48 I accept that Dr Lippey believed that the defendant should have referred the plaintiff on when he prepared his report. This initial view should be accepted and Dr Lippey's attempt to resile from it in evidence rejected as a belated attempt to assist the defendant to avoid the consequences of the earlier opinion. He had ample time to retract that opinion between the date of the report and when he gave evidence, but did not" (Red 36L). 32 In relation to Dr Eagleton his Honour made the following finding on this issue: "49 As to the evidence of Dr Eagleton, he had limited relevant surgical experience and where there is a difference in the opinion that he expresses and those of Dr Malouf, I prefer the evidence of the more experienced surgeon, Dr Malouf." (Red 36Q) 33 His Honour also found that the assumptions which had been provided to Dr Eagleton were not supported by the evidence (Red 38O) and that: "His opinion seemed to ignore that this was standard varicose vein surgery performed in the presence of pelvic venous reflux in which circumstances the risk of lymphoedema was increased." (Red 38R) 34 His Honour's conclusion in relation to Dr Eagleton was as follows: "70 Although Dr Eagleton said that he would not have referred someone such as the plaintiff to another specialist with expertise in the pelvic venous system, I do not accept his evidence. In my opinion, what he said was inconsistent with proper professional practice as stated by Dr Malouf. Accordingly, where Dr Eagleton's opinions differ from those of Dr Malouf on this point, I prefer Dr Malouf." (Red 40G) 35 In relation to Professor Fletcher, his Honour found that his opinion was of limited value because the assumptions upon which it was based were not supported by the evidence. His Honour was also critical of the manner in which Professor Fletcher gave his evidence: "74 He was cross-examined about his opinion as to the cause of the lymphoedema. His evidence on this was most unsatisfactory. He did not answer direct questions, and added material for which he was not asked. It was necessary for the Court to remind him of his obligation of objectivity. His explanation for his findings on the cause of the lymphoedema in the plaintiff were not only not convincing but assumed incorrect facts. Where there is a difference between Professor Fletcher's view on the cause of lymphoedema and the evidence on this question from Dr Malouf, I prefer the evidence of Dr Malouf. Dr Malouf explained the findings of the lymphoscintogram in a clear manner and related them to the plaintiff's complaints." (Red 40W) 36 On the question of breach of duty of care, the conclusion which his Honour reached was: "90 For the reasons that appear above and hereunder, I am satisfied that Dr Tompsett owed the plaintiff a duty of care commensurate with the standard required of a general surgeon. Viewed prospectively, I find she breached that duty and that she failed to properly diagnose the plaintiff's condition and thereby deprived herself of the ability to warn or advise the plaintiff about the future management of her condition before proceeding to surgery. Ultimately, that breach of duty led to the plaintiff developing lymphoedema because the defendant, despite the objective evidence available to her from the scans, tried to perform a standard varicose vein operation for a condition that would not readily respond to such surgery without the need to ligate extensive gross groin varicosities." (Red 44F) 37 As part of that overall conclusion, his Honour said: "92 In my opinion, the magnitude of the risk of contracting lymphoedema was great if the diagnosis was wrong as I find it was, and although the likelihood of the occurrence of lymphoedema was low, this was not a case where the defendant was entitled to ignore the risk and do nothing. The risk of the development of lymphoedema was real where at operation there was a need to dissect and ligate a large number of veins due to pelvic venous reflux. The defendant should have diagnosed pelvic venous reflux and sought a second opinion before surgery. She should not have embarked on the surgery without advising the plaintiff of the risks and giving her the option of another specialist's opinion. The surgery, as the defendant performed it, increased the risk of development of lymphoedema." (Red 45C) 38 His Honour then set out the evidentiary basis for those opinions. His Honour restated his conclusion that Dr Tompsett had failed to correctly diagnose the condition of pelvic venous reflux. His Honour rejected the evidence of Dr Tompsett: "98 I reject the evidence of Dr Tompsett that she gave the plaintiff comprehensive advice about the nature of the surgery and prepared a diagram in the plaintiff's presence. Dr Tompsett accepted that she was a poor note taker and had little or no recollection of the consultation. Where there is a difference between the evidence of Dr Tompsett and that of Mrs Chaker, I accept the recollection of Mrs Chaker. Her mother, Mrs Barnes, was at the first consultation and corroborates her daughter's recollection.' (Red 45W) 39 His Honour set out his conclusions as to breach as follows: "102 According to Dr Malouf if she had done so [ie carried out an examination of the buttocks and vulva] the likelihood is that she would have seen that this is not a simple case of standard varicose veins but a condition that involved problems with the non-saphenous system. Dr Tompsett should have anticipated that when the operation began they would encounter gross groin varicosities. She should then have taken appropriate steps to obtain advice as to the correct method of dealing with a pelvic venous reflux. She did not do so. 103 Dr Tompsett, when cross-examined, sought to suggest that she did recognise the problem revealed in the scans but because there had been no complaint did not consider that the operation should be postponed or that she should send the plaintiff for a second opinion. Professor Taylor (sic) eventually accepted that the proper practice would have been to have referred the plaintiff for a second opinion, having seen the results of the scan. 104 In my opinion, the failure of Dr Tompsett to properly interpret the scans of 13 and 14 February, or at least take sufficient notice of the reports that accompanied them, led to her failing to diagnose the true condition from which Mrs Chaker was suffering. She did not have a standard varicose vein problem but veins that were indicative of pelvic venous reflex, a condition which almost certainly would have upon operation required a longer and more complicated procedure, as indeed in the end I find it did. 105 Dr Lippey suggested that Dr Tompsett ought not necessarily have taken any other steps other than to proceed with the operation for varicose veins, notwithstanding the findings on the scan. In my opinion his evidence at this point was disingenuous, seeking to backtrack on his original view that Dr Tompsett should have recognised the condition and done something about it by seeking a second opinion. 106 I am satisfied on the balance of the evidence that the failure of Dr Tompsett to diagnose the true condition of the plaintiff caused her to firstly give incorrect advice about what she could expect, remove the option of her providing advice about a second opinion and led her to perform an operation which immediately became a long and complicated procedure because of the failure to properly diagnose the condition, thereby heightening substantially the risk that lymphatics could be compromised." (Red 46R-47S) 40 On causation his Honour said: "108 I am satisfied that the breaches referred to above caused the lymphoedema. I find that if Mrs Chaker had been advised of the risks of the surgery where pelvic venous reflux was present she would have sought another opinion from a suitably qualified surgeon before undergoing surgery. If she had done this I find that the risk of her developing lymphoedema would have been substantially reduced as the operation would probably have been performed differently as suggested by Dr Malouf.

Appeal - liability 41 Dr Tompsett submitted that his Honour's analysis both of the facts and the expert evidence was fundamentally flawed. She submitted that both on a factual and scientific level, his Honour failed to engage in an analysis of the competing propositions. Rather, she submitted, his Honour dealt with the matter by way of broad generalisations which were not substantiated and in some cases by an erroneous statement of the evidence. It is with regret that I have concluded that these submissions have been made out and that the judgment cannot stand. There has to be a retrial. 42 For ease of reference, I will deal with the issues in the same order as did his Honour in his judgment.

Medical Causation 43 In relation to medical causation of the lymphoedema his Honour set out his conclusion as follows: "11 In his reports, Dr Malouf expressed the opinion that the operation of 13 May 2003 was the cause of Mrs Chaker's lymphoedema. He was vigorously cross-examined on two occasions about this opinion but did not resile from it at any stage. Indeed, the more he was pressed, the more he indicated his conviction that both from a surgical and temporal point of view the operation was the only rational suspect for the cause of the lymphoedema. 12 He concluded that the connection between the operation and the development of the condition existed for a number of reasons that I accept and summarise as follows: (a) The plaintiff did not have lymphoedema or any signs thereof prior to the operation. (b) The plaintiff probably had pelvic venous reflux in February 2003 when she first consulted Dr Tompsett as this condition did not come on overnight. (c) Pelvic venous reflux created a veil or screen of veins across the area where a surgeon would be seeking to go to perform standard varicose vein surgery. (d) Where such a series of veins were encountered during operation, extensive dissections and ligations of veins would be necessary for the surgeon to reach the long saphenous vein. (e) The need to dissect and ligate a significant number of varicosities from the groin likely to be present because of the pelvic venous reflux would take time. (f) The time taken for the operation in the plaintiff's case was two hours twenty minutes, suggesting that the defendant had indeed encountered a significant number of veins that required dissection and ligation. (g) Where a large number of veins needed to be ligated during operation the chance of compromise of the superficial lymphatics was increased. (h) Dr Tompsett recorded in her operation report that she encountered gross groin varicosities. (i) This was indicative of a finding that it was necessary for her to work through the field or veil of veins created by pelvic venous reflux to get to the long saphenous vein. (j) The plaintiff developed swelling and soreness soon after the operation. (k) There was no evidence of infection or predisposition to the condition of lymphoedema. (l) The temporal connection was present between the operation and the diagnosis in December because Dr Malouf said that the condition had been present for some considerable time. (m) Dr Malouf said in December 2003 that the lymphoedema was significantly advanced and that it probably had been present for at least six months. He formed that view by, amongst other things, his observations of the leg and its texture, together with the complaints made and the history given by Mrs Chaker." (Red 27M-28P) 44 A number of those propositions were controversial: - (f), (g), (h), (i), (j), (k), (l) and (m). Not only did his Honour not resolve those controversies by an analysis of the evidence, in some cases he did not recognise their existence. 45 It was fundamental to an acceptance of Dr Malouf's opinion that there be findings as to the onset of the swelling in the respondent's left leg and its progress leading up to his examination of her on 9 December 2003. The conventional way of approaching such an issue is to identify the relevant evidence and where there is a conflict, to resolve that conflict on a rational basis. 46 The evidence on the subject came from the respondent and from Dr Tompsett. The respondent had no recollection as to dates and had very little detailed recollection at all when she gave evidence. Dr Tompsett likewise had only a general recollection of her consultations with the respondent, except for that which took place on 15 September 2003. The reason she remembered that consultation was because the presentation by the respondent was so unusual. 47 Dr Tompsett acknowledged that her note taking in relation to the consultations with the respondent was poor. What she had done, however, was to send a report to Dr Mackay following each consultation. It was never suggested that the contents of those reporting letters was anything other than accurate. 48 An important matter to emerge from those reporting letters was the gap of almost four months between 22 May 2003 when Dr Tompsett saw the respondent post operatively and 15 September 2003 when Dr Tompsett recorded a history of the respondent presenting with a swollen and painful left leg which had been present for about four weeks or so. 49 The respondent's evidence at trial in relation to this period was very general and it was clear that she had little real recollection. The following evidence gives the flavour: "A. Not that long after the operation, it's like the swelling never would go down in the leg." (Black 31Q) "A. I got blood tests, but I went and seen her. I made my own appointment to see her because my leg was getting bigger and my friend's mother told me to get a referral to see where she worked." (Black 93J) "Q. Indeed on that occasion may I suggest that what you told the doctor was that your leg was swollen and that it had been like that for about four weeks? A. Yeah, I went back to her when it was really swollen. I'm just a bit confused about the times, how many times I went to her." (Black 95G)

When she was again asked about that consultation the respondent said that she did not recall what she said to Dr Tompsett (Black 95T-X). 50 His Honour sought to resolve that factual issue as follows: "20 The sparse records of Dr Tompsett and her letters to the general practitioner taken together with the recollection of the plaintiff about her condition after the operation in my opinion support a finding that the operation caused the lymphoedema. I do not accept that there was a delayed onset of the condition." (Red 30K) "26 I found the plaintiff to be a truthful and reliable witness. Despite the serious condition of lymphoedema she calmly and rationally explained her symptoms and the way in which her life had changed. I have no hesitation in accepting her recollection where it conflicts with Dr Tompsett whose note taking was admittedly inadequate insufficient and often incorrect." (Red 31Q) "98 I reject the evidence of Dr Tompsett that she gave the plaintiff comprehensive advice about the nature of the surgery and prepared a diagram in the plaintiff's presence. Dr Tompsett accepted that she was a poor note taker and had little or no recollection of the consultation. Where there is a difference between the evidence of Dr Tompsett and that of Mrs Chaker, I accept the recollection of Mrs Chaker. Her mother, Mrs Barnes, was at the first consultation and corroborates her daughter's recollection." 51 In reaching those conclusions his Honour made no reference to specific evidence of Dr Tompsett, Ms Chaker or Mrs Barnes. There were difficulties with the evidence of all three persons which needed to be confronted and resolved. If anything the recollection of Mrs Barnes was even worse than that of her daughter. The only corroboration provided by Mrs Barnes was that she did not recollect Dr Tompsett showing a diagram to her daughter. 52 His Honour did not identify the "recollection of the plaintiff about her condition after the operation" to which he referred. While it was open to his Honour to find that the respondent was a truthful witness, his Honour did not identify the basis upon which he found her to be a "reliable witness". His Honour did not identify in what respect Dr Tompsett's notes were "often incorrect" and did not at any time reconcile the contents of the reports made by Tompsett to Dr Mackay with the evidence of the respondent. These were important factual issues and the parties were entitled to have them resolved on a rational basis, i.e. by reference to actual evidence not on the basis of generalised ipse dixit conclusions. 53 By way of illustration, there was an issue between Dr Tompsett and the respondent as to whether Dr Tompsett had shown her a diagram on which Dr Tompsett had marked the distribution of the veins in her legs. There was also an issue as to whether Dr Tompsett had given a booklet to the respondent entitled "Patient Guide" being a booklet published by the Royal Australasian College of Surgeons and the Australian and New Zealand Society for Vascular Surgery. 54 The respondent said that she had not been shown a diagram, nor had she been given a copy of the booklet. While Dr Tompsett had no precise recollection of the consultation, such a diagram was found in Dr Tompsett's clinical records. She said that it was always her practice to place such a diagram before a patient and to mark upon it the distribution of the veins so as to explain the nature of the operation. The presence of that diagram in the clinical records relating to the respondent enabled Dr Tompsett to say that she had done so on this occasion (Black 347U-Y). 55 Similarly, although Dr Tompsett had no recollection of actually handing the booklet to the respondent she said that her practice was to personally remove a sticker affixed to the front page of the booklet and place it in the clinical notes of the patient as an indicator that she had provided the patient with the booklet. Such a sticker appeared in Dr Tompsett's clinical records (exhibit 8). By reference to the presence of that sticker, Dr Tompsett was able to say that she believed she had provided the respondent with a copy of the booklet (Black 354L-X). 56 Implicit in his Honour's complete rejection of Dr Tompsett's evidence was the proposition that the diagram in the respondent's clinical notes with its markings was not genuine, or had been placed there subsequently by Dr Tompsett. The same inference is implicit in relation to his Honour's rejection of the evidence concerning the booklet. These are very serious findings about any witness, here a medical professional. Before findings of that kind could be made, it was incumbent upon his Honour to set out clearly and logically the factual basis for them which inevitably would have involved a proper analysis of the evidence. This was not done. Accordingly, there was no proper factual basis for his Honour's acceptance of Dr Malouf's opinion. 57 Similar problems exist in relation to his Honour's treatment of the expert evidence on the question of medical causation. 58 An important part of Dr Malouf's opinion on medical causation was the inference which he drew from the length of the operation (two hours and twenty minutes) and from the reference in Dr Tompsett's post operative report to encountering "gross groin varicosities". Dr Malouf thought the usual time for such an operation was one hour and twenty minutes. Dr Malouf inferred that the length of the operation must mean that Dr Tompsett had encountered the veil or screen of veins to which he had referred and that this had required extensive dissections and ligations in order to reach the long saphenous vein. That was a matter of controversy which his Honour not only did not resolve but did not recognise. 59 Dr Tompsett had no actual recollection of the operation. She did, however, say in her referral letter to Dr Malouf of 3 November 2005 "the absence of information is significant as I tend to document any difficulties found in the procedure". She said that by "gross groin varicosities" she meant "large varicose tributaries coming down towards the long saphenous vein from the area of the vulva" (Black 374X). Under cross-examination when asked how many gross varicosities she was likely to have been referring to in her operation report she said "in the order of maybe five to ten" (Black 426K). 60 In relation to the length of the operation, Dr Malouf had the assistance of another doctor when operating. In contrast, Dr Tompsett used a nurse assistant. Dr Tompsett explained how this would affect the length of the operation: "A. With a nurse assistant, the amount of time required to ligate varicose or tributaries takes considerably more time than with a doctor assisting as placing all the ties, ligating all of the ties and dividing all of the vessels has to be done by myself, where with a doctor assisting the ties can be placed and ligated and divided by either party. So with one operator the time spent picking up and putting down instruments is considerable." (Black 377V) 61 Dr Lippey and Dr Eagleton were of the opinion that two hours and twenty minutes was not a particularly long time for this kind of operation. Professor Fletcher said two to three hours for this kind of operation was "not excessive" (Black 549X). 62 It was necessary for his Honour to resolve this controversy. He did not. What his Honour did was to accept uncritically the conclusion of Dr Malouf and to ignore the evidence to contrary effect. 63 Another matter of controversy on the issue of medical causation was the likelihood as a matter of medical science, that the operation caused the lymphoedema. His Honour rejected the opinion of Dr Eagleton because that doctor was "not able to state any factual basis for his opinion" and "his opinion was based on assumptions provided by the defendant which assumptions were not validated by the evidence". His Honour did not identify what assumptions he was referring to and did not identify the particular factual basis or absence thereof which invalidated Dr Eagleton's opinion. Most particularly, he did not set out Dr Eagleton's opinion. In following such an approach, his Honour did not engage in a proper analysis of that doctor's opinion. 64 Dr Eagleton's report of 26 February 2007 clearly sets out his opinion and its basis. He accepted that the operation was quite routine "except for the presence of large tributaries in the left groin which were ligated". He also accepted that the post operative course appeared to be uneventful except for the attendance on 15 September 2003 with a swollen leg. These were factual issues which were not properly analysed by his Honour. 65 On the scientific question, Dr Eagleton's opinion was that lymphoedema following varicose vein surgery was quite rare. For the operation to have caused lymphoedema it would have been necessary to interrupt major lymphatic channels. These major lymphatic channels were considerably deeper than the area in which Dr Tompsett was operating. Varicose vein surgery would have only caused damage to minor and superficial lymphatic channels as occurs in most forms of surgery. This made the likelihood of a connection very low. 66 As an alternative, Dr Eagleton said that if there had been significant damage to major lymphatic channels in the operation, the onset of the lymphoedema would have been apparent much earlier than four weeks before the 15 September consultation. On those bases, Dr Eagleton was of the opinion that consideration had to be given to alternative explanations for the lymphoedema such as infection, occult primary lymphoedema or even idiopathic lymphoedema where no explanation is available. 67 It is apparent from that summary that his Honour did not engage in an analysis of the primary basis for Dr Eagleton's opinion, i.e. the unlikelihood of the major lymphatic channels which were deeply located, being interrupted by the surgery. Accordingly, there was no proper reasoning exposed by his Honour for its rejection. 68 The basis of his Honour's rejection of the opinion of Dr Lippey is that Dr Lippey accepted in cross-examination that the drainage of lymphatic fluid had been compromised in the operation. His Honour set out a brief extract of that cross-examination (Red 30C; Black 599M - R). This extract is not only taken out of context, but also it does not have the effect sought to be given to it by his Honour. 69 Moreover, his Honour did not engage in a proper analysis of Dr Lippey's opinion on medical causation. The start point for Dr Lippey's opinion was that the risk of lymphoedema associated with standard varicose vein surgery was small. He could not recall a case after 2000 such procedures. His estimate of its incidence was between 1:5000 and 1:10000 (Blue 189N). Dr Lippey said that the lymphatic system may be divided into that in the superficial and that in the deep tissues. In relation to standard varicose vein surgery Dr Lippey said: "It is impossible to perform groin dissection of the type described without some damage to the termination of the superficial lymphatic system. This minor damage does not usually result in much limb swelling because of the web like nature of the superficial lymphatic system. In other words the lymph is readily drained through other collateral channels. The medical records provided by Dr Tompsett do not suggest dissection in the deep nodes or veins. They do, however, mention that dissection was required in the superficial veins to ligate varicosities of the groin." (Blue 212W, 213C) 70 For lymphoedema to be connected to the operation, damage would have had to have been done to the deep lymphatics of the groin. Dr Lippey gave examples of operations where the lymphatics at the deep level were damaged but said that even in those operations the development of lymphoedema was "virtually unknown" (Blue 225P). 71 Dr Lippey regarded damage to the deep lymphatics as unlikely in this operation because of the operation notes and the results of a test known as a "lymphoscintigram" which gave a strong indication that any damage to the deep groin nodes was minimal. While being aware of the significance of that test, Dr Lippey disclaimed any special expertise in its interpretation. 72 Dr Lippey thought that there were two more likely explanations for the development of the lymphoedema, i.e. that the respondent suffered from a congenital lymphatic insufficiency and that the dissection of the groin was sufficient to unmask it. This is a condition known as Milroy's disease. The second alternative was post operative scarring or infection. This was likely if the onset of the lymphoedema occurred some time after the surgery. 73 In chief and under cross-examination Dr Lippey consistently repeated his assertion that any varicose vein operation inevitably involved some damage to the lymph nodes at the superficial level. He said: "This damage is an inevitable consequence of the surgery and is not usually clinically significant because of the abundance of collateral lymphatics." (Blue 226K)

He said that for the operation to be causally linked to the onset of the lymphoedema it would have to be shown that the lymphatic system at the deep level was damaged. Dr Lippey at no time made any concession under cross-examination or otherwise in respect of that latter proposition. Accordingly, with respect, it was unfair and inaccurate for his Honour to suggest, as he does, that such a concession was made in that part of the cross-examination which he set out in his judgment. 74 Not only did his Honour not analyse the opinion of Dr Lippey, he did not at any point in his judgment refer to that aspect of it nor did he refer to the fact that in fundamental respects, it accorded with the opinion of Dr Eagleton. 75 Professor Fletcher gave evidence on the question of medical causation but his Honour made no reference to that evidence. Professor Fletcher was not only a vascular surgeon but was an expert in the interpretation of the lymphoscintigraphy test. He concluded that the test results were not consistent with extensive dissection of the left groin compromising major lymphatic channels (Blue 232Q). He opined that for there to be a connection between the operation and the lymphoedema, leg swelling due to lymphatic obstruction would be expected to have occurred immediately following the operation, not some four weeks before the 15 September consultation with Dr Tompsett. He thought the more likely explanation was congenital lymphoedema, i.e. Milroy's disease. 76 In relation to how long the lymphoedema had been present when Dr Malouf examined the respondent, Professor Fletcher gave the following evidence under cross-examination: "Q. Do you recall that Dr Malouf also noticed peau d'orange in an area of the calf of the leg? A. Yes I recall that. Q. That indicates lymphoedema of a longstanding nature, doesn't it? A. Not necessarily. It - I guess it depends on how we define longstanding. Perhaps for several months." (Black 522N) 77 Despite the submissions of the parties, it is not possible for this Court to resolve for itself the question of medical causation. To resolve that question would require this Court to make findings on the factual issues and on the scientific issues. This Court has not had the benefit of seeing and hearing the witnesses. Demeanour issues would undoubtedly arise so that this is a process which can only be properly carried out by a trial judge.

Breach of Duty 78 On this issue his Honour posed the question "Whether or not Dr Tompsett should have recognised this condition [pelvic venous reflux] and taken any other steps than proceeding with surgery as she did" (Red 33H). 79 Dr Tompsett's evidence was that she did identify that the respondent had pelvic venous reflux in relation to her left leg when she saw the ultrasound report from Dr Lee of 14 February 2003. She said that the symptoms from pelvic veins and leg veins were quite different. The respondent complained of an ache in her legs and swelling. This was consistent with symptoms from leg veins. Dr Tompsett said the respondent did not mention any problems of pelvic ache or menstrual pain or any of the symptoms that were normally associated with pelvic varicosities. 80 Dr Tompsett said that in the absence of symptoms from the pelvic veins, she did not consider that the presence of pelvic venous reflux would affect her ability to carry out a varicose vein removal operation in respect of the respondent's legs. She said that if the respondent had made complaints about pelvic symptoms, she would have referred her on. Dr Tompsett said that she at no time sought to treat the respondent for pelvic venous reflux. Rather the focus of her treatment was the long saphenous system and the varicosities within the left leg and the multiple varicosities in the right leg (Black 356P-358F). 81 Dr Tompsett said that for those reasons she did not ask the respondent to remove her underwear, nor did she examine her buttocks or vulva. For the same reason she did not discuss the ultrasound results suggestive of pelvic venous reflux with the respondent nor did she suggest that the respondent seek other medical opinion. Insofar as warnings were concerned, Dr Tompsett said that it was her usual practice to provide patients with the booklet and to advise that some varicosities might be missed in the operation. She did not say anything to the respondent about lymphoedema. 82 There was a considerable body of evidence which supported this approach. Dr Malouf in his report of 4 April 2006 said: "When patients present with pelvic varicosities that extend to their legs there are two options. The first is to try to control the high venous pressure in the pelvis from which these varicosities arise, and the second is to treat the problem of the leg veins alone, hoping to gain control of the situation without having to do anything in the pelvis. The alternative chosen depends on the amount of pelvic symptoms and the degree that the pelvic veins are dominating the situation." (Blue 101Q) … "In assessing the veins clinically and on ultrasound as per the report of 14.2.03, the original surgeon has made the decision that to treat the leg veins initially may well have relieved the patient's symptoms and improved the appearance of her legs. In retrospect that has not been the case and the veins certainly have not been cured and the leg is in a much worse condition post operatively." (Blue 102H) 83 Dr Eagleton said: "The question of pelvic vein surgery is still controversial. The aim is to reduce the high pressure back flow into the veins in the leg on the basis that it could lead to recurrent or persisting varicose veins in the legs, after surgery confined to the legs. However, the opposite approach is also valid, in my opinion. That is, to carry out the leg surgery initially, then follow this up with pelvic vein surgery if it seems necessary. In other words, referral to a vascular surgeon could be necessary at some stage, the only question being whether it should be done initially, or after the varicose vein surgery to the legs. In the case of this patient, the latter approach was taken and was quite reasonable in my opinion." (Blue 154E) 84 Under cross-examination Dr Eagleton said: "A. In the pelvis, and there are varicosities in the legs. Now, Dr Tompsett was asked to deal with varicosities in the legs which she did. Now, you don't have to consider the other, at that stage, necessarily. There is a school of thought that says you should do the pelvis first; there is a school of thought that says no, the problem is with the legs, deal with the legs and then see where you go from there, because as I said, the question of surgery for pelvic varicosities is controversial." (Black 535H) 85 Dr Lippey expressed a similar opinion: "However, the treatment of pelvic venous incompetence is by no means settled. While there is a body of vascular opinion, which favours some form of pelvic interruption, as Dr Malouf suggests, it is by no means universally accepted that this treatment is beneficial. My own view is that the results of pelvic venous interruption are dubious at best. For this reason a conservative approach also has its advocates. … For my own part I would have followed Dr Tompsett's course of action and performed the much simpler procedure in the left groin in an attempt to relieve her symptoms and proceed to consider surgery in the pelvis and abdomen only if the symptoms were not improved. … However, in my view, it is a reasonable course of action for a general surgeon to perform surgery on the groin and refer a patient to a vascular specialist only if the groin procedure were unsuccessful." (Blue 189W, 190B, 190M) 86 Professor Fletcher gave the following evidence: "Q. The matter of Mrs Chaker having pelvic venous reflux is a relevant matter to a consideration of the extent of the operation carried out? A. Not necessarily (strike out begins) may I say that the identification of pelvic reflux is something that occurs in perhaps 15 to 20 percent of patients presenting for varicose vein surgery. So it's something that we may note but it may not influence the management." (Strike out ends) (Black 546K) Q. Do you accept that pelvic venous reflux is a serious problem? A. (Strike out begins) The presence of pelvic reflux may or may not be associated with clinical symptoms and signs. So the fact that it's present does not necessarily mean that it's a problem or a contributing factor." (Strike out ends) (Black 547E) 87 The importance of those answers of Professor Fletcher, even though they were wrongly struck out as non-responsive, is that they, with the opinion of the other doctors, are indicative of a body of opinion which supported the approach of Dr Tompsett. His Honour did not acknowledge the existence of that body of opinion, nor did he seek to deal with it in his reasoning process. His Honour does not seem to have appreciated the distinction which Dr Tompsett and the other doctors recognised between treating varicose veins in a patient's legs and treating pelvic venous reflux. 88 As part of that overall failure properly to analyse the medical issue, his Honour did not recognise nor did he resolve the controversy in relation to whether Dr Tompsett should have examined the respondent's vulva and buttocks following her receipt of the Doctor Lee ultrasound. Dr Tompsett, with whom Dr Lippey agreed, (Black 585G) said that such a need would only arise if the patient complained of symptoms in the pelvic area. Dr Malouf expressed a different opinion, but that was in the context of him treating the pelvic venous reflux and performing an operation at that level. (Black 212K). Professor Fletcher was somewhat equivocal and said that he might examine those areas depending upon what symptoms were complained of (Black 563H-W). Professor Fletcher's opinion, however, was very much influenced by the distinction which he drew between treating varicose veins in the legs and treating varicose veins in the pelvic area (Black 564N). 89 Dr Eagleton said that such an examination was not necessary after receipt of the ultrasound (Black 520G-J). Dr Eagleton said: "Q. Now, but this is new information, isn't it, to you? A. Well, no - well, it's information that there are varicose veins, that I may or may not have recognised, I don't know, because I didn't examine the patient. There's new information in these reports referring to the pelvic area. But varicose veins in the leg are varicose veins, and you deal with them accordingly. (Black 520R) … Q. Now, in that event, what you do and what any reasonable practitioner would do, would be to ring the radiologist and discuss the findings with that person? A. I don't think many surgeons would do that. Q. I put it to you that's a reasonable position to take? A. No, I don't agree with that. I'd assess the patient, I've got some reports, I'm going to plan an operation on the leg. Now, I may be aware from these reports that there is pelvic problems, but I'm still only going to operate on the leg. That's what the patient is there for, because she's got trouble with her legs." (Black 523D-H). 90 Accordingly, it was factually incorrect for his Honour to say: "The evidence of Dr Malouf, Dr Eagleton and Dr Lippey, as well as Professor Taylor (sic) established in my opinion that the defendant should have examined the plaintiff's buttocks and vulva area after she received the results of the ultrasound to check the condition of the plaintiff's veins in those areas." (Red 33S)

How and on what basis his Honour made that finding was never explained. It was, however, a serious factual error which distorted and invalidated his Honour's findings as to breach of duty. 91 His Honour made a similar error when he said: "43 Dr Malouf said that the contents of the ultrasound of February 2003 should have alerted Dr Tompsett to the presence of pelvic venous reflux and if she had noted it, she should have sought another opinion before proceeding with surgery. I accept this opinion." (Red 35H) 92 Dr Malouf did not express such an opinion. What Dr Malouf said was: "Referral to a surgeon specialising in varicose veins is no guarantee of a beneficial or good quality outcome either. It perhaps would have been prudent for the first surgeon to have referred this patient onto another surgeon who specialises in this condition to treat this quite difficult set of varicose veins." (Blue 102K)

That observation was made by Dr Malouf following consideration by him of the two alternative modes of treatment, i.e. treating the varicose veins in the legs first or as he would have done, treating the veins in the pelvic area first. 93 His Honour's characterisation of the evidence of Dr Lippey on that subject was also inaccurate. His Honour said: "44 Dr Lippey agreed with the need to refer in his report of October 2006. In his evidence he said he regretted saying this in his report but, despite the fact that he gave evidence in April 2008, he had never retracted it and, in my opinion, the opinion that he expressed in the report should be accepted as corroborating that of Dr Malouf." (Red 35L) "48 I accept that Dr Lippey believed the defendant should have referred the plaintiff on when he prepared his report. This initial view should be accepted and Dr Lippey's attempt to resile from it in evidence rejected as a belated attempt to assist the defendant to avoid the consequences of the earlier opinion. He had ample time to retract that opinion between the date of the report and when he gave evidence but did not." (Red 36M) 94 What Dr Lippey in fact said was: "While I think the treatment of simple varicosities in the groin is well within the province of a general surgical training, the presence of pelvic venous reflux is a much less common and a more serious problem, for which certainly referral to a vascular specialist should be considered." (Blue 189U)

As a matter of plain English, the comment by Dr Lippey does not have the effect sought to be given to it by his Honour. Moreover, in the context in which the comment was made, Dr Lippey ultimately concluded that he would have followed Dr Tompsett's course of action (Blue 190E). 95 Under cross-examination on a number of occasions Dr Lippey made the point that such a referral should be considered but was not mandatory (Black 589G, Black 590T). He was prevented from further explaining the distinction which he saw between something which should be considered and something which should be done (Black 591M). There was in fact nothing inconsistent between that which Dr Lippey said in his report and the quotation from his evidence upon which his Honour apparently relied in reaching his conclusions about Dr Lippey: "Q. I suggest to you that the reason why you stated what you did in the final clause of that paragraph at paragraph C, was that it was your view that the presence of pelvic venous reflux made this a problem that was not well suited to management by a general surgeon? A. No." (Black 592N and Red 36H) 96 One of the reasons identified by his Honour for rejecting the evidence of Dr Eagleton was that "he had limited relevant surgical experience" (Red 36P). That statement was factually incorrect. What Dr Eagleton said was: "I am a general surgeon practising in Sydney. Previously I carried out a wide range of vascular surgery but I withdrew from this field of practice some years ago except for varicose vein surgery which I still undertake." (Blue 152M)

Not only was Dr Eagleton experienced in varicose vein surgery (which was the procedure being undertaken by Dr Tompsett) but he also had experience in a wide range of vascular surgery. 97 His Honour's further explanation for rejecting the evidence of Dr Eagleton is difficult to understand. His Honour said: "65 Dr Eagleton was cross-examined about what examination he would perform if a patient consulted him about problems with varicose veins. He said that he would look at the legs from the front, back and side but would not look to see if there were any pelvic varicosities unless the patient made a complaint about symptoms in that area. When asked why he would not check the pelvis, buttocks or vulva he said that the condition of pelvic reflux was uncommon. In my opinion this explanation cannot be accepted. This was not a case where the plaintiff had complained of a pain in her head and the surgeon had failed to check her feet but where the surgeon was required to determine the cause of the varicose veins. Pelvic venous reflux was a known condition and could readily have been detected by proper examination." (Red 39H-M) 98 Contrary to his Honour's conclusion not only does the evidence of Dr Eagleton have a medical basis, it is supported by the opinions of Dr Lippey, Professor Fletcher and Dr Tompsett. His Honour's conclusion is further eroded by the incorrect statement at the conclusion that pelvic venous reflux "could readily have been detected by proper examination". All of the doctors agreed that such a condition cannot be detected visually but is detected by ultrasound and other tests. It is only when the condition has been detected that it may be necessary to examine the vulva and buttocks if the surgeon is intending to carry out a procedure in relation to the pelvic veins or if the patient complains of symptoms in that area. 99 The final basis for his Honour's rejection of Dr Eagleton was: "70 Although Dr Eagleton said that he would not have referred someone such as the plaintiff to another specialist with expertise in the pelvic venous system I do not accept this evidence. In my opinion, what he said was inconsistent with proper professional practice as stated by Dr Malouf. Accordingly where Dr Eagleton's opinions differ from those of Dr Malouf on this point, I prefer Dr Malouf." (Red 40H) 100 As already indicated, the evidence of Dr Malouf was not as summarised by his Honour. Dr Malouf accepted that there was an alternative approach. Moreover, it was not just a question of rejecting the evidence of Dr Eagleton that he would not have referred someone such as the respondent to another specialist with expertise in the pelvic venous system but a question of dealing with a body of medical opinion to that effect. The existence of such a body of medical opinion was acknowledged by Dr Malouf and the basis for it was set out in the evidence of Dr Lippey and Professor Fletcher, as well as Dr Eagleton. As with Dr Lippey, his Honour simply did not engage in a proper intellectual analysis of the opinion of Dr Eagleton before rejecting it. 101 There is another difficulty with that paragraph in his Honour's judgment. There is an implicit assumption that the opinion of Dr Malouf as his Honour propounded it, represented "proper professional practice". By implication therefore, opinions to the contrary must be inconsistent with proper professional practice. The basis for that proposition was never set out by his Honour. 102 His Honour rejected the evidence of Professor Fletcher on two bases. The first was that his Honour regarded the evidence of Professor Fletcher as "most unsatisfactory". He said of that witness "He did not answer direct questions and added material for which he was not asked. It was necessary for the court to remind him of his obligation of objectivity". For reasons which I will set out in due course, that observation by his Honour was, with respect, unfair to the witness and as a matter of law, was wrong. 103 The second basis was that the assumptions upon which the Professor based his opinion were not made out. I have already indicated the defects in his Honour's approach to fact finding in relation to the assumptions upon which the medical evidence was based. It follows that there were serious flaws in the reasons put forward by his Honour for rejecting the evidence of Professor Fletcher. 104 His Honour also incorrectly stated the effect of Professor Fletcher's evidence. His Honour said: "Professor Taylor (sic) eventually accepted that the proper practice would have been to have referred the plaintiff for a second opinion, having seen the results of the scan." (Red 47C)

Professor Fletcher at no time gave evidence to that effect. 105 The treatment of Professor Fletcher and his evidence gives rise to another problem which has made a retrial inevitable. Much of the evidence given by Professor Fletcher was rejected by his Honour as unresponsive. Many of those rulings were incorrect. That had two unfortunate consequences. The first was that there was a body of relevant evidence before his Honour which because of his rulings was not considered by him. The second consequence was that his Honour's rulings prevented further relevant evidence on those issues being adduced from the witness. 106 His Honour's conclusions in relation to breach of duty were: "90 … I find she breached that duty in that she failed to properly diagnose the plaintiff's condition and thereby deprived herself of the ability to warn or advise the plaintiff about the future management of her condition before proceeding to surgery. Ultimately that breach of duty led to the plaintiff developing lymphoedema because the defendant despite the objective evidence available to her from the scans, tried to perform a standard varicose vein operation for a condition that would not readily respond to such surgery without the need to ligate extensive gross groin varicosities." (Red 44G) "92 In my opinion, the magnitude of the risk of contracting lymphoedema was great if the diagnosis was wrong as I find it was, and although the likelihood of the occurrence of lymphoedema was low, this was not a case where the defendant was entitled to ignore the risk and do nothing. The risk of the development of lymphoedema was real where at operation there was a need to dissect and ligate a large number of veins due to pelvic venous reflux. The defendant should have diagnosed the pelvic venous reflux and sought a second opinion before surgery. She should not have embarked on the surgery without advising the plaintiff of the risks and giving her the option of another specialist opinion. The surgery, as the defendant performed it, increased the risk of the development of lymphoedema." (Red 45C) 107 Because of his Honour's failure to properly analyse the factual and scientific issues in this matter, those conclusions as to breach were arrived at on an incorrect basis and cannot stand. 108 His Honour found that Dr Tompsett had failed to properly diagnose the plaintiff's condition. By that I understand his Honour to be saying that Dr Tompsett failed to recognise the existence of the condition of pelvic venous reflux. Dr Tompsett's evidence was to the contrary. The effect of Dr Tompsett's evidence was that she did recognise the existence of that condition but she regarded it as largely irrelevant to the operation which she was going to perform, i.e. a varicose vein operation in respect of the respondent's legs. She reached that conclusion because the respondent made no complaints about symptoms in the pelvic area. Her complaints were restricted to her legs. 109 Dr Tompsett's evidence occupied in excess of 140 pages of transcript. In comprehensively rejecting Dr Tompsett's evidence, his Honour did not anywhere in the judgment refer specifically to any part of her evidence and set out the basis for why he did not accept it. Where, as occurred in this trial, the rejection of this evidence had implications with respect to the professional integrity of Dr Tompsett, more was required. Not only were the reasons inadequate, it is regrettably unavoidable to reach the conclusion that this approach was fundamentally unfair. 110 It is not entirely clear what his Honour meant when he said that Dr Tompsett's failure to recognise the existence of pelvic venous reflux "deprived her of the ability to warn or advise the plaintiff about the future management of her condition before proceeding to surgery". 111 What his Honour seems to be referring to is a failure to explain to the respondent the existence of the pelvic venous reflux, a failure to warn her about the possibility of developing lymphoedema and a failure to either explain or recommend to the respondent that she be referred to a vascular specialist such as Dr Malouf. Each of those matters was controversial and as already indicated, the controversy was not properly resolved by his Honour. 112 In relation to explaining the existence of pelvic venous reflux, Dr Tompsett said she did not do so because she regarded it as irrelevant. Dr Lippey agreed. He said that it was a very complicated condition and it would not have assisted the patient to know about it. This was because the respondent was being treated in respect of the veins in her legs, not in the pelvic region. Neither Dr Malouf or Professor Fletcher was asked to express an opinion. Dr Eagleton said that he would have explained to the respondent the existence of this other condition, i.e. pelvic venous reflux, even though she was not going to be treated for it. 113 It is difficult to see what purpose such an explanation would have served. On the basis of the respondent's evidence it is clear that she would not have understood any such explanation. Accordingly, not only was the controversy as to whether or not the respondent should have been told not dealt with by his Honour, the causal effect of the failure was left unexplained. 114 His Honour found that Dr Tompsett should have advised the respondent of the possibility that the varicose vein operation on her legs might cause the condition of lymphoedema and therefore Dr Tompsett's failure to provide such advice involved a breach of duty on her part. No doctor said that such advice should have been given. All agreed that it was an extremely rare condition, with little known association with varicose vein operations on the legs. The likelihood of it developing following varicose vein surgery was so low that it was not identified as a risk in the booklet published by the Royal Australasian College of Surgeons and the Australian and New Zealand Society of Vascular Surgery. There was no evidentiary basis for this finding. 115 The question of whether the respondent should have been given the option of seeing a vascular specialist or should have been advised to see such a surgeon was of course a major issue in the trial which for the reasons set out above, was not properly dealt with by his Honour. His Honour's finding in that regard, however, raises another issue which was not considered by him but which is important. The issue raised is one of legal causation. 116 Even if Dr Tompsett failed to diagnose or recognise the existence of pelvic venous reflux in the respondent, did this cause any adverse consequences for the respondent. Dr Eagleton, Dr Lippey and Professor Fletcher all agreed that in the absence of symptoms in the pelvic area, their preferred option would have been to carry out the varicose vein operation on the legs and not to treat the veins in the pelvic area. That question was simply not considered by his Honour. 117 Finally, it is not clear what his Honour meant when he said "the surgery as the defendant performed it increased the risk of development of lymphoedema". As Doctors Lippey and Eagleton pointed out, any operation which disturbs lymphatics gives rise to a real but infinitesimal risk of lymphoedema. Quite clearly his Honour did not have that in mind. What his Honour seems to be saying is that Dr Tompsett should not have performed a varicose vein operation on the respondent's legs in the presence of pelvic venous reflux, but should have referred the respondent to a vascular specialist such as Dr Malouf. That, of course, simply raises in another way the major question in the trial. 118 His Honour set out his conclusion as to legal causation as follows: "106 I am satisfied on the balance of the evidence that the failure of Dr Tompsett to diagnose the true condition of the plaintiff caused her to firstly give incorrect advice about what she could expect, remove the option of her providing advice about a second opinion and led her to perform an operation which immediately became a long and complicated procedure because of the failure to properly diagnose the condition, thereby heightening substantially the risk that lymphatics could be compromised." (Red 47P) "108 I am satisfied that the breaches referred to above caused the lymphoedema. I find that if Mrs Chaker had been advised of the risks of surgery where pelvic venous reflux was present she would have sought another opinion from a suitably qualified surgeon before undergoing surgery. If she had done this, I find that the risk of her developing lymphoedema would have been substantially reduced as the operation would probably have been performed differently as suggested by Dr Malouf." (Red 47W) 119 As indicated above, the legal causation issue is not as simple as his Honour sought to make it. Depending upon the resolution of the "referral" argument, even if Dr Tompsett had not recognised the existence of pelvic venous reflux, the operation which she performed was recognised by a substantial body of medical opinion as appropriate even where pelvic venous reflux was present. 120 There was also the issue which was not explored by his Honour, that the referral for a second opinion may not have been to Dr Malouf or to a doctor with similar views, but to a vascular surgeon such as Dr Lippey who would have recommended the sort of operation which was ultimately performed by Dr Tompsett. 121 His Honour at no time sought to identify exactly what advice Dr Tompsett should have given to the respondent either as to pelvic venous reflux itself or as to a referral to another specialist. His Honour did not articulate what Dr Tompsett should have said concerning lymphoedema. His Honour did not identify what advice or what options would have been given to the respondent had she been referred for a second opinion. 122 Not only was that kind of analysis not carried out by his Honour, it was not related, as required by the Civil Liability Act 2002 (CLA), to the evidence concerning the respondent. The respondent had certain characteristics which were identified in her evidence. She had a fear of operations, as a result of an unpleasant experience she had had when undergoing a caesarean procedure. She was very concerned in her consultations with Dr Tompsett to ensure that she spent the minimum time in hospital because of the need to look after her children and her greyhounds, given that her husband's heavy work commitments substantially restricted his ability to assist her in those matters. 123 There was no attempt to analyse from the surrounding evidence what the respondent's response would have been to the sort of advice she might have received firstly from Dr Tompsett and secondly from a vascular specialist to whom she might have been referred. What is clear from the evidence is that the procedure recommended by Dr Malouf involved two operations, i.e. one on the pelvis followed by a conventional varicose vein procedure whereas the alternative involved a single varicose vein procedure on the legs. 124 What his Honour had to do on the issue of legal causation was to set out one or more hypothetical series of events which would have occurred had certain advice been given and certain actions taken by Dr Tompsett. He did not do this. 125 For legal causation to be established in favour of the respondent his Honour would have had to have concluded as a result of that hypothetical analysis (perhaps of more than one scenario) that Dr Tompsett was duty bound in accordance with her professional obligations to say to the respondent "I can't go any further with your varicose vein operation without understanding the results of your referral to another specialist", i.e. that proper medical practice required Dr Tompsett to refer the respondent to another specialist before Dr Tompsett could do anything more. 126 It is not necessary to analyse legal causation further. It is sufficient to say that his Honour did not deal with it appropriately. Because of the other fundamental problems with the judgment the matter has to proceed to a retrial in which case the question of causation will be one of the matters which has to be considered.

Professor Fletcher 127 Before leaving the consideration of liability, it is necessary to say something about the treatment of Professor Fletcher in the trial. 128 By way of background, Professor Fletcher was a vascular surgeon whose experience and publications occupied some 35 pages of a curriculum vitae. The reports which he provided dealt with his interpretation of the lymphoscintigraphy test and the extent to which it assisted him in providing an opinion as to the extent and invasive nature of the surgery which was carried out by Dr Tompsett. He also expressed an opinion as to medical causation. When he was giving his evidence in chief, most of his evidence was rejected either on the basis that it was not covered by a report or that his answer to a question was unresponsive. 129 It is clear from the transcript that the rejection of some of the evidence was appropriate in that it was not covered by a report and, potentially at least, raised new issues. Most of the rulings, however, involved an overly technical approach to conformity with a report. No such approach was followed in respect of any other doctor who gave evidence in the case, in particular Dr Malouf. In the case of many answers which were rejected as non-responsive, his Honour's rulings were not only over technical but in some cases, clearly wrong. 130 The problem with "non-responsive" answers was significantly exacerbated when Professor Fletcher was cross-examined. In almost every case the answers under cross-examination which were rejected as unresponsive, should have been allowed. It is clear that the questions did not necessarily require a yes/no response. The blanket rejection of so much evidence should have been of concern to his Honour. This is particularly so when it was clear from the rejected evidence that it was relevant in a significant way to the issues which he had to decide. In most cases Professor Fletcher was doing no more than providing a full answer to the question. The evidence at [86] hereof provides a good example of this. 131 In the context of the duplex venous ultrasounds in respect of the respondent's left and right legs of 13 and 14 February 2003, the following exchange took place: "COUNSEL: Q. And that was on pelvic venous reflux into the right leg? A. This is a situation that can be - Q. Is the answer to that yes or no, sorry? A. - can be difficult to interpret. It depends. I known you're going to strike this out, but this depends where the scan is performed, who interprets it, and in the overall context of the clinical presentation. So it did report - I can say, yes, it did report reflux into the right - pelvic reflux into the right leg. Q. And the left leg? A. I would just have to review that report just to check those findings again. Q. Are you unsure at this point when you come to give evidence whether Mrs Chaker had pelvic venous reflux in the left leg? A. (Strike out begins) One of the problems with the pelvic venous duplex scan is that the views that are obtained on ultrasound can be very, very difficult, and whether it's reported as going into one leg or not or both legs is really open to question. And venous duplex ultrasound is not the definitive investigation to confirm pelvic reflux (strike out ends). … HIS HONOUR: Could I encourage you to try to just engage with the question, please, Professor? Any additional matters that need to be explained will no doubt be explained by a re-examination by Ms Sandford, but you're here to assist the court by answering the questions counsel puts to you please. A. Okay. COUNSEL: Professor are you today unsure when you come to give evidence whether Mrs Chaker had pelvic venous reflux into her left leg or not? A. On the scan that was presented there was not definite evidence of pelvic reflux into - my interpretation was that you could not be certain that there was pelvic reflux into both legs. Q. You're making that up aren't you Professor? A. No. Q. When did you last look at the scan? Sorry, Professor if you could not look at the papers at the moment. Just answer the question please if you would? A. When I was reviewing all the documents. But that's taken into consideration in the significance of pelvic reflux. Whether it's present or absent, whether it's going into one or other leg is not necessarily pertinent. I accept that there was pelvic reflux demonstrated. COUNSEL: Your Honour I ask that it be struck out from the word "that was taken" through to the final sentence but not including the final sentence. HIS HONOUR: No I'm not going to allow the answer. I'll say it again, Professor, but I'll only say it once more. If you continue to do what has already been told not to do I will take certain action." (Black 548J-549M) 132 I do not regard Professor Fletcher's answers to those questions as non-responsive. Most importantly, however, his Honour's warning to the witness was unwarranted and, with the utmost respect, it was wrong for his Honour to give it. 133 There has in recent times developed a significant spirit of co-operation between professionals in various fields, including medicine, and the courts. The courts make due allowance for the heavy commitments of professionals in their daily lives when arranging for them to give evidence. On the other hand, professionals readily (often at some inconvenience to themselves) make themselves available to give evidence. 134 The courts can only engage in appropriate decision making if they have the assistance of professionals who are prepared to act as experts. That level of co-operation is highlighted and exemplified by the expert code of conduct to which experts now adhere when giving evidence. Most particularly, the expert witness now has an overriding duty to assist the court impartially and his or her duty is to the court and not to any party. 135 The effect of the implementation of the expert code of conduct is that a form of scientific discourse usually occurs in court, the primary purpose of which is to provide the judge with relevant expert material to enable him or her to appropriately decide a case. That evidence is conventionally placed before the court by means of questions addressed to the expert by counsel or by the judge. That is why experts are treated somewhat differently to other witnesses and leading questions can be put to them. It also explains why yes/no answers are often inappropriate and why answers that may not be immediately responsive are allowed if the expert is genuinely seeking to answer that which the questioner is asking. Of course with concurrent evidence the dialogue is often directly between the experts themselves or the expert and the judge. 136 The achievement of such an instructive discourse is not helped by a confrontational approach by the parties and their legal advisers. Such an approach wastes time and interferes with the facilitation of a just, quick and cheap resolution of the real issues in the proceedings as required by s56 of the Civil Procedure Act 2005 (UCPA). The counterproductive results of such an approach are well illustrated by the evidence of Professor Fletcher which was interrupted by a continuous flow of objections, legal argument and judicial rulings. 137 The warning which his Honour gave to Professor Fletcher was of a very serious kind. His Honour was in effect threatening the witness with an action for contempt of court if the witness did not provide what his Honour regarded as responsive answers. Unless properly justified, such a threat cuts across and is contrary to the rationale and spirit of the expert code of conduct. It is quite clear from the exchange set out above, and from the whole of Professor Fletcher's evidence, that he was doing his best to answer the questions put to him. Accordingly, not only was his Honour's threat unwarranted as a matter of law, it was unwarranted as a matter of fact. 138 One of the problems with a judge making a threat of this kind, in circumstances where a witness is doing his or her best to answer questions, is that it can affect the impartiality and quality of the evidence. Some witnesses could be so intimidated by a threat of this kind that they might well try to adjust the content of their evidence to fit with what they perceive to be the expectations of the judge instead of providing evidence in their area of expertise freely and impartially as the code requires. That does not appear to have happened in the case of Professor Fletcher who appears to have robustly maintained his independence when answering subsequent questions. 139 Warnings of the kind which his Honour addressed to Professor Fletcher should only be given in the clearest of circumstances. This was not such a circumstance. If an expert witness is genuinely attempting to assist the court but is struggling to focus his or her answers on the precise questions asked, much more can be achieved by judicial guidance than by the threat of a legal sanction.

Damages 140 Dr Tompsett submitted that his Honour was wrong in his approach to the awarding of damages for non-economic loss in that he assumed, without explaining why, that the breach of duty which he found had caused the respondent's lymphoedema. Dr Tompsett submitted that on Dr Malouf's evidence there was "no guarantee of success regardless of which form of operation was carried out". Thus the risk of developing lymphoedema on the part of the respondent remained the same. 141 As an alternative, Dr Tompsett submitted that on the basis that the operation she performed had merely unmasked a congenital lymphatic insufficiency, his Honour should have applied the principle set out in Wilson v Peisley (1976) 50 ALJR 207 at 209C-D that this was the sort of condition which would have been unmasked in any event. Accordingly, Dr Tompsett submitted a substantial discount should have been applied by his Honour to the damages which he awarded. 142 This submission is misconceived. It is not really a submission as to damages. It is a submission as to causation. It is the sort of problem which the High Court considered in Chappel v Hart (1998) HCA 55 (1998) 195 CLR 232. What the respondent was claiming in these proceedings was not damages for the loss of an opportunity or chance to have achieved a better result. She was claiming damages for the injuries which she sustained, i.e. the development of lymphoedema. If she established that causal connection she was entitled to full damages for her loss. 143 The relevant analysis was set out by Gummow J in Chappel v Hart as follows: "76 Rather, Mrs Hart claimed damages for the injuries she sustained. To make good her case and to obtain the award of damages she recovered, Mrs Hart was not required to negative the proposition that any later treatment would have been attended with the same or a greater degree of risk. 77 This is not a case such as Hotson v East Berkshire Area Health Authority. There, the facts precluded the adoption of the plaintiff's hypothesis that he would have escaped disability to his hip joint but for the negligence of the defendant in failing to diagnose a fracture and to treat it promptly. 78 In the present case, the chain of causation appears from the historical facts found to have intervened between the negligent omission of Dr Chappel and the injuries sustained by Mrs Hart. There was no difficulty in demonstrating what would have happened if Dr Chappel had given Mrs Hart the warning required by Rogers v Whitaker before the surgical procedure on 10 June 1983 in which her oesophagus was perforated, leading to the development of mediastinitis and the paralysis of her right vocal cord. Mrs Hart would not have undergone that procedure at the hands of Dr Chappel. She would have wanted "the most experienced person with a record and reputation in the field", such as Professor Benjamin." 144 As to whether or not the respondent is entitled to any damages will depend upon her being successful in establishing the sort of chain of causation referred to by Gummow J in [78] of this quotation. If she can establish causation of that kind then as a matter of principle she is entitled to damages for her loss, the loss being the development of lymphoedema. The difficulty in such claims is to establish not only what actually happened, but the hypothetical scenario or scenarios which would have occurred had the omission by the tortfeasor not occurred. This is yet another aspect of the failure by his Honour to properly deal with the question of causation which has been referred to earlier in these reasons. 145 Dr Tompsett challenged the assessment by his Honour of non-economic loss under the CLA at 40 percent of a most extreme case. Dr Tompsett submitted that such an assessment was manifestly excessive. She submitted that the lymphoedema affected one leg only in respect of which the respondent had undergone limited and infrequent treatment before March 2005 and none thereafter. 146 While I agree that the assessment of non-economic loss is towards the top of the range, I do not believe it is outside the range of a proper assessment. The approach by Dr Tompsett in this submission significantly understated the extent of the disability caused to the respondent as a result of the development of her lymphoedema. 147 The respondent was born in 1972, was 31 when this condition developed and 36 at the time of trial. At that time she had a life expectancy in excess of 52 years. As a result of the lymphoedema she has a permanently swollen left leg which prevents her from being physically active and from wearing fashionable clothes, including dresses and high heels. She cannot walk properly and she has difficulty sitting and standing for any length of time. She cannot wear the same size shoe on each foot because of the swelling in the ankle. Her ability to care for her children and to train her greyhounds has been significantly restricted. She is embarrassed by the appearance of her left leg which is twice as large and heavy as her right leg. This has led to the respondent becoming somewhat depressed about her condition. 148 There is no known cure for this condition and the respondent will have to endure its consequences for the rest of her life. Even with a special stocking, the respondent is unable to stand for long periods of time. The swelling extends from the groin all the way down to the foot and ankle including the toes. In order to obtain any mobility it is necessary for the respondent to wear on a daily basis a strong, full length, graduated compression stocking on the left leg. While there is no tenderness in the leg, large varicose veins are evident and it is extremely awkward for the respondent to walk. Of necessity she uses an asymmetric gait. 149 I am not persuaded that, high as it is, his Honour's assessment of non-economic loss is outside the range for a disability of this kind so as to lead this Court to intervene and make its own re-assessment. 150 The final submission of Dr Tompsett as to damages was directed at the damages awarded in respect of future medical expenses. Dr Tompsett submitted that his Honour had not taken into account that the respondent had not received any treatment in respect of her left leg since March 2005. Dr Tompsett submitted that the respondent in her evidence had not indicated any desire to undertake the substantial regimes of treatment in respect of which she had recovered damages. 151 Each component of future treatment awarded by his Honour was specifically explained and justified in either the report of Dr Mackie (rehabilitation specialist) or the report of Ms Koelmeyer (occupational therapist). Their evidence was to the effect that the lymphoedema had created a need for this kind of treatment. There was no evidence to contrary effect. The only challenge seems to be that the Court should not award damages for this treatment (which the respondent undoubtedly needs) because the respondent had not availed herself of such treatment since March 2005. 152 Given the substantial costs of this treatment and the fact that the respondent has at all times been a public patient, the strong inference is that she has not availed herself of this treatment because she could not afford it. Accordingly, the challenge to the damages awarded for future medical treatment has not been made out. 153 It follows that when this matter proceeds to a retrial, the issue of damages should not be re-litigated. Should the respondent make out her claim against Dr Tompsett her entitlement to damages is that which has been assessed by his Honour.

Costs 154 Orders (2 ) and (5) made by his Honour in respect of costs will have to be vacated. The costs orders in respect of those matters will depend upon the outcome of the rehearing. The costs orders which his Honour made in orders (3) and (4), however, are quite separate from the principal appeal and can be dealt with by this Court. They do not depend upon the outcome of any rehearing. 155 It is in relation to order (4) that the hospital appears on the record as the first appellant and seeks leave to appeal. Order (4) was: "(4) The plaintiff to pay the hospital's costs, to be assessed or agreed on the ordinary basis to 13 October 2006 and between 13 October 2006 and 15 March 2007 to pay the hospital's costs on an indemnity basis. The hospital to have no costs between 15 March 2007 and 11 March 2008. The plaintiff to pay the hospital's costs after 11 March 2008 on an indemnity basis." 156 I would grant leave to the hospital to appeal. The application raises an important issue and provides the Court with an opportunity to restate the principles which should now govern the conduct of litigation in this State. 157 The facts on which Order (4) was based were not in dispute. When these proceedings were commenced in May 2006 the respondent sued both Dr Tompsett and the hospital. Apparently the basis for the joinder of the hospital was the reference in the clinical notes to a person named "Drew" as having played a part in the operation performed by Dr Tompsett. The respondent believed the reference to "Drew" meant that a Dr Drew had assisted Dr Tompsett in performing the operation. 158 Before commencing proceedings against the hospital nothing was done by the respondent, either by way of a request for particulars, by inquiry or by pre-action discovery, to further identify the person "Drew" and the part that person played in the operation. Even after the commencement of proceedings against Dr Tompsett and the hospital, no request for particulars was made, no order for discovery was sought limited to that question, nor was leave sought to administer interrogatories limited to that question. 159 On 13 October 2006 the hospital served the respondent's solicitors with an Offer of Compromise offering a verdict for the defendant with each party to pay her or its own costs. That offer was not accepted. 160 When the Statement of Claim was filed, the hospital and Dr Tompsett were represented by different firms of solicitors. By 1 March 2007 they were represented by the same firm of solicitors, Messrs TressCox Lawyers. 161 On 13 March 2007 the solicitors for the respondent send a facsimile to Messrs TressCox Lawyers in the following terms: "Re: Patricia Chaker v Hawkesbury District Health Services and Dr Tompsett We refer to our client's claim against the Hawkesbury District Health Services Limited and Dr Elizabeth Tompsett, and to the records for the operation carried out on 13 May 2003. We note that in the operation report the assisting surgeon is recorded as "Drew". Would you please advise us of the following matters: (a) The person's full name. (b) The person's position at the hospital as at 13 May 2003. (c) The person's last known telephone number and address." 162 By facsimile dated 15 March 2007 Messrs TressCox Lawyers responded as follows: "We refer to your facsimile dated 13 March 2007. We decline to provide the information requested as there is no basis upon which your client is entitled to this information." 163 When the trial commenced on 19 March 2007 senior counsel for the respondent said as part of his opening: "Your Honour, it is not known to the plaintiff who carried out what part of this operation upon the plaintiff. There's an operation report that lacks any real detail. A handwritten note refers to a Dr Drew as the assistant surgeon and a Dr Tompsett as the principal surgeon. So there's a question of how the operation was carried out and what was the involvement of Dr Drew in the procedure as an assistant surgeon. One of the issues in the proceedings is precisely how this operation was carried out in the light of that difficulty and who performed what part of it." 164 When his Honour asked whether or not interrogatories had been administered, senior counsel for the respondent said that they had not and further advised the court that her lawyers had not been able to speak to or locate Dr Drew. At the conclusion of the opening and at the conclusion of that exchange between his Honour and senior counsel, nothing was said by those representing the hospital. 165 The respondent's legal advisers did not learn of the true situation until Dr Tompsett gave evidence on 11 March 2008. There was no Dr Drew. Ms Drew turned out to be a nurse assistant. 166 Despite becoming aware of that situation, the respondent did not discontinue proceedings against the hospital until final submissions were made on 20 October 2008. On that occasion senior counsel for the respondent accepted that there was no evidence of negligence against the hospital and that there should be a verdict in its favour. 167 In reaching his decision as to costs, his Honour's reasoning process was as follows: In respect of the period from the commencement of proceedings until 15 March 2007 his Honour found that the respondent should pay the costs of the hospital. He did so because proper inquiries as to the identity of "Drew" had not been made before the commencement of proceedings or afterwards. In view of the non-acceptance of the offer of compromise made by the hospital on 13 October 2006, his Honour found that the respondent should pay those costs from 13 October 2006 on an indemnity basis. 168 His Honour reached that conclusion by reference to the observations of Beazley JA (with whom Spigelman CJ and Basten JA agreed) in Nationwide News Pty Limited v Naidu & Anor [2007] NSWCA 377, (2008) 71 NSWLR 471 at [296]: "It is well accepted that only in exceptional circumstances should a court deviate from the general rule provided for in R 42.14 of the UCPR. Hunt AJA in South Eastern Sydney Area Health Service v King [2006] NSWCA 2 considered the authorities in relation to Pt 52 r 17 of the Supreme Court Rules which are relevantly in the same form as UCPR r 42.14. His Honour (Mason P and McColl JA agreeing) stated at [83]:

"The onus is on the defendant to persuade the Court that indemnity costs should not be ordered. He must demonstrate the basis on which an order should be made denying the plaintiff's entitlement to indemnity costs. He must establish that he had given serious thought to the risk involved in non-acceptance of the offer, and that he had assessed the plaintiff's case properly and in the context of the rule and the achievement of its purpose - to encourage the proper compromise of litigation, in the private interests of the litigants and in the public interest of the prompt and economical disposal of litigation. Generally, exceptional circumstances are required to justify such an order denying the plaintiff's entitlement."" 169 For the period 15 March 2007 to 11 March 2008 his Honour found that the hospital was disentitled to its costs because of its conduct. The conduct to which his Honour referred was the failure to appropriately respond to the facsimile from the respondent's solicitors of 13 March 2007, which failure was exacerbated by the silence of the hospital's legal representatives on the first day of the hearing when they knew that the respondent's legal advisers were operating under a misapprehension in relation to the identity of "Drew". 170 In arriving at that conclusion, his Honour had regard to what Heydon JA said in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, (2001) 53 NSWLR 116 at [26 - 31]. There his Honour said: "[26] Fourthly, the conduct of litigation as if it were a card game in which opponents never see some of each other's cards until the last moment is out of line with modern trends. Those trends were developed because the expense of courts to the public is so great that their use must be made as efficient as is compatible with just conclusions. Civil litigation is too important an activity to be left solely in the hands of those who conduct it.

[27] To begin with, if practitioners in personal injury work are accustomed to maintain poker faces, to keep their guards up at all times, and to let opponents who are proceeding in ignorance continue in that course, they should perhaps, as Sir George Jessel used to say, move over to "what is known as the other side of Westminster Hall" to observe what procedures prevail there.

[28] Allsop J has valuably expounded the appropriate approach to commercial litigation in the Federal Court in White v Overland [2001] FCA 1333 at [4]: "… However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly. Even if something has been said, where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, as a general rule, efficiency, common sense and an appreciation of the costs and resources (both public and private) likely to be wasted by confusion in litigation will mandate that a party through his or her representative e nsure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. Litigation is not a game. It is a costly and stressful, though necessary, evil. To paraphrase Roscoe Pound from 'The Causes of Popular Dissatisfaction with the Administration of Justice' (1906) 29 ABA Rep 395, 404-406, the 'sporting theory of justice' and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans: cf Jackamarra v Krakouer (1998) 195 CLR 516 at 526-527 per Gummow J and Hayne J. Representatives do not owe duties to the other side's client. They owe duties to their own client. But no one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. This is very much the case when an issue, if it is to be propounded, might endanger the instructions of those acting for the other side. In saying this I need make no reference to the well-known responsibility of the Crown and emanations of the Crown to act at all times as model litigants beyond referring to what was said by the Full Court of this Court in Scott v Handley [1999] FCA 404 at [43] ff. I would expect no less than that which I have indicated of bitterly competitive commercial parties in the hardest fought of cases. In the long run, the only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone."

[29] The same approach operates in commercial and equity litigation in this Court. In that activity it is common for counsel to volunteer to each other what points will be argued and what authorities will be relied on. If one counsel requests that type of information from another, it is usually given. If it is not given, a speedy approach to the court is usually possible in which the difficulty will speedily be remedied. Even as long ago as the time when Mr H H Glass QC and Mr J W Smythe QC had their celebrated conversation about exchanging notes for argument in the course of a murder trial, Mr Smythe may have been right about criminal trials, but Mr Glass was right about equity suits.

[30] Indeed, even in personal injury litigation the ambush theory of life has been abandoned in District Court trials as much as in Supreme Court trials. Matters are readied for reasonably expeditious hearing by a series of interlocutory appearances. Detailed particulars must be supplied under, for example, Pt 9 of the District Court Rules 1973. Pleadings are expected to be clear and to be adhered to. Expert reports cannot be relied on unless served well in advance.

[31] If the ambush theory of litigation is permitted to survive in the specific area of time-extension proceedings, it will do no party any good, least of all the potential defendants. In the first place, it will have the effect of imposing on all applicants in this type of litigation a duty to file evidence which is adequate to deal with every conceivable point which might be taken against them. This would generate undue expense, would tend to consume court time unnecess­arily, and would produce the undesirable result that applications to extend time would become mini-trials of the contemplated action. Even if the first application failed because the applicant had been surprised, it would be possible for a second application to be made: Nominal Defendant v Manning (2000) 50 NSWLR 139. That is an undesirable waste of scarce and valuable judicial time in the District Court, but the court might well hold that the second application is not an abuse of process and should proceed if it was necessitated by the fact that the applicant was ambushed in the course of the first application. Alternatively, an ambushed applicant might decide to do what the present appellant did, and apply to this Court seeking leave to appear and tendering further evidence. Fascinating though the Court finds this type of work, that too is undesirable, since the time of three judges is consumed and not just one, but it may be necessary if justice is to be done to an applicant. It is simpler, cheaper, more efficient and fairer for resort to these manoeuvres to be avoided and for appropriate notice to be given by respondents to applicants before the application to extend time is first heard." 171 His Honour also had regard to what constitutes "misconduct" by a party for costs purposes, as explained to in Oshlack v Richmond River Council [1998] HCA 11, (1998) 193 CLR 72 at [69] where McHugh J said: "69 The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd Devlin J formulated the relevant principle as follows: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." "Misconduct" in this context means misconduct relating to the litigation or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute." 172 Applying those principles, his Honour declined to award any costs to the hospital for the period 15 March 2007 up to 11 March 2008. For the period 11 March 2008 until 20 October 2008 he was of the opinion that the respondent should pay the hospital's costs since there was no good reason for her to have maintained proceedings against the hospital after she became aware of the part played by "Drew" in the operation. 173 The hospital submitted that the pleadings and the response to the hospital's request for particulars failed to identify the person "Drew" as having any significant part to play in the claim against the hospital. It was for that reason that the hospital made the response which it did to the facsimile from the respondent's legal advisers of March 2007. The hospital did not regard the request as relevant to any issue which was to be litigated. 174 Accordingly, the hospital submitted that it had not been guilty of any "misconduct" as explained in Oshlack and that his Honour's order which deprived the hospital of its costs between 15 March 2007 and 11 March 2008 was in error and should be corrected. 175 The submissions by the hospital do not identify any error on the part of his Honour in relation to the costs order under consideration. The response by the hospital to the request for information about "Drew" is a clear example of the "ambush theory of litigation" referred to in Nowlan and is a clear example of the sort of "misconduct" envisaged in Oshlack. 176 It must have been quite apparent to the hospital, from both the facsimile of 13 March 2007 and senior counsel's opening at the commencement of trial, that the respondent was labouring under a significant misapprehension as to both the identity of "Drew" and as to the part played by that person in the operation. It was clear from the opening that the respondent's case against the hospital depended upon "Drew" participating as a doctor in the operation. That misapprehension could have been easily cleared up at no cost or tactical disadvantage to the hospital. 177 Not only was his Honour's analysis of the facts and application of the law correct, but there were other matters which he could have taken into account which would have reinforced the decision which he came to. 178 As a public authority the hospital was required to act as a model litigant in the proceedings. The other consideration is the requirement of s56 of the UCPA. Whatever may have been the common law in respect of matters such as this, the situation dramatically changed with the enactment of the UCPA. Litigants are now required to conduct litigation so as to facilitate the just, quick and cheap resolution of the real issues in dispute. 179 The response by the hospital to the legitimate inquiry by the respondent did not comply with the obligations of a model litigant nor did it comply with the requirement of s56 UCPA. In that regard it is appropriate to set out part of the comments of the President in an exchange with counsel which occurred when this matter was being argued on the appeal. "One of the reasons the Court has expressed the views that it has about those pages is it has become apparent - and this is not directed to you or your instructing solicitor - but it is a consideration that moves this Court, it is not some pedantic bossy way of conducting litigation. We have all conducted litigation. We understand the importance of it to the parties, in particular the importance of it to the plaintiff who has been, whoever is at fault, if anyone is, injured. And we understand the deep importance of these kinds of pieces of litigation to the professionals involved. We, I can confidently say, have all acted on both sides of these sorts of cases. But the courts, the Parliament and the profession have come to realise since the late 1970's that if litigation is going to be kept in check in terms of costs it has to be conducted notwithstanding the fact that there is conflict, with a degree of co-operation and politeness - I am not saying the letter wasn't polite - a degree of co-operation and politeness to avoid people spending their time on things that are unnecessary. And here, all that had to be said was "It was the scrub nurse". And if they then wanted to make an application, if you didn't want to give them the details of that person to be seen, that issue could be decided. And the point of it is, not that this isn't hard fought litigation, not that you don't help people, you're not there to help the other side, but you are there to ensure that costs are minimised and stress is minimised, to the doctors, to the litigants and to the practitioners, so that more work can be done for more people with less stress and less expense. That is what the Civil Procedure Act is about. And it's a high policy of the Parliament of this State and of the judiciary of this State. And there are more and more judgments where I've said the courts are becoming more outspoken and more aggressive about it, because of the importance of it to the litigating public, not the importance to the courts, the importance of it to the litigating public." (T.174.29) 180 It follows that the hospital's challenge to costs order (4) fails. Orders (3) and (4) should remain in effect regardless of the outcome of any rehearing. 181 The orders which I propose are as follows:

(2) That the judgment in favour of respondent against Dr Tompsett be set aside.

(3) That the costs orders in favour of the respondent against Dr Tompsett be set aside.

(4) That the matter be remitted to the Common Law Division of the Supreme Court for a hearing limited to liability. Should liability be found in favour of the respondent, damages are to be as assessed in the first trial with appropriate adjustments to take account of interest.

(5) That the respondent pay Dr Tompsett's costs of the appeal.

(6) That the costs of the first trial (except for the hospital's costs) be determined by the trial judge in the new trial.

(7) That leave be granted to the hospital to appeal against his Honour's order in respect of its costs.

(8) That the hospital's appeal against his Honour's costs order be dismissed and that orders (3) and (4) of his Honour be confirmed.

(9) That the hospital pay the respondent's costs of its application for leave to appeal and its appeal against his Honour's order in respect of its costs. **********

06/12/2010 - Typographical error in paragraph [136] - Paragraph(s) 136

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