KT v PLG & Anor

Supreme Court of NSW|2006-03-03|Before: Simpson J

CITATION : KT v PLG & Anor [2006] NSWSC 919

HEARING DATE(S) : 27 - 28 February, 1 - 3 March 2006

DECISION : Verdict for the plaintiff against both defendants; parties to formulate orders resulting from findings.

LEGISLATION CITED : Civil Liability Act 2002, Part 1A, s5A, s5D, s5O, Part 2, s13, s15, s16, s32

CASES CITED : Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

KT - Plaintiff PARTIES : PLG - 1st Defendant Ardlog Pty Ltd t/as Australian Birth Control Services - 3rd Defendant

COUNSEL : GR Graham - Plaintiff JB Turnbull - Defendants

SOLICITORS : TD Kelly & Co - Plaintiff Holman Webb - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20325/04 KT v PLG & Ardlog Pty Ltd trading as Australian Birth Control Services

JUDGMENT 1 HER HONOUR: By statement of claim filed on 14 September 2004 the plaintiff, KT, claimed, against each of three defendants, damages for personal injury. Each claim was framed in tort and in contract, and asserted breach of duty in the provision of professional (medical) services. The proceedings against the second named defendant have resolved. Of the remaining defendants the first is a medical practitioner; the third named defendant is Ardlog Pty Ltd, which trades as Australian Birth Control Services. The plaintiff seeks to make the third defendant vicariously liable for any breach of duty proven against the first defendant. Although a finding of vicarious liability is resisted on behalf of the third defendant, both defendants were represented by the same legal practitioners. The claims are governed by the Civil Liability Act 2002. Of particular relevance is Part 1A, dealing with negligence. 2 At the commencement of the proceedings orders were made restricting publication of material which would identify the plaintiff; at about the same time an order was made, on an interim basis, restricting publication of material that would identify the first defendant. Although there appears to be little basis for the continuation of the order, it has not been revoked or vacated, and accordingly I will, at this point, maintain the anonymity of the first defendant.

the facts 3 A good deal of the factual background to the proceedings is uncontroversial. 4 The third defendant conducts a medical clinic at Kingswood. The evidence suggests that the services provided at the clinic were largely to do with fertility medicine. A substantial part of the business of the clinic, I infer, was termination of unwanted pregnancies. It is worth noting here that there exists not the slightest suggestion of unlawfulness in the manner in which the clinic goes about its business. 5 The plaintiff was born on 1 January 1971. In February 2003, at the age of 32, she was diagnosed as pregnant. Her general practitioner referred her to the third defendant's clinic. There she was given a document entitled: "Information for women having a termination of pregnancy with IV sedation"

This document became Exhibit A. 6 The plaintiff was also given a pro-forma questionnaire to complete, in which she was asked to provide a considerable quantity of detailed personal history and information. She completed the questionnaire (Exhibit B). Relevantly for present purposes, she disclosed that she had two children, then aged four and two; that she had had three previous pregnancies terminated; that her last menstrual period had commenced on 28 January 2002; and that, in the six weeks preceding her attendance at the clinic, she had experienced tender breasts and urinary frequency (both of which are recognised symptoms of pregnancy). Some information on the completed form was inserted, not by the plaintiff, but (presumably) by an employee of the third defendant. 7 After a routine counselling session with a nurse, the plaintiff was seen by the first defendant, who introduced himself and took her blood pressure. He was engaged on a contractual basis by the third defendant. Whether this relationship gave rise to vicarious liability in the third defendant for any breach of duty by the first defendant is one of the issues to be determined. The plaintiff's evidence was that she spent about five minutes with the first defendant and that he did not physically examine her. (This is one significant area of factual controversy; the first defendant maintained that, as a matter of practice, he routinely examined patients prior to termination of pregnancies, and that his regular procedure would not have admitted of departure from that practice. Accordingly, although he does not claim to have a specific recollection of examining the plaintiff, it is the case of both defendants that he did so. Given the evidence, to which I shall later refer, this conflict is not one which is irreconcilable.) 8 After waiting for an unspecified time the plaintiff was called into the "procedure room" where she was either sedated or anaesthetised. It is not in issue that the first defendant then proceeded to perform a surgical termination of pregnancy. Nor is it in issue that the procedure went disastrously wrong and the plaintiff suffered significant damage. 9 The plaintiff's next recollection is of waking in the recovery room and being given a cup of tea and then again losing consciousness. On her regaining consciousness another woman explained to her that the procedure had taken longer than expected and that she would therefore have to pay more money. She recalled drifting in and out of consciousness, in excruciating pain, and having somebody say that her blood pressure could not be stabilised and that she should be taken to hospital. This in fact happened; she was taken to the Nepean Hospital where she came under the care of Dr Timothy Cropley. Dr Cropley performed an emergency laparotomy. He noted extensive pelvic damage. The adnexal (which, according to my medical dictionary, means adjacent or appending) structures on the right of the uterus had been completely torn away; a large tear ran the length of the side of the uterus; the right fallopian tube and ovary had torn away, and been removed completely, leaving torn and bleeding ovarian vessels; the uteric vessels were also torn and bleeding, as were vessels deep in the pelvis and in the right uteric tunnel. In excess of three litres of blood was removed from the peritoneal cavity. 10 Dr Cropley undertook extensive repair to the pelvic structures and performed a subtotal hysterectomy, followed by right internal iliac artery ligation. 11 At the time of the plaintiff's admission to the Nepean Hospital, her injuries were life threatening. She has made a relatively good physical recovery, although she claims to have sustained significant psychiatric damage. As a consequence of the surgery, she is unable to bear more children. She has a significant abdominal scar. 12 What happened during the course of the surgery was the subject of evidence given by the first defendant. It is also the subject of a record made by him in the plaintiff's medical file, at some time shortly after the surgery. In that document the first defendant wrote (the notes are written in the usual medical shorthand: what follows is an uncontroversial translation of that shorthand): "Patient 8 weeks on dates with 6 weeks of pregnancy symptoms. No reason to suspect greater gestation. Per vaginal (examination) anteverted but did not feel particularly large for dates. No pre-op ultrasound performed. Dilution to 29 Pratt and suction commenced using 8mm cannula. Umbilical cord noted. Procedure ceased. Abdominal ultrasound performed. Greater than 16 weeks' gestation. Discussed with Geoff Brodie advised if dilates easily to continue with procedure. Dilation to 47 Pratt achieved without difficulty. Suction and extraction with forceps of foetal parts/tissue. On initial inspection, no calvarium [head] noted. Continued attempt to remove calvarium with difficulty but eventually achieved under abdominal ultrasound control. Syntocinon [a drug] and Misoprostal [a drug] given at conclusion of procedure as charted. Haemostasis apparent at conclusion of procedure and patient transferred to recovery." 13 Prior to the commencement of the surgery the first defendant estimated the gestational age of the pregnancy as eight to nine weeks. It is now common ground that this was incorrect, and that the pregnancy was in fact about 16 weeks advanced. It was also common ground that a more advanced pregnancy poses additional risks, and its termination calls for the application of different techniques. 14 Because he believed that the pregnancy was of only eight to nine weeks' duration, the first defendant commenced the surgery on that basis. He soon observed complications, realised that he was dealing with a more advanced pregnancy than he had thought, and stopped the procedure. He performed an abdominal ultrasound, which produced an estimate of 16 weeks' gestation. As recorded in the notes, he contacted Dr Brodie, the medical director of the third defendant. After a conversation with Dr Brodie, the first defendant continued with the procedure he had commenced. By this time he realised that he had ruptured the membrane, but considered that the risks of ceasing the procedure were greater than the risks of continuing with it. 15 The first defendant's intention in proceeding was to remove what medical practitioners call "the products of conception" - the foetus. What he in fact did was far more than that. He severed the uterus from the adjacent structures. He took out the right fallopian tube and ovary. He did not observe, in the material and tissue that he extracted, that it included fallopian and ovarian material. In oral evidence he accepted that such material must obviously have been present.

the issues 16 The breaches of duty alleged against the first defendant are particularised in the statement of claim variously, extensively, and somewhat repetitively. However, the case advanced on the plaintiff's behalf can be reduced to a relatively simple statement. It was, I think, common ground that the genesis of all that went wrong was the first defendant's misapprehension as to the duration of the pregnancy. That was the single circumstance from which all the subsequent disastrous consequences flowed. 17 It is the plaintiff's case that the first defendant failed to take adequate and proper steps to inform himself of the actual duration of the pregnancy. This raises a contested factual issue, to which I have earlier alluded: whether the first defendant conducted a physical examination of the plaintiff; and, if he did so, whether he did so negligently (or in breach of his contractual duty to the plaintiff). 18 Uncontradicted medical evidence was that a properly conducted physical examination ought to give a qualified medical practitioner exercising reasonable care and skill a good idea of the duration of a pregnancy, and certainly, in this case, ought to have revealed the difference between an eight to nine week pregnancy and one of 16 weeks. This is because of the size and position of the foetus. 19 As I have indicated above, the plaintiff's evidence is that the first defendant conducted no physical examination. In fact, the contrary proposition was never put to the plaintiff, although it was put to her (as is obviously the case) that she did not know what had been done after the administration of the anaesthetic. And here lies the resolution of this factual dispute. 20 The first defendant's evidence was that, while he had no specific recollection of examining the plaintiff, his invariable practice was to carry out a physical examination, after the patient had been sedated. This is done bi-manually, by inserting one or two fingers of the right hand into the patient's vagina, and placing the left hand above the pubis. Not only was it his invariable practice, the first defendant said, it was impossible for him to depart from it because it was in that way that he applied lubricating jelly into the vagina before inserting a speculum to extract the contents of the uterus. The bi-manual manipulation thus served a dual purpose - as an examination to determine or confirm (at least approximately) gestational age, and as the avenue for the commencement of the procedure itself. 21 On balance, I accept the evidence of the first defendant that he did, in his usual way, conduct a physical manipulation of sorts. But that avails him little. The first defendant himself accepted that a properly conducted physical examination would have revealed the true (approximate) duration of the pregnancy and that certainly would have alerted him that the gestation in this case was of considerably more than eight to nine weeks. The first defendant was unable to explain how he could have been so grievously in error following the examination, and could only say that errors of judgement could be made, and that he made an "incorrect assessment". The inference I draw is that, while the first defendant did bi-manually manipulate the plaintiff's abdomen, his principal purpose in doing so was the insertion of the gel, and that he overlooked, or paid no regard to, what he ought to have observed about the size of the foetus and its position. His focus was upon preparing the plaintiff for the surgery. On this basis alone, I find that the first defendant failed to discharge his duty of care to the plaintiff. 22 Further, the evidence of Professor Michael Bennett, a professor of obstetrics and gynaecology at the University of New South Wales, and Director of the Department of Gynaecology at the Royal Hospital for Women, who gave expert evidence on behalf of the plaintiff, was that it is unacceptable to perform physical examination only after sedation. There was no challenge to this evidence. In the exercise of reasonable care and skill, the first defendant ought to have performed a physical examination of the plaintiff prior to her sedation. This, too, amounts to a breach of his duty to the plaintiff. 23 There are other pointers to the conclusion that the first defendant failed in his duty of care to the plaintiff. In assessing the pregnancy at eight to nine weeks, he placed considerable emphasis on the information provided by her, in the questionnaire, that her last menstrual period had commenced on 28 December 2002 - about two months prior to the surgery. One reason that he gave for his heavy reliance on that date was the specificity with which the plaintiff had given the date. This was a risky approach. Professor Bennett said: "The evidence we have got at the present time would suggest that a determination of the duration of pregnancy based solely upon dating as given by the patient in respect of the first day of her last period is going to be wrong in at least one out of every four patients."

This translates to a generally accepted 25% chance that a patient's account of the date of her last menstrual period will be wrong. 24 The first defendant accepted that this was so. To that must be added the information, given by the plaintiff in the questionnaire, that she had experienced some pregnancy symptoms over the previous six weeks. Professor Bennett's evidence was that such symptoms become evident, on average, at six weeks' gestation or later. So well known is this, Professor Bennett said, that it is pointed out in "your average student text". 25 A simple mathematical calculation would suggest that the first defendant at least ought to have given consideration to the possibility that the pregnancy was of at least 12 weeks' duration. As it happened, the first defendant paid virtually no attention to the plaintiff's account of her pregnancy symptoms. He said this was because his experience told him that the recollection of pregnancy symptoms is less reliable than the recollection of the date of the last menstrual period. 26 Proper attention to the plaintiff's account of her pregnancy symptoms ought to have prompted the first defendant to at least re-examine his assessment, based on too ready acceptance of a single piece of information given by the plaintiff, of the date of the last menstrual period, of the duration of the pregnancy. 27 It was also suggested on behalf of the plaintiff that the first defendant ought to have performed an ultrasound in order to determine the length of pregnancy. 28 Dr Tuncer Cimenbicer, who did not give oral evidence, but whose report was admitted, and who is also an obstetrician and gynaecologist with experience in terminations of pregnancy, was asked by the plaintiff's solicitors to express an opinion on a variety of specific questions. In response to a question whether ultrasound ought to have been performed, he replied: "Not necessarily. A routine preoperative ultrasound is not an absolute requirement if the clinical findings are consistent with the history , however, ultrasound is an invaluable diagnostic tool in abortion practice." (italics added) 29 In answer to the same question, Professor Bennett expressed a similar view. In each case, the negative answer depended upon the clinical findings on the performance of, and adequate attention to the results of, physical examination. In other words, a properly performed clinical examination would obviate an absolute requirement for the performance of ultrasound; but that came about, obviously, only where the examination is properly conducted and the information available from it properly processed. 30 Thus, the allegation of failure to have ultrasound examination is really dependant upon the allegation of failure properly to examine. Ultrasound was, in this case, required, but only because of the anterior breach of duty in the performance of the physical examination. It is unnecessary further to consider this particular of breach of duty. 31 I have already concluded that the examination, to the extent that it was undertaken, was undertaken without due care and skill. The additional pointers - overlooking or disregarding the asserted duration of pregnancy symptoms, and failure (in the light of the inadequate physical examination) to have the ultrasound performed, reinforce that view. 32 It is of some significance that no medical evidence contradicting the evidence of Professor Bennett, or the report of Dr Cimenbicer, was called. The defendants tendered a report of Mr Andrew Korda, a visiting gynaecological and obstetric surgeon at the Royal Prince Alfred Hospital and clinical lecturer in obstetrics and gynaecology at the University of Sydney (Exhibit 6). Mr Korda had available to him the report of Dr Cimenbicer as well as the letter of request, setting out specific questions to which he was asked to direct his attention. His report does not disclose that he had available the report of Professor Bennett. 33 Dr Cimenbicer was asked the question: "Was the preoperative assessment of the plaintiff adequate, and if not, why?"

and: "Should [the first defendant] have recognised that the pregnancy was a 16 week (second trimester) pregnancy, and if so, why?"

His answer to the first was: "No. The preoperative assessment failed to reveal the actual duration of the pregnancy."

His answer to the second was: "Yes. The difference between eight weeks of pregnancy and 16 weeks of pregnancy should be obvious on pelvic examination. Clinical assessment of a pregnancy with a pelvic examination is expected to be reasonably accurate to within one - two weeks. If the findings on examination are outside of this margin, an ultrasound should be performed." 34 Mr Korda's report sets out 14 specific questions posed on behalf of the defendants. He was not asked, and did not volunteer, to comment upon Dr Cimenbicer's explicitly expressed opinion that the preoperative assessment of the plaintiff by the first defendant was inadequate, or indeed, the other views expressed by Dr Cimenbicer. 35 Mr Korda, however, accepted, as did the other medical practitioners, that clinical examination: "… should easily distinguish a uterine size of an eight week gestation from a 16 week gestation."

He added, however, that this could be quite difficult and inaccurate in a woman who is overweight. (The plaintiff was not overweight and the qualification has no application.) When asked if the first defendant's initial examination should have determined the actual duration of the pregnancy, Mr Korda answered that an initial examination can often be incorrect in estimating the actual duration of the pregnancy. 36 The effect of Mr Korda's report is not different in substance from the views expressed by Dr Cimenbicer and Professor Bennett: a properly conducted physical examination, properly observed, would have revealed the inaccuracy in the assessment of the gestational age of the pregnancy based upon the plaintiff's recollection of the date of her last menstrual period. 37 Counsel for the defendants sought to resist a finding of breach of duty by, inter alia, attacking the report of Dr Cimenbicer as too general and based on incomplete historical information. I reject this. Dr Cimenbicer was not required for cross examination. The defendants had available to them (and to their expert) his report. The answer which was attacked as being too general and based on incomplete information was the answer to the question about what would be revealed by physical examination. It did not depend upon a knowledge of precisely what the first defendant had done. Its generality was, in part, its strength. It was completely in accord with evidence given by Professor Bennett, and with the relevant part of the report of Mr Korda. 38 Counsel also sought to argue that the conduct of the first defendant was, in the circumstances, reasonable. For reasons already given, I reject this.

causation 39 Part 1A of the Civil Liability Act deals with claims in negligence. By s5A the Part applies to any claim for damages for harm resulting from negligence, however the claim is framed. It thus applies to the plaintiff's claim in contract as well as her claim in tort. S5D of the Civil Liability Act, which appears in Division 3, under the heading "Causation" sets out the general principles applicable. S5D provides: "5D General principles

(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability ).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 40 It was not argued on behalf of the defendants that, if breach of duty were established against the first defendant, factual causation had not also been established, nor that it would be inappropriate to extend the first defendant's liability to the harm caused. Both elements of causation presented by s5D(1) are established. 41 The question that arose concerned subs(3). The issue that was debated was whether, had she been aware of the duration of the pregnancy, the plaintiff would have proceeded with the termination. A subsidiary issue was whether evidence given by her to the effect that she would not have done so was admissible or not. The evidence was admitted provisionally, subject to exclusion after argument. The plaintiff said that, had she known that she was more than 12 weeks pregnant, she would not have had the termination. She explained that she had always believed that termination at over 12 weeks' gestation was not legal; and that, up to that point, the foetus was not fully developed. She said that she struggled in making the decisions to have previous pregnancies terminated but was comforted because of the short gestation of those pregnancies. She said she would never have had a termination had she known that the pregnancy was beyond 12 weeks. 42 On behalf of the plaintiff it was argued that s5D(3)(b) was not intended to apply to evidence given in proceedings. This was because of the use of the word "statement" which could be distinguished from "evidence". The argument was that the sub-paragraph was intended to exclude evidence of any out of court statement made by the plaintiff about what he or she would have done. 43 I agree that it is a somewhat unusual use of language, and more familiar statutory terminology would have excluded "evidence" rather than "any statement". However, having regard to the drafting of the Civil Liability Act overall (I instance merely s5D(2)), I do not think unconventionality or lack of clarity can aid in construction. In my opinion subs3(b) was intended to, and does, exclude direct evidence of what the plaintiff would have done if the first defendant had not failed in his duty to her. 44 I have therefore concluded that s5D(3)(b) requires the exclusion of that part of the evidence which amounts to a statement by the plaintiff that, had she known the true duration of the pregnancy, she would not have undergone termination. It does not, however, exclude evidence of the surrounding circumstances, which permit an inference to be drawn about what she would have done. But this is irrelevant. Counsel for the defendants argued for a finding that, even if she had been aware of the duration of the pregnancy, the plaintiff would have gone ahead with the surgery; counsel for the plaintiff urged for the contrary proposition. This is a false issue. 45 The hypothetical question that requires an answer is not what the plaintiff would have done had she been told of the correct gestation of the pregnancy. It is what the first defendant would have done. The evidence was plain that he would (or should) have proceeded in a different manner. The issue is not whether or not the plaintiff would have proceeded with the termination. It may be that she would have, it may be that she would not have. If she had not, then no harm would have come to her. If, knowing that the pregnancy was of 16 weeks' duration, she had determined to go ahead, that does not affect the fact of the first defendant's breach of duty, nor its consequences. The evidence clearly establishes that a different procedure is implemented in respect of longer established pregnancies. The failure to implement that procedure is the direct consequence of the first defendant's negligence in failing to appreciate the length of the pregnancy. 46 Accordingly, I am of the view that s5D is immaterial. 47 The consequence of these conclusions is that there must be a verdict for the plaintiff against the first defendant. 48 I note that Division 6 of Part 1A of the Civil Liability Act concerns claims of professional negligence. However, no issue arose out of the provisions of that Division. S5O, prescribing the standard of care for professionals, does not call for consideration.

the third defendant: vicarious liability? 49 Counsel for the defendants argued that the third defendant ought not be held vicariously liable for any breach of duty by the first defendant. 50 Whether the third defendant is so liable depends upon its relationship with the first defendant. Relevant evidence as to this relationship was given by the first defendant. He had begun his engagement with the third defendant in 1995, initially as a sedationist. After doing that for two or three years, and after a period of training, within the clinic conducted by the third defendant, he began to undertake surgical termination procedures. He was trained over a period of some months. He said he was then given his own "lists". This he explained as meaning that he became the surgeon who undertook the surgery unsupervised. He began this in about 1998. He was supervised by a number of doctors, including Dr Brodie, who, the evidence established, was the medical director of the third defendant. His remuneration was in accordance with an agreement made with the third defendant. That agreement was shown to the first defendant during the course of cross examination, but was not tendered in evidence. The cross examination of the first defendant shows that he was paid, by the third defendant, for each individual procedure that he undertook. 51 Two other matters may be of some relevance. Firstly, the first defendant said that, when he realised that he had perforated the plaintiff's uterus, he immediately contacted Dr Brodie. This, as I understood it, was for the purpose of seeking advice, and also because Dr Brodie, as medical director of the third defendant, wished to be kept informed of any untoward events. He also said that it was the policy of the third defendant not to perform ultrasounds on patients of less than ten weeks' gestation and that he adhered to this practice. Each of these matters tends to suggest a degree of control, by or on behalf of the third defendant, of the first defendant's work. 52 The issue of the extent to which a medical facility may be held vicariously liable for any breach of duty on the part of those engaged by it has been considered on a number of occasions. Relevantly, the NSW Court of Appeal considered the question in Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 and again in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. 53 In written submissions, counsel for the defendants fairly referred to the evidence I have outlined above, and made the (rather circumspect) suggestion that: "… the evidence of such matters in the present case is not sufficient to allow this court to find that there was a vicarious relationship between the first and third defendants." 54 Counsel did not refer to any evidence which contraindicated such a relationship. Instead, he relied upon the absence, or asserted weakness, of evidence to establish the relationship. 55 In my opinion it is clear that the third defendant is vicariously liable for any breach of duty by the first defendant. The evidence that the third defendant conducted the clinic from which the plaintiff sought the procedure; that the first defendant was engaged on a contractual basis, (although, it seems, not one of employment), by the third defendant; and that it was the third defendant who assigned her procedure to the first defendant, all point in that direction. Whether the conclusion is that the third defendant owed to the plaintiff a non-delegable duty of care, or whether it was liable to her for the breach of duty of the first defendant does not matter. The first defendant is liable to the plaintiff in damages. The third defendant is vicariously liable for the wrongs of the first defendant. There will be a verdict for the plaintiff against both defendants.

contributory negligence 56 Contributory negligence was pleaded against the plaintiff on behalf of the defendants. No evidence was directed to it and no argument was addressed to the subject. While the pleading was not abandoned, there is not the slightest basis on which I could find any contributory negligence on the part of the plaintiff. I decline to do so.

DAMAGES 57 Quantification of damages is governed by Part 2 of the Act. 58 The plaintiff has largely made a successful physical recovery from her experience. She retains a scar, which is the source of some embarrassment to her. There is some loss of sensation in the scar area, and it can become irritated by some sorts of clothing. 59 The true issue in relation to the award of damages concerns the extent of psychiatric and psychological sequelae of the surgery. 60 Immediately after the surgery at Nepean Hospital, the plaintiff was seen, on four occasions (including 3 March 2003, the day of her discharge from the hospital, and 18 March 2003) by a psychologist, Mr RL Woodfield. Mr Woodfield initially made a provisional diagnosis of acute stress disorder. 61 The plaintiff did not continue with the consultations with Mr Woodfield. She said that this was because the sessions exacerbated her feelings of hurt and anger, and left her in a "mentally deranged" condition from which it took her four or five days to recover. 62 In about the middle of 2004 she attended her general practitioner who prescribed an antidepressant, but she also abandoned this after a short time. This was because she was concerned about the possibility of becoming addicted, or of losing her control of her life. She had read about the possible effects of medication and feared for the effect it would have on her and her capacity to care for her children. 63 She has had no further treatment for her emotional, psychological, or psychiatric condition. 64 Her own evidence as to her condition at the time of the hearing was compelling. I would here observe that I found the plaintiff to be an entirely credible witness, particularly in relation to the effect of her experiences upon her, and the manner in which she now functions. 65 It is convenient here to recount, in a somewhat abbreviated form, what she said. I will begin with something of her pre-surgery history. 66 She was born on 1 January 1971. She had an unremarkable childhood, leaving school during year 11. She obtained employment with the Police Department as a stenographer, with some time off for TAFE studies. She resigned because her mother became ill and the plaintiff was needed to care for her. Thereafter she had a variety of employments. In 1993 she obtained her Higher School Certificate as a mature aged student. In the same year she began working for a firm called DHL Airfreight at Mascot, in that organisation's call centre. Here she appears to have found her niche. She was successful in the work and was promoted to team leader. Unfortunately, she was seduced away from that employer by a competitor. The alternative employment was not successful and she returned to DHL but was unable to regain her position as team leader. 67 In about 1997 she transferred to Brisbane where she did secure a position as team leader. The organisation was larger and busier. When asked if she liked her work, the plaintiff said: "Loved it with a passion. Loved it, loved the stress, loved the challenge, loved the fact that I was good at what I did and I knew that, and that I loved it and that it excited me and it was good and I loved it." 68 She described herself as a dynamic, socially active, extroverted person. At times during her evidence there were flashes of what she had described. I accept her description of her pre-surgery personality. 69 Her son Jack was born on 7 January 1999 and she returned to work in May of the same year. 70 She was in a relationship with the father of the child. She remains in a relationship with him, although it has had periods of instability and the two have separated on occasions. 71 On 19 September 2000 her daughter Taylor was born. On this occasion, conscious that she had missed some of the highlights of her son's development, she determined that she would not return to work for at least 12 months, and possibly three years, by which time she anticipated Taylor would be attending pre-school. She did, however, have a firm intention, partly born of financial necessity, and partly born of the personal satisfaction she obtained from working, of returning to work. 72 The plaintiff was asked how she managed for the first two or three months after the surgery. Her answer was: "My mum did everything. If you have never experienced this it is hard to say. Your whole body physically, mentally, you are consumed. I felt so alone. It is like you are stripped of your identity. I don't have a period. I have no sexual desire. I can't have children even though I have two beautiful children. You just feel so horrible." 73 She said that after the first three months she realised that she had to make an effort to care for the children but still received a great deal of help from her mother. 74 At this time she was living with her mother. In June 2004 she attempted to return to some part-time office work, as a receptionist in a plant nursery. She did this notwithstanding that the work involved a lengthy drive. She found it too difficult to concentrate and was unable to cope. She found it very hard to interact with other people. She added: "You know how it breaks my heart to watch myself be from this to this. It is just devastating, but I am trying. I truly am."

and: "It is easy to say go and do this, when I am so consumed by the way I feel. The only thing I can do is make sure my children are fed. At the end of the day I don't have any time for me. I don't have any motivation. It is not that simple." 75 In February of 2005 she and her partner resumed their relationship. With her children she has moved in to a house he owns in Windsor. 76 She was asked if things had been improving and she said: "They have been, but I have good and bad days. I can go and feel motivated. I am going to do this. I will start but then I can't finish. I am two steps back. I get up every day where the main aim is to get up and get on. Do you think I like to feel like this in this debilitating way? I hide from my friends. I am too embarrassed." 77 She believes that she is making some progress. It is her relationship with her children that concerns her most. She does not have the energy or motivation to engage with them when they return from school. Asked about progress, she said: "Yes, every day, I never once could see a light at the end of the tunnel. There is a slight glimmer. I know if I keep trying eventually I will get my life back. You know what upsets me the most, it is my kids. They are upset. I can't take them to the park. I don't have any energy or motivation when they get home from school. It is just such a struggle, but I am getting better." 78 Notwithstanding the improvement she recognised, she said that she sometimes provides the children with take away meals because she is too tired to prepare food, although that appears to be coming under control. She is inactive and does little or no exercise. 79 She is anxious to return to work: "I can't wait for the day, can't wait for the day." 80 She anticipated remaining in the workforce until she became old and decrepit, at the age of 60. 81 She feels sad at her inability to have more children; later, in cross examination, she said that had wanted to have three or more children. 82 This gave rise to a challenge to her evidence. In paperwork completed in respect of the pregnancy termination in 2001 she had said that she would like to discuss "having my tubes tied". She said she did not understand that this would mean the end of her ability to have children, but that she meant "clamped". I do not accept that her flirting with the notion of a sterilisation procedure in 2001, even if that were what she had in mind, precludes a finding that the loss of her capacity to bear more children ought not to be a factor in the award of damages. The fact is that, between 2001 and 2003, she had taken no steps to achieve that result. 83 She said that there are occasions when her lethargy, or lack of motivation, is such that she will go several days without showering. 84 There were many occasions during the course of her evidence, and later, while she remained in the court, when the plaintiff was visibly distressed. I have no doubt that these episodes were genuine. 85 Initially, the medical evidence fully supported the plaintiff's description of her condition and functioning. She was examined on two occasions by Dr Anthony Dinnen, a consultant psychiatrist, at the request of her own solicitors. Dr Dinnen, who first examined her on 26 October 2004, described her as "tense and depressed" and at times tearful. He recounted a history which was very much in accordance with that given by the plaintiff in evidence. He diagnosed chronic post-traumatic stress disorder with major depression. He considered her unfit for work, restricted in her ability to participate in and enjoy normal social relationships, unable to engage in a normal relationship with her partner, and in need of support from her family. He thought she was vulnerable and fragile, and that her psychiatric condition was likely to persist even under the most optimal circumstances. 86 Dr Dinnen saw the plaintiff again on 12 May 2005. His opinion was unchanged, although he identified some improvement in her psychosocial adjustment in the six months since he had last seen her. He thought she might return to some part-time work, not earlier than two years hence, but within the succeeding two to five years. He thought she would remain permanently vulnerable to traumatic or stressful experiences. 87 The plaintiff was seen by two different psychiatrists at the request of the defendants. She was examined by Dr Eli Revai on 11 May 2005. Dr Revai then diagnosed major depression. The plaintiff was also seen by Dr Lisa Brown on 21 April 2005. Dr Brown provided a lengthy report, in which she also diagnosed a major depressive disorder. 88 On this basis it would seem that there was little in issue between the plaintiff's medical advisors and those of the defendants. However, that position changed dramatically during the course of the hearing. This came about as the result of videotapes taken during the course of surveillance of the plaintiff on behalf of the defendants. There were four videotapes, representing surveillance on Thursday 22 December 2005, Friday 23 December and Saturday 24 December. Each of these was taken in the early morning, and was of relatively short duration. The final videotape, and that which attracted most of the attention in the trial, was taken on Saturday 7 January 2006. This videotape ran for about 55 minutes. It depicted the plaintiff taking her children to a park to play. She was smiling and laughing at times. There were others present, her partner and a friend. 89 She appears to have attended at a restaurant of the kind commonly known as "a family restaurant" with her children and some other children, and her friend. 90 In fact, the occasion was the seventh birthday of the plaintiff's son Jack. She said that he had never previously had a birthday party because his birthday fell in school holidays, when his friends tended to be away. 91 She did not agree that the video showed her as a happy person, and said that she made attempts to be a part of her children's lives and be involved and more active. It was suggested to her that she had been exaggerating her symptoms of depression. She denied this. 92 Doctors Revai and Brown each provided supplementary reports, prepared after viewing the videotapes. Dr Revai thought that the clothing the plaintiff was wearing was indicative that she was not upset by the scar; that she was capable of getting up well before 8.00 am and being quite organised; of taking care of her appearance and that of the children. He thought she showed no outward signs of sadness, was able to socialise and involve herself in animated conversation with a female friend, another married couple, and her partner. Dr Revai concluded his second report by saying: "All I can say is that I doubt [the plaintiff] is suffering from any form of depression and because of that, feel that she would be able to return to similar work that she carried out at DHL." 93 Dr Revai adhered to this position when he gave oral evidence. Dr Revai's evidence was not entirely satisfactory. His supplementary opinion did not appear to me to be based upon psychiatric expertise, and revealed assumptions that were not necessarily warranted. For example, in cross examination he said: "The video, on appearances, and that's all we can go on, it didn't look like the behaviour of someone being depressed but that's not one hundred per cent. However, one would have thought, if someone was so depressed, and this was a significant event in her life which was recorded in my first report, she would have had psychiatric treatment or been under medication from a GP. As far as I am aware this never occurred. She had three sessions with the psychologist, did not like that, stopped it. She was on, I think, Efexor for, I think, a week. That medication did not suit her. Well, that happens, but there was no trial of any other medication or any other treatment for depression so the video to me then was suggestive that it might be that she not as disabled as she claimed." 94 When asked again what he could discern from the video, he said: "No, but what one would have thought if she was as depressed as she claims to have been, there would have been some treatment for her. It is not nice to be chronically depressed." 95 Dr Revai's reasoning process is, to me, obscure. The fact that the plaintiff had declined psychological treatment and antidepressive medication was a fact known to him at the time of his psychiatric examination. The reasoning process he later applied did not then prevent him from then making a firm diagnosis of depression. He made that diagnosis on the basis of his clinical observation of the plaintiff, taking into account, of course, the history that she gave him. Even in the initial part of the first answer extracted above, while Dr Revai commented that "on appearances" what he saw on the video did not look like the behaviour of someone depressed, he immediately recognised, in saying "but that's not one hundred per cent", that little, if anything, could be derived from the appearance on the videotape. He followed this by an entirely divergent kind of reasoning, concerning the refusal of the plaintiff to have psychiatric treatment. That is quite irrelevant to what was seen on the video. 96 It is true that, almost immediately after the evidence contained in the answers extracted above, Dr Revai was asked if anything had changed about his state of knowledge between his examination of the plaintiff and his giving evidence. He replied: "Only that the video suggests to me that [the plaintiff] might not have been as psychologically disabled as she claims, that is all I can say." 97 However, I attribute little weight to this answer, since it follows his earlier answers in which it is clear that the reason for his conclusion that the plaintiff might not have been a psychologically disabled as she claims was not what he observed on the video, but his reasoning about her failure to obtain treatment. 98 Dr Brown's evidence was more persuasive. In her supplementary report, written after seeing the videotapes, Dr Brown wrote: "A number of features in the plaintiff's presentation on the video surveillance tape reviewed are not consistent with her clinical presentation in April 2005. At that time, I recorded a history from [the plaintiff] of her being 'always tired' and finding it hard to be bothered with daily chores, such that she would only perform what tasks were necessary for the care of her children. … However, the video surveillance tapes do not appear to display any impairment in the plaintiff's grooming nor did she display of facial reactivity, lack of spontaneity and gestures or the often accompanying psychomotor changes of slowing in gait, or alternatively signs of physical agitation. The plaintiff appears to make good eye contact with the other adults accompanying her and to be able to converse freely with them. Particularly in the setting of McDonalds, the plaintiff is observed to talk to the other adults, to eat in sociable fashion and to supervise children. All of these features of the video surveillance tape are inconsistent with the presentation of a moderately severe depressive type syndrome which was previously accorded the plaintiff when she was assessed in April 2005." 99 Dr Brown proposed the passage of time between her April 2005 assessment and the video recording as a reason, signifying considerable improvement, for the apparent discrepancy in presentation. She proposed a reassessment of the plaintiff. That does not appear ever to have been undertaken. 100 After the videotapes had been shown to the plaintiff during the course of her evidence, they were provided to Dr Dinnen for his assessment prior to his giving oral evidence. When asked whether what he had seen on the videos altered the opinions expressed in his report, he answered in the negative. When asked if there was anything in the videotapes indicating that the plaintiff was not depressed or suffering from post-traumatic stress disorder, he answered: "No, I didn't see anything. I mean bearing in mind to observe someone's behaviour is not the best indicator by a long shot of their mental state. One does find slowing of movement, slowing of activity in cases of severe depression. I don't suggest that is the case here so I wasn't surprised to see that she was moving normally and seemed to be interacting with the others. To my observation the level of interaction with people at that - out with the children and at that take away restaurant and in the park was possibly a bit less active than one would have expected under normal circumstances but I don't think there was anything very remarkable about it. It certainly does not indicate (sic ? - contradict) the diagnosis of post-traumatic stress with depression ..."

He accepted that the videos showed some improvements in the plaintiff's condition since her presentation to him in May 2005, but regarded that as "conjecture" and thought it difficult to draw any conclusion from the material. 101 There was a great deal of evidence concerning what could be derived from the videotapes, particularly the tape of 7 January. To a lay observer, such as myself, the videotapes did not appear to depict a person suffering from major depression. However, a court must be wary of proceeding on the basis of what are essentially uninformed opinions founded upon untested assumptions. It is necessary to pay respect to the educated opinions of experts. In this (putting to one side, for the reasons I have given, Dr Revai's opinions), I am confronted with the quite diametrically opposed opinions of Dr Dinnen and Dr Brown. In the end, I prefer the opinion of Dr Dinnen. This is for two principal reasons. Firstly, Dr Dinnen was clear that the video evidence was inferior to clinical examination. I did not think Dr Brown disagreed with this, although she was prepared to draw far more from her observation of the videotapes than was Dr Dinnen, or, indeed, Dr Revai. 102 Secondly, each of these three experienced medical practitioners had, at an earlier time, conducted a psychiatric assessment of the plaintiff. I do not believe that each of them could have been misled by deliberately deceptive conduct on the part of the plaintiff. Three possible explanations present themselves. 103 Either the plaintiff was, at the time of the consultations, deliberately exaggerating her symptoms and condition, and was able to do so in such a way as to achieve the deception of these three experienced medical practitioners; or her condition as disclosed at that time was genuine, but between then and the end of 2005, she underwent a remarkable and dramatic recovery; or the video evidence ought not to be interpreted as proposed by Dr Brown. I do not believe that either the first or the second is a realistic possibility. I reject the possibility that the plaintiff has made a remarkable and dramatic recovery. In reaching that view I have regard to the evidence given by her in the proceedings, and my acceptance of her as a credible witness. That impression is reinforced by rereading the transcript: the descriptions given by her of her own emotions are, as I have earlier mentioned, compelling. For that same reason I reject the possibility that she deliberately falsified her condition to the two psychiatrists. 104 I accept that the plaintiff, as she said, made an effort for her children, particularly her son on his seventh birthday. I accept that the video evidence ought to be interpreted as it was by Dr Dinnen.

quantification of damages 105 As indicated above, damages are to be quantified under the regime prescribed by Part 2 of the Act. The plaintiff claims damages under the following heads: "1. non-economic loss; 2. past out of pocket expenses; 3. future out of pocket expenses; 4. past voluntary care; 5. future commercially sourced care; 6. loss of earnings to date; 7. loss of past superannuation contributions; 8. future economic loss; 9. loss of future employers' superannuation contributions."

I propose to make the appropriate findings of fact and leave it to the parties to perform the necessary calculations.

non-economic loss 106 S16 of the Act provides for the determination of damages for non-economic loss. It is necessary, firstly, to determine the severity of the plaintiff's non-economic loss against a most extreme case, expressed as a percentage (see the note to s16). Although the bulk of the time, both in the hearing and in this judgment, has been devoted to an assessment of the plaintiff's psychiatric sequelae, her physical injury is not to be overlooked. She was in the intensive care unit of Nepean Hospital for three days, and she, presumably, was transferred to a ward, and was discharged from the hospital either three or four days later. She underwent major abdominal surgery, resulting in the loss of her reproductive capacity. She retains a significant scar. There is some loss of sensation around the scar. She has been denied the possibility of having more children. She is obviously a devoted mother, and I regard the loss of child bearing capacity as significant in the quantification. 107 However, as was recognised, the more significant injury is the psychiatric injury, and this is far from resolved. I accept Dr Dinnen's evidence that she still has some way to go before recovery, and will remain vulnerable. On her behalf it is proposed that I would assess her case at 40% of the most extreme case. In my opinion this is a realistic assessment and I am prepared to adopt it.

past out of pocket expenses 108 The claim for past out of pocket expenses is $84.00. I propose to allow that.

future out of pocket expenses 109 Claims are made for an allowance for counselling in the future, and for future medication, counselling on relapses and the possibility of plastic surgery for scar revision. 110 All psychiatric medical practitioners agreed that it would be worthwhile for the plaintiff to undertake counselling. So far she has resisted that. When asked about it, she said she would be willing to try anything except medication. 111 In my opinion some allowance should be made for the cost of counselling in the future. 112 Dr Brown advised that she would need at least 15 to 20 sessions of counselling at a range of fees of between $200.00 and $280.00 per hour. I think I should allow for 20 sessions at $240.00 per hour. 113 Given the plaintiff's firm stance against medication, I reject the claim for an allowance for medication in the future. An argument was put that, at her age, she may have a change of heart at some time in the future, but I think this is unlikely to happen. Dr Dinnen envisaged relapses in the event of adverse circumstances requiring further counselling. I think I should allow a global sum against this possibility of $2,000.00. 114 There was evidence, from Dr Fry, a plastic surgeon, concerning possible scar revision. He considered that the scar will settle, and become pale and soft, although this will take some time. He found the question difficult to address because it is usual to allow scars fully to mature before revision in order to obtain a better result. He added that any expected result would be less than dramatic giving at best modest improvement. He assessed the cost at $1,500.00 for surgery and a total cost of $5,000.00. 115 Given the limited potential benefit of the surgery, and the absence of any evidence that the plaintiff wished to proceed with it, I have concluded that no allowance should be made in this respect.

past voluntary care 116 The award of damages for "gratuitous attendant care services" is governed by s15 of the Act. By subs(2) no damages may be awarded under this head unless the court is satisfied:

(a) that there is (or was) a reasonable need for the services to be provided; and (b) that the need has arisen (or arose) solely because of the injury to which the damages relate; and (c) the services would not be (or would not have been) provided to the claimant but for the injury.

By s15(3) no damages may be awarded unless the services are provided or are to be provided for less than six hours per week and for less than six months. 117 The claim is made in respect of services provided to the plaintiff by her mother. The plaintiff went to live with her mother after her discharge from hospital. Initially, she said, her mother did everything for her and this continued probably for the first three months, before she realised that she had to make a greater effort herself. For another "couple of months after that" the plaintiff's mother assisted with personal hygiene, in respect of such matters as showering and dressing. At the time the plaintiff gave evidence her mother still helped, visiting the family once a fortnight. I am satisfied that all three subs(2) tests have been met and the plaintiff should be compensated in respect of the assistance given to her by her mother. 118 Although after this time the plaintiff began to take more responsibility for her own needs, it was about six months before she became independent of her mother. 119 There was no clear evidence as to the time devoted by the plaintiff's mother. I am, however, satisfied that she provided assistance, initially, for vastly in excess of six hours per week, and over a period of more than six months. Doing the best I can on the limited evidence available, I find that the plaintiff should be compensated in respect of the assistance provided to her by her mother in the first three months after her discharge from hospital for services for six hours per day; for the following three months, taking an average, for four hours per day.

future commercially sourced care 120 It is possible, on the evidence, that should the plaintiff suffer relapses of her condition, she will need some commercially provided assistance. This is, in part, because her mother has become significantly disabled. However, I think I should proceed on the basis that the plaintiff's condition will continue to improve, and only a modest allowance should be made. I allow $5,000.00.

loss of earnings to date 121 On the evidence I accept that the plaintiff would have returned to work, on a part-time basis, initially, from January 2004. This is in accordance with her own evidence that she would have remained at home for up to the first three years from the birth of her daughter Taylor. I accept the assumption made on her behalf that for a period of two years she would have worked for 18 hours per week. By that time Taylor would have been five years old, and attending school. I accept that the plaintiff would have increased her working hours from the beginning of 2006 to (I estimate) 25 hours per week. 122 No challenge was made on behalf of the defendants to the quantification of past economic loss at $23.00 per hour. I would accept that figure.

loss of past superannuation contributions 123 The figure of $3,544.00 was claimed. No issue was taken with this figure. It will have to be adjusted to take account of the time that has elapsed since the hearing of these proceeding.

future economic loss 124 An award of damages for future economic loss is governed by s13 of the Act. That section provides as follows: "13 Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

Subss (1) and (2) are, in my opinion, somewhat opaque. I take them to be, essentially, a statement of common law. Subs(1) requires a court, before making an award of damages for future economic loss, to be satisfied of the assumptions upon which the claim is based; subs(2) requires, essentially, a discount for vicissitudes. That has conventionally been fixed at 15% unless the evidence suggests a greater or lesser percentage. In my opinion, having regard to the plaintiff's age and circumstances, the discount rate of 15% that has traditionally been applied is appropriate. 125 Given the evidence of the plaintiff concerning both her financial need, and the pleasure she derived from her work, I am quite satisfied that she would have returned to work as soon as her commitments to her children permitted. This, I have already accepted, would have been at the beginning of 2004. I am satisfied that from the beginning of 2007 (and this may be doing some injustice to the plaintiff) she would have returned to full-time work. 126 The more difficult question is the assessment of when, in the circumstances in which she now finds herself, she will be able to return either to part-time or full-time work. 127 I am satisfied, on the medical evidence, that she will not return to any form of employment before the beginning of 2010. Thereafter, I will award damages on the assumption that she will undertake part-time work for two years. I assess an escalating rate of employment, beginning with ten hours per week for the first year, and rising to 15 hours per week in the second year. From the beginning of 2012 I will assume that she will work, on average, 27 hours per week. 128 I will assume that she would have maintained this employment until, at the age of 60, age and decrepitude overtook her and forced her out of the workforce.

loss of future employers' superannuation contributions 129 A claim for $21,000.00 is made. It is not contested. It will need to be adjusted, but otherwise it will be allowed. 130 My attention was drawn to s32 of the Act, which deals with the circumstance in which damages may be awarded where mental harm is claimed. I am grateful for the reference, but it is unnecessary further to consider the section, because no argument was advanced that it should have any impact upon the assessment of damages. 131 The parties will be required to formulate the orders which result from these findings. **********

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At a glance

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Judgment (48 paragraphs)

Parties

Cases Cited (2)

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