Loveday v Austin Hospital [1999] VSC 180

5. Before turning to the facts, I set out the particulars of negligence so far as relied upon by the plaintiff:

" PARTICULARS OF NEGLIGENCE OF THE FIRSTNAMED DEFENDANT [AUSTIN HOSPITAL] (a) Failing to diagnose that the Plaintiff did not have cancer of the uterus or cervix; (b) Informing the Plaintiff that she had cancer of the womb when it knew or ought to have known that the Plaintiff did not have such a condition; (c) Advising the Plaintiff that it was necessary for her to undergo a hysterectomy when it knew or ought to have known that such a procedure was unnecessary; (d) Failing to advise the Plaintiff properly or at all in relation to: (i) the nature of the hysterectomy operation; (ii) the nature and extent of the hysterectomy operation; (iii) the risks involved in the performance of the operation given the Plaintiff's prior history of peritonitis and deep vein thrombosis; (iv) the likelihood of further surgery subsequent to such an operation; ... (f) Permitting or advising the Plaintiff to undergo treatment by the secondnamed Defendant and the thirdnamed Defendant in the nature of a hysterectomy when it knew or ought to have known that the secondnamed Defendant and thirdnamed Defendant did not possess the requisite skill or have at their disposal the necessary facilities to conduct a hysterectomy upon the Plaintiff given her previous history. PARTICULARS OF NEGLIGENCE OF THE SECONDNAMED DEFENDANT [AIRLIE] (a) Failing to advise the Plaintiff properly or at all in relation to: (i) the nature of the hysterectomy operation; (ii) the nature and extent of the hysterectomy operation; (iii) the risks involved in the performance of the operation given the Plaintiff's prior history of peritonitis and deep vein thrombosis; (iv) the likelihood of further surgery subsequent to such an operation. PARTICULARS OF NEGLIGENCE OF THE THIRDNAMED DEFENDANT [DR MCGOLDRICK] The Plaintiff repeats the particulars subjoined in paragraph (a), (b), (c), (d) of the Particulars of Negligence alleged against the firstnamed Defendant..."

10. The plaintiff was born on 28 November 1944 in the Box Hill Hospital. In 1953, she suffered a penetrating injury to the large bowel caused by an accident when she fell on a pram axle. She developed peritonitis. A colostomy was performed which was reversed after eight months. The medical evidence clearly established that as a result of the surgery performed upon the plaintiff there would almost certainly have been adhesions (internal scar tissue) affecting various organs which fact was of considerable relevance in relation to her treatment in 1980. The plaintiff spent about 12 months in the Children's Hospital as a result of the accident and its consequences. The plaintiff found her hospital stay to be particularly enjoyable in contrast to the very unhappy home life which she had already experienced at that young age. The plaintiff was left with an external scar. She experienced no further bowel problems prior to her hysterectomy in 1980.

13. The plaintiff was one of thirteen children and the eldest daughter and it fell to her to do much of the housework and child care from a very young age. She had a poor relationship with her parents. At the age of 11, she left school because her mother had become very sick. Her father obtained a job for her as a housekeeper and the whole of her wages were received by her parents. She continued to work on this basis until about 1961. There were a number of personally traumatic and abusive events in her childhood the details of which need not be stated.

16. The plaintiff also had an appendectomy at about age 16 and she suffered spinal meningitis at about age 17 and was isolated in Fairfield Hospital for about three months. Thereafter, she suffered migraines from time to time.

19. In or about 1961, she met her future husband and, some months later, she left home. She married Mr Loveday on 24 October 1964 and there were two children of the marriage, a son born 2 June 1965 and a daughter born 2 July 1969. Mr Loveday was an alcoholic and was regularly violent towards the plaintiff from the time that they moved to Wagga Wagga in about 1966 until they finally separated in 1975. Throughout most of the marriage the plaintiff was employed for wages in various part-time or casual jobs including housework, as a shop assistant in a print shop and, for about three years, as manageress for a football club.

22. In 1972, before the final separation, when she had apparently left her husband for a period of months, the plaintiff was staying in Alphington with a sister. On 21 November 1972 the plaintiff attended the casualty department at the Austin Hospital. She gave her occupation as "packer". The plaintiff had no recollection of this attendance or the following history in 1972 but the hospital records show that she informed the resident medical officer, inter alia, that two months earlier, she had experienced bleeding per vagina for 10 days after being punched in the abdomen by her husband, that the bleeding had ceased one month ago but that she had since experienced severe lower abdominal pain. The doctor's notes include the following: "Intermenstrual bleeding following trauma". She was examined in the out-patients' clinic at the Austin Hospital on 24 November 1972 by Professor N. Beischer, the honorary medical officer and senior gynaecologist at the hospital, who noted no particular abnormality but recorded "extreme lower abdominal pain and tenderness" and recommended a dilatation and curettage ("D&C"). A smear test resulted in a cytology report dated 29 November 1972 which noted "benign abnormalities present... some abnormal squamous cells... follow-up cytology is recommended... please repeat smear in one year". The plaintiff was admitted for the D&C on 17 December 1972 and the examination sheet described her as a "well looking lady". She was discharged late on 18 December 1972. A pathology report following the D&C showed no abnormalities.

25. The plaintiff did not attend the Austin Hospital again until 1979. The details of her 1972 treatment were supplied, at the plaintiff's request, to her general practitioner in Wagga Wagga in April 1973.

28. As I have said, the plaintiff finally separated from her husband in 1975 and she left Wagga Wagga with the children and returned to Melbourne. She obtained jobs in a series of fruit shops as a shop assistant, a form of employment which she enjoyed. From about 1975 onwards, the plaintiff received from the Commonwealth what I will, for convenience, simply call "the pension" and her various jobs produced additional income up to the permissible limit before reduction of the pension would occur. Her husband discovered where she was living in Melbourne and the plaintiff, as she said, "fled" with the children to Adelaide where she lived for over three years.

31. The plaintiff testified that in Adelaide she became "a very independent lady", had a "full life" and worked very, very hard in various jobs: fruit picking and other seasonal jobs in local vineyards, part-time jobs in fruit shops and housekeeping. She said that she was supporting herself and the children; however it transpired under cross-examination that she did remain in receipt of the pension (understandably, having regard to her maternal and domestic duties). The plaintiff had a social life and she also developed an interest in squash and became a pennant squash player in "C" grade.

34. On a visit to Melbourne in late 1978, the plaintiff was offered a job as a "manageress" working at a fruit shop in Ivanhoe. The offer was attractive because it included a residence, free of rent, over the shop and an unlimited free supply of fruit and vegetables. She worked for a few weeks at the shop, then returned to Adelaide, packed up, and moved to Melbourne. She then worked full-time in this new job and had a "lot of money coming in", she said. She ceased to receive the pension. However, the plaintiff could not recall how much she was paid. She said that at this time she "was a very happy girl" and fit and healthy.

37. The plaintiff worked for about four weeks before she had a fall. This occurred when, on about 26 February 1979, the plaintiff fell on the stairs going up to her residence above the shop and suffered a broken left ankle. Subsequently, a deep venous thrombosis developed in the region of her left knee and the plaintiff had to stop work. She spent one month in hospital. She was given medication for her condition - a drug called Warfarin, an anti-coagulant. This treatment continued until October 1979. The plaintiff began again to receive the pension and remained unemployed.

40. On 17 December 1979, Dr Hill, the plaintiff's then general practitioner, referred the plaintiff to the Austin Hospital with persistent severe pain and tenderness in the left pelvic region. In his referral, he mentioned the plaintiff's recent treatment with Warfarin and her colostomy as a child. On 21 December 1979, the plaintiff, as a public patient, attended the Austin Hospital complaining of heavy periods and pelvic pain. A smear was performed and the cytology report dated 31 December 1979 read as follows:

" Benign abnormalities present There appears to be a bacterial infection. Abnormal cells are again present. They suggest at most, mild dysplasia but are possibly only due to the inflammation that is evident. Please repeat smear in one year."

45. The plaintiff was subsequently admitted on 20 January 1980 as a public patient for the performance of a D&C which was performed on 21 January 1980. Dr D.A. Abell, a specialist gynaecologist on the staff of the Austin Hospital, noted in the plaintiff's records (on the Operation Report page): "Note History: Second D&C. Pelvic tenderness both in 1972 and now. Cytology: 1972: `abnormal squamous cells present'. 1979: `abnormal cells present, suggest... mild dysplasia'. Patient also querying tubal ligation. I would favour hysterectomy after evaluation of recent abnormal smear". Dr Abell referred to these matters again in a further note dated 21 January 1980 containing the statement "consider for abdominal hysterectomy". There was no direct evidence that Dr Abell, or anyone else at the Austin Hospital, initiated a discussion with the plaintiff at this stage concerning a possible hysterectomy. Indeed, the plaintiff gave evidence to the contrary. However, on 1 February 1980, the plaintiff saw a consultant physician and cardiologist, Dr Treister, apparently in connection with litigation concerning her broken ankle. Dr Treister said, in the course of a written report to her then solicitors, that "... consideration has been given to a hysterectomy at the Austin Hospital, under Professor Beischer. Justifiably she is concerned about the risks of thrombosis and embolism. That is, a clot reforming in the leg which suffered an injury and the displacement of a clot within the venous tree to the lungs." In the light of that material, it seems unlikely that no mention had been made to the plaintiff of a possible hysterectomy prior to February 1980 but, having regard to what later occurred, it does not matter one way or the other.

48. The operation report relating to the D&C bears a hand-written annotation which suggests that an appointment had been made for the plaintiff to see Professor Beischer on 11 March 1980. However, the plaintiff gave evidence that on discharge from hospital on or about 22 January 1980 she was told to come back a week later "for the results". The plaintiff gave evidence that she did return to the Austin Hospital about a week later, but it seems most probable that she did not return until about 19 February 1980. On that occasion, she was seen by Dr McGoldrick, who was a gynaecological registrar and, as such, a trainee in relation to this specialty. He had very recently commenced employment with the hospital. The plaintiff had not met him before. Dr McGoldrick told the plaintiff that he had bad news for her, that she had cancer of the uterus and that she would need an emergency hysterectomy within 48 hours. I am satisfied that that is what Dr McGoldrick told the plaintiff and that there was no basis whatever for doing so. I note that following the D&C, the pathologist had said, in a report dated 23 January 1980, that there was no evidence of malignancy. Furthermore, all the medical expert witnesses said that they had been unable to find that there was any evidence to justify a diagnosis of cancer at that time. I further find, on the plaintiff's uncontradicted evidence, that Dr McGoldrick did not offer the plaintiff any counselling or advice, nor did he offer her a second opinion, nor did he suggest that the operation involved any possible complications or special risks for her.

51. The plaintiff told Dr McGoldrick that she had a colostomy when she was nine, that a pram axle had perforated her large bowel and she had had peritonitis for 36 hours, which resulted in a year in the Royal Children's Hospital, and that she was frightened that another operation might do damage because there was so much damage done at the time. Dr McGoldrick said she was not to worry. The plaintiff asked Dr McGoldrick where at the Austin Hospital the operation was going to be held. She said she would prefer not to be down at the old section and could she come up to the new part where they were. According to the plaintiff Dr McGoldrick said, "Don't worry about anything, I've got something else in mind". He said, "There's another hospital I know of, we can do it there". He called it "Airlie". There is an unsigned clinical note in the plaintiff's records at the Austin Hospital, dated 19 February 1980, which appears to be the last record in her file for 1980, which reads:

"... Patient still having pain but doesn't want surgery at present will return PRN." [PRN = "as required"]

55. There was no evidence of the plaintiff seeing any doctor other than Dr McGoldrick on or about that date, but the author of the note is not and has not been identified and how the note came to be written in that form remains unexplained.

58. After the consultation, Dr McGoldrick drove the plaintiff to her home. The plaintiff was in shock. On the same day, the plaintiff went to see her sister and begged her to look after her two children. The following day, the plaintiff got ready to go to the hospital. Her sister took her to Airlie where she was admitted at 4.00 pm on 21 February 1980 as a public patient and an uninsured pensioner. She was given no further information or warnings concerning the proposed operation.

61. The operation sheet for 22 February 1980 shows Dr McGoldrick as the honorary medical officer and as the surgeon, the proposed operation being a total abdominal hysterectomy (including removal of the ovaries and the fallopian tubes - although in the event, the right ovary was not removed). Dr McGoldrick performed the hysterectomy. The operation sheet refers to "mobilisation of sigmoid and descending colon". The details of the operation noted include "adhesions everywhere... anterior abdominal wall and uterus... left ovary adherent to uterus...". When the plaintiff awoke, Dr McGoldrick informed her that he had performed the operation and that everything had gone well.

64. The plaintiff remained at Airlie until 5 March 1980. During this period, she was constantly in severe abdominal pain, which increased rather than lessened, and was regularly given painkilling drugs (in particular, pethidine). After about a week, the plaintiff, as she put it, started to get "very sick", "to feel very, very ill". She started vomiting often and her stomach became painful and swollen. Eventually, she was seen by another doctor and on 5 March 1980 was transferred by ambulance to the Preston and Northcote Community Hospital (P.A.N.C.H.)

67. An emergency operation was performed upon the plaintiff at P.A.N.C.H. on 6 March 1980. The plaintiff was readmitted to P.A.N.C.H. on 14 September 1980 and further surgery was performed with subsequent complications ensuing. A colostomy was made in September 1980 and closed on a subsequent admission in November 1980. I have considered and taken into account, but it is unnecessary to detail, the evidence concerning these matters save to note that, inter alia, a recto-vaginal fistula, bleeding and bowel obstructions were involved. A convenient summary of the plaintiff's medical history from March 1980 to November 1980 is contained in a letter dated 19 February 1982 from P.A.N.C.H. to Dr J.R.F. Downie (part of Exhibit "4"). Whilst it was not suggested that there was any evidence that the hysterectomy was actually performed in a negligent manner, albeit performed by a trainee who probably possessed less skill and certainly had less experience than a senior surgeon, it was clear on the evidence that all of these further problems flowed and ensued from the hysterectomy.

70. The plaintiff underwent other consequential surgery in addition to the operations I have mentioned. The plaintiff suffered from further consequential and recurrent bowel obstructions and other problems which led to further treatment in hospitals in 1981, 1982, 1985, 1990, 1992 and 1993.

73. The only surgery which I find did not flow as a consequence of the hysterectomy was surgery performed by Dr Downie in March 1982 relating to a cystic ovary. Dr Downie reported the surgical difficulty experienced arising from the plaintiff's numerous adhesions and strongly recommended against any further surgery in that area.

76. Over the years since the hysterectomy, the plaintiff has suffered from recurrent bouts of abdominal pain, sometimes stemming from bowel obstructions arising from the condition in which she found herself as a result of the hysterectomy and subsequent operations. There was a degree of medical consensus in the evidence that not all of her symptoms were physically caused and that her psychological and emotional state also contributed to her pain, discomfort and other abdominal symptoms.

79. Another unfortunate consequence of the plaintiff's hysterectomy and other consequent surgery was that she developed a pethidine addiction and this, too, badly affected her quality of life in recent years.

82. The writ in this proceeding was issued in February 1986.

86. As to the consequences of the hysterectomy upon the plaintiff, Dr Renou reported in June 1993 relevantly as follows:

"Following hysterectomy Mrs Loveday suffered a number of serious surgical conditions requiring numerous operations over a number of years. The initial causation of this appears to be complications following the hysterectomy and I think it is certain that none of this would have happened if the hysterectomy had not been carried out. Mrs Loveday had had an injury to the large bowel as a child but following recovery had no further trouble. In the ensuring years she had two children with no problems related to the previous bowel surgery. There is no reason, therefore, to suspect that she would have had further problems if the hysterectomy had not been carried out. The hysterectomy itself was difficult due to the previous bowel injury and surgery. This should have been anticipated and would be a major causative factor in the surgical complications that follows. The other matter raised in some of the reports is sexual function. From the physical point of view I would not expect Mrs Loveday to have difficulties with sexual function. However, on the emotional side I am sure she would and in her present state of mind I feel she would have great difficulty forming a relationship with a man. A psychiatrist could also address this question. ... I think it is certain that the various surgical complications and procedures that have followed the hysterectomy would not have occurred if that operation had not been carried out. How much would have been avoidable I cannot say and this is an opinion that should be sought from a surgeon. However, the previous bowel injury and surgery would greatly have increased the risks of a hysterectomy and, in fact, made the operation difficult... Thirteen years has now passed since the original operation and I think Mrs Loveday's condition is somewhat stablized. She is left with recurrent abdominal problems and serious emotional problems. I believe a psychiatric opinion would help on the latter... I believe Mrs Loveday's major disability is emotional and that the surgical misadventures have contributed considerably, if not totally, to this state. How much of it was the result of the treatment by the defendants and how much was inevitable I am unable to say... I believe Mrs Loveday is physically fit for work... From the emotional point of view I am not able to say for what type of work she would be fitted. However, physically I believe she could handle light work. From the physical point of view I think Mrs Loveday's life expectancy has not been altered as a result of these problems... The only further treatment I would suggest at this time is assistance with the emotional problems. I note that Mrs Loveday has also had considerable psychiatric treatment."

90. More recently, in May 1998, the plaintiff's general practitioner, Dr G. Wiehle, reported relevantly as follows:

"Mrs Loveday has been a patient of mine for the past seven years. She has a past medical history of a perforating injury to her rectum at the age of nine. This was treated with primary repair and defunctioning colostomy. In February 1980 she tells me she had a hysterectomy performed by Dr McGoldrick. This operation was complicated by a bowel obstruction and she was transferred to PANCH where she had an emergency laparotomy which confirmed the bowel obstruction and adhesions. Shortly after that surgery she developed a recto vaginal fistula which required further surgery and a temporary colostomy which was closed several months later. In September 1990 Mr Harry Frydenberg operated on her for a subcute bowel obstruction. She had extensive adhesions and he spent 2-3 hours dividing them and untangling her bowel. In September 1991 she was admitted to Box Hill and then Austin Hospital again for subcute bowel obstruction which was treated conservatively each time. There was another admission in March 1992 for the same problem. In May 1992 Mr Frydenberg again operated on her for bowel obstruction and spent 3 hours dividing multiple adhesions. He felt there was no more that he could do for her. I then sent her to see another surgeon, Mr John Mackay in Box Hill who was very reluctant to operate on her again but because of worsening pain and further subcute small bowel obstruction he operated on her at St Vincents Hospital in August 1993. This was her last bowel operation. Since then her chronic abdominal pain and distension have persisted and resulted in her increasing dependency on narcotics and multiple other medications. This drug dependency has resulted from the complications that occurred following the hysterectomy in 1980. Her perforating rectal injury must also be partially responsible because this presumably resulted in the adhesion of her large bowel to the uterus, which made the hysterectomy a more difficult procedure. Her current medical problems are: 1. Ongoing abdominal pain and distension. Surgery would only ever be contemplated again if there were a dire need. 2. Drug dependency. In recent months Mrs Loveday has stopped using Pethidine injections, oral long acting narcotics (Kapanol), Promethazine injections, Cafergot Suppositories and Ergodryl for migraine and reduced her use of minor tranquillizors. There will always be the risk of her drug use escalating again but for the moment she has made a great improvement in that area. 3. Depression. Mrs Loveday has been seeing a psychiatrist, Dr John Pettiford for 1½ years. She remains on large doses of antidepressants. 4. Migraines. Has been having these for years. They seem to be related to her abdominal pain, so that when that is bad her migraines are also bad. Since stopping the Cafegot and Ergodryl the rebound effect of these medications has stopped. 5. Squint. She had an operation on her right eye in 1991 for problem of squint. Over the past year she has had further problems with her eye in that the squint has returned and she is currently having to use a special prism in her glasses. She is undergoing further investigation at the moment and may require further surgery on her eye. Mrs Loveday's prognosis is guarded. There is nothing further that surgeons can offer her to get rid of her chronic abdominal pain. She has finally come to accept this situation and hopefully in the future will be able to stop herself from going on the downward spiral of drug dependency. She has been emotionally damaged by all that has gone on in the past 18 years and any other setbacks (e.g. problem with her eyes) may be the catalyst for not coping with the abdominal pain again."

94. Dr J.R. Pettiford, a psychiatrist, who had treated the plaintiff on a regular basis (mostly weekly) from September 1996 to April 1998 gave evidence as to her depressive mental state and her need for on-going psychiatric treatment. He considered that the plaintiff "had, for quite some time more than likely, quite an elevated on-going background level of anxiety". He considered that prior to 1980 she was a "vulnerable" personality. He assented, under cross-examination, to the proposition that, absent the hysterectomy, he would have expected her to be experiencing "ongoing moderate psychiatric problems". The following exchange occurred with counsel for the hospitals:

"I will be calling another member of your profession and doing the best he could, he thought, formed the view, that about two-thirds of the presentation probably has its origins and sponsorship from that long background history, and then there has been this additional third of exacerbation. That is put as a rough guide. Do you have a view about that, or is it Pandora's box?---It's a very arbitrary thing, I think, to put some kind of fraction or proportion in relation to it. I think it does stick in my mind that, subsequent to the surgical seeming mess that occurred, she had to go through quite a lot of very difficult traumatic experiences that she wouldn't have had to go through had she not had that surgical misadventure. I mean, particularly one thing comes to my mind and that is the recurrent abdominal pain that she would experience, which was really incapacitating and which led, on a number of occasions, to her having to go back to hospitalised situations, which she hated anyway. So is the answer that really it is too difficult to do it in that way?---It's a hard look. You say this colleague would say two-thirds background, one-third--- Just as a rough guide?---I would perhaps, to be honest with you, would be more likely to attribute it 50/50, actually. Again, as a rough sort of indication?---Roughly."

98. Despite the arbitrary "50/50" assessment, I thought that the real emphasis of Dr Pettiford's answer went to the important impact of the surgical events upon the plaintiff's psychiatric state.

101. Dr A.L. Kaplan, a psychiatrist, gave evidence and his report dated 12 April 1999 was received. He saw the plaintiff on 29 March and 9 April 1999 and took a full personal and medical history. His report concluded as follows:

"The traumas which Ms Loveday experienced, including the diagnosis of cancer, her hysterectomy her discovery that her hysterectomy and resultant infertility had been unnecessary and subsequent operations and medical complications have had a major impact upon her life, and she has developed what is probably a Post-Traumatic Stress Disorder where she continues to ruminate about and relive these experiences, and experience repeated nightmares. She has also developed an Adjustment Disorder with mixed anxiety and depressed mood as a result of her continuing medical problems, chronic pain and sense of loss and grievance. She has felt demoralized by what she regards as the loss of the last 20 years of her life and the impact her continuing medical problems and resultant disabilities have had upon her life and the lives of her children. Ms Loveday's earlier childhood trauma at the age of 9 years has probably not contributed to her psychiatric condition. Her childhood experiences within her dysfunctional family have undoubtedly had an impact upon her personality development, and has probably contributed to her inability/unwillingness to develop a stable long-term relationship and has probably left her with a vulnerability expressed in the form of her compulsive gambling and her drug addiction. Although she has these vulnerabilities, it is the traumas that she has suffered over the past 20 years that have probably triggered and maintained her drug dependency and compulsive gambling. Her self-consciousness about the appearance of her abdominal scars has probably also contributed to her avoidance of intimate relationships. Given the nature of Mrs Loveday's psychiatric conditions, her prognosis is likely to be unfavourable and these conditions are likely to persist for the foreseeable future. She may benefit from a resumption of supportive psychotherapy with her treating psychiatrist. Although such treatment may help her cope more effectively with her problems, it is unlikely to substantially alter her condition."

105. Dr P. Korman, a forensic psychiatrist called by the hospitals, produced a report dated 7 July 1998. Dr Korman saw the plaintiff on 24 June 1998. In his report, Dr Korman expressed the opinion that, before 1980, the plaintiff "would have had... chronic anxiety and depression in a fluctuating way and possibly even a mild PTSD [post traumatic stress disorder] or at least some significant PTSD features". He said that prior to 1980 "this is a woman who would have had very good reasons to have chronic anxiety and depression... one could expect her to have... some wide ranging personality and neurotic difficulties generally". Referring to the broken ankle and deep vein thrombosis, he said that "[p]resumably this would have been further stress in her life which would have if anything increased whatever anxiety and depression existed". He said that she presented as someone with serious and significant psychiatric difficulties; that "[T]he prognosis is not good... I think she is someone who will remain with permanent psychiatric difficulties long term probably at current levels". He opined that "the events of 1980 onwards in the health field have merely somewhat aggravated significant long-standing psychiatric difficulties". In a supplementary report dated 17 August 1998, Dr Korman said that "I would basically feel that 2/3 really, at least, of her psychiatric difficulties stem from factors prior to matters concerning Dr McGoldrick".

108. Whilst it is clear that prior to 1980 the plaintiff was most likely a somewhat nervous and anxious person, I am not persuaded by Dr Korman's retrospective and speculative analysis. On the whole, I thought it to be considerably overstated and stepping into the realm of advocacy. Dr Korman conceded in cross-examination that the plaintiff was "someone who has obviously at some level been able to cope much better than one would anticipate and one would expect from an average individual, prior to 1980 and after 1980 as well... [S]he is someone who for some reason hasn't seemed to have needed excessive psychiatric treatment". Dr Korman considered that the plaintiff's view of herself as "happy" prior to 1980 was a reconstruction, the product of emotional and defence mechanisms, and unlikely to have been the true situation. I think that the plaintiff may have put some gloss on her pre-1980 state, but I am, with respect, unable to accept the picture drawn by Dr Korman. I found the plaintiff's own account persuasive and, whilst recognising the delicacy of attempting to do so, I note that there was little or no attempt to challenge it when she was cross-examined.

111. On the whole, I am quite satisfied that the plaintiff's present depressed mental state has substantially flowed from the hysterectomy and consequent surgery.

114. Dr Michael Kloss, in a report dated 26 June 1998 tendered on behalf of the hospitals, summarised the present position of the plaintiff as follows:

"a) Mrs Loveday has spent the 11 years since her last meeting with me being a drug addict, being medically not well and at the present time she is in the process of detoxifying from her drug addiction. As far as she is concerned it all started with the original operation done by Dr McGoldrick and she admits that physically and mentally she has many problems. b) I examined Mrs Loveday and the most noticeable finding is her huge abdomen, the increased bowel sounds and the abdominal tenderness. Vaginally there is nothing to be found, the vagina is closed at the vault and there is no mass that I can feel in the pelvis. c) I do not think this woman has coped well in the past 11 years because of her drug addiction and multiple surgery for bowel obstruction. She is at the present time trying to give up the drugs and she has managed to do so for three months unless she receives some systematic help I do not think she will succeed. d) I do not think Mrs Loveday is fit for any type of work for physical and mental reasons. 1) I understand she is at the present time receiving a disability pension and I would think she would have to stay on that for the rest of her life. 2) I'm not very good at guessing anyone's life expectancy but I do not think she will die soon unless she takes a drug overdose or has complications from her subacute bowel obstruction."

119. In my view, Dr McGoldrick was clearly negligent as alleged by the plaintiff in her particulars. There was, as I have said, no evidence which justified a diagnosis by Dr McGoldrick of cancer of the uterus or cervix. I am satisfied, as I have said, that Dr McGoldrick informed the plaintiff that she had cancer when he knew or ought to have known that she did not (so far as the material available to him disclosed). There are good reasons to accept the plaintiff's evidence as to what he said to her and I also thought she was telling the truth. Despite this finding, there was some slight evidence at trial which arguably suggested or supported an inference that it was possible that the plaintiff misunderstood what Dr McGoldrick had told her or even that the plaintiff's version of events was incorrect. I think that these are no more than mere possibilities but, in any event, I am satisfied that Dr McGoldrick must have told the plaintiff that she had to have a hysterectomy and failed to exercise reasonable professional care and skill and was negligent by failing to advise or warn the plaintiff of her options and of the risks involved in the performance of a hysterectomy upon her having regard to her previous surgical and medical history.

122. Dr Abell, who was called by the hospitals, said that he would not have told the plaintiff that she had to have a hysterectomy although he would have maintained his recommendation that she have one and would have asked her to consider it as an option after explaining the risks involved (especially due to the probable adhesions from her previous surgery).

125. Professor Beischer, who was also called by the hospitals, considered that there was no "absolute indication " for a hysterectomy in February 1980 but a number of "relative ones". He said that there should have been an informed discussion which would have contained a very clear warning about the increased risk the plaintiff faced from complications by virtue of her abdominal surgery and her previous deep venous thrombosis.

128. Dr P.M. Renou, a very experienced specialist gynaecologist who was called by the plaintiff, reported that, in his opinion, the indication for a hysterectomy was not present and he further testified as follows:

"This is a situation where there is a high probability of difficult surgery, a hysterectomy operation, and there's also a high probability of complications. Bowel injury leads to a lot of adhesions and a difficult operation could be anticipated, as in fact was the case. I have asked you about the situation if it is decided that a trainee registrar is to break the news to the patient. Does any of that change if it is a senior consultant, in terms of explaining it and showing the evidence to the patient and then exploring options?---Whoever the doctor is should take that line with a patient, as it is a very serious business, it is a major operation, and also explain the alternatives and the risks and hazards of the various procedures..."

132. Dr Ian A. McDonald, consultant gynaecologist, Royal Melbourne Hospital, in a report dated 29 April 1986, concluded:

"From Mrs Loveday's story and from the numerous documents presented, I can find no substantial indication for hysterectomy on this 35 year old fertile woman. If it be true she was told she had cancer of the womb in the absence of substantive evidence, I would consider this highly culpable and worthy of serious censure. The surgeon should have taken into consideration the nature of the patient's previous history, especially that concerning the need for a colostomy at the age of nine and the recent past history of deep vein thrombosis of the leg. Either of these complications could render a hysterectomy dangerous, which indeed it was. I consider Mrs Loveday is genuine in her complaints and that her clinical conditions from the start have been organic and not functional. I further believe there is a tiny residual rectovaginal fistula still present. Mrs Loveday has learned to live with this and under no circumstance could I recommend further remedial surgery pertaining to her present complaint. There is no saying how psychologically and physically this may affect any future sexual relationship."

136. It can be seen that there was a consensus as to the dangers of the operation. As to whether hysterectomy was indicated, insofar as any finding is necessary, I prefer the views of Dr Renou and Dr McDonald. The evidence of Dr Abell and Professor Beischer in that regard was somewhat defensive and less than persuasive. Some emphasis was placed by Dr Abell upon the plaintiff's request for a tubal ligation as a relevant factor but it is hard to think that this factor would have justified dangerous surgery. (I note that the plaintiff denies having requested a tubal ligation but the documentary evidence is against her.)

140. I am satisfied that the said negligence of Dr McGoldrick and the admitted negligence of both hospitals (both vicarious and direct) caused the injuries which the plaintiff has suffered and continues to suffer. By "injuries" in this context, I include the hysterectomy operation itself and all consequent surgery (other than the operation relating to the cystic ovary). I am satisfied that if the plaintiff had been advised properly as to her medical condition and warned as to the dangers of a hysterectomy she would not have agreed to such an operation in February 1980. In any event, if the hospitals had not been negligent, it is clear on the evidence of Professor Beischer and Dr Abell that this surgery would never have been performed by a registrar, or at worst, not performed without a senior surgeon in attendance or readily available. Whether the plaintiff might at some time in the future have had a hysterectomy is a matter to which I will later refer.

143. I do not apprehend that it was ultimately contended to the contrary of the foregoing on behalf of the hospitals. Nor did I understand that there was any contention, in the end, that the plaintiff had any pre-existing or progressive disease or condition which caused her present situation in whole or in part. I am satisfied, on the plaintiff's own evidence, that she did not.

146. In that regard when Dr Treister interviewed and examined the plaintiff on 1 February 1980, he noted that she was "a very nervous, loquacious woman" but he found no medical condition, mental or physical, which might be regarded as a pre-existing disease or progressive condition so far as is relevant to the present proceeding. I put on one side any residual pain or disability from the broken ankle and its sequelae. (I also note that this was not treated as of relevance to damages by either counsel.)

149. Although the evidence showed that the plaintiff was vulnerable, both mentally and physically, as a result of past traumas and the presence of adhesions, to damage of the kind which she has suffered as a consequence of the hysterectomy and the many operations which resulted from it, I am satisfied that she did not suffer from any pre-existing disease or condition, physical or mental, which caused that damage either in whole or in part. This is not therefore, in my opinion, a case which gives rise to the tension between the competing principles referred to in Del Campo v Uniting Church [1996] VicRp 84; [1996] 2 VR 525, 530 per Winneke P, citing Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168, 170.

152. As far as causation is concerned, Mr Moore said only that there were questions of causation "in minor respects". As I understood his argument, these minor respects primarily related to the extent to which the plaintiff would probably have been "experiencing a level of psychiatric problems in any event". I have already stated my conclusions concerning the psychiatric evidence. I do not think, as I have indicated, that the evidence provided any persuasive support upon this issue as one going to causation. Rather, it is a matter to be taken into account, if at all, on the question of quantum of damages.

Pain and Suffering and Loss of Enjoyment of Life

156. Mr Moore submitted that under this head it would be appropriate to allow the sum of $122,500. He arrived at this sum by taking the sum of $175,000 and applying a discount of 30% for the normal vicissitudes of life "in conjunction with the fact that the pre-existing psychiatric condition would absent the surgery have in any event sponsored chronic and moderate to significant ongoing pain and suffering and loss of enjoyment of life".

159. On the other hand, Mr Curtain QC, who appeared with Mr O'Callaghan of counsel for the plaintiff, submitted that the sum of $250,000 was a "conservative" estimate for "a woman who has had 20 years of life taken from her and a future which is universally described as bleak...".

162. In my view, the sum of $140,000 is fair and reasonable compensation which is appropriate having regard to the surgery undergone by the plaintiff, the pain suffered by her and her loss of enjoyment of life both past and future due to her resulting physical and mental condition. In arriving at that sum, I have endeavoured to allow for the likelihood that the plaintiff would in any event have experienced some degree of anxiety and depression, and for vicissitudes generally, including the possibility that she may have undergone hysterectomy or other abdominal surgery at some time in her life.

165. The parties broadly, if not entirely, agreed on the approach to interest under this head which I consider to be a reasonable approach and I calculate as follows:

173. Mr Moore submitted that the plaintiff should be allowed $100 per week over 19 years (amounting to $98,800) less 30% discount for "the usual contingencies of life as well as the interference with working capacity because of the plaintiff's underlying psychiatric condition" with a resulting figure of $69,160 (i.e. at $70 per week).

176. Mr Curtain submitted that the plaintiff would have continued to work but for the hysterectomy and that the appropriate sum was $291,161. This sum was arrived at by totalling the average weekly earnings for a female in the retail industry between 1980 and the present, less tax. The arithmetic was not disputed but the approach was. I am satisfied that the plaintiff liked to work and would have wished to work full-time but it cannot be ignored that at the time of the hysterectomy she was again in receipt of the pension having not resumed work after the broken ankle and its complications. Further, I consider that her past history of casual work and her general vulnerability make it appropriate to apply a substantial discount to the sum claimed by her representing, as it does, 19 years of uninterrupted full-time employment. I think a fair and reasonable sum would be $150,000.

179. The parties were in contention as to the appropriate rate of interest to apply to past earnings. The plaintiff submitted that 13.2% was an appropriate rate having regard to the penalty interest rates which had applied in the relevant period. The hospitals at first submitted that 12% was the appropriate rate but subsequently contended that 6% should be applied due to the plaintiff's delay in issuing the proceeding (nearly six years) and the further time it took to reach trial (over 13 years). In relation to the delay after the commencement of proceeding, it was always open to the defendants to press for a speedy hearing. So far as delay in commencement is concerned, the reasons for this were not investigated although it appeared that the plaintiff only discovered that she had never had cancer some years after the hysterectomy. In my view, no good reason has been shown to reduce the rate of interest. The rate to be applied should be close to the current rate of 12.3%, say 12%.

190. Mr Moore submitted that loss of future earnings should be calculated on the same basis as that which he advanced in relation to loss of past earnings, i.e. at $70 per week, which resulted in the sum of $33,200 (by applying the agreed multiplier to age 65).

193. Mr Curtain submitted that the appropriate sum to be awarded was $133,933.14, which was calculated by applying to the sum of $415 net per week the appropriate multipliers to age 60 and to age 65, less a discount of 15%, which yielded the sums of $99,876 and $167,989 respectively and then taking a figure "midway" between those two sums.

196. In my opinion, it is unrealistic to conclude that the plaintiff, absent the surgery, would be likely to have continued in full-time employment from her present age until age 60, let alone age 65. I consider that a sum in the region suggested by the hospitals represents a more appropriate amount and I propose to allow the sum of $35,000.

201. Mr Curtain submitted that damages under this heading should be assessed as follows:

year @ $600.00 per day = $15,000 (ie $288.46 per week)

Mr Moore rightly conceded that, on the evidence, the above calculations for future care were correct. However, Mr Moore submitted that the regime of care instituted by Mr McKay only commenced in 1993; that the admissions for pain management were interrelated with psychiatric problems; that the need for proactive day care treatment was necessitated because of the chronic pain/psychiatric condition which might mask the development of underlying pathological changes (cancer); that there was a pethidine problem which the plaintiff might overcome and this might well lessen or alleviate the "pain"; that all of the foregoing recommended caution in assessing this head of claim.

222. Mr Moore submitted that accordingly it would be appropriate to allow as follows:

233. In addition, Mr Moore submitted that the plaintiff had a history of attending successively a number of specialists and that she might well encounter in the future a different approach to the management of her condition of a less costly nature. I do not think that a very large allowance ought reasonably be made for the factors listed by Mr Moore insofar as I comprehend them. Having considered the evidence as to the various heads of required treatment and looking at the matter overall, I consider that the following calculation results in a fair and reasonable amount under this head:

@ $600 per day $200.00 per week ($10,000 per annum)

Review consultations $ 6.00 per week ($300 per annum)

and colonoscopy $ 4.80 per week ($1000 every four years)

250. This has been agreed between the represented parties in the sum of $40,000. There is no evidence of this amount and, accordingly, it cannot be assessed as against the third defendant.

254. The total amount in accordance with the foregoing is:

258. Thus, damages assessed as against the hospitals, inclusive of interest, total $839,250 and as against the third defendant total $799,250.

261. I will hear submissions as to the orders to be made and as to costs.