Moore v State of Qld & Ors [2005] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION: Moore v State of Qld & Ors [2005] QCA 299

PARTIES: KERRY LEANNE MOORE (plaintiff/appellant) v STATE OF QUEENSLAND (first defendant/respondent) ENDOVASIVE PTY LTD ACN 061 512 132 (deregistered) (second defendant) FEMCARE LTD (third defendant)

FILE NO/S: Appeal No 2750 of 2005 / SC No 5468 of 2002

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 19 August 2005

DELIVERED AT: Brisbane

HEARING DATE: 18 July 2005

JUDGES: Williams, Jerrard and Keane JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal dismissedAppellant to pay the respondent's costs of the appeal to be assessed on the standard basis

CATCHWORDS: TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS - OTHER CASES - where appellant had undergone a laparoscopic sterilization procedure performed by a medical practitioner employed by the respondent - where objective of the procedure was to achieve full occlusion of the appellant's Fallopian tubes by way of the application of Filshie clips - where the appellant became pregnant approximately 12 months after the procedure was carried out - where appellant sued the respondent for negligence in the conduct of the sterilization procedure - where it was found by the learned primary judge that the medical practitioner who performed the procedure had breached his duty of care to the appellant by placing one of the Filshie clips on the ampullary (thickest) rather than the isthmic (thinnest) portion of the appellant's right Fallopian tube - where evidence at trial was that it was best practice to place the clip on the isthmic portion of the Fallopian tube - where the preponderance of the evidence at trial was that, despite the different placement of the clip, full occlusion of the tube was still achieved - whether the incorrect placement of the clip could properly be described as a breach of duty if full occlusion of the tube was achieved / TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY - where the preponderance of the evidence at trial was that, despite the different placement of the clip, full occlusion of the tube was still achieved - where appellant submitted that the non-occlusion of the Fallopian tube was an inescapable inference from the fact that the appellant became pregnant - where evidence at trial was that pregnancy could still occur despite full occlusion of the Fallopian tubes - whether the finding of fact made by the learned trial judge that the procedure had been successful in achieving full occlusion of the appellant's Fallopian tubes should be set aside - whether the way in which the medical practitioner performed the procedure could be said to have been the cause of the appellant becoming pregnant / Abalos v Australian Postal Commission (1990) 171 CLR 167, cited / Ahmedi v Ahmedi (1991) 23 NSWLR 288, cited / Batiste v State of Queensland [2001] QCA 275; [2002] 2 Qd R 119, cited / Bennett v Minister of Community Welfare (1992) 176 CLR 408, applied / Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, applied / Coley v Nominal Defendant [2003] QCA 181; [2004] 1 Qd R 239, cited / Forbes v Selleys Pty Ltd [2004] NSWCA 149; CA 40640/02, 12 May 2004, cited / Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, cited / Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269, applied / Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678, cited / Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, cited

COUNSEL: K D Dorney QC, with P L Feely, for appellant / J H Dalton SC, with N Jarro, for respondent

SOLICITORS: McInnes Wilson for appellant / Hunt & Hunt for respondent

WILLIAMS JA: The basic facts relevant to the resolution of this appeal are fully set out in the reasons for judgment of Keane JA which I have had the advantage of reading.

Best medical practice dictates that in order to effect complete occlusion of the fallopian tube the Filshie clip should be placed on the isthmic portion of the tube rather than the ampullary. But the evidence from all the medical witnesses conceded that there could be sound reason for placing it on the ampullary section of the tube. In the present case Dr Hillen put the Filshie clip on the isthmic portion of the appellant's left fallopian tube but on the ampullary section of the right. He was conscious of what he did because he made an express note at the time to that effect, but he could not recall when giving evidence some four years after performing the operation why he did so.

The obligation on a doctor performing the operation in question is to completely occlude the fallopian tubes thereby sterilising the patient. If occlusion was attained then the doctor fulfilled his duty; there would be no negligence if the Filshie clip placed on the ampullary portion of a tube completely occluded it.

The learned trial judge in the present case found, on ample evidence, that the right fallopian tube was completely occluded by the clip. Placing it there may have involved a greater risk of the operation not being successful, but that risk did not materialise once the tube was fully occluded. Dr Vaughan, described by the learned trial judge as "a very experienced obstetrician and gynaecologist", said in evidence: "If the clip is placed on the ampullary section and successfully occludes the whole width of the tube, then the operation has been performed correctly." That was also the view of Dr Robson, another obstetrician and gynaecologist. The learned trial judge quoted the passages in question from this evidence in his reasons.

However, the learned trial judge went on to reason as follows:

"The failure to place the clip on the isthmic section of the right tube increased the risk that the whole of the tube would not be contained within the clip and, consequently, that full occlusion would not occur. That risk was capable of being avoided by the application of another clip and no reason, apart from Dr Hillen's satisfaction with his visual inspection, was advanced for disregarding this straightforward precaution. Accordingly, the conclusion I have reached is that there was a breach of the doctor's duty of care for which the first defendant is vicariously responsible."

In my view that process of reasoning is erroneous. As already noted, if the tube was fully occluded by the clip then there was no negligence regardless of where it was placed on the tube. In this context one cannot speak of a breach of duty of care because the increased risk of some damage occurring did not materialise.

Counsel for the appellant construed that finding by the learned trial judge as a finding of negligence. He was then able to mount an argument before this Court that, negligence having been established in the performance of the operation, it was for the respondent to prove that such negligence was not a cause of the appellant's damage (pregnancy). That approach is not open once it is realised that the basic finding of fact is that the tube in question was fully occluded. In order to establish a basis for such a submission the appellant would have to satisfy this Court that the finding that the right tube was fully occluded should be set aside and a finding substituted that there was negligence in failing to properly occlude the right tube. The evidence supporting the finding that the right tube was occluded is such that this Court could not set the finding aside.

I have already recorded that the learned trial judge concluded that the right tube had been fully occluded and that there was ample evidence to support that finding. However it should be noted that in the course of his judgment the learned trial judge said: "No microscopic examination was carried out, but there was no evidence to the effect that a microscopic examination was necessary to establish whether the lumen had been fully occluded." The learned trial judge erred in making that observation. The relevant pathology report signed by Dr Axelsen on 17 October 2002 under the heading "Microscopic" stated: "There are left parafimbrial cysts and both left and right fimbrial ends show scattered foci of fibrin with admixed inflammatory cells on their surfaces. The significance of these foci is uncertain. An assessment of "technically correct" clip placement cannot be made in these histological sections." Dr Axelsen in his oral evidence said that "histological examination described under microscopic [in the report] could not in fact provide a clear indication of where the clips were." He then went on to say:

". . . as part of that examination and as a matter of course in all specimens, samples are taken to be processed through chemicals to be embedded in paraffin wax, from which thin sections are taken and stained for examination under the microscope and the result of that microscopic examination is the description under "Microscopic" in this report, but that is the standard procedure in anatomical pathology. . . . sections had been cut from those blocks and it was those sections that were examined microscopically. . . . because some of the sections were taken from the tissue beside the clip and any sections that would have been taken of tissue immediately within the clip could not have represented reality because the clips would have to have been removed prior to samples taken from that area and that would change the appearance, shape and disposition of the tissue."

Subsequently Dr Axelsen confirmed that he was responsible for the microscopic examination and he conceded that he did not specifically examine microscopically for any fistulae.

It follows that the statement by the learned trial judge was strictly incorrect but the evidence as to the microscopic examination of the relevant fallopian tube did not in any way affect the finding of fact made that the tube was occluded. Such evidence as there was of microscopic examination certainly did not advance the appellant's case.

Subject to what I have said herein, I agree with all that is said by Keane JA in his reasons and with the orders proposed therein.

JERRARD JA: In this appeal I have read the reasons for judgment of both Keane JA and Williams JA, and agree with their Honours’ reasons and the orders proposed. That is, I specifically agree with Williams JA that once the learned trial judge found that the right fallopian tube had been completed occluded by the Filshie clip placed on it by Dr Hillen, then it could not be found that Dr Hillen had breached his duty of care to Ms Moore.

Ms Moore’s lawyers were certainly entitled to consider that a strong case had been made, once they established that the Filshie clip placed on the right fallopian tube had been placed, not on its isthmic portion but rather on its ampullary portion, contrary to the normal method of application to the isthmic portion, and contrary (on the findings by the learned judge) to the bulk of relevant medical literature. Not only did Dr Hillen place that clip on the ampullary portion of the right tube contrary to normal practice and advice and literature, but a pregnancy followed just a year after the operation. Ms Moore called expert evidence from Dr Korda, not challenged, that failure by Dr Hillen to apply the clip to the isthmic portion of the right fallopian tube would be associated with a significantly greater incidence of failed sterilisation; that took Ms Moore a very long way towards establishing the proposition enunciated by McHugh J in Chappel v Hart (1998) 195 CLR 232 at 244, to the effect that if a wrongful omission results in an increased risk of injury to a plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury the plaintiff has suffered.

But in fact the evidence did not stop there. The defendants called evidence which, if accepted, established that the right fallopian tube had been completely occluded, even though the clip was placed on the ampullary portion of it. Dr Vaughan, who removed both fallopian tubes, was emphatic in his evidence that there had been an excellent application of the clips to each tube, and that both tubes had been completely obstructed by the clips. The opinion was consistent with the histology report on each tube, which was in identical terms, and relevantly read for each:

“The entire lumen of the tube is compressed within the clip. The tissue actually within the clip is grossly compressed and appears atrophic.”

Interestingly, the agreed statement of facts put before the learned trial judge accepted that the left fallopian tube had been occluded and that the application of the clip to it was effective; Ms Moore’s case was that the right fallopian tube had not been completely occluded, although both Dr Vaughan and the histology report described the condition of each tube as the same, namely entirely occluded.

Ms Moore was aware when bringing her case of the evidence the defendants would call from Dr Vaughan, Dr Hillen, and the doctor whose examination resulted in the histology report. That means she went to trial proposing that the learned judge hearing the case be persuaded not to accept their evidence of occlusion of the right fallopian tube, and to argue that the judge should accept pregnancy occurred because it had not been. But Ms Moore’s own expert opinion evidence, called from Dr Korda, described in a report dated 10 November 2003 at page 6 thereof¹ that a sterilisation procedure might fail because of the presence of a tuboperitoneal fistula, which might occur directly at the end of the proximal stump (that part of the tube closest to the uterus), or might possibly involve a fistula that emerged from the side wall of the fallopian tube.

As events in the trial fell out, the defendants advanced that exact possibility with increasing enthusiasm during it, although no positive explanation for the pregnancy had been pleaded. The appellant did not make any complaints in her grounds of appeal about unfairness in the conduct of the trial. What occurred was that Dr Vaughan, under cross-examination, was asked:

Q. “So, if occlusion is complete, you couldn’t suggest any other

cause?

A. – I have a few theories”.

That answer was then explored in re-examination, over objection disallowed by the learned trial judge, and Dr Vaughan opined that:

“I think sometimes when the tube is applied and the healing occurs underneath, a small fistula or a hole develops temporarily as the tube is being crushed completely by the tube (sic) and it allows a small hole to allow sperm out and over (sic) in and I think that is probably what I believe happened, but I can’t give a scientific paper or anything like that supporting my theory.”²

The learned trial judge then allowed further cross-examination of Dr Vaughan, who added to that theory the further observation that, while there was no suggestion on examination of the excised parts of the fallopian tube that there had been any fistula or hole, the fallopian tube had been taken out a long time after the clips had been put in position “and a lot more healing will have occurred.”³ He added, regarding his theory, that:

“Other colleagues we have discussed just from time to time”⁴(sic),

and that

“there must be some explanation because this is a worldwide phenomena. It's not confined to here.”⁵

Dr Korda swore in cross-examination that the existence of a fistula had been excluded by the histopathology report, and that had a fistula been present, it would have still been there at the time the fallopian tubes were removed.⁶ But when pressed further in cross-examination he said he was unable to comment on whether it was possible or not, but thought it was unlikely, that between conception and birth a fistula (which had been present) had healed, given the gross changes that happen in a woman’s tissue throughout and after pregnancy.⁷

Dr Robson, called by the defendants, repeated in evidence in chief an assertion which appeared in his report dated May 2003⁸, that pregnancies could occur after and despite complete occlusion of fallopian tubes by clips. His evidence gave figures of approximately 1 in 400, or 2-3 in 1,000. He also advanced the view that a fistula might be extremely small, the size of a pin prick, and that it was completely believable to him that that might form and heal during the course of the pregnancy. He admitted in cross-examination that fistulas had not been described in his report, and claimed both that if given the opportunity he could find support in literature or a textbook for the presence of a fistula that could occur temporarily leaving no trace of its presence, even histologically, and also that the presence of inflammation on the histological report could provide evidence that a fistula had been present, since healing is through inflammation.

It was submitted on the appeal that the inflammation referred to in the histological report was clearly referable to some cysts which had been present, and which was referred to in that report, but that proposition was not put to Dr Robson in cross-examination. The evidence the learned trial judge did hear was very thin as to any alternative explanation for the pregnancy, but one was suggested, and the evidence overall was sufficient to allow the conclusion the judge drew, namely that the plaintiff had not established a breach of duty by Dr Hillen which had caused or contributed to her pregnancy; it was open to the learned judge to accept what the judge described as a strong body of evidence that the right fallopian tube had been completed occluded. The judge did accept that evidence, and thus despite Ms Moore’s strong prima facie case, the defendants successfully met it.

KEANE JA: On 21 January 2001, the appellant underwent a laparoscopic sterilization procedure at the Redland Hospital conducted by Dr Hillen, a registrar employed at the hospital by the respondent. The procedure involved the application of two devices, known as Filshie clips, which were designed to occlude each of the appellant's Fallopian tubes. In early 2002, most likely in mid-January, the appellant became pregnant, and on 7 October 2002 gave birth to a child.

The appellant commenced proceedings against the respondent for damages for negligence in the conduct of the sterilization procedure. The appellant alleged that Dr Hillen had failed adequately to secure the Filshie clips so as to secure a complete occlusion of the appellant's Fallopian tubes and, in particular, had failed to place the Filshie clip on the right Fallopian tube on the isthmic (ie narrow) portion of the tube.

The appellant's claim was dismissed by the learned trial judge on the footing that, although the manner in which the sterilization procedure was carried out was contrary to proper medical practices in the sense that the Filshie clip should have been placed on the isthmic, rather than the ampullary, portion of the right Fallopian tube, it had not caused the appellant's pregnancy because full occlusion of the tube had been achieved.⁹ The appellant now challenges this conclusion. The appellant's case as to causation is put, as it was put at trial, on the footing that the non-occlusion of the right Fallopian tube was an inescapable inference from the fact of the appellant's pregnancy.

The trial

It was common ground at the trial that Dr Hillen placed a Filshie clip on the isthmic (thinnest) portion of the appellant's left Fallopian tube and that this was effective to occlude that tube. Dr Hillen also placed a Filshie clip on the ampullary (thickest) portion of the right Fallopian tube. The crucial issue in the case was whether this was effective to occlude the right tube.

The learned trial judge accepted that Dr Hillen's failure to place the clip on the isthmic portion of the appellant's right Fallopian tube increased the risk that the whole of the tube would not be contained within the clip and that, as a result, full occlusion might not occur. That risk could have been avoided by the application of another clip to the isthmic portion of the tube. There was nothing to prevent Dr Hillen from taking that precaution. Accordingly, his Honour concluded that Dr Hillen had breached the duty of care which he owed to the appellant.¹⁰

There was evidence in support of the conclusion that the appellant's right Fallopian tube was fully occluded. Direct evidence to that effect came from Dr Hillen, Dr Vaughan and Dr Milne.

Dr Hillen gave evidence that he was alive to the fact that he had placed the Filshie clip in an unusual position and was careful to check that it occluded the tube. This evidence was supported by a note made contemporaneously by Dr Hillen to the effect that the right Fallopian tube had been completely occluded.

Dr Vaughan, described by his Honour as a very experienced obstetrician and gynaecologist, had removed the appellant's Fallopian tubes after the birth of the appellant's child. Dr Vaughan's visual observation was that the tube was occluded. He also sought a detailed histopathology report.

The pathologist, Dr Milne, was sure that the tube was occluded although he did not undertake a microscopic examination. He took nine sections from each Fallopian tube to determine the nature and extent of the tissue within the clip. He said that the entire lumen of each tube was compressed within the clip. He described the tissue in the region of the clip on the right tube as "atrophic and fibrous and basically worn away to almost nothing". The metal clip he referred to as "almost metal on metal" and he also observed that "on both sides of the tube the lumen appeared to be going into the clip".

The learned trial judge accepted the evidence of these witnesses.

The appellant called Dr Korda, an obstetrician and gynaecologist, who stated in a report dated 10 November 2003 that:

"On balance, if the failure of a tubal ligation occurs prior to one year it is more likely to be associated with misapplication, although this is not proof of negligence. Failures after this time are more likely to be associated with natural causes".

As Dr Robson, an obstetrician and gynaecologist called by the respondent observed, the appellant fell pregnant on "the cusp of" the 12 month period.

Dr Korda had been asked by the appellant's solicitors to address the question whether the failure of the procedure could have been caused by Dr Hillen's failure to apply the clip to the isthmic part of the Fallopian tube. Dr Korda wrote:

"On the balance of probabilities, not applying the Filshie clip to the isthmic portion of the tube … is associated with a greater incidence of pregnancy. The failure of the operating surgeon to apply the Filshie clip to the isthmic portion of the tube would be associated with a significantly greater incidence of failed sterilisation."

The appellant's solicitors pressed Dr Korda further on this issue; and in a report dated 27 December 2004 he expanded this last answer by adding:

"On the balance of probabilities the placement of the Filshie clip on the ampullary section of the right Fallopian tube has resulted in the failure of the sterilisation procedure and your client's subsequent pregnancy."

The learned trial judge was apparently troubled by this "strengthening" of Dr Korda's evidence. His Honour plainly rejected Dr Korda's attempt to swear the issue in relation to causation.¹¹

Further, the learned trial judge accepted the evidence of Dr Robson who was called by the respondent. Dr Robson gave evidence that pregnancies can occur after tubal ligations which have been successfully performed in the sense that the Fallopian tubes have been fully occluded. Dr Robson said that such cases occur as often as three per 1000 operations, which was a frequency slightly higher than that suggested by Dr Korda who said that it was up to two per 1000 operations.

Dr Korda and Dr Robson both gave evidence that the occurrence of fistulas in the Fallopian tubes may account for otherwise "unexplained pregnancies"; and Dr Robson said in cross-examination that some such fistulas may heal so as to be subsequently undetectable. He also gave evidence that the histological evidence showed that there was inflammation which might support the view that this is what had occurred in the present case. Dr Robson was criticized on the basis that this evidence was an afterthought.

The appeal

In this Court the appellant makes two broad submissions: first, that the learned trial judge should have rejected the evidence of Dr Hillen, Dr Vaughan, Dr Milne and Dr Robson and should have preferred the evidence of Dr Korda; and secondly, that on the basis on which the case was fought, the learned trial judge was bound to proceed from his finding of negligence on Dr Hillen's part to a finding that this negligence caused the appellant to become pregnant because there was no other reasonable explanation for the indisputable fact of the appellant's pregnancy. It is convenient to deal with this second submission before undertaking the further consideration of the evidence which is necessary to address the appellant's first submission.

The appellant relies upon the proposition that where a wrongful act or omission results in an increased risk of injury, and that risk eventuates, the trier of fact is entitled to conclude that the act or omission caused or contributed to the injury alleged to have been caused by the wrongful conduct.¹²

While such a process of reasoning is permissible, it is not inevitable. Any inference that might otherwise be drawn on this basis will be displaced if there is evidence to establish that the wrongful act or omission had no effect at all or that the risk would have eventuated and caused the damage in question in any event.¹³ In the present case, of course, there was direct evidence that Dr Hillen's placement of the Filshie clip did not leave the appellant's right Fallopian tube open. The creation of an increased risk of an adverse outcome may support an inference that the risk has come home where the adverse outcome occurs but the authorities establish that a trier of fact is not bound to draw that inference. In any event, there is no scope for the shifting of the evidentiary onus, for which the appellant argues here, where the inference of causation is contradicted by other evidence which shows that the "breach had no effect".¹⁴ The responsibility for proving that Dr Hillen's breach of duty materially contributed to the appellant's pregnancy remains with the appellant.¹⁵

The appellant argues that no conclusion was open to his Honour other than that Dr Hillen's misplacement of the Filshie clip left the tube open because the only alternative explanation for the appellant's pregnancy, ie a fistula, was not relied on by the respondent.

The respondent accepts that it did not set out to prove that the pregnancy was caused by a fistula in the appellant's right Fallopian tube. It makes the more fundamental point that the fact of the occurrence of the pregnancy does not necessarily establish the fact that Dr Hillen's placement of the Filshie clip failed to occlude the appellant's right Fallopian tube. Both Dr Korda and Dr Robson accepted that tubal ligations occasionally fail notwithstanding the occlusion of the tube. Dr Robson identified the possibility of healed fistulas as a contributor to the rate of failure, of which he gave evidence, and as explaining what are otherwise inexplicable failures. The learned trial judge was clearly disposed to accept Dr Robson's evidence in this regard which also drew support from the evidence of Dr Vaughan. Although Dr Korda regarded the scenario explained by Dr Robson as unlikely, he accepted that it afforded a possible explanation of the appellant's pregnancy.

It is, in my respectful opinion, wrong to frame the task set for his Honour as involving a choice between two candidates (non-occlusion and fistula) and then to declare one candidate (non-occlusion) the culprit because the other was not eligible for consideration. The issue was whether it was more probable than not that the appellant's right Fallopian tube was not occluded by the Filshie clip. If the evidence of Dr Hillen, Dr Vaughan and Dr Milne could be accepted as reliable, then the learned trial judge was entitled to find that the tube was occluded. It was Dr Robson's evidence that sterilization procedures may fail notwithstanding full occlusion of the tube and the absence of observable evidence of a tubal fistula. Acceptance of Dr Robson's evidence afforded an explanation of the appellant's pregnancy consistent with the evidence of Dr Hillen, Dr Vaughan and Dr Milne that the right tube was, in fact, fully occluded.

In my opinion, while the learned trial judge's finding in relation to the effective occlusion of the appellant's right Fallopian tube stands, that finding precludes acceptance of the appellant's second submission. It is necessary then to turn to a consideration of the appellant's first submission whereby the appellant seeks to make a direct challenge to this finding. This submission, it must be said at the outset, faces a formidable hurdle in that to succeed it must overcome the learned trial judge's acceptance of the evidence of Dr Hillen, Dr Vaughan, Dr Milne and Dr Robson.

The issue here is really whether "the objective probabilities" or the "apparent logic of events" demonstrate error by the learned trial judge, either in accepting the evidence of Dr Hillen, Dr Vaughan and Dr Milne, or in preferring the evidence of Dr Robson over that of Dr Korda to the extent that that was necessary.¹⁶ The appellant argues that the evidence of visual observation by Dr Hillen, Dr Vaughan and Dr Milne as to the state of the right Fallopian tube was plainly not reliable. In this regard, however, it is difficult to divorce the objective probabilities from the credibility of the witnesses because an assessment of the objective probabilities depends to a large extent on an assessment of the reliability of the witnesses in order to establish the basic facts from which the objective probabilities may be drawn. Especially is this so in relation to the reliability of the evidence of Dr Milne and Dr Vaughan, whose evidence related to their visual observations of the tube after the birth which gave rise to the litigation and in relation to Dr Robson, whose evidence related to the possibility that the pregnancy was caused by a healed fistula. In accepting or rejecting their evidence, his Honour was able, and required, to form a view as to their professional competence, and the limits of that competence, as well as in relation to their honesty.¹⁷

On the issue whether it was more probable than not that the right Fallopian tube had been fully occluded, there was direct evidence of that fact which his Honour accepted. In Brunskill v Sovereign Marine & General Insurance Co Ltd¹⁸ the High Court said:

"The authorities have made clear the distinction which exists between an appeal on a question of fact which depends upon a view taken of conflicting testimony, and an appeal which depends on inferences from uncontroverted facts. In the former case, to use the well-known words of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, which was cited in Paterson v Paterson (1953) 89 CLR 212 at 222:

'… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.'

See also Warren v Coombes (1979) 142 CLR 531 at 537 and following."

As this passage makes clear, the argument that, in the overall statistical breakdown of causes of failed sterilization procedures, a failure to achieve full occlusion was a more likely explanation of the fact of the appellant's pregnancy than other possible causes does not afford this Court a basis for upsetting his Honour's acceptance of the evidence that full occlusion had occurred.

It was agreed between the witnesses for both sides that the mere occurrence of a failure of a sterilization procedure does not establish that the tube was not fully occluded in the course of the procedure and that the location of the Filshie clip was relevant only to whether the tube had been fully occluded. Dr Robson thought unexplained failures occurred with a higher frequency than Dr Korda, but Dr Korda did accept that the mere occurrence of pregnancy did not mean that the Fallopian tubes were not fully occluded. Dr Robson gave evidence that a healed fistula was a possible explanation of the appellant's pregnancy. Dr Korda said that it was unknown in the literature. Dr Korda did, however, concede that such a fistula was possible, though unlikely.

The learned trial judge said that Dr Robson impressed him as "a careful and considered witness".¹⁹ He was clearly not so impressed by Dr Korda. Indeed, the respondent in this Court advances criticisms of Dr Korda's evidence, which might be thought go so far as to impugn Dr Korda's honesty as a witness. While the learned trial judge did not need to decide whether Dr Korda's integrity had been successfully impugned to that degree, it was certainly open to the learned trial judge to take the view that the "strengthening" of Dr Korda's evidence on causation warranted the rejection of Dr Korda's attempt to swear the ultimate issue and afforded a basis for a preference for the evidence of Dr Robson to the extent that there was a difference of views between Dr Robson and Dr Korda In truth, these differences were not great. The learned trial judge noted that, in Dr Korda's first report, he accepted Dr Milne's conclusion that the right tube was fully occluded, and made no suggestion to the effect that Dr Milne's evidence of his macroscopic observations was not reliable. This may well have affected the weight which his Honour was willing to give to the appellant's argument that Dr Milne's evidence as to his observations and conclusion was unreliable. Further, Dr Korda's report of 10 November 2003 itself suggested that a failure which occurs a year or more after the procedure is "likely to be associated with natural causes". In this case, as has been said, the appellant fell pregnant "on the cusp" of that 12 month period. At the very least this means that it may fairly be said that Dr Korda's evidence affords some support for the learned trial judge's finding that the right tube was fully occluded.

In my opinion, no basis has been demonstrated by the appellant on which this Court would be justified in setting aside the learned trial judge's findings of fact based on his acceptance of the evidence of Dr Hillen, Dr Vaughan, Dr Milne and Dr Robson.

It follows that the appeal should be dismissed. That means that it is unnecessary to deal with the issue whether, as a matter of law, benefits paid to the appellant under the A New Tax System (Family Assistance) Act 1999 (Cth) should be deducted from the quantum of damages which, had the issue of liability been resolved in her favour, would have been payable to the appellant.

Conclusion and orders

In my opinion, the appeal should be dismissed. The appellant should pay the respondent's costs of the appeal to be assessed on the standard basis.

Footnotes

1. At AR 148 ↩

2. At AR 34 ↩

3. At AR 35 ↩

4. At AR 35 ↩

5. At AR 36 ↩

6. At AR 64 ↩

7. At AR 65 ↩

8. At AR 92 in his evidence, and AR 428-429 in his report ↩

9. Moore v State of Qld & Ors [2005] QSC 048; SC No 5468 of 2002, 15 March 2005 at [57] - [61]. ↩

10. Moore v State of Qld & Ors [2005] QSC 048; SC No 5468 of 2002, 15 March 2005 at [20]. ↩

11. Moore v State of Qld & Ors [2005] QSC 048; SC No 5468 of 2002, 15 March 2005 at [60]. ↩

12. See Chappel v Hart [1998] HCA 55 at [27]; (1998) 195 CLR 232 at 244 - 245; Naxakis v Western General Hospital [1999] HCA 22 at [31], [127]; (1999) 197 CLR 269 at 278 - 279, 312. ↩

13. Naxakis v Western General Hospital [1999] HCA 22 at [31], [76]; (1999) 197 CLR 269 at 278 - 279, 296. ↩