Torts - Negligence - Procedure and evidence - Evidence - Sufficiency of evidence - Appellant's contention that trial judge erred in accepting some and ignoring other evidence about the preferred method of proctoscopic examination in medical negligence case - Trial judge considered and analysed the whole of the evidence and was alive to all considerations raised by appellant - Trial judge's preferred medical evidence was decisive of fundamental issue of position of staple line in anal canal and uncontradicted by proctoscopic examination method evidence - Trial judge correctly weighed expert evidence against other evidence before determining ultimate factual issue - No error by trial judge - Appeal dismissed.

Evidence - Admissibility - Opinion evidence - Expert opinion - Basis of opinion - Appellant's contention that trial judge erred in admitting expert evidence on basis that it amounted to impermissible speculation due to absence of internal examination and lack of expertise - Trial judge relied on orthodox reasoning and made no error by trial judge in admitting expert evidence - Appeal dismissed.

Evidence Act 2001 (Tas), s 79(1).

Damages - Assessment of damages in tort - Personal injury - Other heads of damages - Medical, hospital and like expenses -Appellant's contention that trial judge erred in awarding $50,000 in damages for past medical expenses in face of vague and unsatisfactory evidence - Essential aspects of proof of damage in evidence and trial judge entitled to rely on them - No error by trial judge - Appeal dismissed.

Damages - Assessment of damages in tort - Personal injury - Other heads of damages - Future care - Generally - Appellant's contention that trial judge erred in relying on joint opinion of expert occupational therapists when calculating damages for respondent's future care - Trial judge entitled to accept joint expert opinion in absence of contrary cogent evidence or any fundamental flaw in factual basis for opinion - Appeal dismissed.

Damages - Assessment of damages in tort - Personal injury - General principles governing award of damages - Cross-appellant's contention that trial judge erred in assessing general damages on several grounds including failing to expose reasoning process and making findings unsupported by evidence - Trial judge's award of damages defensible - Cross-appeal dismissed.

ZAB v ZWM [2021] TASSC 64; Mercer v Allianz Australia Insurance Ltd (No 2) [2013] TASSC 35; Raper v Bowden [2016] TASSC 35, referred to.

Respondent: B McTaggart SC, R O'Keefe SC, K Young

Judgment Number: [2025] TASFC 5

1. I agree that the appeal and cross-appeal be dismissed for the reasons outlined by Estcourt J.

1. The appellant has appealed against a judgment of Brett J of 17 June 2024, awarding the respondent $755,475 in damages for the appellant's negligence in carrying out a surgical procedure on her.
2. The appeal asserts that the learned trial judge erred in his findings and reasons as to the questions of both breach of duty and causation of damage. He also challenges his Honour's award of damages for past out-of-pocket expenses and for future domestic assistance. The respondent has cross-appealed, challenging the award of general damages to her for pain and suffering and loss of enjoyment of life.
3. In 2013, the respondent, who was then aged 58 years, was referred to the appellant, a general surgeon carrying out colorectal surgery, in relation to some episodes of anal bleeding. He concluded that the bleeding was caused by internal haemorrhoids and recommended a procedure known as a stapled haemorrhoidectomy (PPH). He subsequently carried out that procedure at the Hobart Private Hospital on 24 September 2013.
4. The learned trial judge gave the following description of the surgical procedure at [7]-[9] of his reasons:

"7 My understanding of this procedure is informed by published articles provided to me, expert evidence and the evidence of the defendant. A manual referred to by the defendant in his evidence, was also provided to me.

6 The procedure uses a circular stapling device to fix the haemorrhoids to the wall of the anal canal with a circle of metal staples. It is performed under general anaesthetic. In a very general overview, the operative technique involves inserting the specially designed stapler into the anal canal for an appropriate distance, and then firing the staples into the wall of the anal canal. Upon firing the staples, the device excises a circumferential strip of redundant tissue just above the haemorrhoids. The purpose of the stapling is to return and fix the haemorrhoid into its correct anatomic position high in the anal canal. The expectation is that eventually fibrotic tissue will grow over the staples ensuring the permanent fixation of the haemorrhoid.

7 Prior to firing the stapler, the surgeon inserts a circumferential purse-string suture just above the apex of the haemorrhoid. The suture draws up redundant mucosa, which is then excised by the firing of the stapler. Because of the manner in which the stapler operates, the placement of the suture is directly related to the final location of the line of inserted staples (the staple line). As will become apparent, the correct placement of the staple line, and the consequences of failure to achieve that placement, are matters central to the resolution of this case.

8 In order to understand the context of the issues relevant to the placement of the staple line, it is necessary to touch upon some of the relevant anatomical features. A feature of importance to this case is known as the 'dentate line'. The dentate line and its anatomical context is described by Professor Anthony Eyers, a colorectal surgeon, who was called by the plaintiff as an expert witness, as follows:

'The anal canal is defined by its relation to the anal sphincter complex, extending from the upper limit of the sphincters (the 'anorectal ring') to their lower limit (the 'anal verge'). The perianal skin (a squamous epithelium) extends into the canal (as the 'anoderm') for about 2cm, where its nature changes at a visible junction, the 'dentate line'. Immediately above the dentate line there is a further 1-2 cm zone of transitional epithelium (which is not clearly distinguishable visually), above which the lining is a columnar mucous epithelium of the type found throughout the remainder of the large bowel. The anoderm has a rich nerve supply, and cutaneous sensation extends above it into the transitional zone for a variable extent, but not into the upper anal canal or rectum'.

9 It is a common theme in the expert evidence, that the correct placement of the staple line is important to the successful outcome of the procedure. This is best described in a joint memorandum prepared by Professor Eyers, and the colorectal expert engaged by the defendant, Associate Professor Margaret Schnitzler, as a result of a court mandated conference of experts conducted on 27 July 2022:

'With PPH there is an optimal level for the placement of the staple line; too high and the procedure loses its efficacy in anchoring the haemorrhoids below, and too low it could impinge on the area of the anal canal with somatic sensation'."

1. No issue was taken at trial with the appellant's selection of a stapled haemorrhoidectomy as the appropriate surgical procedure however, the respondent claimed that the appellant negligently performed the procedure, and as a result she was left with permanent and disabling injury, with ongoing symptoms causing pain and affecting the operation of her bowels and gastrointestinal system. She required a further operative procedure to deal with the impact on her bowel function, namely a loop ileostomy, and this had its own adverse consequences for her. It was alleged that there had also been a severe aggravation of a pre-existing psychological illness.
2. Not only did the respondent not attack the appellant's choice of procedure but she was not able to identify any specific aspect of it performed by him that she said amounted to negligence. Her case was almost wholly a circumstantial case, namely that the line of staples inserted was positioned too low in her anal canal, and that this could only have come about as a result of the negligent performance of one or more of the required steps involved. In other words, as the learned trial judge put it, "proof of the location of the staple line [too low in the anal canal] will enable the Court to draw an inference that the procedure was performed negligently".
3. The appellant did not argue with that general approach. His evidence made it clear that he was aware of the need to exercise care in respect of the performance of the procedure so as to end up with the correct placement of the staple line above the dentate line. And the expert evidence of other colorectal surgeons confirmed that the placement of the staple line was the determinative factor in assessing competence in the performance of the procedure. There was nonetheless a significant issue as to the precise location of the staple line that would justify an inference of negligence.
4. The respondent's case was that the placement of the staple line within two centimetres of the dentate line would establish negligence as such a placement meant that the staples would have been inserted into the transitional epithelium, and thus that the surgeon had not taken sufficient care to avoid that zone. The appellant conceded at trial that such placement was "not ideal in terms of outcome of the operation" but disputed that this necessarily established a lack of requisite care in the performance of the procedure. However, the appellant did concede that "if the staple line has been positioned so low that it crosses or is below the dentate line, then that would be sufficient to support an inference of negligence". (Italics added.)
5. The appellant denied negligence and also denied that the procedure has caused the respondent's ongoing difficulties. There was no real dispute concerning the respondent's ongoing physical and psychological condition, but the appellant denied that it has been caused by the surgery, irrespective of any negligence in its performance.
6. The appellant's argument was that the evidence did not support a causal link between any proved negligence in the performance of the procedure and the subsequent deterioration of the respondent's health. It was contended by the appellant that the respondents ongoing difficulties since the original surgery were explained by the natural progression of her pre-existing conditions, and further or in the alternative, were consistent with the expected consequences of a competently performed stapled haemorrhoidectomy.

The impugned reasoning as to negligence and causation

1. The appellant asserts error on the part of the learned trial judge, in particular in specific paragraphs from his reasons.
2. The first is [46], where his Honour said:

"Mr Read also put to Dr Sitzler the opinion of the joint experts that the true location of the staple line 'would best be determined by a combined digital rectal and proctoscopic examination'. The witness agreed but also expressed the view that the sigmoidoscope used by him was as good as a proctoscope for this purpose. As I have noted, neither party has presented any evidence of the type of examination referred to by the joint experts. However, the plaintiff would argue that Dr Sitzler's combined perianal rectal examination together with further examination with the use of the sigmoidoscope is equivalent to it. This seems to be the effect of Dr Sitzler's evidence. This opinion was challenged but not undermined by cross-examination. It was not the subject of contrary evidence. I accept Dr Sitzler's opinion about this question."

1. It is said of that paragraph that his Honour erred in finding that Dr Sitzler's opinion was not the subject of contrary evidence.
2. The next is [81] where his Honour said:

"Having regard to all of the evidence, I am satisfied on the balance of the probabilities that the defendant inserted the staples in a position which was across or below the anatomical position of the dentate line. In particular, I accept the accuracy of Dr Sitzler's observation, that is that the staple line has been placed over and therefore has obliterated the dentate line. It may well be that this occurred when the mucosa was drawn up by the purse string suture into the stapler head, and that this included the dentate line. This may explain why the staples appear to be higher in the anal canal than the normal anatomical position of the dentate line. In any event, Dr Sitzler's evidence was unequivocal and he was well-placed to make the observation, both in terms of his experience and the thoroughness of the examination. I note again that he conducted both a rectal examination and an internal examination with a sigmoidoscope, an instrument which he equated as equivalent to the proctoscope recommended by the joint experts, in respect of its capacity to permit a view of the relevant internal structures." (Italics added.)

1. It is said of that paragraph that in accepting the accuracy of Dr Sitzler's observations that on the balance of probabilities the appellant inserted the staples in a position which was across or below the anatomical position of the dentate line, his Honour engaged in "impermissible speculation" having regard to the absence of an internal examination of the respondent by Dr Sitzler with a proctoscope.
2. The last of the impugned paragraphs, concerning causation is [72], at which the learned trial judge said:

"Associate Professor Boesel qualified his opinion on the basis that he is 'not a trained colorectal surgeon'. He concedes that this makes it difficult for him to comment on the relationship between a sub optimally placed suture line, and presumably, the relevant nerve damage. At trial, defence counsel objected to his evidence concerning the causal link between the stapled haemorrhoidectomy and the nerve damage on the basis of a lack of relevant expertise. I permitted the evidence but observed that matters such as the absence of internal examination and a lack of expertise in respect of the relevant procedure, would affect the weight to be placed on this opinion."

1. It is said of that paragraph that in permitting the evidence of Dr Boesel concerning the causal link between the stapled haemorrhoidectomy and the nerve damage, his Honour engaged in impermissible speculation having regard to the absence of an internal examination and a lack of expertise in respect of the relevant procedure.

"Mr Read also put to Dr Sitzler the opinion of the joint experts that the true location of the staple line "would best be determined by a combined digital rectal and proctoscopic examination". The witness agreed but also expressed the view that the sigmoidoscope used by him was as good as a proctoscope for this purpose. As I have noted, neither party has presented any evidence of the type of examination referred to by the joint experts. However, the plaintiff would argue that Dr Sitzler's combined perianal rectal examination together with further examination with the use of the sigmoidoscope is equivalent to it. This seems to be the effect of Dr Sitzler's evidence. This opinion was challenged but not undermined by cross-examination. It was not the subject of contrary evidence. I accept Dr Sitzler's opinion about this question"

1. The appellant in his written submissions contends as follows:

"Dr Sitzler gave evidence that a combined perianal rectal examination together with use of a sigmoidoscope is an 'equivalent' examination to that suggested by the conclave experts. The learned trial judge accepted this evidence and said '[t]his opinion was challenged, but not undermined by cross-examination. It was not the subject of contrary evidence'.

That is the first error, identified by ground 1. Dr Patiniotis gave evidence that the view from a sigmoidoscope compared to a proctoscope was '[i]nferior'. He went on to explain that a sigmoidoscope gives a view of the anal canal through a 25 centimetre long tube, only 2 centimetres in diameter, which did not provide as much definition of the tissues. A proctoscope, by contrast, is a short, five to six centimetre speculum that enables very close inspection of the anal canal due to its short length, giving an 'excellent view'.

The evidence of the joint experts was that the true location of the staple line would be best determined by a combined digital rectal and proctoscopic examination. Dr Sitzler's opinion about the equivalence of the sigmoidoscope was plainly the subject of contrary evidence. Ground 1 must be made out.

[46] of the judgment contains a second error. His Honour said that neither party has presented any evidence of the type of examination referred to by the joint experts (combined digital rectal and proctoscopic examination). The defendant did present that evidence, which is then acknowledged in the reasons at [48]."

1. In her written submissions the respondent contends that this ground of appeal fails to recognise that the fundamental issue was whether Dr Sitzler was able to observe the dentate line was obliterated by staples, irrespective of the alleged relative superiority of one instrument or method of examination over another for the purpose of inspecting the anal canal.
2. The appellant submits that the "contradicting" evidence relied upon by the appellant merely relates to the use of a proctoscope rather than a sigmoidoscope to view the anal canal. Most importantly it is submitted, there was no evidence which suggested that the use of a sigmoidoscope, could have led to Dr Sitzler incorrectly identifying the position of the staple line. Moreover, there was no challenge to that finding.
3. As to the second error asserted in par [46] of the learned trial judge's reasons, namely that his Honour erred by stating that neither party presented evidence of the type of examination referred to by the experts, that is to say, a combined digital rectal and proctoscopic examination, the respondent submits that the contention is a misinterpretation of his Honour's reasons as he was clearly referring to a combined digital rectal and proctoscopic examination to locate the staple line.
4. The respondent says that whilst the appellant relies upon his own digital rectal and proctoscopic examination performed on 13 October 2013, he made no record of, nor gave evidence about, observing the dentate line or of any concerns about the position of the staple line, other than finding the staple line was in the anal canal.

1. The respondent's submissions should be accepted.
2. The learned trial judge considered and analysed the whole of the evidence related to this issue and was alive to all of the considerations raised by the appellant.
3. What stands out on my review of that evidence is that there was no evidence that the natural dentate line remained present, and that the staple line was above it after the surgery. It may be that a proctoscopic examination is superior to one using a sigmoidoscope, but no one reached a different finding to Dr Sitzler using the method he used, or any other method. The appellant's own examination using a proctoscope made no observations at all about the dentate line or the relative position of the staple line.
4. His Honour noted at par [49] of his reasons that the appellant did not give any evidence that he was able to observe the dentate line had not been obliterated by the staple line and did not give evidence to contradict Dr Sitzler's observations.
5. His Honour said at [49]:

"In cross-examination, the defendant agreed that there is potential for error in placing the purse-string suture, and in firing the stapler when it is too low in the anal canal. Dr Sitzler's point about the possibility of drawing tissue into the stapler for excision when low in the anal canal which includes some or all of the dentate line, was also put to him. The defendant rejected this, saying that it was 'false'. However, it was not put to him that on his subsequent examinations, he observed a staple line that crossed or lay below the dentate line. In particular, the observation of Dr Sitzler that the staple line had become a new dentate line was not put to the defendant by either counsel".

1. And, it was not suggested to Dr Sitzler that he was mistaken about the absence of the natural dentate line and the relative position of the staple line.
2. Dr Sitzler had been in specialist practice as a colorectal surgeon since about 1996 and there was no evidentiary basis for rejecting the accuracy of his observations made with the aid of a sigmoidoscope regarding the replacement of the dentate line with a staple line. His observations were consistent with his digital examination. He made a contemporaneous record of his observations.
3. The learned trail judge was entitled to prefer the evidence of Dr Sitzler's opinion which was decisive of this issue.
4. I would dismiss ground 1 of the notice of appeal.

"Having regard to all of the evidence, I am satisfied on the balance of the probabilities that the defendant inserted the staples in a position which was across or below the anatomical position of the dentate line. In particular, I accept the accuracy of Dr Sitzler's observation, that is that the staple line has been placed over and therefore has obliterated the dentate line. It may well be that this occurred when the mucosa was drawn up by the purse string suture into the stapler head, and that this included the dentate line. This may explain why the staples appear to be higher in the anal canal than the normal anatomical position of the dentate line. In any event, Dr Sitzler's evidence was unequivocal and he was well-placed to make the observation, both in terms of his experience and the thoroughness of the examination. I note again that he conducted both a rectal examination and an internal examination with a sigmoidoscope, an instrument which he equated as equivalent to the proctoscope recommended by the joint experts, in respect of its capacity to permit a view of the relevant internal structures."

1. Whilst lengthy, it is convenient to set out the appellant's written submissions on this ground in their entirety, as several of them are responded to in the respondent's written submissions by reference to paragraph numbers. They are as follows:

"What was 'all of the evidence', and how and in which way did it tip the balance of probabilities? This is the 'real review' for the Court to conduct, in an appeal under s 46 of the Supreme Court Civil Procedure Act 1932 (Tas). The evidence on this issue comprised:

1. The direct evidence of Dr Sitzler, that he directly observed the staple line and that was a new dentate line. There are obvious issues with that evidence, canvassed in relation to ground 1. Further, Dr Sitzler's observation was made in September 2016 and was not made for the purposes of the proceeding, but was made to clinically evaluate whether the plaintiff needed an ileostomy for her slow transit constipation, a condition which was likely to have been latent before the PPH procedure. Upon his review, Dr Sitzler also remarked '[w]hen I examined her there was really nothing to find'.
2. Professor Eyers put the plaintiff's solicitor on notice of ways to measure the precise location of the dentate line very early, on 19 April 2018. In his first report, he stated that the precise location of the staple line in relation to the anal anatomy could be documented by 'proctosigmoidoscopy with measurement of the anatomical landmarks and/or CT (or, preferably, MRI) scanning'. (Emphasis added.)
3. In this regard, the plaintiff made a curious forensic decision in this proceeding. Despite being on notice since April 2018 of a method pursuant to which the precise location of the dentate line could be confirmed, the plaintiff failed to undergo such an examination. The rule in Jones v Dunkel applies where a party is required to explain or contradict something. Whether an explanation is required depends on the issues in the case as thrown up by the pleadings and the evidence. It has also been described as where it would be natural for one party to produce a witness where the facts would be elucidated. Plainly an explanation was called for: a proctoscopic examination would have likely determined the issue of breach definitively. The failure to call a relevant expert permits an inference that the untendered evidence would not have helped the plaintiff. It entitles the Court to more readily draw the inference that the staples were not at or distal to the dentate line.
4. Although the plaintiff did not seek the best available evidence about breach, there was a medical practitioner who undertook a proctoscope together with a digital rectal examination: Dr Patiniotis. He did so on 9 October 2013 when the plaintiff presented at his rooms complaining of vaginal (but not anal) discomfort. On this occasion, Dr Patiniotis broke down the area of the staple line to express an infected haematoma of pus, including with a proctoscope. His contemporaneous clinical notes describe what occurred. They contain nothing suggesting there was an issue with the location of the staple line.
5. A further examination of the plaintiff by Dr Patiniotis at his rooms on 23 October 2023 indicates that the staples were 'high above the anus' and 'intact'. Although he suspected that the high left-sided vaginal discomfort she was experiencing related to his surgery, he thought it would get better soon and encouraged her to give it four weeks to resolve.
6. Following a digital rectal examination by Dr Mignanelli in November 2014, he reported that there was a 'very low staple line, probably just at or slightly below the anorectal ring'. Dr Mignanelli makes no comment about the proximity of the staples to the dentate line. The anorectal ring is above the dentate line.
7. Dr Mignanelli sought a second opinion from Dr Gall 'really at [the plaintiff's] insistence', which Dr Gall provided in January 2016. The plaintiff informed Dr Gall that she wanted imaging to confirm what she thought was injury to the anorectum during the stapled haemorrhoidectomy. An endoanal ultrasound confirmed 'there is no evidence of injury as a result of the stapled haemorrhoidectomy'. (Emphasis added.)
8. The plaintiff saw Associate Professor Craig Lynch, a colorectal surgeon, in August 2016. Following a manual rectal examination, he reported that 'PR examination demonstrated a good anal tone with a palpable staple line from the previous staple haemorrhoidectomy. I could not identify a defect...'
9. Dr Eyers' report of 19 April 2018 states: 'I do not believe that the staple line was below the dentate line'.
10. A CT scan was taken on 27 June 2018 of the plaintiff's pelvis in an attempt to identify the location of the staples. These images taken were provided to Professor Eyers to analyse. Professor Eyers concluded that the staple line was in the mid-anal canal. Although he concluded that the staple line was too low, his diagram puts the staples in the transitional zone, i.e., no breach.
11. The 27 June 2018 CT scan also provided to Associate Professor Schnitzler for her to provide a joint opinion with Professor Eyers. In that opinion, they stated that:

In the Plaintiff's case, the staple line appears to lie, at least in part, in the upper anal canal. This opinion is based on reviews of CT scans taken of the site following the procedure...

We do not believe that the staple line was positioned distal to the dentate line. This is based on the reports of other practitioners who have examined the plaintiff and our review of the CT scan images.

1. A second CT scan, taken 6 September 2021, was examined by Dr Jones, who concluded that the CT scan accurately shows the position of the staples with respect to the anorectal junction and that '[t]he lowest surgical staple is 7 mm above the dentate line, and all of the surgical staples are grouped around the anorectal line, well above the dentate line'. (Emphasis added.)
2. In August 2019, Dr Greenberg examined the plaintiff by digital rectal examination at the request of her solicitors. He stated '[t]here was no significant stenosis. The staple line from the previous stapled haemorrhoidectomy was low in the anal canal and lower than I would have expected'. However, he declined to give a definitive opinion about the position of the stapled line and its relation to the anal canal, the dentate line and the anatomical landmarks because it required specific instruments, possibly under anaesthesia. For a reason unexplained in the evidence there was no further examination by Dr Greenberg. Again, an explanation as to the true location of the staple line was called for. The call was not answered by the plaintiff. A Jones v Dunkel inference should be made.
3. Again, the plaintiff's failure to submit to an internal examination which would conclusively prove the location of the dentate line was unexplained, when clearly an explanation was called for. This was the key issue in the case. Again, a Jones v Dunkel inference should be made.
4. The procedure is a straightforward one with a number of checks to ensure that it is correctly performed. One of the checks is that the practitioner performing the procedure 'can see the dentate line' through a plastic obturator, such that the stapling tool is placed above the dentate line when it is fired.
5. The straightforward nature of the procedure and the checks during performance is no doubt why Professor Eyers, a colorectal surgeon of some 40 plus years' medical experience, has never seen a patient with a staple line below the dentate line.
6. The final relevant evidence relates to the plaintiff's acute post-operative condition. That evidence is:

(a) According to Professor Eyers, symptoms of severe anal pain, faecal incontinence and irregular bowel habit would be reasonably attributable to staples below the dentate line.

(b) Dr Sitzler said in cross-examination that acute pain would likely be present following the operation.

(c) The contemporaneous records show she did not have this symptom complex. Rather she had bloating, colicky abdominal pain and an inability to open her bowels without significant use of aperients. This symptom complex is are likely to reflect slow-transit constipation and/or obstructed defecation.

(d) Dr Patiniotis' correspondence discloses that the plaintiff 'tolerated the procedure well... and was able to be discharged home day one post op comfortably'.

(e) The Hobart Private hospital notes disclose that on the day following the operation the plaintiff left the hospital without seeing staff, causing staff to telephone the patient.

(f) On 9 October 2013, the plaintiff attended Dr Patiniotis' rooms complaining of vaginal discomfort. On 23 October 2013, Dr Patiniotis reported high left-sided vaginal discomfort, but expected it would resolve. He did not report anal pain.

(g) On 15 October 2013 she presented at the RHH complaining of uncomfortable dragging pain within her vagina. Bowel motion was said to be normal and nil pain in perianal area.

His Honour correctly found that if the staple line was positioned low in the anal canal, 'even within 2cm of the dentate line, but remained proximate [sic] to that line', that would not establish a breach of duty.

The vast majority of the evidence points away from his Honour's conclusion that the staples were across or below the dentate line. The proper conclusion to be drawn from the evidence is that while the staples were possibly in the two centimetre 'transitional zone', they were above the dentate line.

Moreover, the plaintiff had the opportunity to prove the issue definitively by submitting to a digital rectal and proctoscopic examination to identify the precise location of the staples. She did not avail herself of that opportunity. The appellant submits ground 2 must succeed."

1. The respondent submits that none of the matters raised in paragraphs 2, 3, 13 and 14 of the appellant's submissions were raised before the trial judge and therefore ought not to be considered on this appeal.
2. The respondent relies on the authority of Whisprun Pty Ltd v Dixon [2003] HCA 48, 77 ALJR 1598 where Gleeson CJ, McHugh and Gummow JJ made the following observations at [51]-[52]:

"51 It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross‐examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

1. As Water Board v Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings' [Footnotes omitted.]"
2. The respondent says that had these matters been raised at the trial, the trial might have been conducted differently. For example, evidence may have been adduced from Professor Eyers that he was satisfied with the measurements undertaken and with Dr Sitzler's observations.
3. The respondent notes that it was never put to the respondent in cross-examination that she made a forensic decision to not undergo an examination.
4. The respondent says that the purpose of the examination was not therapeutic but to provide further evidence as to the position of the staple line for the purpose of the proceedings. Dr Greenberg commented that the examination is difficult in a medico-legal setting and requires specific instruments or possibly under anaesthesia.
5. The respondent says that in any event, she had no need to undergo such an examination as Dr Sitzler had identified the absence of the dentate line which had been replaced by the staple line.
6. The respondent says that the suggestion that the respondent in some way departed from the recommendations of Professor Eyers is wrong. The respondent called Professor Eyers and he gave evidence about his opinions in this case. It was not put to him in cross-examination that the Dr Sitzler's observations were unreliable and that further examination/measurements were required.
7. Moreover, the respondent says that the type of assessment Professor Eyers referred to was undertaken, that proctosigmoidoscopy was performed by Dr Sitzler and Professor Eyers noted his findings in his report.
8. The respondent notes that in his second report on CT measurement of anatomical landmarks performed by Professor Eyers, it was stipulated that:

"I have made all of the inquiries that I believe are desirable and appropriate to it, and no matters that I regard as relevant and significant have knowingly been withheld from it. I do not believe that the opinions I have expressed are incomplete or inaccurate, and I have not relied on the opinions of any others in arriving at them."

1. The respondent says that Professor Eyers expressed the opinion that CT scans demonstrated that all of the staples that he could see are within the zone that should be avoided, and the staple line was too low.
2. The respondent says that the appellant chose not to have his counsel cross-examine Professor Eyers about the points it now seeks to raise on appeal. The appellant ought not be permitted to agitate such speculative points in this manner.
3. Moving to the balance of the appellant's submissions, the respondent says that all of the material to which the appellant refers to in paragraphs 6 to 12 above was considered by the learned trial judge:
   • Dr Mignanelli at [38]
   • Dr Gall at [39]
   • Endoanal ultrasound result at [39]
   • Professor Lynch at [40]
   • The joint opinion of Professor Eyers and Associate Professor Schnitzler at [35]
   • Dr Jones at [77].
4. The respondent says that the submission made by the appellant at par 9, namely that Professor Eyers reported on 19 April 2018 that he did not believe the staple line was below the dentate line is made without acknowledging that in his subsequent report, he found on examination of CT scan images, that some of the staples were at least three centimetres below the anorectal ring, which could well mean they covered the dentate line.
5. The respondent says that it is erroneous to submit that Professor Eyers' interpretation of the CT scan images put the staple line in the transitional zone which would not constitute a breach of duty. The consensus of evidence, including Professor Eyers, was that the natural dentate line lies 1 to 2 centimetres below the anorectal ring. Therefore, the placement of staples up to three centimetres below the anorectal ring could breach the dentate line.
6. The respondent says that the trial judge had the benefit of observing Dr Sitzler give evidence, albeit by audio visual link, and that this Court ought to recognise that he had the advantage of assessing Dr Sitzler's demeanour when giving evidence of an actual recollection.
7. As with ground 1, the respondent submits that the learned trial judge was entitled to accept the direct evidence of Dr Sitzler. It was based on his actual recollection of his observations made during his assessment of the respondent. The respondent submits:

"That evidence was far more probative of the issue than the imprecise and generalised comments contained in some records made by medical practitioners who the defendant did not arrange to give evidence. The defendant did not call Dr Mignanelli, Dr Gall, Dr Lynch nor Associate Professor Schnitzler who he had engaged to provide reports and who was an author of the joint report."

1. The respondent submits that the trial judge correctly weighed Dr Sitzler's evidence against the other evidence before he determined the ultimate factual issue, namely the location of the staple line at [81-82] of his Honour's reasons and that there was no error in his approach. Dr Sitzler was an expert with no interest in the proceedings. He recalled his consultations with the respondent and was able to give unequivocal evidence regarding the non-existence of the dentate line.
2. The respondent also submits that there was other evidence that was consistent with Dr Sitzler's findings, namely:
   • The alteration in the pattern of defecation and/or development of perianal pain, of which the respondent had never complained in the past, was a relevant factor which the trial judge was entitled to and did accept. His Honour considered the records of complaints and evidence of post operative symptoms in detail and the appellant's submissions in relation to same at [56] to [75].
   • His Honour also considered and accepted the evidence of a pain specialist, Professor Boessel, regarding the relationship between nerve damage in the anal canal and the "pace of development and the experience of that symptomatology by the patient". This was a finding his Honour was entitled to make.
3. The respondent also says that the report of Dr Mignanelli, colorectal surgeon, dated 6 November 2014, in which he stated "digital rectal examination showed a very low staple line, probably just at or slightly below the anorectal ring" was ambiguous.
4. And further, the respondent submits, the radiological opinion of Dr Jones, was of little weight. The trial judge considered his evidence in detail at [76] to [80]. He acknowledged that Dr Jones had claimed that analysis of a CT scan of the anal canal and rectum, obtained on 27 June 2018, could provide more accurate assessment of the position of the staples compared to a manual examination (at [77]). His Honour referred to Dr Jones's evidence that the staples were placed at least 7mm above the dentate line but then, correctly, acknowledged that in cross-examination Dr Jones had conceded that:
   • A CT scan does not enable him to view the dentate line (at [78])
   • He was not able to see the dentate line on CT scan and was thus unable to exclude a hypothesis based on Dr Sitzler's evidence, that the dentate line had been pulled into the stapler and excised during the procedure (at [78]).
5. The respondent observes that the learned trial judge then noted the parties submissions about Dr Jones's evidence and the absence of cross-examination and found, implicitly, that such evidence did not detract from the accuracy of Dr Sitzler's observations (at [81]), noting that the findings of Dr Jones that staples may be higher in the anal canal than the expected position of the dentate line, may be explained by the fact that the mucosa was drawn up by the purse string into the staple head including the dentate line, and resected. Given anatomical variability in the precise position of the dentate line, Dr Jones was not entitled to assume a fixed or accurate location for the respondent's dentate line on CT images. Further, the CT images he reviewed were post-surgery, in circumstances where, according to Dr Sitzler, there had been alterations to the anatomy of the anal canal.
6. The respondent submits that the learned trial judge was entitled to accept Dr Sitzler's evidence and to draw inferences from the whole of the evidence, including the development of post operative symptoms and that his Honour ultimately concluded that Dr Sitzler's evidence was unequivocal and he was well-placed to make the observation both in terms of his experience and the thoroughness of his examination (at [81]). His Honour weighed the contradicting evidence but was not satisfied that it displaced the accuracy of Dr Sitzler's observations (at [82]).
7. Finally on this ground, the respondent submits that it is inaccurate to make the submission made at par 15 of the appellant's submissions, namely, that the procedure was straightforward. The appellant gave evidence that there is the potential for errors in the performance of the procedure in the placement of the purse string suture, the drawing of too much tissue from the lower anal canal into the device and the potential for error in firing the stapler when it is in too low a position.

1. Leaving aside the appellant's submission that a Jones v Dunkel inference should be drawn as a result of the respondent not having undergone a proctoscopic examination, much of what I said in relation to ground 1 of the notice of appeal has similar application in relation to this ground. Again, in my view the respondent's submissions should be accepted.
2. It is correct, as the respondent says, that all of the material to which the appellant refers in paragraphs 6 to 12 of his written submissions set out above, was considered by the learned trial judge, but in my view, the respondent's case was not an entirely circumstantial case. The appellant conceded that if the staple line has been positioned so low that it crossed or was below the dentate line, then that would be sufficient to establish a breach of duty. The evidence of Dr Sitzler was direct evidence of negligence. It was based on his notes of his actual observations made during his assessment of the respondent. As the respondent submits:

"That evidence was far more probative of the issue than the imprecise and generalised comments contained in some records made by medical practitioners who the defendant did not arrange to give evidence. The defendant did not call Dr Mignanelli, Dr Gall, Dr Lynch nor Associate Professor Schnitzler who he had engaged to provide reports and who was an author of the joint report."

1. I agree that the trial judge correctly weighed Dr Sitzler's evidence against the other evidence before he determined the ultimate factual issue, namely the location of the staple line, (at pars [81-82] of his Honour's reasons), and that there was no error in his Honour's analysis. Dr Sitzler gave unequivocal evidence regarding the non-existence of the dentate line, which itself was, in the circumstances of this surgical procedure, proof of negligence. As observed by his Honour, Dr Sitzler's opinion was challenged but not undermined by cross-examination and his actual recorded observations were not the subject of contrary evidence.
2. I also agree with the respondent that there was circumstantial evidence that was consistent with Dr Sitzler's direct evidence, namely, the alteration in the respondent's pattern of defecation and the development of perianal pain, of which the respondent had not complained prior to her surgery, and the learned trial judge was entitled to accept the evidence of Professor Boessel, regarding the relationship between nerve damage in the respondent's anal canal and the "pace of development and the experience of that symptomatology by the patient".
3. On my own review of the evidence, I also accept that the report of Dr Mignanelli dated 6 November 2014, in which he stated "digital rectal examination showed a very low staple line, probably just at or slightly below the anorectal ring" was inconclusive and that the radiological opinion of Dr Jones that the staples were placed at least 7mm above the dentate line, was of little weight when he acknowledged in cross-examination that a CT scan did not enable him to view the dentate line, and he was thus unable to exclude Dr Sitzler's evidence, that the dentate line had likely been pulled into the stapler and excised during the surgery. In any event, the CT images Dr Jones reviewed were post-surgery, in circumstances where, according to Dr Sitzler, there had been alterations to the anatomy of the anal canal.
4. Finally, I reject the submission made by the appellant at paragraph 9 of his written submissions set out above, namely that Professor Eyers' evidence, as set out in his report of 19 April 2018, was that he did not believe that the staple line was below the dentate line, when it is made without acknowledging that in his subsequent report, Professor Eyers stated that he found on examination of CT scan images, that some of the staples were at least three centimetres below the anorectal ring.
5. The learned trial judge was entitled to accept Dr Sitzler's evidence and to draw supporting inferences from other evidence, including the development of post operative symptoms by the respondent. His Honour, at pars [81]-[82] weighed all of the potentially contradictory evidence but was not satisfied that it displaced the accuracy of Dr Sitzler's observations. He was entitled to conclude, as he did, that Dr Sitzler's evidence was unequivocal, and that he was well-placed to make the observations he did, both in terms of his experience and the thoroughness of his examination.
6. I do not accept the appellant's submission that a Jones v Dunkel inference should be drawn as a result of the respondent "having made a forensic decision not to undergo a proctoscopic examination". The circumstances described on behalf of the appellant are esoteric and the proposition was not put to the respondent. There is no evidence that her decision was a forensic or tactical decision. Moreover, the purpose of the examination was not therapeutic, it involved anaesthesia and the respondent had no need of further evidence when Dr Sitzler had identified the absence of the dentate line which had been replaced by the staple line.
7. The respondent says that had these matters been raised at the trial, the trial might have been conducted differently. For example, evidence may have been adduced from Professor Eyers that he was satisfied with the measurements undertaken and with Dr Sitzler's observations. Thus, this is not a case where it can be said that the point could not possibly have been met by cross-examination or rebutting evidence. In any event, in my view, it would not be in the interests of justice to allow the point to be raised on appeal, when the evidence of Dr Sitzler, called by the respondent was unequivocal and not contradicted.
8. I would dismiss ground 2 of the notice of appeal.

"Associate Professor Boesel qualified his opinion on the basis that he is "not a trained colorectal surgeon". He concedes that this makes it difficult for him to comment on the relationship between a sub optimally placed suture line, and presumably, the relevant nerve damage. At trial, defence counsel objected to his evidence concerning the causal link between the stapled haemorrhoidectomy and the nerve damage on the basis of a lack of relevant expertise. I permitted the evidence but observed that matters such as the absence of internal examination and a lack of expertise in respect of the relevant procedure, would affect the weight to be placed on this opinion."

1. Associate Professor Boesel prepared an expert report, following his examination of the respondent on 30 March 2021. He took a history from her, and he conducted an external examination. He conceded that he was not a colorectal surgeon and therefore, it was difficult for him to comment on the relationship between a sub optimally placed suture line and the respondent's pain.
2. He expressed the following conclusions:

"Based on my findings today, I believe that Ms Garling has a chronic pain disorder. This consists of the following:

• - Perianal nerve injury (inferior anal nerve) likely sustained during haemorrhoidectomy leading to perianal neuralgia, with secondary sensitisation affecting other territories innervated by the pudenal nerve including the perineum and vagina. There is secondary sensitisation of her bladder.

The patient has a neuropathic pelvic floor syndrome. This was not present prior to her surgical management. This consequently suggests a causal relationship.

Please note that I am not a trained colorectal surgeon, my expertise lies in the diagnosis and management of chronic pain disorders. It is therefore difficult for me to comment on the relationship between sub optimally placed suture line as identified in the report of Professor Eyres...".

1. The respondent's counsel objected to the admission of Associate Professor Boesel's evidence, but the learned trial judge admitted it. At [111] of his reasons, his Honour said:

"111 I also accept the opinion of Associate Professor Boesel. He conceded that he is not able to identify the mechanism by which damage has been caused and in particular, is not in a position, having regard to the extent of his expertise, to relate the nerve damage to the placement of the staple line. However, he was able to identify the existence of nerve damage, and with his expert understanding of the symptoms associated with such damage, was able to infer the existence of a causal link by virtue of the temporal coincidence between the operation and such symptoms, in particular pain. This is consistent with the view of the colorectal experts, who also were not able or prepared to identify the mechanism of injury and causation of consequence with precision, but accept the probability of the causal link."

1. The appellant submits that s 79(1) of the Evidence Act 2001 states:

"If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."

1. The appellant submits that, as Gleeson CJ observed in HG v R [1999] HCA 2; (1999) 197 CLR 414 at [39], s 79 has the practical effect of emphasising the need for attention to requirements of form. The section requires an opinion to be presented in a form which makes it possible to answer whether an opinion is wholly or substantially based on specialised knowledge based on training, study, or experience. At [44], his Honour said:

"This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture 'opinions' (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided."

1. The appellant submits that in reaching his conclusions on causation, Associate Professor Boesel "inferred the fact of causation, by virtue of the temporal coincidence of the operation and the plaintiff's symptoms". The appellant argues that he had no specialised knowledge, based on his study, training and experience which allowed him to draw that inference of fact.
2. The appellant notes that at [109] of his reasons, and having just examined the principles relevant to circumstantial evidence, his Honour stated that:

"Having regard to the whole of the evidence, and applying the principles set out above, I am satisfied on the balance of probabilities that the breach, that is the placement of the staple line over the dentate line, which necessarily involved staples placed low in the anal canal, and the excision of material from that area which included the dentate line, is the cause of the nerve damage diagnosed by Associate Professor Boesel, and the harm experienced by the plaintiff as a result of this damage...".

1. The appellant observes that there was no direct evidence on the fact of causation in as much as no expert stated that the breach, the location of the staples, was harm that was a necessary element of the respondent's alleged symptoms, so that his Honour was left to rely on the respondent's circumstantial case as the question remained whether his Honour was properly able to infer the temporal connection himself.
2. The appellant submits that a review of the whole of the evidence discloses the following matters.
   • The evidence of the joint experts was that placement of the staples sub-optimally could (but will not necessarily) impinge in the area of the anal canal with somatic sensation.
   • According to Professor Eyers, symptoms of severe anal pain, faecal incontinence and irregular bowel habit would be reasonably attributable to staples below the dentate line. However, bloating, colicky abdominal pain and an inability to open her bowels without significant use of aperients are more likely to reflect slow-transit constipation and/or obstructed defecation. It is known that the respondent had a gastrointestinal motility disorder (slow transit constipation) since 2003. Dr Sitzler also said in cross-examination that acute pain would likely be present following the operation.
   • At trial, the respondent told the Court that she experienced anal pain following the operation. The Court should be wary to accept that recollection without noting that the respondent was often described by experts and treating practitioners as a poor historian, confusing, or someone who had a tendency to give complicated and "rambling" histories.
   • Some of the respondent's symptoms were experienced before the procedure. The respondent has admitted to her GP some faecal incontinence prior to the haemorrhoidectomy, suggesting one of the symptoms noted by Professor Eyers does not necessarily bear a causal relationship with the procedure. The respondent admitted in cross-examination that she had trouble defecating since April 2002.
   • The contemporaneous records do not disclose acute and severe anal pain, which the experts indicated would be expected if the staples were placed at or below the dentate line.
   • The notes of the respondent's general practitioners disclose vaginal discomfort and a dragging sensation in the rectovaginal area in the month after the operation. On 15 November 2013, there is a note reflecting that the respondent's vaginal discomfort had improved. In December 2013, she complained of increasing reflux, bloating, incomplete evacuation, belching and abdominal pain (all symptoms associated with a motility disorder). There is a marked absence of notes recording anal pain.
   • In June 2014, the respondent again presented to her GP, who recorded that the respondent had "[p]ain in pelvis since a fall in the bathroom on 4/6/2014". In September 2014, her GP queried whether she had torn tendons in her pelvis. It is at this stage there is a mention of the respondent having pain in her 'rectal area' following the operation and difficulty sitting down. The development of the symptomatology is, however, unclear. The treating practitioner specifically noted "[h]ard to follow the history, all over the place".
   • Following the haemorrhoidectomy, the first specialist who the respondent saw was Dr Mignanelli. His notes in late 2014 and early 2015 record abdominal pain, obstructed defecation, tenesmus and issues emptying her bowel, including perianal leakage. He noted an inability "to sit down because of discomfort for at least a couple of months following that operation" but not acute and ongoing pain specifically in the anus.
   • Dr Gall's correspondence of April 2016 records chronic anal pain which the respondent attributed to the haemorrhoidectomy. It also suggests that the respondent's faecal incontinence is attributable to her overuse of laxative. Dr Gan's correspondence of July 2016 report constipation, abdominal pain, "anal discomfort", nausea and vomiting and incontinence from excessive laxative use.
   • Associate Professor Lynch's correspondence of August 2016 does not disclose anal pain at all, though it does disclose abdominal pain, bloating and belching. Again, these symptoms are not attributable to the procedure, but to gastrointestinal motility issues.
   • Associate Professor Brown's correspondence of October 2016 discloses nausea, regurgitation, and vomiting as prominent symptoms. They do disclose pelvic floor discomfort which the respondent attributes to residual staples, but not anal pain.
   • The symptoms which the respondent reported to Dr Keck in November 2016 were "difficulty with bowel evacuation even when her stools were loose, infrequent bowel movements, bloating and belching, crampy abdominal pain and occasional anal pain."
   • Dr Gall's later correspondence of May 2017 notes mainly abdominal symptoms, including bloating, discomfort, nausea and regurgitation. He noted "[t]here is intermittent anal pain".
   • The respondent was seen in person by two experts in this proceeding, Dr Greenberg and Associate Professor Boesel. This history which the plaintiff reported to them is quite different to what she reported to her clinicians at the time. Dr Greenberg remarks in his report that "[f]ollowing the stapled haemorrhoidectomy, Ms Garling developed severe perianal pain", which she asserted was "ongoing". It appears his remarks were made following him taking an oral history from the respondent.
   • The respondent's past medical history reported to Associate Professor Boesel does not reflect the extent of her condition, as otherwise recorded in her general practitioner notes. Associate Professor Boesel stated "[s]he told me that she had ongoing perianal pain from very early on in the postoperative period, which has continued and gradually worsened over time...". It does not appear that Associate Professor Boesel was given the respondent's medical records. His list of the respondent's past medical conditions is remarkably short, given the contemporaneous medical records.
3. The appellant argues that, having regard to the whole of the evidence, there is no temporal connection between the haemorrhoidectomy and the primary symptom of which the respondent now complains: perianal pain. Because of the absence of relevant pain post-operation, there is no place to resort to the Latin phrase post hoc ergo propter hoc [after this, therefore because of this].
4. The appellant argues that it is curious that following the haemorrhoidectomy and in the period prior to the commencement of this proceeding, the respondent saw no less than eight colorectal specialists for clinical treatment. She saw no less than three gastroenterological specialists. Many physically examined her. Although some remarked that the staples were below the anorectal ring, none remarked that the location of the staples were the cause of her complaints.

1. The respondent submits that it is trite law that an expert is entitled to express opinions based upon the making of assumptions and that no expert evidence is based exclusively on the expert's training, study, or experience. The submission runs that all fields of specialised knowledge assume observations and knowledge of everyday affairs and events, and departures from them, it being the added ingredient of specialised knowledge to the expert's body of general knowledge that equips the expert to give their opinion (see Lang v The Queen [2023] HCA 29 at [435]; Kiefel CJ and Gageler J at [12]; Velevski v The Queen [2002] HCA 4 at [158].
2. The respondent submits that Associate Professor Boesel possessed the requisite expertise to comment on the cause of the respondent's symptoms. He explained that he is a pain medicine specialist with expertise in neuropathic pain and is able to diagnose neuropathic pain in any region of the body.
3. The respondent notes that senior counsel for the appellant initially objected to his expertise and further evidence of his expertise was adduced de bene esse. He then conceded Associate Professor Boesel's expertise to diagnose neuropathic pain in any region of the body and to diagnose musculoskeletal pain secondary to pelvic pain.
4. The respondent observes that the learned trial judge ruled as follows:

"I'm going to allow that evidence but I note the evidence is to be taken with the explanation that he's given as to what it means. He is not purporting to express an opinion that anything to do with the - he's not saying he's an expert in the anatomy or the procedures involved in what - in the process that was conducted. He's expressing opinion as a pain expert based on deductions or inferences he's drawn from the existence of pain, something that he is an expert in.."

1. The respondent submits that Associate Professor Boesel's opinion was based upon his synthesis of the information available to him, including the fact the PPH occurred, the temporal relationship between the PPH and the onset of and progression of symptoms and his findings on external examination. As he noted in his own words:

"All the relationships between chronic pain and injury are complex and is biologically overdetermined, and there are changes that occur in the periphery, in the spinal cord and in the brain. So it can sometimes be a very difficult area and the entire medical profession struggles with causality issues. I attributed causality to the surgery by the nature of the history presented by the patient to me at the time of assessment...

So your opinion as to causal relationship is based purely on her history?...

It's based on the history and the subsequent examination findings that there are sensory alterations in the area of reported pain.

And the absence of any other causative event? That's correct."

1. The respondent notes that in relation to sustaining a perianal nerve injury during the PPH, Associate Professor Boesel commented that his opinion is based on the fact that the respondent had no pain in this region reported prior to the surgery and had pain from early on in the post operative period, so it follows logically that something occurred during the surgery and induced her pain.
2. And the respondent notes that Associate Professor Boesel noted that the temporal relationship between the current presentation of the respondent and the surgery was important, and that the respondent had not reported a similar pattern of pain prior to the haemorrhoid operation. The respondent says that this is substantiated as there is no history of any perianal pain prior to September 2013.
3. The respondent observes that when expressing an opinion about the neuropathic pelvic floor pain syndrome, Associate Professor Boesel commented that he could find a causal relationship between that and her surgical management based on temporal factors and the subsequent clinical picture that she has lost sensory function and she has pain. His opinion as to the causal relationship was based upon the history and the subsequent examination findings of sensory alternations in the area of reported pain and the absence of any other causative event.
4. The respondent submits that it was also of importance that Associate Professor Boesel commented that it was difficult to quantify whether a person should suffer immediate post operative pain noting, that there are patients who present with numbness in the first instance after nerve injury and then the pain symptoms gradually evolve over time. So, he commented, it depends on the extent to which the nerve is injured, and it depends on other factors, for example the way the pain was treated in the post operative setting with analgesic medications, and it can also reflect changes in the nervous system that occur cumulatively over time.
5. The respondent submits that Associate Professor Boesel discounted any other type of injury that could be a cause for the abnormal sensation which he observed on examination and for the pain which the respondent complained of, and he rejected the proposition it could have been due to an episiotomy scar, nor hysterectomy, nor hernia repair.
6. The respondent also notes that there was literature to support the finding of causation, contained in the journal article titled "Hemorrhoidopexy versus Milligan-Morgan Hemorrhoidectomy" in which the authors noted that, as with conventional surgery, anorectal dysfunction can occur after stapled hemorrhoidopexy in some patients.
7. The respondent submits that the learned trial judge noted the limitations with Associate Professor Boesel's expertise with respect to colorectal disorders at [72-75] of his reasons but nevertheless, the trial judge was entitled to accept his expertise in identifying and diagnosing nerve damage.
8. And the respondent notes that his Honour, at [111] of his reasons, considered Associate Professor Boesel's opinion in conjunction with the opinions of the joint colorectal experts, noting that in this case it was not possible to identify precisely the mechanism of injury but that a causal link was probable.

1. It is instructive to set out pars [71]-]75] and [111] of his Honours reasons. They are as follow:

"71 Associate Professor Boesel expressed the opinion that there is a causal relationship between the haemorrhoidectomy and the neuropathic pain syndrome. He diagnosed perianal nerve injury which he opined was 'likely sustained during haemorrhoidectomy'. He found the nerve injury to have led to a pain disorder which he described as "a neuropathic pelvic floor pain syndrome". He went on to say:

'This was not present prior to her surgical management. This consequently suggests a causal relationship.'

1. Associate Professor Boesel qualified his opinion on the basis that he is 'not a trained colorectal surgeon'. He concedes that this makes it difficult for him to comment on the relationship between a sub optimally placed suture line, and presumably, the relevant nerve damage. At trial, defence counsel objected to his evidence concerning the causal link between the stapled haemorrhoidectomy and the nerve damage on the basis of a lack of relevant expertise. I permitted the evidence but observed that matters such as the absence of internal examination and a lack of expertise in respect of the relevant procedure, would affect the weight to be placed on this opinion.
2. Associate Professor Boesel was cross-examined about his opinion as to a causal link between the hemorrhoidectomy and the pain syndrome. In particular, Mr Read asked Associate Professor Boesel whether, if a nerve had been injured in the operation, he would expect 'that as the person came out of anaesthetic they would suffer greater pain than the operation would ordinarily impose on them'. Associate Professor Boesel's answer was:

'It is difficult to quantify .... There are patients who present with numbness in the first instance after nerve injury and then the pain symptoms gradually evolve over time. So it depends on the extent to which the nerve is injured and it depends on other factors, for example, the way the pain was treated in the postoperative setting with analgesic medications and it can also reflect changes in the nervous system that occur cumulatively over time.'

1. There was other cross-examination concerning subsequent procedures, and whether they might account for the plaintiff's ongoing reports of pain. The effect of Associate Professor Boesel's response, in my view, was a concession that they could but he relied heavily on the temporal history of the pain, that is an absence of similar pain prior to the stapled haemorrhoidectomy, and its development after it.
2. I accept Associate Professor Boesel's opinion as expressed in this evidence. There is no question that his expertise is not in the procedures related to treating haemorrhoids with stapled haemorrhoidectomy. However, he has considerable expertise in identifying and diagnosing nerve damage and the symptomology associated with it. This must include the pace of development and the experience of that symptomology by the patient. There is no question that the colorectal experts are well-placed to identify the correct procedure and the relationship of the procedure to the anatomy within the anal canal and associated structures. They can undoubtedly speak from experience as to symptoms associated with aspects of that procedure, including the misplacement of staples. However, in my view, Associate Professor Boesel's expertise in respect of nerve damage and associated pain is superior to that of the colorectal experts...
3. I also accept the opinion of Associate Professor Boesel. He conceded that he is not able to identify the mechanism by which damage has been caused and in particular, is not in a position, having regard to the extent of his expertise, to relate the nerve damage to the placement of the staple line. However, he was able to identify the existence of nerve damage, and with his expert understanding of the symptoms associated with such damage, was able to infer the existence of a causal link by virtue of the temporal coincidence between the operation and such symptoms, in particular pain. This is consistent with the view of the colorectal experts, who also were not able or prepared to identify the mechanism of injury and causation of consequence with precision, but accept the probability of the causal link."
4. In my view the learned trial judge did not err in admitting the evidence of Associate Professor Boesel on the basis and for the purposes which he did. Even if he was not, he would have been entitled to take that evidence, minus the opinion as to the causal link, and arrive at the same conclusion himself based on the whole of the evidence as to the onset of symptoms and the lack of any other identified cause for the respondent's pain.
5. As to the appellants submissions as to the respondent's lack of reliability as a historian and a witness, the learned trial judge saw and heard the respondent and was better placed than I am to assess the value of her evidence, both as to her symptoms immediately post operatively and thereafter.
6. His Honour employed orthodox reasoning in a case which merely required satisfaction on the balance of probabilities. If his Honour had not accepted the respondent's evidence to the extent required for satisfaction as to the truth of the history given to Associate Professor Boesel, then his Honour would not have been able to infer the requisite causal relationship between the breach and the harm (or, assuming he correctly admitted that the expert opinion evidence of the associate professor, to have accepted that opinion).
7. And, if his Honour had reached the view that a lack of reporting by the respondent of specific pain post-surgery affected the verisimilitude of the history given by her to Associate Professor Boesel, he would not have found in favour of the respondent. It is clear from a reading of his Honour's reasons that he was alive to this issue. He had the benefit of seeing and hearing the witnesses, and the inferences necessary for his findings as to causation were clearly open to him to draw. And on my review of the evidence he was right to do so.
8. In addition, of course his Honour had the evidence of Associate Professor Boesel's examination findings of sensory alternations in the area of pain reported by the respondent, and the absence of any other causative event.
9. The arguments advanced by the appellant as noted above in the series of bullet points set out at [74], are all well made but they are substantially the same arguments made to his Honour at trial. They are not unassailable, and his Honour was not obliged to accept the appellant's case theory.
10. I would dismiss ground 3 of the notice of appeal.

1. The appellant, somewhat brashly asserts in relation to this issue, that "even the learned trial judge expressed doubt about his own conclusion".
2. The appellant submits at [139] of his Honour's reasons that he said that the evidence supporting the claim for medical expenses was "vague and unsatisfactory" but, having decided for the respondent on liability, "it seems his Honour felt that the plaintiff should receive an award, and said he was limited to a 'broad brush' approach".
3. The appellant submits that the respondent bore the onus of proving that she had suffered damage and the amount of loss which was sustained but notes, relying on Luntz and Harder, Assessment of Damages for Personal Injury and Death (5th ed, 2021, Lexis Nexis) at [4.2.1]; and Lumley v Sainsbury [2017] ACTSC 40 at [69].:

"Of course, where there has been a loss of some sort, the law does not permit difficulties of estimating loss to defeat the only remedy, being an award of damages. There must, however, be a sufficient basis for the estimate. A judge is not free to make something out of nothing, or to find loss established where there was an insufficient basis upon which to do on the evidence. It has been said that a plaintiff must prove the extent of the loss on the balance of probabilities with as much precision as the subject matter reasonably permits. Moreover, the services claimed must be reasonable in type and number."

1. The appellant says that the respondent has claimed:
   • $29,209.45 based on what was shown in a Medicare notice of past benefits, dating from 23 September 2013.
   • $52,565.05 based on an HCF statement, which the plaintiff had '"ticked" to indicate which services related to her injury.
   • $18,720 for medication costs, which was an estimate only and totally unsupported by documentary and oral evidence.

Taking a broad brush approach, his Honour discounted the total amount claimed of approximately $100,000 by 50%, to $50,000.

1. The appellant submits that this is not a case where his Honour erred in exercising a discretion, but rather, his Honour erred because the respondent failed to prove the link between her injury and the expenses claimed, and she failed to explain why they were reasonable in type and number. The appellant submits that no damages should not be allowed under this head.

1. The respondent submits that her evidence regarding out-of-pocket expenses was general in nature but it was capable of justifying the award. She says that her evidence included:
   • Evidence that she consulted with doctors at Lindisfarne Medical Practice and Sandy Bay practice for her symptoms after 2013.
   • Continuation of symptoms after 2013.
   • Consultation with medical specialists during 2014, 2015 and 2016 due to symptoms following the PPH.
   • The identity of the various specialists was confirmed - Dr Mignanelli, Dr Gall, Dr McCulloch, Dr Jackson, Professor Keck, Dr Brown, Dr Sitzler.
   • The link between the loop ileostomy procedure and her PPH related symptoms.
   • Deterioration in mental health after the PPH leading to consultations with a psychologist and prescription of Escitalopram and Seroquel.
   • Since the PPH the respondent has taken Endone, Gastro Stop, Quetiapine, and Motilium.
   • She had consulted with the doctors identified on the Medicare notice of Past Benefits because of the complications of the PPH.
2. The respondent points out that the appellant then conceded during a discussion between the learned trial judge and counsel for the respondent, that the Private Health Insurer's Statement of Benefits would also be admitted into evidence on the basis that it was the respondent's belief that all the items of expenditure were paid for medical treatment of the respondent, which she believed was required because of the PPH.
3. The respondent submits that in the absence of any cross-examination the award was reasonable and appropriate taking into account the finding that the respondent's compensable injuries comprised:
   • Proctalgia;
   • Psychological injury
   • Chronic pain disorder
   • Aggravation of slow transit constipation
   • Performance of ileostomy with stoma and hernia formation.
4. The respondent annexed to her written submissions to this Court a schedule prepared specifically for this appeal which cross-references medical expenses which are specified in the Medicare Notice of Past Benefits and the Private Health Insurer's Statement of Benefits that were tendered at trial, with references in the evidence to treatments which the respondent pursued for her compensable injuries.
5. The respondent says that the schedule demonstrates there was evidence before the Court to justify the amount awarded for past out-of-pocket expenses and that although the evidence was imperfect, the trial judge correctly allowed an approximated sum for past out-of-pocket expenses.
6. The respondent says that this is consistent with authorities to the effect that the Court may draw inferences concerning the costs of medical treatment and may apportion loss between tortious and non-tortious causes (Layton v Walsh (1978) 19 ALR 594; Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 125 per Sugarman AP at 125-126 and State of NSW v Skinner [2022] NSWCA 9.

1. I accept the respondent's submissions. It is true that the respondent bore the onus of proof but to my mind, the respondent's schedule demonstrates that the essentials of that proof were in evidence and in the absence of any cross-examination by the appellant to identify expenses that were not related to the respondent's compensable injuries, the learned trial judge was entitled to take the course he adopted.

1. The appellant submits that at paragraph [157] of the reasons, his Honour identified "the real issue" on this head of damage as "the question of causation".
2. The appellant says that was an error because there was another, logically anterior issue, namely "what was the plaintiff's (sic) reasonable need for future domestic assistance?" The appellant says that the answer to that question is "the reasonable cost of meeting the need which is the measure of damages, which, in turn, is tempered by whether meeting the need - given the cost - is reasonable".
3. The appellant says that Erica Skibby and Verity Coulter, both occupational therapists, gave joint evidence that the respondent would require future domestic assistance for 12 hours per week for the rest of her life, which they estimated would cost $65.17 per hour. That is reflected in his Honour's reasons at [157]-[158] where he said:

"157 The final head of damages is in respect of future domestic care and assistance. This is the subject of agreement between the occupational therapists. They agree that the plaintiff will require future domestic assistance for 12 hours per week for the rest of her life. They have agreed on an average hourly cost of $65.17. They also agree that with this care the plaintiff should be able to continue living independently in the community for the near future. The plaintiff's claim is based on this agreement, and although Ms Skibby was cross-examined, there was no challenge concerning the agreed position in this regard. The real issue is the question of causation. I again use the same methodology as with other types of future cost, which essentially is to apply a significant discount to accommodate contingencies, including the effect of pre-existing conditions. Once again, because of the length of assessment of this claim and its broad nature, I think it appropriate to apply a discount of 40%.

158 The appropriate calculation is $782.04 x 685.6 = $536,166.62."

1. The appellant points out that the joint experts do not identify what would take up that time of 12 hours, other than a general reference to "combined domestic, personal and protective care, and transport".
2. The appellant points out that the respondent gave evidence-in-chief that she lives in a one bedroom, one bathroom unit in Claremont and that she previously received care from Anglicare, which she stopped because she had "given up" on herself and was embarrassed about the state of her house. She said that the Anglicare carer did one hour of washing up, hanging the clothes on the line and vacuuming. She also said that there were other things that needed doing in her house, such as "cleaning the bath and the shower recess and probably putting the washing on, the clothes".
3. The appellant submits that "it is hard to see how she could need 12 hours of care each week, to maintain a one-bedroom home unit. Indeed, although she had received it; she rejected it. This is hardly indicative of need".
4. The appellant submits the Court must not delegate its assessment of the respondent's need to a third party expert and simply accept the opinion, as the learned trial judge did. The appellant submits that if "an expert's opinion is not supported by the admissible evidence (eg, the testimony of the plaintiff), the opinion may have little or no value".
5. The appellant submits that the evidence discloses a maximum need of two hours a week and that "given the parlous state of the plaintiff's health absent the surgery, the counterfactual suggests that two hours would be needed, in any event".

1. The respondent points out that these damages were based on the joint opinion of the expert occupational therapists and that the learned trial judge's approach was a broad brush one, namely to discount the agreed assessment by the occupational therapists by 40% to take into account conditions which the judge found were not related to the negligence, and would have required some assistance in any event.
2. The respondent says that this was a significant discount and amply reflected the finding that some of the claimed injuries, including musculoskeletal injuries, were not compensable.

1. The respondent's submissions should be accepted. The learned trial judge was not obliged to accept the joint opinion of Ms Skibby and Ms Coulter simply because it comprised expert evidence or because it was a joint expert opinion. But he was entitled to accept it in the absence of other cogent evidence or some fundamental flaw in the factual basis for the opinion.
2. It is of note that in his closing address to his Honour, counsel for the appellant said:

"Your Honour, the opinions of Ms Skibby, the occupational therapist, we say have little or no weight , because she assumed that all of the problems reported by Ms Garling were the result of surgery, and it's pretty easy to see that this lady could do with some help in her current condition. The real question is, what's that got to do with the surgery?"

1. Counsel then said that the respondent had given preferable evidence that previously she only needed one hour a week and that she ultimately rejected that, albeit because of embarrassment at her situation.
2. I do not regard that evidence as undermining the joint expert opinion and I detect no error in the learned trial judge taking the approach that he did in discounting the agreed assessment by the occupational therapists by 40%, to take into account conditions which he found were not related to the negligence and would have required some assistance in any event.

1. The respondent (cross-appellant) has cross-appealed against the learned trial judge's assessment of general damages on seven grounds.
2. The first is that his Honour erred in finding at [124] of his reasons, that the award should be modest due to a high probability that the cross-appellant would have required an ileostomy and stoma at some time in the future due to slow transit constipation, absent the appellant's (cross-respondent) breach of duty as that finding was:
   • Not supported by the evidence.
   • Amounted to impermissible speculation.
   • Did not constitute an adequate basis upon which to apply a significant discount to the award.
3. The second is that the learned trial judge erred in finding that the effect of Professor Eyers' evidence was that the cross-appellant would have required an ileostomy and stoma at some time in the future due to slow transit constipation absent the appellant's breach of duty, which was contrary to the joint expert report and Professor Eyers' evidence that:

"(a) Joint report 1(j) and 1(k) if you impinge of the area of the anal canal with somatic sensation you get (a) acute pain and (b) defaecation seriously affected - 'While there is no reliable evidence that such acute pain would likely become chronic, such an impact on defaecation would be likely to be experienced long-term.'

(b) Professor Eyers page 15 of 797 of Court Book- 'On the basis of the reported literature, both Ms Garling's anal pain and a change in her pattern of defaecation can be attributed to the PPH.'

( c) Professor Eyers page 15 of 797 of Court Book - 'While it is likely that Ms Garling had latent slow-transit constipation before the haemorrhoid operation, the PPH's effect on her pattern of defaecation was temporally associated with its inexorable worsening, and is, on a balance of probabilities causally associated with it worsening.'"

1. The third is that the learned trial judge failed to expose his reasoning process for finding that the cross-appellant would have required an ileostomy and stoma due to slow transit constipation at some time in the future absent the appellant's breach of duty.
2. The fourth is that the learned trial judge erred in the assessment of damages for pain, suffering and loss of amenities of life in failing to have sufficient regard to the finding which His Honour made that the cross-appellant had developed a severe and chronic pain disorder, and that she will likely suffer pain for the remainder of her life in consequence of the appellant's breach of duty, in circumstances where there was no evidence that such disorder may have developed at some time in the future, absent the appellant's breach of duty and where His Honour did not make any such finding.
3. The fifth is that the learned trial judge erred in failing to specify a sum for damages for pain, suffering and loss of amenities of life from which a specified deduction was then made for the contingency that the cross-appellant would have required an ileostomy and stoma due to slow transit constipation at some time in the future absent the appellant's breach of duty.
4. The sixth is that the learned trial judge erred in the assessment of damages for pain, suffering and loss of amenities of life in failing to specify extent of the deduction made for the finding that the cross-appellant would have required an ileostomy and stoma due to slow transit constipation at some time absent the appellant's breach of duty.
5. The seventh is that the award of damages for pain, suffering and loss of amenities of life was manifestly inadequate having regard to the totality of the evidence before the learned trial judge.
6. It is useful to set out the impugned findings and conclusions. His Honour said at [124]-[125]:

"124 Of course, when assessing damages, it is necessary to take into account the quality of the plaintiff's pre-injury life and the contingencies already discussed. In particular, much of the misery currently being experienced by the plaintiff is due to the ileostomy and the stoma. This was specifically to deal with the constipation. While I have found a causal link between the placement of the staple line and the constipation, I think there is a high probability that this would have been required at some time in any event. This is the effect of Professor Eyers' evidence, who opined that the procedure had aggravated pre-existing and latent slow transit constipation. Accordingly, I should apply a significant discount when making the relevant assessment.

125 For pain, suffering and loss of amenities of life, I award the sum of $75000."

1. All of these grounds are addressed as one in the written submissions of the cross-appellant.
2. The cross-appellant submits that the learned trial judge erred in the assessment of damages for pain, suffering and loss of amenities of life in failing to have sufficient regard to the finding, which his Honour made, that the cross-appellant had developed a severe and chronic pain disorder and that she would likely suffer pain for the remainder of her life in consequence of the appellant's breach of duty, in circumstances where there was no evidence that such disorder may have developed at some time in the future, absent the appellant's breach of duty and where his Honour did not make any such finding.
3. The cross-appellant submits that the learned trial judge erred in failing to specify a sum for damages for pain, suffering and loss of amenities of life from which a specified deduction was then made for the contingency that the cross-appellant would have required an ileostomy and stoma due to slow transit constipation at some time in the future absent the appellant's breach of duty.
4. The cross-appellant submits that the learned trial judge erred in the assessment of damages for pain, suffering and loss of amenities of life in failing to specify extent of the deduction made for the finding that the cross-appellant would have required an ileostomy and stoma due to slow transit constipation at some time absent the appellant's breach of duty.
5. The cross-appellant submits that the learned trial judge's award of damages for pain, suffering and loss of amenities of life was manifestly inadequate having regard to the totality of the evidence before his Honour and where the cross-appellant's evidence of the effects of her symptoms was not in issue.
6. The cross-appellant submits that the learned trial judge found that the manner in which the PPH was performed by the appellant was the cause of the nerve damage diagnosed by Associate Professor Boesel and the harm experienced by the cross-appellant as a result of that nerve damage. That included the ongoing pain syndrome diagnosed by Associate Professor Boesel and a significant aggravation of the cross-appellant's pre-existing problems with bowel function, in particular the slow transit constipation.
7. The cross-appellant submits that the learned trial judge was also satisfied that the aggravation of the cross-appellant's pre-existing bowel problems led to the performance of the loop ileostomy and consequences thereof, including the parastomal hernia and problems that the cross-appellant has continued to experience with respect to her amenity of life and psychological health and function.
8. The cross-appellant submits that the learned trial judge formed the impression, after having the benefit of observing the cross-appellant in the witness box and being cross-examined, that she has suffered considerable psychological disturbance as a consequence of her current condition and difficulties arising from the performance of the PPH and ileostomy.
9. The cross-appellant submits that the learned trial judge's impression after listening to the cross-appellant's evidence was that the stoma has had a very significant impact on her amenity of life, and that she was experiencing a high level of suffering at the time she gave her evidence at trial. His Honour found that the cross-appellant's capacity to enjoy her life and activities was very impaired, and that he understood how the cross-appellant had developed the attitude that she had "given up".
10. The cross-appellant submits that the learned trial judge accepted that while the performance of the loop ileostomy had relieved some of the cross-appellant's symptoms, it had caused a number of other ongoing impacts on the cross-appellant's life, importantly, his Honour accepted the cross-appellant's evidence that immediately before the PPH, she had no symptoms of perianal pain or problems with defecation.
11. The cross-appellant submits that the learned trial judge accepted the opinions of Associate Professor Boesel, who diagnosed the cross-appellant as suffering a chronic pain disorder, consisting of perianal nerve injury with secondary sensitisation affecting other territories including the perineum, vagina and bladder and was of the opinion that as the cross-appellant had an established pain disorder, she will likely suffer pain for the remainder of her life.
12. The cross-appellant notes that in their joint report, Dr Smith and Dr Kutlaca diagnosed the cross-appellant as suffering post traumatic stress disorder and persistent depressive disorder, with intermittent major depressive episodes, and they agreed that anxiety has an impact on gastric and colorectal functioning and psychological distress and results in amplified perception of distress and pain.
13. The cross-appellant notes that Dr Greenberg diagnosed chronic proctalgia, ileostomy and a parastomal hernia and was of the opinion that her perianal symptoms (proctalgia) were unlikely to resolve and are permanent.
14. In respect of the pain and suffering the cross-appellant gave the following uncontradicted evidence:
    • The pain in her perianal region continues, she is required to use enemas, but it is a "nightmare, and I bleed, and I cry and sit on the floor in a sitz bath and I dread the next need to use an enema."
    • She suffers severe depression because she feels useless.
    • She has difficulty making friends because it was an effort to go out, especially when "stinking is a problem", coming from the bag, which can leak in public and fall off.
    • Her pattern of leaving the home was worse since the loop ileostomy was performed and it is an effort to leave her home.
    • Her house is a mess, and she is ashamed of that, and that her home not being neat and tidy anymore is an indication of her giving up.
    • She requires medication to sleep.
    • She experiences constant anal pain, anal discharge in the form of mucus, pain in her stoma, constant pain in her hernia, and bowel accidents.
    • She is unable to have sexual relations because of her stoma, and her inability to be intimate with another human being makes her feel walled in and solitary.
    • She attempted suicide by overdosing on medication.
15. The cross-appellant drew the Court's attention to the obiter comments of Blow CJ in ZAB v ZWM [2021] TASSC 64 at [122] where his Honour said:

"As I said in Mercer v Allianz Australia Insurance Ltd (No 2) [2013] TASSC 35 at [120], it was well known that awards for damages for non-economic loss were for many years significantly lower in Tasmania than in most, if not all, mainland jurisdictions, but there is no reason why that should any longer be so, given the mobility of the Australian population."

1. The cross-appellant referred the Court to a number of broadly comparable cases in Victoria and New South Wales where awards of general damages were made, ranging from $200,000 to $300,000 and suggested that an appropriate award of damages in the present case would be $250,000.

1. The cross respondent made submissions as to the principles underlying the assessment of damages for pain and suffering and loss of amenities and pointed out that an award "must always spring from the trial judge's assessment of the plaintiff's counterfactual (what their life would have been were it not for the tort) against the factual."
2. The cross-respondent drew the Court's attention to the principle that an award for pain and suffering should, only be the additional, consequential pain and suffering later arising from the manner of the injury.
3. The cross-respondent submits that determining the increment between the factual and the counterfactual is not a straightforward analysis where a plaintiff suffers from a pre-existing injury, or condition, because the possible effects of the injury or condition must be brought to account.
4. Citing Tasmanian Alkaloids Pty Ltd v Anthony [2005] TASSC 53 at [56] (Underwood CJ with whom Crawford J agreed); Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1 at [13] (Dixon J); Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 at 194-196 (Dixon CJ and Kitto J); Cowra Shire Council v Trudgett [2004] NSWCA 9 at [13] (Palmer J with whom Meagher and Hodgson JJA agreed); Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 at [11] (Meagher and Barrett JJA), the cross-respondent pointed out that an appellate court should only interfere with a trial judge's award of general damages where it clearly appears that the trial judge's discretion in making the award has miscarried, because either the trial judge:
   • applied a wrong principle of law
   • misapprehended the facts
   • made such an extreme assessment of damages to indicate in itself that such error has occurred.
5. The cross-respondent proceeded to canvas the evidence relevant to the award and concluded that the learned trial judge had not misapprehended the facts and had not engaged in "impermissible speculation." Indeed, it was submitted that when considering the counterfactual, a court must speculate to some extent.
6. The cross-respondent then turned to the cross-appellant's ground of appeal asserting that the learned trial judge failed to expose his reasoning process for finding that the cross-appellant would have required an ileostomy and stoma due to slow transit constipation at some time in the future, absent the appellant's breach of duty, and there was no evidence before the Court on which his Honour could have made that finding.
7. The cross-respondent submits that the ground of appeal misrepresents his Honour's finding which was that there was a "high probability" that the ileostomy and stoma would have been required in any event.
8. The cross-respondent then summarised his Honour's reasoning process and submitted that it is relatively easy to discern from his Honour's reasons how he arrived at the conclusion that the stoma and ileostomy would have been required in any event, and that the judicial duty to give reasons does not require the trial judge to spell out in minute detail every step in the reasoning process, or refer to every single piece of evidence.
9. As to the ground of cross-appeal alleging that the learned trial judge failed to have sufficient regard to the finding which his Honour made, that the cross-appellant had developed a severe and chronic pain disorder and that she would likely suffer pain for the remainder of her life in consequence of the breach, in circumstances where there was no evidence that such disorder may have developed at some time in the future absent the defendant's breach, the cross-respondent submitted:

"To be clear: Associate Professor Boesel's diagnosis was that the cross-appellant suffered a perianal nerve injury leading to perianal neuralgia, with secondary sensitisation affecting other territories innervated by the pudendal nerve. There was no general finding of a 'severe and chronic pain disorder' as alleged by the ground. At [123], his Honour found that Associate Professor Boesel expressed the view that the pain disorder is established and the cross-appellant would likely suffer pain for the rest of her life. It is important to note that Associate Professor Boesel considered there to be another aspect of the cross-appellant's chronic pain disorder, too: chronic antalgic gait and developing right-sided trochanteric bursitis and adductor tendinopathy. Note that an antalgic gait was recorded by her GP before the haemorrhoidectomy (though the plaintiff later reported it was associated with it). It appears to have developed from her 2002 motor vehicle accident.

The dual aspect to the cross-appellant's alleged chronic pain disorder and the origins of it can put to rest the assertion that there was 'no evidence that such disorder may have developed at some time in the future'. There are also other suggestions that the cross-appellant was susceptible to a chronic pain disorder developing otherwise. Dr Smith said in cross-examination that patients who suffer from PTSD are more susceptible to chronic pain, which also runs contrary to the proposition put by this ground.

The cross-appellant's assertion that the trial judge failed to have sufficient regard to the facts is, in effect, an allegation that the trial judge did not place enough weight on them. In the context of this appeal, it is ultimately an allegation that an insufficient award was made. It must be remembered that this ground is not a Warren v Coombes ground where there is only one unique outcome. If the trial judge had regard to a fact which led him to an award of damages, the award is defensible, so long as it is not 'extreme'. For the very reasons identified by Professor Atiyah in paragraph 1, above, this is a case in which a range of outcomes is tolerated and so the Warren v Coombes 'correctness standard' does not apply."

1. The cross-respondent concluded that no error is identified by the ground.
2. As to the two grounds of cross-appeal alleging error in failing to specify a sum from which a deduction was made, and in failing to specify the deduction, the cross-respondent submitted that, as the Full Court of the Federal Court observed in Hughes (t/as Beesley and Hughes Lawyers) v Hill [2020] FCAFC 126; (2020) 277 FCR 511 at [53] (Perram J, with whom Collier and Reeves JJ agreed):

"The suggestion that the trial judge gave no reasons for his award of general damages is without substance. As is usual with an award of general damages, the trial judge gave no arithmetic specification of how the figure was arrived at but it followed a detailed consideration of the relevant evidence and was, in that regard, entirely orthodox."

1. The cross-respondent submits that there was no error in the trial judge's approach in reaching the award of $75,000.
2. As to the last of the grounds of the cross-appeal, the cross-respondent submits that the award of $75,000 was not "manifestly inadequate" having regard to the totality of the evidence. The cross-respondent submits:

"If one examines the cross-appellant's history, she had relatively little amenity before the procedure. Her significant medical history is summarised by the trial judge at [90] to [91]. She continues to the afflicted by gastrointestinal motility and musculoskeletal issues, quite independently of the procedure: at [109]. Quite independently of the slow-transit constipation, the effects on her amenity must be brought to account; they cannot be the subject of compensation.

However, the cross-appellant's present amenity which is said to be associated with the PPH procedure is largely characterised by the stoma and ileostomy which his Honour said at [98] has had a 'very significant impact on her amenity of life'. It is this which causes 'much of [her] misery': at [124] and see also [109]. The cross-respondent does not cavil with these observations. However, because: (a) the ileostomy and stoma were to treat an independent and pre-existing illness (which was aggravated by the PPH, but not caused by it); and (b) the cross-appellant chose to have the procedure in light of alternatives. Because of these facts, the loss of amenity to the cross-appellant from the PPH procedure cannot be sheeted home, in its entirety, to the cross-respondent.

Making an estimate of an appropriate figure of general damages in a case such as this will always be hard. It will be based on the Court's view of the 'mix' of the cross-appellant's pre-existing condition(s), and the possibilities of those, or independent events otherwise coming to bear on the cross-appellant. The cross-appellant's 'mix' in this case was complex, but the trial judge evidently considered that he must bring to account a number of independent factors in arriving at the figure of $75,000. That award is not 'grossly disproportionate' or 'manifestly inadequate' in all of the circumstances."

1. For my part I accept the general thrust of the submissions made by the cross-respondent.
2. At the outset I should say that I do not find the comparable awards, to which the Court was referred by the cross-appellant, to be particularly useful. Having regard to the work of this Court in recent years, I am of the view that judges well understand the point made by Blow CJ in ZAB v ZWM (above) at [122]. This is well demonstrated by cases such as Mercer v Allianz Australia Insurance Ltd (No 2) (above) and ZAB v ZWM (above); and Raper v Bowden [2016] TASSC 35.
3. To that I add that Professor Eyers early expressed opinion was that said that 'the PPH's effect on her pattern of defecation was temporally associated with its inexorable worsening...'. He described that pattern as chronic. As the cross-respondent submitted, the professor's use of the adjectives "inexorable" and "chronic", indicates that the condition worsening was an inevitability, or at the very least, highly probable, which were the words used by the learned trial judge. To say that the ileostomy was a high probability is not an error in my view even taking into account the evidence as to the cross-appellant's pain medications and antidepressant medications. I note both that she was taking antidepressants prior to the PPH, and that, ultimately she eschewed laxatives, making reliance on analgesics even more likely going into the future.
4. It is possible to tend to over discount in that scenario by losing sight of the importance of the identified causal link between the PPH and the constipation and focussing unduly on the probability that the ileostomy, carried out specifically to deal with constipation, would have been required at some time in the future in any event. Whether that occurred is something I cannot know. However, that does not matter because I am not of the view that the learned trial judge started from a base in his assessment of general damages that was simply too low.
5. The question of the extent of the respondent's pre-existing conditions was explained at a granular level on this appeal both as to the appeal and the cross-appeal however the material is such that it cannot be analysed and a formula applied to it. His Honour was faced with a case requiring a broad-brush approach to discounting to take account of the respondent's pre-existing conditions. As with the medical expenses and the future care costs claimed, his Honour was, in my view required to estimate. He took such an approach in relation to the evidence he actually had from the respondent and in my view, in doing so, he did not err. This appeal may be a rehearing but it is not a retrial. The award is "defensible". It is not "extreme"
6. I would dismiss the cross-appeal.

1. I agree the appeal and cross-appeal should be dismissed for the reasons expressed by Estcourt J.