Stevens v Blackstock

District Court of NSW|2023-03-08

Table of Contents Nature of case [1] Procedural context and issues [2] - [4] Evidence overview [5] Facts [6] - [20] Plaintiff's background circumstances [7] Operation by Dr Blackstock on 13 October 2016 [8] Post-operative problems following 4 March 2012 operation [9] - [10] Operation by Dr Blackstock in February/March 2014 [11] Post-operative events after February/March 2014 operation [12] Review by Dr Howard de Torres, consultant plastic surgeon [13] - [16] Review by Dr Robert Kaplan, consultant psychiatrist [17] - [18] Disabilities that remain [19] - [20] Assessment of damages [21] - [26] Disposition & costs [27] Orders [28]

Procedural context and issues

In the absence of any appearance by the defendant or any other litigation activity on his part, a default judgment has been entered in favour of the plaintiff, leaving the remaining question of damages to be assessed. The proceedings were listed for hearing on 21 February 2023. The matter could not proceed on that day due to procedural failures on the part of the plaintiff's solicitor which necessitated an adjournment. Following a further interlocutory listing on 1 March 2023, those procedural failures were remediated so that the assessment could proceed. That hearing proceeded on 8 March 2023. The proceedings are governed by the Civil Liability Act 2002 (NSW) ("CL Act"). At the hearing it was made clear to the plaintiff's legal representatives that the plaintiff was not to have those wasted costs visited upon her because her solicitor had been at fault.
Unusually for a case of this kind where damages are sought for personal injury, the plaintiff declined to attend the hearing and instead instructed her legal advisors to seek an assessment of damages based on the tendered documentary evidence. The reasons advanced for her non-attendance were founded upon her experiences of an earlier lack of success in seeking an order for leave to proceed against Mr Blackstock's professional indemnity insurer, Avant Insurance Ltd, pursuant to the provisions of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), and her dissatisfaction with the outcome of that application: Clark v Avant Insurance Ltd; Stevens v Avant Insurance Ltd [2022] NSWCA 175. It appears the plaintiff will be pursing other means for the recovery of her assessed damages after these proceedings have been concluded.
An unfortunate effect of the plaintiff's refusal to attend the hearing (despite procedural indulgences and opportunities that had been afforded to her to allow her lawyers to seek to persuade her otherwise) is that an assessment of the papers was limited because some important aspects of the documentary evidence as to damages could not be explained through oral evidence. Another disadvantage to the plaintiff was that her claim for out-of-pocket expenses unfortunately remained unproven.

Evidence overview

The plaintiff tendered a Court Book which was marked Exhibit "A". It contained relevant reports from two medico-legal assessors. The Court Book included a statement from the plaintiff dated 20 February 2023. That statement was supplemented at the hearing with a further evidence bundle: Exhibit "B". Some bundles of post-operative coloured photographs which show the plaintiff's breast scarring and deformities were also tendered: Exhibit "C" and Exhibit "D".

Facts

The factual circumstances relevant to the assessment of the plaintiff's damages are as follows.

Plaintiff's background circumstances

The plaintiff is presently aged 40 years. She is a hairdresser. She is married and has a teenage son. At the age of 29 years she sought out a bilateral breast augmentation procedure and consulted Dr Blackstock to carry out that procedure.

Operation by Dr Blackstock on 4 March 2012

On 4 March 2012, Dr Blackstock operated on the plaintiff under light sedation. She was woken up and was sat up during the procedure to view her lacerated breasts. At the stage of impaired consciousness, remarkably, she was asked to commit to a size for her proposed implants. She was discharged from his care once the sedation ceased to have effect.

Post-operative problems following 4 March 2012 operation

Initially, following the 4 March 2012 operation, the plaintiff was pleased with the size and the enlarged appearance of her breasts. However, she soon began to realise that the final result of the surgery was that her left breast was significantly smaller than the right one, and the right breast was drooping in its appearance. It was sited asymmetrically in a lower position on her chest when compared to the right breast.
Following that operation the plaintiff remained in significant pain. This manifested itself in a stabbing sensation in the right breast. She was unable to lay on her left side in bed as the consequent breast movement caused pain and this disturbed her sleep. She re-consulted Dr Blackstock about those problems. He ordered an ultrasound which revealed that a saline implant had ruptured. Dr Blackstock suggested a further operation to "fix it" by using replacement implants. She agreed to have that procedure but had to wait for it to be done at an appropriate time. In the meantime, she took Valium, Endone and Panadol in an attempt to alleviate her symptoms and distress.

Operation by Dr Blackstock in February or March 2014

In February or March 2014, Dr Blackstock again operated on the plaintiff's breasts. He removed the original saline implants and replaced them with silicone implants. The same process of sitting the plaintiff up for an intra-operative viewing of her surgically lacerated breasts took place as had occurred at the first operation. The plaintiff's friend was also invited into the room for a viewing, in a breach of sterile protocol. That friend left hurriedly, vomiting at the sight.

Post-operative events following February / March 2014 operation

Several weeks post-operatively, the plaintiff was reviewed by Dr Blackstock, who noted the presence of an infection in the surgical wounds. He told the plaintiff this would resolve with time. At that time she complained to Dr Blackstock about the results of his surgery and ventilated her dissatisfaction over the non-aesthetic result. He then offered to revise the operation without further charge. However, by then she had lost confidence in him and did not return to see him again.

Review by Dr Howard de Torres, consultant plastic surgeon

On 2 January 2021, at the request of her solicitor, the plaintiff's medical records, her statement, and some photographs of her breasts, were assessed by Dr Howard de Torres, a consultant plastic and reconstructive surgeon. He has not examined the plaintiff.
Dr de Torres was highly critical of Dr Blackstock for having allowed a lay observer to enter the room where the operation occurred. He was critical of the fact that it was not a proper operating facility in conditions that were not properly sterile.
Dr de Torres considered that on 4 March 2012 and in the revision surgery in early 2014, Dr Blackstock had failed to provide the plaintiff with reasonable care. He considered that her breast augmentation surgery which left the plaintiff with oversized breasts (increased from an E-cup size to an F-cup size) stating that this was an extreme result that was not appropriate in the circumstances. He summed up the plaintiff's condition as having had inappropriate breast augmentation with "an ugly result".
Dr de Torres considered that the plaintiff required surgery to remove the implants inserted by Dr Blackstock. He considered that a minimum period of 3 months should then pass before asymmetric remedial implantation could then occur. The aim would be to achieve a more appropriately sized result, either a C or a D-cup. He costed the two procedures at about $31,000 for the surgeon, the anaesthetist and the hospital fees. No doubt other ancillary expenses would also apply.

Review by Dr Robert Kaplan, consultant psychiatrist

On 23 July 2021, at the request of her solicitor, the plaintiff was assessed by Dr Robert Kaplan, a forensic psychiatrist, using Zoom. He reviewed the plaintiff's history and the accompanying historical documentation.
Dr Kaplan identified the plaintiff's post-operative problems as pain, depression, self-consciousness, body discomfort, embarrassment, restricted activities, and sexual withdrawal. He made the diagnosis of a Somatic Symptom Disorder : DSM 5, 300.82 (F.45.1).

Disabilities that remain

The plaintiff has been left with pain and discomfort in her breasts. Her physical activities as a hairdresser and gymnasium exercises are limited. Her sleep is affected. She has scarring which embarrasses her. She is unhappy with the final un-aesthetic result.
Her problems have been aptly described up by Dr Kaplan as summarised at paragraph [18] above.

Assessment of damages

My assessment of the plaintiff's damages now follows.

Non-economic loss

The plaintiff has been left with disfiguring scars to her chest. The appearance of her breasts has become marred and unsatisfactory to her. In addition, she now faces extensive future significant treatment. She has impaired self-esteem and has suffered a decline in her mental health, and has body image issues which affect her choices of clothing. She has been left with physical restrictions that interfere with her work tasks. In the circumstances of absent explanatory oral evidence from the plaintiff, I must do the best I can to assess her damages for non-economic loss. I assess her damages for non-economic loss for pain, suffering, loss of enjoyment and loss of the amenity of her life pursuant to s 16 of the CL Act at 32 per cent of a most extreme case. This equates to $211,500.

No claim for economic loss

There is no claim for damages for economic loss or a loss of earning capacity.

Future treatment expenses

The plaintiff's claim for future treatment expenses, including future surgery, and psychological and pharmaceutical treatment, and associated general practitioner consultations is assessed in the amount of $33,000.

Past out-of-pocket expenses

Remarkably, for a case of this kind, the plaintiff's claim for out-of-pocket expenses remains unproven. It would be wrong for me to make a guesstimate as to what those expenses might be. Accordingly, there will be no award of damages for out-of-pocket expenses.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Non-economic loss $211,500 (b) Future out-of-pocket expenses $33,000 (c) Past out-of-pocket expenses $Nil Total $244,500

Disposition and costs

The plaintiff is entitled to a judgment for a damages award of $244,500 and she should have a verdict and judgment in her favour for that amount. As the plaintiff has succeeded in obtaining a judgment in her favour, she should also have an order that the defendant should pay her costs of the proceedings on the ordinary basis.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff in the amount of $244,500; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Pursuant to s 98 and s 99 of the Civil Procedure Act 2005 (NSW), at the time the plaintiff's solicitor renders his bill of costs to the plaintiff he is required to file a certificate with the Court file evidencing the fact that he has not charged the plaintiff any professional fees for the wasted listing of the matter on 21 February 2023; 5. Liberty to apply on 7 days' notice if further or other orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2023

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