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[2025] NSWSC 1379
General information, not legal advice.
Supreme Court of NSW
2025-11-25
Fagan J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Stott v Rashid [2025] NSWSC 1379
Hearing dates: 4-11 and 22 August 2025
Date of orders: 25 November 2025
Decision date: 25 November 2025
Jurisdiction: Common Law
Before: Fagan J
Decision: 1 The plaintiff’s claim by her further amended statement of claim filed in court by leave on 11 August 2025 is dismissed.
2 The plaintiff is to pay the defendants’ costs of the proceedings.
Catchwords: NEGLIGENCE – medical negligence – TVT-O surgery – whether failure to warn of risks – whether plaintiff would have declined surgery if warned of the potential risks of harm – factual causation – whether breach of contract – whether breach of statutory guarantee of care and skill– claim dismissed
LIMITATION OF ACTIONS – negligence – date on which cause of action "discoverable by plaintiff" – whether plaintiff aware that injury "caused by fault of the defendant" – meaning of "fault" for the purposes of the Limitation Act 1969, s 50D(1)(b)
Legislation Cited: Civil Liability Act 2002 (NSW)
Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Limitation Act 1969 (NSW)
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
F v R (1983) 33 SASR 189
Karpik v Carnival plc [2023] FCA 1280
Murgolo v AAI Ltd [2019] NSWCA 295
Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58
Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA
State of New South Wales v Gillett [2012] NSWCA 83
Category: Principal judgment
Parties: Kylie Stott (plaintiff)
Prem Rashid (first defendant)
Mid North Coast Local Area Health District (second defendant)
Representation: Counsel:
APL Naylor with D Wilcox (plaintiff)
H Chiu SC with T Waterhouse (defendants)
Solicitors:
AJB Stevens Lawyers (plaintiff)
Crown Solicitors Office (defendants)
File Number(s): 2020/256956
Publication restriction: No
The plaintiff claims damages for personal injury arising from complications of a surgical procedure performed by the first defendant at Port Macquarie Base Hospital on 8 July 2013. The first defendant is a urologist in private practice and a Visiting Medical Officer at the hospital. The second defendant is the authority that runs the hospital. The plaintiff alleges that the first defendant failed to warn her of the risk of complications and that she would not have consented to the surgery had she been adequately warned. It is also alleged that the first defendant performed the procedure with less than reasonable care in one respect, causing damage to a nerve. The plaintiff claims that the operation has caused difficulty voiding her bladder, recurrent urinary tract infections (UTIs) and debilitating pain.
These reasons are arranged under the following principal headings, at the paragraph numbers indicated:
CAUSES OF ACTION; ISSUES: [3]
PRINCIPAL WITNESSES ON MEDICAL ISSUES: [37]
PLAINTIFF’S PRE-OPERATIVE MEDICAL HISTORY: [42]
PLAINTIFF’S POST-OPERATIVE MEDICAL HISTORY: [95]
THE RISK WARNING THAT WAS REQUIRED: [184]
EVIDENCE AND FINDINGS OF RISK WARNING GIVEN: [218]
LIMITED FAILURE TO WARN: [258]
CAUSATION OF DAMAGE NOT PROVED: [268]
NO BREACH OF DUTY IN PERFORMANCE OF SURGERY: [293]
BREACH OF CONTRACT: [328]
BREACH OF STATUTORY GUARANTEES: [329]
LIMITATION ACT: [337]
DAMAGES: [352]
ORDERS: [355]
The first defendant’s pre-operative advice to the plaintiff was given on 10 October 2012 when she consulted him in his private practice. The second defendant denies that it is vicariously liable for any negligent deficiency of the first defendant’s warnings about risks of the surgery, given under those circumstances. The plaintiff was a public patient at the second defendant’s hospital for the carrying out of the procedure on 8 July 2013. The second defendant admits that it owed the plaintiff a non-delegable duty to ensure that the operation was carried out by the first defendant with reasonable care.
In supplementary closing written submissions the plaintiff accepted the distinction drawn by the second defendant between negligent advice given by the first defendant in his private practice and negligent performance of surgery at the second defendant’s hospital. The relevant supplementary submission is as follows:
4 […] The proceedings against the first defendant are brought in respect of negligent advice given on 10 October 2012 and surgery performed negligently on 8 July 2013. The proceedings against the second defendant only relate to the second of these allegations. The cause of action against the first and second defendants are separate.
The surgical procedure carried out by the first defendant was the implantation of a mid-urethral sling to correct stress urinary incontinence (“SUI”). SUI is the unintentional release of urine from the bladder during sudden movement such as coughing, sneezing, laughing, exercising or just bending over. The sling implanted by the first defendant was made of a synthetic tape manufactured by Johnson & Johnson, known as Gynecare TVT-O. The acronym stands for Tension-free Vaginal Tape. The “O” indicates that the ends of the tape are passed through the obturator foramina, being two roughly oval shaped openings in the inferior pelvic bones, located laterally one on each side of the midline of the body.
Implantation of a TVT-O sling requires a small incision to be made in the anterior wall of the patient’s vagina at a site corresponding with the approximate mid-point of the urethra. The overall length of the urethra is usually about 35 mm. The sphincter is located within about the first one third of the urethra, proximal to the bladder neck. A curved needle known as a trocar is passed through the incision in the vaginal wall, drawing behind it one end of the synthetic tape. The trocar is pushed into the pelvic cavity beneath the mid-point of the urethra, distal from the sphincter, then laterally through the pelvic cavity towards the obturator foramen on one side (left or right), out through the foramen towards the patient’s upper thigh to emerge medially through the cutaneous tissue of the upper thigh. Once the trocar has emerged and the correct positioning of the synthetic tape has been confirmed, the tape is cut and the skin is closed over the end of it. Then a second trocar is used to draw the other end of the tape through the incision in the anterior vaginal wall and along a mirror image trajectory on the opposite side. Again, the tape is cut where the trocar emerges at the inner thigh and the end of the tape is enclosed under the skin. The medial, or vaginal, segment of the tape is left loose under the urethra.
There is a membrane across the obturator foramen, through which the tape passes. A small area of the upper part of the foramen is not covered by the membrane. This is the obturator canal. Blood vessels and the obturator nerve pass from the pelvic cavity through the canal. The obturator nerve descends from the canal across the anterior aspect of the obturator membrane towards the thigh. The obturator is both a sensory and a motor nerve, the distribution of which is the medial aspect of the upper thigh. After passing through the membrane the nerve separates into two branches, posterior and anterior.
In the implantation of a TVT-O sling, the “target area” of the obturator foramen through which the trocar should pass for correct positioning of the tape is at the medial margin of the foramen, below the obturator canal. The tape is implanted loosely because its object is to provide support for the urethra but not to exert pressure on it or to constrict it. The tape is intended to mimic the supportive effect of ligaments and other para urethral tissue, which may be inherently weak, or may have lost their strength with ageing and/or childbirth. Synthetic tape has been in use for provision of urethral support since about the late 1990s. Both before and after the introduction of this material, surgeons have alternatively used native tissue of the patient to fashion a mid-urethral sling, the ends of which would be supported by attachment to tissue above the pubic area rather than by passage through the obturator foramina.
Particulars of alleged negligence of the first defendant are pleaded in 22 sub paragraphs of par 49 of the Further Amended Statement of Claim. That pleading, in its final amended form, was filed by leave granted on the last day of evidence, 11 August 2025. The final amendment of the pleading was not opposed by the defendants. Many of the particulars in par 49 were expressly withdrawn during the hearing, some were not supported by evidence and some were abandoned in final submissions.
The particulars that were abandoned included an allegation that the plaintiff’s SUI was not sufficiently demonstrated to warrant TVT-O surgery; that it was negligent of the first defendant not to have advised the plaintiff to continue with conservative measures (physiotherapy to strengthen the pelvic floor) as an alternative to surgery and that the first defendant should have carried out a revision procedure when the plaintiff reported post-operative complication symptoms. The plaintiff’s counsel was right to drop those claims. There was the clearest evidence that the plaintiff had suffered from SUI for two decades before she saw the first defendant. She had undertaken pelvic floor strengthening exercises for nine years and still had the problem. A further intervention to address post-operative complications was in fact offered by the first defendant but was declined by the plaintiff.
The pursuit of these and numerous other particulars of negligence right up until they were jettisoned in the hearing added greatly to the length and complexity of the expert reports. Encumbrance of the proceedings with so many non-viable issues gave rise to a conclave between liability experts that explored a very wide range of medical disputes that did not ultimately have to be resolved. In consequence, the experts’ joint report proved to be of no use to the Court. After the hearing I expended considerable time and effort trying to extract what remained relevant from the experts’ joinder of issues in the conclave, with no useful result.
Another consequence of the proliferation of non-viable issues was that the statements and cross-examination of lay witnesses covered many subjects that did not bear upon the issues as finally settled in closing submissions. The documentary evidence was unnecessarily voluminous from the same cause. Following reservation of the Court’s decision much time has been occupied in winnowing out the chaff that constitutes a great proportion of the tendered documents and testamentary evidence. Delay in delivering the reserved decision has been the natural consequence.
Counsel who appeared for the plaintiff at the final hearing was briefed only a short time beforehand. He was not responsible for the case having been brought on with so much baggage of insupportable allegations. On the contrary, in the lead up to the trial he must have faced his own difficulties in identifying arguable points amongst the plaintiff’s raft of unfounded grievances.
(a) the first defendant failed to adequately warn the plaintiff of material risks of the implant before the surgery, in particular, the first defendant failed to warn the plaintiff that the device may cause temporary or permanent obstruction of the urethra, urinary retention, a need to be catheterised and a need for revision surgery to loosen, divide or remove the device;
(b) the first and second defendants performed the implant surgery otherwise than in accordance with a standard that was widely accepted by peer professional opinion to be competent professional practice in that the right arm of the tape was positioned 4 cm away from where it should have been placed, causing insult to the right obturator nerve.
In par (a) of those particulars, all the possible complications of which it is said that the first defendant failed to give adequate risk warning fall within the general category of difficulties with voiding. The plaintiff does not pursue any allegation of failure to warn about a risk that the procedure might cause pain. Further paragraphs of the plaintiff’s closing written submissions confirm that the only risk about which it is alleged the first defendant failed to give an adequate warning were the possibility of the voiding difficulties listed in par 3(a) of the closing submissions, plus the possibility of recurrent UTIs: pars 67, 68, 71, 77, 96, 112(a).
Seven common manifestations of voiding difficulties are set out on a symptom scoresheet that was utilised by the first defendant in his clinical assessment of patients. They are as follows: (1) weak stream, (2) incomplete emptying leaving an abnormally large residual volume in the bladder, (3) frequency (having to urinate again less than two hours after having done so), (4) intermittency (stopping and starting during urination), (5) urgency (feeling a need to rush to the toilet to urinate), (6) having to strain to commence urination and (7) nocturia (having to get up during the night to pass urine).
In the first defendant’s practice, patients would be asked to rate the degree to which they were affected by each of the seven symptoms on a scale of zero to five. The first defendant would describe a patient with a total score between 1 and 35 as exhibiting “voiding dysfunction”, of severity proportionate to the score. He gave this evidence about classification of the degree of voiding dysfunction:
[We] rate up to - a score of eight as mild, beyond eight to about 21 as moderate, and beyond 21 as severe.
So, for most people, a residual of under 100 mils is preferable, below 50 even better, below 20 perfect.
The plaintiff’s expert medical witness on liability, Professor Andrew Korda said in his report of 6 June 2024 that diagnostic criteria for “voiding dysfunction” vary across studies and institutions but that, most commonly, incomplete bladder emptying with a post void residual of 150ml or more is defined as voiding dysfunction.
In the written and oral evidence and in submissions, witnesses and counsel did not consistently use the expression “voiding dysfunction” in Prof Korda’s strict diagnostic sense. Rather, they frequently used the term to refer, without specification, to any of the seven voiding problems referred to above, in any degree of severity. That usage has created a difficulty for the Court in interpreting the witnesses’ evidence about risks of the TVT-O procedure and about the terms in which warnings to the plaintiff may have been required. For the purpose of determining what risks of surgery were material and what risk warnings were required to be given to the plaintiff, it is not sufficiently specific to speak of a “risk of voiding dysfunction” when “voiding dysfunction” is used in the sense of any one or more of the seven symptoms, in any greater or lesser degree of severity.
The expert medical evidence shows that a patient may experience an inability to pass urine at all, or be unable to discharge any but a small portion of the contents of a full bladder. This is referred to in the evidence as retention. Although the medical profession may view retention as merely lying on a scale or continuum of voiding difficulty, the evidence satisfies me that when it requires catheterisation it must be viewed, from the patient’s perspective, as an acute condition more severe than any of the seven voiding symptoms or difficulties listed on the first defendant’s scoresheet. It is more severe than mere high residual volume as described in symptom (2). In order to draw the qualitative distinction, I will use the term “retention” only in reference to acute difficulty in voiding that requires catheterisation.
The first defendant referred to lower scores across the seven symptoms as “bothersome”, which he would regard as “some measure of [voiding] dysfunction”. However, retention is self-evidently something well beyond “bothersome” and exceeds both Prof Korda’s diagnostic criterion of voiding dysfunction and the first defendant’s broader usage of that term.
The plaintiff presented to the first defendant with what he assessed as mild voiding problems. He accepts that problems with voiding, including exacerbation of preoperative problems, may be a complication of TVT-O implantation. There is an issue whether he failed to give the plaintiff any adequate warning of the risk that the operation could make her voiding difficulties worse. If there was a breach of duty in that respect, there is a question whether the plaintiff would in any event have consented to the operation if she had been adequately informed about the possibility of post-operative worsening of her voiding difficulties. There is also an issue about the extent to which the plaintiff has experienced any such worsening in consequence of the operation.
experienced injuries and disabilities similar to those experienced by the lead applicants in [Gill v Ethicon Sàrl (No 5) [2019] FCA 1905], including difficulty voiding, recurrent UTIs, pelvic pain, chronic groin pain, need for revision surgery and some psychological sequelae.
The plaintiff adduced evidence of the injuries specified in that submission, plus dyspareunia (pain on sexual intercourse). The plaintiff complained to her treating doctors of dyspareunia from about 25 September 2014, 14 months after the operation. Some of the alleged physical impacts of the operation are said to have diminished the plaintiff’s earning capacity and given rise to a need for domestic care, as well as sounding in general damages.
9 If the plaintiff is successful only in relation to the incompetently performed surgery allegation, her damages are limited to the injury to the right obturator nerve and the resulting chronic groin pain and chronic pain syndrome.
That is to say, it is accepted that in that event the scope of the defendant’s liability would not extend to damages for the plaintiff’s alleged post-operative voiding problems.
The proceedings were commenced on 3 September 2020. The defendants submit that the plaintiff’s pleaded causes of action are statute barred by the operation of s 50C of the Limitation Act 1969 (NSW). Under that section the plaintiff’s causes of action are not maintainable if brought more than three years after they were “discoverable” in the sense that the plaintiff knew or ought to have known of facts as listed in s 50D.
The date at which the plaintiff knew or ought to have known the matters prescribed in s 50D(1) can only be determined upon consideration of the whole factual case that is now advanced in support of her claim. I will proceed to lay out the facts as I find them and defer consideration of the limitation issue until later in these reasons.
The first defendant completed his studies at the University of Western Australia in 1987 and was admitted to the degrees of Bachelor of Medicine and Bachelor of Science. Between 1989 and 1996 he trained in the specialties of Surgery and Urology and at the same time undertook a PhD program in Surgery at the University. He became a Fellow of the Royal Australasian College of Surgeons in 1997. In the United Kingdom he completed a year in reconstructive urology at the University Hospital of Wales, Cardiff during 1997. The first defendant has conducted a specialist practice in urology and urological surgery at Port Macquarie since 1998, with Visiting Medical Officer appointments at the Port Macquarie Private Hospital and at three hospitals in the Mid-North Coast Local Health District (Port Macquarie Base Hospital and Kempsey and Wauchope District Hospitals). The first defendant’s registration with the Australian Health Practitioner Regulation Agency has been unrestricted since he commenced practice.
In 2012 and 2013 the first defendant’s practice was conducted from the Port Macquarie Urology Centre. He and the other doctors in that practice were assisted by two specialist Urology Consultant Nurses, Ms Ann Doyle and Ms Merrilyn Turner, referred to in the records of the practice by the title “Sister”, abbreviated to Sr.
Sister Doyle has been a registered nurse since 1984. She gained experience on surgical wards at Kempsey and Royal Prince Alfred Hospitals between 1984 and 1986. She then trained in midwifery and attained registration as a midwife in May 1987. After a career break to raise her children in the early 1990s, Sr Doyle resumed general nursing and attained a certificate in Continence Management from the NSW College of Nursing in January 2000. She commenced as a Urology Nurse Consultant at the Urology Centre in 2001, initially working one day per week and then at least three days per week from 2004 up to the present time. She has predominantly worked with the first defendant and to a lesser extent with other doctors in the practice.
a urologist is a - a surgeon who’s trained in both male and female bladder, kidney, and ureteric diseases and malfunction. And a urogynecologist is primarily trained as a gynaecologist who has an interest in female incontinence.
The defendants’ medical expert on liability issues is Dr Phillip Mark Katelaris, a urologist.
Contemporaneous medical records establish, objectively and indisputably, many of the relevant facts concerning the plaintiff’s medical history, her presenting condition when she consulted the first defendant, the results of pre-operative testing carried out by the first defendant, the plaintiff’s complaints of symptoms experienced after the operation and the first defendant’s responses to those complaints. For resolution of the issues in the case, the most important chapter of the plaintiff’s medical history is the period of seven years from the second half of 2011 to late 2018. The records are numerous because during those years the plaintiff consulted several general practitioners, two of them on many occasions and at close intervals. Following the operation on 8 July 2013 and continuing up to 1 June 2015, the plaintiff on many occasions consulted the first defendant and Sr Doyle and Sr Turner. Each of her visits generated at least one report to the referring general practitioner. The plaintiff also consulted six specialists in addition to the first defendant, some of them before the TVT-O implantation but most of them after she ceased contact with the first defendant from 1 June 2015.
It would not be useful to set out in a single chronology the whole sequence of pre-operative events that I find proved and that are material to my conclusions on the contested issues. The basis of my decision will be clearer if I trace through, separate chronologies of primary facts, one for each of the broad factual subjects that bear upon resolution of the case. Consideration of each of the following subjects commences at the paragraph indicated:
Plaintiff’s pre-surgery SUI and concern about the condition: [44]
Plaintiff’s pre-surgery UTIs: [64]
Plaintiff’s pre-surgery back and other pain: [68]
First defendant’s pre-operative assessment and advice on 10 October 2012: [75]
Assessment of voiding function: [75]
Afternoon consultation on 10 October 2012: [87]
The length of the plaintiff’s history of SUI and of her endeavours to correct it by pelvic floor strengthening exercises is relevant to an assessment of the impact of the condition upon the plaintiff’s enjoyment of life. That assessment is material to whether any proven deficiency of the risk warnings given by the first defendant was a cause of the plaintiff undergoing the TVT-O procedure, or whether on the balance of probabilities she would have accepted surgery even if the allegedly omitted warnings had been given.
The plaintiff was born in February 1977 in Western Australia. According to her evidentiary statement she suffered from “mild urinary stress incontinence from a young age”. In cross-examination she said that the symptoms commenced as far back as she could remember, in childhood. She said that as a child she would leak urine if she was jumping on a trampoline, running, playing netball or any other kind of sport. By her own account, in 1996 at age 19 the plaintiff consulted a urologist in Perth. He advised that she had a short urethra, was too young for corrective surgery and should seek specialist opinion later in life, preferably after having children.
The plaintiff gave birth to her first child in May 2002 at age 25. She did not have a lasting relationship with the father. The plaintiff met her present partner, Alan Wilmot, in Western Australia in 2004. In 2006 they moved as a family to Tasmania, where the plaintiff gave birth to two children by Mr Wilmot in March 2007 and January 2010 respectively. All three of the plaintiff’s deliveries were vaginal. The whole family moved to Port Macquarie in January 2011 and they have resided there ever since.
The plaintiff gave evidence that she was taught exercises for strengthening her pelvic floor in 2002, following the birth of her first child. She performed those exercises from then up to when she had the subject operation. She did the exercises probably around twice a day, when she thought of it, while performing other tasks such as driving or at the kitchen sink. She was “more conscious of trying to get [herself] toned” after the birth of her third child in January 2010 and from that time she made sure she did the exercises twice a day.
The pelvic floor is a group of muscles that form a structure in the shape of a sling or hammock between the bones of the lower pelvis, providing support for organs in the pelvic region. It is medically recognised that these muscles may be weakened by childbirth. Weak pelvic floor muscles may be a cause of urinary incontinence and may exacerbate pre-existing incontinence. Undertaking exercises to strengthen the muscles of the pelvic floor is an accepted means of trying to correct that disorder. Professor Korda gave evidence that this physiotherapy can in some cases improve SUI symptoms by 45%-70%.
On 13 July 2011 the plaintiff consulted Dr Farida Hasham, a general practitioner in Port Macquarie, about her long-standing SUI. The doctor provided a referral to Dr Penny Black, gynaecologist, in the following terms:
… for an opinion and management of stress incontinence which has become worse since her 3rd pregnancy 18m ago. […] She had investigations for urinary symptoms in teenage years.
The plaintiff did not act upon that referral during 2011.
… for an opinion and management of stress incontinence. On examination she has a slight cystocoele and retrocoele grade 1-2. She will see Dr P Black in due course.
The terms highlighted are elsewhere spelt “cystocele” and “retrocele”. The former is a prolapse of the bladder into the anterior vaginal wall. A retrocele is a prolapse of the rectum into the posterior vaginal wall. “Grade 1” would indicate that the prolapse had not descended further than halfway to the hymen (the opening of the vagina), whereas grade 2 would signify a prolapse that had progressed downward to the hymen. Both a cysytocele and a retrocele would result from weakened pelvic floor muscles.
The plaintiff did not act on the referral to Nurse Hibbard until January 2013. In the meantime, during a further consultation with Dr Hasham on 28 November 2011, the doctor recorded “a long history of urinary incontinence”, including that the plaintiff had “seen urologist at age 17 and had investigation”. It is immaterial whether the plaintiff’s consultation with the urologist in Perth was actually at age 17 or, as the plaintiff now recalls, at age 19. Dr Hasham also recorded in her notes of 28 November 2011 the following:
Stress incontinence – grade 1 cysytocoele/retrocoele
The doctor’s clinical records of subsequent consultations repeat that entry on each occasion.
I was participating in a mother and son AFL game with my son. I experienced urine leakage upon running and kicking the ball on the field. This incident spurred me to seek further advice regarding my long-term urinary stress incontinence.
[Needs] to review stress incontinence.
A referral to the first defendant and a fresh referral to Dr Black were issued, both expressed in the same terms as quoted at [49] above.
She did mention that for as long as she can remember she has had problems with urinary leakage even as a child. She now has three children, all vaginal deliveries, and she mentioned that at the third delivery there were some issues with possible bowel prolapse as well.
If you had to spend the rest of your life with your urinary problem as it is now, how would you feel about it? – Mostly dissatisfied.
Over the past month, how often did you leak urine when you coughed, sneezed or made a sudden movement? – More than half the time.
[She] could not bring on a leak today with Valsalva.
In sitting position she does void with good pressures on a good flow but does again incompletely empty a little, more than I was expecting.
[…]
She is mostly dissatisfied with the quality-of-life due to urinary symptoms. Stress leakage occurs more than half the time and has been lifelong.
A Valsalva manoeuvre is a forced exhalation against a closed airway. It is a form of straining. In the course of the urodynamic study the plaintiff was asked to induce pressure so that the first defendant could determine whether this caused leakage of urine as a clinical demonstration of SUI.
[The plaintiff] reports stress incontinence urgency and urge incontinence. She will wear protection when running; running of an afternoon wetter than if ran of a morning. […] Performing pelvic floor exercises. Unable to instantly stop midstream.
[…] [The plaintiff] recalls as a teenager experiencing stress incontinence. In her teenage years had recurring UTIs – but had a UTI in 2012 – the first for many years. In October 2012 seen by [the first defendant] who attended urodynamic study and diagnosed long-standing issue with regard to stress incontinence with probable some degree of sphincter weakness. [The first defendant] has offered a mid-urethral sling.
Nurse Hibbard’s notes also record her advice to the plaintiff about how to perform pelvic floor strengthening exercises. The plaintiff assured her that she understood. A further consultation was scheduled for 27 March 2013 but the plaintiff did not attend.
On 27 May 2013 the plaintiff changed general practitioners and commenced to consult Dr Anne Murray at a different practice from that of Dr Hasham. On 26 June 2013 the plaintiff told Dr Murray she had seen Dr Black on Friday, 21 June 2013 for a “second opinion re mesh”; that is, regarding the proposed implantation of the TVT-O sling. On 1 July 2013 Dr Black reported to Dr Murray that she had carried out a colposcopic assessment, being an examination of the cervix and vagina with a magnifying instrument. Dr Black’s letter stated the results as follows:
There was only a very minor prolapse of both the anterior and posterior wall [of the vagina]. Pelvic floor tone was very poor at 1/5.
Urodynamically proven stress incontinence. Issues with incontinence since childhood. Nil urge incontinence.
Professor Korda gave evidence for the plaintiff that, in the absence of leakage being demonstrated upon the patient performing a Valsalva manoeuvre, stress incontinence was not “proven”. I accept the evidence of the first defendant that SUI was properly regarded as proven by elimination. The urodynamic testing did not reveal any other cause of the chronic incontinence that the plaintiff had experienced for most of her life.
I also accept the evidence of the first defendant and of Dr Katelaris that it is common for a patient to be unable to produce leakage by means of a Valsalva manoeuvre on command, in the course of a clinical examination. That accords with common sense, taking into account the tensing that might be expected of a patient in such a setting. By 10 October 2012, when the first defendant offered to carry out the TVT-O operation, it was beyond question, on the basis of more than two decades of the plaintiff’s recorded descriptions of symptoms, that she suffered from SUI for which, as agreed by both independent experts, a mid-urethral sling would be an appropriate surgical intervention.
The plaintiff’s preoperative history of urinary tract infections (UTIs) is relevant to whether her subsequent history of such complaints can be attributed to the placement of the mid-urethral sling and whether any warning that the surgery might expose her to a risk of UTIs would have caused her not to undergo it.
As noted above, the plaintiff told Nurse Hibbard in January 2013 that she had suffered recurrent UTIs in her teens but none “for many years” until 2012. On 26 June 2012 the plaintiff consulted Dr Robert Clarke, another doctor in Dr Hasham’s practice, for treatment of a UTI that she was then experiencing. The doctor prescribed Ibilex, an anti bacterial medication. The plaintiff’s UTI at that time was evidently resistant to treatment. She consulted Dr Clarke again on 28 June 2012 with respect to the same complaint and obtained a prescription for a different anti-bacterial medication, Augmentin Duo Forte 875/125. Five weeks later, on 8 August 2012, the plaintiff consulted another doctor in the practice, Dr Stancevic, complaining of ongoing “suprapubic discomfort and frequency and urgency” and recurrent UTI. By that date she had been three weeks without antibiotics. Yet another antibiotic medication was prescribed, namely, Trimethoprim 300 mg.
On 17 August 2012 the plaintiff returned to Dr Stancevic, reporting that she had been in hospital with “another urinary infection” and had been treated with an intravenous antibiotic, followed by Augmentin. On 21 August 2012 a renal ultrasound was conducted. The plaintiff gave the following history to the sonographer:
Recent UTI. Persistent left flank pain shooting to the pelvis. ? renal or gyne abnormality.
The only relevant finding of the ultrasound study, for present purposes, was the following:
The bladder has a full volume of 351 ml and a post micturition residual of 109 ml. […] The patient was not able to void further than the current values.
had a demanding time with urinary tract infection and L pyelonephritis and had iv antibiotics
Pyelonephritis is infection of the kidney, indicating that her persistent UTI had progressed up the left ureter and had involved the kidney.
The plaintiff’s pre-operative history of lower back pain is relevant to whether the chronic pain of which she has complained since the operation can be attributed to damage to the right obturator nerve as a result of negligent misplacement of the mid-urethral sling by the first defendant, or whether it is at least equally consistent with an unrelated cause.
On 16 April 2012 the plaintiff attended Dr Hasham to report the following symptoms:
having problems with pain in L side – ? in region of sciatic nerve – and has stopped running and doing lots of training with trainer.
o/e [on examination] good spinal
Dr Hasham referred the plaintiff to Paul Seward, physiotherapist. The letter of referral described the plaintiff’s symptoms as “L sided back and buttock pain”.
She stated pain came on some six weeks ago and has been referring down into her right leg, sometimes into her calf and foot.
On careful questioning the patient was doing a cross fit training program, which involved several rather stupid exercises where she was in a sustained flexed position lifting weights which aggravated back. Trying to then run compounded this and she has ended up with the sciatica as well as backpain.
On examination the patient has loss of lumbar spine extension and side flexion, also has pain on straight leg raising. No other neurological findings were evident.
I suspect this patient has irritated her lower lumbar spine disc and facet joint complex and after any sustained flexion or impact activities this aggravates the disc which then, in turn, causes the leg pain. Additional to this the patient has inadequate lumbar and abdominal support muscles creating more instability.
Mr Seward’s letter concluded with a description of the therapy he was undertaking to “restore the normal lumbar spine mechanics” and to retrain the plaintiff’s core strength.
On 21 May 2012 the plaintiff returned to Dr Hasham for review of her back pain. She described “recurrent exacerbation”, discussed possible treatment and exercises and obtained a prescription for anti-depressant medication, Endep.
When the plaintiff saw Dr Robert Clarke on 26 June 2012, he recorded the following:
while jumping felt R lower abdo pain which diffusely goes around and feels gen unwell also […]
As noted above, the reason for contact on this occasion was a UTI for which an antibiotic was prescribed.
back pain has been better and doing strengthening of core muscles
exercise - pain in ovary area – 1 year ago
was doing boot camp and felt intense pain that dropped her
same wk – uti/pyelonephritis
some pain with leg raise
Imaging request printed: Ultrasound scan - Pelvis. (pain for ix [investigation] right side? ovarian pathology – assoc with bowel change and bloating)
[An] ultrasound done on August 21 did document a residual of 109cc which seems high for her. She did mention that previous examinations had also commented on a residual.
At this stage I will undertake a flexible cystoscopy because of these other unusual features as well as urodynamic study, as you suggested, and if everything points towards corrective surgery, then a mid-urethral sling might be reasonable to offer her. I just need to be a little clearer as to why the residuals are higher than one would expect, particularly in the context of the recent UTI which took a while to get better.
A patient’s residual may be measured by ultrasound, which the evidence shows is prone to significant inaccuracy. More reliably, the residual may be measured by draining it through a catheter into a volumetric measuring receptacle.
The urodynamic study of the plaintiff by the first defendant was carried out on the morning of 10 October 2012 in a radiologist’s rooms, some distance away from the Urology Centre. The first defendant, Sr Doyle and a sonographer were present for the study. It required ultrasound observation of volumes and measurement of flowrates and pressures.
On the plaintiff’s completed scoresheet, referred to at [56] above, her highest scoring answers with respect to voiding problems were as follows:
Week Stream: Over the last month, how often do you have a week stream when you pass urine? – Less than half the time (score 2/5)
Incomplete Emptying: Over the last month, how often have you had the sensation of not emptying your bladder completely after you have finished? – Less than half the time (score 2/5)
Frequency: Over the last month, how often have you had to urinate again, not less than two hours after you’ve finished urinating? – Less than half the time (score 2/5)
Urgency: Over the past month, how often have you felt the need to rush to the toilet to pass urine? – About half the time (score 3/5)
Together with other answers, her score was 12 out of 35, and was accordingly rated mild by the first defendant: see [22] above.
For the 24 hours preceding the urodynamic study, the plaintiff completed a time and volume record of urination, showing that she passed urine on 10 occasions in volumes varying between 50 ml and 350 ml. Preparation for the urodynamic testing on 10 October 2012 required the plaintiff to drink a litre of water one hour before attending the radiologist’s rooms. At the commencement of the test she was asked to void her bladder. The volume voided was measured at 324 ml. The residual volume in the bladder was extracted using a catheter and was measured at 70 ml. Flow rates were also measured.
The second stage of the test required filling of the bladder via a urethral catheter, by which means 450 ml was recorded as the volume at which the plaintiff reported her bladder sensation as “full”. She was then again asked to void and on this occasion the volume was measured at only 178 ml, meaning that she had a residual of 272 ml.
Professor Korda and Dr Katelaris differed as to the seriousness of the plaintiff’s preoperative voiding problems. The extent and significance of their disagreement is very difficult for the Court to assess because Prof Korda tended to use the expressions “voiding dysfunction” and “voiding problems” interchangeably. This led to the experts possibly having been at cross purposes when one may have been referring to Prof Korda’s suggested diagnostic indication of dysfunction constituted by retention of over 150mls and the other may have been referring more generally to one or more of the other potential voiding problems. As listed at [21], four of which are referred to at [77] above.
In Dr Katelaris’ view the most reliable indicator from the 10 October 2012 study was what he referred to as the “pre-test”, for which the residual was only 70ml. He said that in the second phase, upon refilling the bladder by catheter, the following consideration may render the result diagnostically unreliable:
A lot of women find that intimidating, embarrassing, and subsequently they tend to contract their pelvic floor and they have what we call sphincter-active voiding, meaning that because of the context of that urodynamic laboratory, they’re feeling somewhat inhibited. So, excuse me, her initial residual volume is really 70mls. Because there is alternative explanation to the higher residuum after the catheter was passed.
Professor Korda agreed that “the first void is probably more accurate than the second void” however he said that the retention of 270ml on the second void was “a lot” and that, taking into account “symptoms of hesitancy” when she presented to the first defendant, the professor “certainly wouldn’t regard this as a person who hasn’t got a voiding dysfunction”.
I find that the plaintiff presented on 10 October 2012 with mild voiding problems. The independent experts did not disagree with the first defendant’s conclusion that her score of 12/35 represented a mild constellation of symptoms. An ultrasound on 21 August 2012, when the plaintiff had an apparently acute UTI, recorded a residual of 109ml (see [66] above). The first defendant was aware of that result and, in a more general sense, was aware that the volume of her residuals had been notable on other occasions (see [75]). Those data points, together with the 70ml residual on her first void on 10 October 2012, support the “mild” classification.
The first defendant’s observations upon the urodynamic study were reported in his letter to Dr Hasham dated 10 October 2012, as follows:
She has a relatively stable bladder which develops into a minor cystocele in the upright position with some bladder neck funnelling […].
In sitting position she does void with good pressures on a good flow but does again incompletely empty a little, more than I was expecting.
[…]
She is mostly dissatisfied with the quality-of-life due to urinary symptoms. Stress leakage occurs more than half the time and has been lifelong. Urge frequency not at all. On her time and volume chart she has a voiding range of 50-350 cc with an average voiding cycle of 250-300 cc. I will be considering a cystoscopy at some time for her and a mid-urethral sling as well but the residuals probably need to be checked from time to time in the context of their presence as well as the UTIs.
In accordance with the first defendant’s usual practice he scheduled a 30 minute appointment for the plaintiff at the Urology Centre for the afternoon of 10 October 2012, following the urodynamic study in the morning. The appointment was for a consultation with Sr Doyle, who had attended the urodynamic study. The first defendant attended for part of the scheduled 30 minutes. On the first defendant’s case the afternoon consultation was the only occasion on which he explained to the plaintiff the mid-urethral sling operation that he offered to perform and the risks of possible complications. The Court’s findings about things said during the consultation are therefore important to, and potentially determinative of, the plaintiff’s claim that the first defendant negligently failed to warn her of the risk that the operation could cause or exacerbate voiding problems.
Findings about what was said during this significant consultation must be made on the basis of the written statements and oral evidence of the plaintiff, Mr Wilmot, the first defendant and Sr Doyle. A significant obstacle to finding that words to any particular effect were spoken is the lapse of about 12 years from the events in question to the dates of the evidentiary statements of the participants and the lapse of nearly 13 years to the dates on which each of them gave oral evidence in the trial of the action.
Sister Doyle frankly did not purport to have an independent recollection of what was said during the 30 minute consultation. The first defendant likewise did not independently recall what was said during the approximately 10 minutes of his participation. Both of those witnesses gave evidence of their usual practice regarding what would be conveyed to a patient in the plaintiff’s circumstances. Both relied upon Sr Doyle’s contemporaneous clinical note, a PowerPoint slide that was shown to the plaintiff (which stated an 80% likelihood of a wholly successful outcome and listed possible complications that may be experienced in 10% of cases) and a report to Dr Hasham dictated by the first defendant in the plaintiff’s presence.
On the evidence of the first defendant and Sr Doyle their practice with a patient in the plaintiff’s circumstances was entrenched and they had no reason to depart from it. The plaintiff’s presentation was within a category that commonly recurred and the procedure offered to her was of a kind that the first defendant often performed. The first defendant described his practice with respect to informing the patient about the procedure and obtaining her consent as one that was based upon many similar clinical situations over 14 years from 1998. Sister Doyle described her own practice and her experience of the defendant’s routine conduct based upon many similar cases over the more than 10 years in which she had assisted the first defendant, from 2001.
The plaintiff bears the onus of proving on the balance of probabilities that she was not informed during this consultation of the risk that the operation could cause or exacerbate various voiding difficulties. In her first evidentiary statement she purported to recount words to the effect of those spoken by the first defendant, in terms that did not include identification of any significant risk associated with the procedure. She said that Mr Wilmot was present at the consultation. After service of the statements of the first defendant and Sr Doyle, the plaintiff made a statement in reply in which she denied almost every element of the explanation of the procedure and its risks that the first defendant and Sr Doyle said would have been given according to their usual practice.
Plaintiff’s post-operative urinary symptoms up to July 2016: [96]
Plaintiff’s post-operative pain up to July 2016: [144]
Specialists’ investigations from July 2016; removal of the sling: [161]
Chronology: [161]
Interpretation of Dr Angus’ findings, ultrasound image: [175]
Referral to Dr Carey: [178]
Plaintiff’s urinary symptoms and pain after explantation: [182]
A short urethral anterior vaginal incision was used to dissect the standard planes for a TVT-O. No problems were encountered. The tapes passed easily and have been left relatively loose. Cystoscopy was performed after the trocars were passed and there were no injuries noted. The area was liberally infiltrated with local anaesthetic.
Aim for discharge today once voiding satisfactory with small post void residuals. Review in nurse clinic on 30/07/2013 @ 10:30am.
Cystoscopy is performed by inserting a thin tube like device with a camera and light source into the urethra, to examine it and/or the bladder internally. The first defendant explained that this was done to ensure that neither of the trocars had caused any injury to the urethra. The first defendant wrote to Dr Hasham on 9 July 2013 with a report on the operation in the same terms as recorded in the Hospital notes.
On 16 July 2013 the plaintiff consulted Dr Murray, general practitioner, and reported urinary symptoms as follows:
urine difficult to start – nocturia - sometimes passing good amount - other times not
During the consultation the plaintiff was unable to void for the purpose of providing a mid-stream urine sample to be tested for infection.
Dr Murray provided a medical certificate of unfitness for work from the ensuing week and a limitation to light duties for two further weeks. The plaintiff complained to Dr Murray that she was “feeling violated and was pressured into procedure”. If by that she intended to convey that the first defendant or his nursing staff had pressured her, there is no evidence of any conduct that could be characterised as pressure. The plaintiff also told Dr Murray that “poor information [was] given re recovery for procedure”. The evidence does not include specifics of any deficiency of information to which this complaint was intended to refer. Dr Murray arranged an appointment for the plaintiff to see one of the first defendant’s specialist urology nurses as soon as possible for a bladder scan to “exclude retention and UTI”.
At 1:30 pm the same day the plaintiff was seen by Sr Turner. A scan identified that her bladder retained 250 ml of urine. An indwelling catheter (IDC) was fitted, to be removed after two days with a test of voiding at that time. Sister Turner’s notes record the first defendant’s assessment, which was conveyed to the plaintiff, as follows:
[First defendant] says unusual, sling possibly too tight & could need releasing. Can be done within 2 wks of insertion.
The first defendant explained in oral evidence that over tightness of the sling was not a conclusion at that time but a possibility that he was contemplating. He said that the other possibility was that “there is a swelling and discomfort and that’s why she’s not voiding well”.
Since [the procedure] she has been unable to void well. Last night was culminating in small frequent voids and today when she presented she had a 200 ml volume on scan.
We have catheterised her with a 450 ml drainage. We have collected a csu and commenced her on Ibilex 500mg [antibiotic medication for UTI] 1 qid [1 tablet four times daily]. It is unusual following urethral sling insertion that a patient is unable to void. It may indicate that the sling is too tight. We will see how things go and have a trial of void in two days’ time and update you on her progress.
The reference to “csu” may have been intended as “MSU”, an abbreviation for midstream urine sample.
We have catheterised her, which she found quite uncomfortable, but have persisted with the catheter for 48 hours to help rest the bladder.
She presented here this morning for trial of void and the catheter was removed. We caught up again in the afternoon and she has successfully voided four times whilst at home and again here in the rooms. She voided a volume of 180 mls with a residual of around 30 mls. She is looking much better and says that today she was actually feeling the sensation of needing to void. She still has quite a lot of inner thigh discomfort.
[…] The MSU collected when we catheterised her did not show any bacteria. [The first defendant] has asked her to cease the [medication prescribed on 16 July 2013].
During the consultation on 18 July 2023 the plaintiff also complained of discomfort and difficulty walking, which is considered under the next heading in these reasons as part of the chronological sequence relating to the pain aspect of her alleged post-operative complications.
She is still having incomplete emptying, hesitation and bladder spasms. This is not the normal post-operative course that we would see with a younger female having trans-vaginal tape procedure. Initially there was obviously quite an amount of swelling through the pelvis where the tape was being placed, which will be settling now. [The plaintiff] is finding that she is having nocturia x 3-4 and things have been worse at night with the difficulty voiding.
We thought we had enough of an improvement the last time she had a catheter but she has gone backwards again with difficulty voiding and a residual of 100 mls, which seems a little higher than I would have expected for her. Fortunately she is dry but I think the sling may be a little bit too snug.
At this stage what I will plan is a cystoscopy with a view to urethral dilatation Thursday of next week [1 August 2013]. We will place another catheter into her bladder today to leave it in for 3 or 4 days and take it out Monday morning [29 July 2013]. If she is resolved and continues to stay resolved by Wednesday afternoon [31 July 2013] then the procedure can always be cancelled. If she is still not right, then I will plan to try and dilatate the urethra and just give that tape a bit of a chance to loosen up.
[The plaintiff] has had a very rough time, which is unexpected, following her cystoscopy and TVT-O. At one point she was in retention. She also feels a general swelling in the pelvis which may be due to a pelvic haematoma, which I’m hopeful will settle in time. She was wondering about whether any imaging would help and I think it is reasonable for her to consider an MRI if this problem does not settle in the next week or two.
Otherwise today she did a very good flow, she voided 423 mls with a […] residual of 48 mls. The catheter was removed this morning. I would like to see her one more time on Wednesday [31 July 2013] to make sure those residuals are still manageable and that her voiding function has not gone backwards. We have tentatively planned for a cystoscopy and dilatation on Thursday [1 August 2013] but she is naturally reluctant to have that done unless it is really necessary and I will discuss that with her on Wednesday.
On Wednesday, 31 July 2013 the plaintiff did not exhibit difficulty voiding. A trial late in the afternoon produced 501 mls with a retention of only 29 mls. She therefore did not wish to go ahead with the dilatation procedure on 1 August 2013 and it was cancelled.
The plaintiff was again seen by the first defendant and Sr Doyle three weeks later, on 22 August 2013. With respect to urinary function she had no significant complaints. Sister Doyle recorded the following:
At times can have hesitancy if defers too long otherwise comfortable with her voiding and emptying. Good flow here today and emptied well [247 mls voided] with 30 ml residual. No SUI on cough/sneeze and short runs so pleased with that.
In oral evidence the first defendant said that following the 22 August 2013 consultation her residuals were improving (29 mls on 29 July and 30 mls on 22 August), her flow rate was also improving and, generally, “she was voiding better”. He said there was no reason why he “would pursue dilatation at that point with the risk of bringing on her incontinence when her voiding function is improving in those few days”.
nil leaking - bladder holding more - nil nocturia - changed urine pattern - having to go less
The plaintiff next attended the first defendant in his rooms on 8 October 2013, nearly seven weeks from the previous consultation of 22 August. During that interval she had made no contact with the first defendant or his nursing staff to complain of any recurrence of voiding difficulty or any other post-operative urinary symptoms. A trial of void was undertaken, producing 400 mls with a residual of 57 mls. According to the evidentiary statement of Sr Doyle, the plaintiff thought that her urinary flow was slower than it had been prior to the TVT-O procedure but in fact the flow test results on 8 October 2013 were “good, with faster flow than the urodynamic test results from 10 October 2012”. As the first defendant said in his oral evidence, “that’s as good as she was when she was at the urodynamic study”, that is, on 10 October 2012.
Sister Doyle reported to Dr Murray by letter of 8 October 2013, as follows:
Fortunately [the plaintiff] has had a good response to [the TVT-O procedure] and has had no urinary leakages at all post-operatively […] [Sr Doyle referred to complaints by the plaintiff of inner thigh muscle tightness and discomfort during sexual intercourse]
All in all, she said it certainly is improving but was a little disappointed that it was taking so long. She is voiding well […].
At this stage we are happy to discharge [the plaintiff] back to your care and the care of Dr Black, but would be happy to assist should there be any further problems.
In summary, to this point the plaintiff had experienced some difficulties with voiding for the first three weeks after the operation. On two occasions a catheter had been fitted, to assist and to rest her bladder. She had experienced some high residuals, hesitancy, and nocturia. She had no UTI in that period. As the above chronology shows, following those first three weeks, from the beginning of August through to early October 2013 she made no complaint to the first defendant of voiding difficulties. There is no medical record of objective signs of such difficulties during that period.
After late July 2013 there is no record of the plaintiff having complained of urinary symptoms to any medical professional over the next 12 months. That is significant because her general practitioners’ records, which the Court has reviewed from mid-2011 onwards, show that she consulted doctors frequently, with concerns about a wide range of ailments in varying degrees of severity and urgency. I am satisfied that, in the absence of any record of the plaintiff reporting urinary symptoms during the 12 month interval, there were no such symptoms.
In June 2014 the plaintiff had a holiday in Bali. Two weeks after her return, on 16 July 2014, she consulted Dr Hasham with symptoms of digestive tract disorder and dysuria (painful or uncomfortable urination with a burning sensation). The dysuria appears to have been a symptom of a UTI because two days later, on 18 July 2014, the plaintiff returned to Dr Hasham to report an infection for which the doctor prescribed Keflex antibiotic. The expert witnesses agree that poor voiding of the bladder may contribute to a UTI. However, there is no evidence that the UTI that the plaintiff acquired at this time was preceded by or initially accompanied by any voiding difficulty. She did not complain to Dr Hasham of any such difficulty when she consulted her about the dysuria that was symptomatic of the UTI. There is no basis for attributing this UTI to the TVT-O implant.
On 6 August 2014 at the plaintiff’s next visit to Dr Hasham, the Keflex was ceased. However, it appears that the UTI had not resolved because on 24 August 2014 the plaintiff presented at Port Macquarie Base Hospital complaining of UTI symptoms. She was prescribed Trimethoprin antibiotic. Also at that time she complained of suprapubic pain and was unable to pass urine. A temporary catheter was inserted at the hospital and then removed immediately prior to her discharge. A doctor at the hospital considered whether her difficulty passing urine was due to bladder spasm related to the UTI but no firm conclusion was recorded. There is no evidentiary basis for finding that voiding problems, or retention, at this time had been caused by the TVT-O implant.
On 11 September 2014 the plaintiff told Dr Sandra Clarke, in the same practice as Dr Hasham, that she “has had around 5 UTIs since” the TVT-O procedure. As noted at [101]-[102], the suspicion of a UTI on 16 July 2013 was negatived by microbiological testing. The plaintiff’s medical records in evidence disclose only one UTI from the date of the operation up to September 2014, being the one that persisted from early July 2014, shortly after her return from Bali, until about 24 August 2014, when she attended the hospital. There is no evidence that this episode consisted of two or more separate infections in quick succession, or that she had five such infections post-surgery. The plaintiff’s evidentiary statement repeats the assertion of “about 5 UTIs since having the mesh implant” but no detail is given of the five instances and this part of her statement appears to be nothing more than a repetition of the original exaggeration as taken down in the medical records.
The [TVT-O] procedure itself was uneventful but she did have a very difficult time thereafter with inner thigh pain as well as episodes of retention. Since then, while she has been dry even with hefty coughing there have been episodes when UTIs have become bothersome and she gets a sense of ineffectual emptying. On one such occasion she attended the Base Hospital. There were some difficulties in her being able to convince the staff that she was in retention because the bladder scanner indicated a residual of <100mls but in fact, when she was finally catheterised she had a residual of about 500mls. Unfortunately, bladder scanners cannot be entirely accurate and sometimes staff place more reliance on that rather than other clinical indicators.
The incident at the Base Hospital that the plaintiff had reported to the first defendant was evidently that of 24 August 2014. The volume drained by catheter was 300mls, not 500mls. Based upon other urodynamic test results, it is apparent that her bladder would not have been full at 300mls. The history that she gave to the first defendant of “episodes when UTIs have become bothersome” was an overstatement, there having been only one such episode. In the plaintiff’s consultations with Dr Clarke and the first defendant in September 2014 she exhibited significant and developing exaggeration of symptoms.
The first defendant’s report to Dr Clarke of 25 September 2014 continued as follows:
In addition, sexual function is a little bit curtailed because immediately after an orgasm she does feel a discomfort in the pelvis which can go on for 2-3 days which she finds off putting. However, there are periods when she feels that the sling is working well and she can empty to completion with a good stream. I think some of the intermittent issues of ineffectual emptying are probably precipitating her UTIs therefore I might suggest that she goes onto Triprim low dose for about a three month period.
The first defendant requested the plaintiff to provide a monthly mid-stream urine sample so that he could monitor the incidence of UTIs. He prescribed a stronger antibiotic and advised the plaintiff to use it if she became symptomatic.
On 10 November 2014 the plaintiff contacted Sr Turner complaining of urinary retention. She acknowledged that she had been forgetting to take the low-dose antibiotics that had been prescribed for her. A bladder scan revealed 300mls retained. On the first defendant’s advice, Sr Turner prepared to insert a catheter that would remain in place for two days “to settle down her bladder symptoms”. While waiting for the installation the plaintiff was able to void all but a relatively small residual of 80mls, which I find raises doubt about the cause and severity of her claimed voiding difficulty at that time. The catheter was removed on 12 November 2014 at Port Macquarie Base Hospital.
On 14 November 2014 the plaintiff was seen by another urologist, Dr Chee. On this consultation an initial scan showed 176mls in her bladder but she said she was unable to empty. Later, her bladder had filled to 364mls of which she was able to void a small amount initially. Later still, she voided the remaining contents. According to Dr Chee’s report to Dr Hasham, “she felt that she had complete bladder emptying and was not keen for another IDC”.
On 20 November 2014 the plaintiff again consulted the first defendant. In his report to Dr Hasham that day he referred to her recent complaints of UTIs and retention and the history she had provided that “sexual intercourse appears to set this off”. The report continued as follows:
However, things have resolved once again and her bladder appears to be behaving itself.
On 3 December 2014 the plaintiff saw the first defendant and they discussed whether she should have a urethral dilatation to try to limit the retention that she said “doesn’t happen very often but appears to be set off by sexual intercourse”. The first defendant entered the plaintiff on a waiting list to have the procedure as a public patient, for which there would be a delay. The first defendant proposed that he should consult with her again in February 2015 about whether to go ahead with the dilatation.
On 8 December 2014 the plaintiff saw Dr Hasham, complaining of “anxiety re dysuria” and muscle spasm (the notes do not state what muscles were affected). The plaintiff discussed with Dr Hasham strategies to deal with acute episodes of retention.
On 1 January 2015 the plaintiff was seen by Dr Shelley Humphries at Port Macquarie Base Hospital complaining of “ongoing and worsening difficulty in passing urine”. She requested a catheter, which was installed; 350mls were drained. The catheter was kept in place on discharge and removed three days later at a different hospital.
The plaintiff consulted Dr Hasham on 21 January 2015 and reported the event of retention and catheterisation on 1 January 2015. She complained to Dr Hasham of:
urethral spasm or movement of urethral sling and causing stricture and catheterisation settles it but balloon irritates urethra.
On 4 February 2015 the plaintiff returned to Dr Murray and informed her of her recent experience of “trouble voiding”, “bladder never emptying”, “dysuria” and intermittent catheterisation. The plaintiff said that sexual intercourse was “extremely painful” and that she suffered urinary retention a few days afterwards. The plaintiff reported “constant lower pelvic discomfort”. She told Dr Murray that she was booked to have the procedure for dilatation of her urethra and said she was “scared” about it.
No expert evidence was adduced to explain, scientifically, why retention might be experienced a matter of days after sexual intercourse or whether, if that occurred, it would be causally related to the TVT-O implantation. There was no evidence to contradict or qualify the following opinion of Dr Katelaris, which I accept:
[Some] of the symptoms are inexplicable. Like the occurrence of urinary retention three days after sexual intercourse. That’s inexplicable. There’s no pathophysiological basis for that.
She is continuing to struggle with getting her bladder to empty and the recent ultrasound [5 February 2015] again confirms a residual of about 251cc. […] She does strike me as someone who has probably got a slightly tighter sling than usual. She does have difficulty emptying her bladder and that is getting progressively worse. She is currently on the Base Hospital waiting list for a cystoscopy and urethral dilation. After much consideration over the past couple visits she and I have agreed that I will undertake a limited urethrolysis to try and just free up the sling on either side of the urethra. I may not do a full urethrolysis the first sitting because she is very keen not to become incontinent again as that part of the operation has worked well for her.
Urethrolysis is a surgical procedure whereby the urethra is freed from surrounding tissue or adhesions. The plaintiff was booked to have the procedure on the afternoon of Friday, 27 March 2015.
On 17 February 2015 the plaintiff told Dr Murray that she did not want to proceed to urethrolysis without a second opinion. Dr Murray provided a referral to Dr Danny Chou, a gynaecologist practising at St George Hospital, and sent him a summary of the plaintiff’s history. From Dr Murray’s clinical notes of 16 March 2025 it appears that she had a 45 minute discussion with Dr Chou in which he supported proceeding with urethrolysis.
However, the plaintiff expressed great anxiety about this both to Dr Murray and to Sr Doyle, with whom she spoke on 18 March 2015. Sister Doyle recorded the following on that day:
[Plaintiff] concerned may have incontinence again if [first defendant] frees up sling too much and still concerned re right groin pain – advised [first defendant] doing limited urethrolysis for very reason of not causing return of her incontinence but unfortunately no guarantees.
Normal urethra, no resistance upon cystoscopy with 0 degree; no exposed sling, healthy urethral mucosa. Fibrous ridges felt bilaterally (para-urethral, along the sling); more pronounced on the right.
Normal bladder urothelium [lining of the urinary tract]; para-vaginal defects bilaterally and minor central cystocoele.
No vaginal mucosal defect, no cause of bleeding found, cervix normal.
Urethral dilation 8, 9, 10 dilates with ease.
Following this procedure the plaintiff successfully passed urine and was discharged. On Saturday, 28 March 2015 she returned to the hospital reporting “increasing trouble with passing urine and … currently unable to”. She also complained of suprapubic abdominal pain”. She was catheterised, voided 650mls and was discharged with an IDC.
According to Sr Doyle’s evidentiary statement, on 30 March 2015 the plaintiff called the Urology Centre and reported that she had gone into urinary retention on the evening of 28 March and now had a catheter, which was uncomfortable. This was discussed with the first defendant who recommended that the plaintiff attend the clinic for removal of the catheter and a trial of void. Sister Doyle’s statement continues as follows:
33 When [the plaintiff] attended the clinic later that morning she reported that she had not opened her bowels since 26 March 2015 and she appeared quite bloated. If the bowels are full, it can press against the bladder and restrict its ability to fill and empty, which makes it harder to pass urine. I therefore recommended that she leave the catheter in place till she opened her bowels, and to avoid using codeine for pain relief as that can cause constipation.
Sister Doyle states that the plaintiff again attended the Urology Centre on Wednesday, 1 April 2015 for removal of the catheter. It was agreed that she would undergo a flow test and ultrasound the next day but the plaintiff later cancelled that appointment and said she was “feeling much better urologically”.
Approximately three weeks after the cystoscopy and dilatation of 27 March 2015 the plaintiff spoke at length with Sr Turner. She said that her urinary function was “more manageable now” and that she was having “some more normal bladder sensations and is able to void with a stronger stream and is aware that she should not let her bladder over-distend and put herself into retention again”. She stated that she was avoiding sexual intercourse “because of discomfort and dysuria within 24 hours”. Sister Turner reported to Dr Murray that the first defendant had “previously spoken to [the plaintiff] at length about dividing the urethral sling but she is reluctant to do so with fears of becoming incontinent again”.
On 1 June 2015 the plaintiff was seen by the first defendant. Sister Doyle reported this consultation to Dr Murray, as follows:
Incontinence wise she has been very pleased [since the TVT-O implantation] and her stress incontinence has resolved but she has had a complicated recovery initially with urinary retention and ongoing episodes of retention when her bladder over-distended.
[In] March of this year she underwent a cystoscopy and examination under anaesthetic with urethral dilatation and fortunately since then [the plaintiff] feels that she is voiding with a better strain and has had very few occasions when she felt over-distending her bladder was causing retention. Having said that, I think she has become very conscious of bladder volumes and has learned to manage the situation but certainly she has been happier in herself, on presentation today.
Also an ongoing issue has been pain in the right groin however she has been very reluctant for [the first defendant] to divide the sling with regard to this for fear of becoming incontinent again. At this stage he would just like to leave things open and see how she gets along in the next couple of months, during which time she will increase running and is hopeful with time that discomfort during intercourse will also resolve.
On 10 July 2015 the plaintiff reported to Dr Murray that “waterworks - a lot better … dilatation seems to have worked”. However, she said that she had “tried a run” and “could not wee for 3 days”. I do not accept that that occurred. No expert opinion was given about it but as a matter of common experience it must be an exaggeration. A human being could not accumulate and retain urine for three days without passing. The plaintiff also said that sexual intercourse was “uncomfortable so not having it” and that there were “relationship issues” with her husband.
By 13 October 2015 the plaintiff had developed a concern about whether the tape that the first defendant had used for her mid-urethral sling was of a type that was at that time subject to investigation and litigation concerning a propensity to cause medical complications.
On 16 November 2015 the plaintiff complained to Dr Murray that, for a second time, she “could not pass urine for three days”, in an episode of retention following a walk on the preceding Tuesday, 10 November 2015. Again I do not accept that that occurred. The plaintiff said she had eventually been able to pass urine while standing in the shower. She also claimed that she was “getting some groin pain”. On 27 November 2015 the plaintiff told a staff member at Dr Murray’s practice that she had “some retention today after short run last night” and that she planned to make an appointment with the doctor. However, she did not see Dr Murray again for five months.
On 20 April 2016 the plaintiff consulted Dr Murray, mainly concerning sciatic and groin pain. She also reported the following:
sling in horrible position
trouble passing urine after [intercourse]
The plaintiff’s symptoms of pain subsequent to the operation can be ascertained from numerous medical records. The plaintiff’s evidentiary statement of 22 July 2024 does not elaborate or expand upon the information that may be derived from the records. On the contrary, the statement constitutes a narrative recitation of the records, clearly drawing upon them and dependent upon them.
On 10 July 2013 the plaintiff phoned Sr Turner complaining that she “could hardly walk post op” due to groin pain. She had been given Endone, an oxycodone pain relief medication, but was continuing to experience pain. Sister Turner’s record of her response is as follows:
Reassured can get inner thigh pain, & slowed flow + urgency.
She suggested the plaintiff continue with non-prescription pain relief medication.
pain++ after [operation] - groin area very tender
[…] suprapubic tenderness [above the pubic bone and below the umbilical region] -
As earlier mentioned (at [102]), during the consultation with the first defendant and Sr Turner on 18 July 2023 the plaintiff also complained of inner thigh discomfort and difficulty walking.
On Wednesday, 31 July 2013 Sr Turner recorded that the plaintiff was complaining of:
pain/discomfort waves in pelvis + “nerve” type pain down inner thighs.
At the end of this consultation, when the decision had been made not to proceed with cystoscopy and urethral dilatation because the plaintiff was no longer experiencing difficulty voiding, the first defendant reported to Dr Murray as follows:
She has a pelvic discomfort which is becoming more bothersome and she is also feeling discomfort in her thighs. It may well be that she has a pelvic haematoma which has not yet been diagnosed and I will get an MRI scan of her pelvis tomorrow afternoon.
There is some mild oedema in the area of the obturator foramen on the right-hand side, with some oedema in the obturator externus muscle over an area of approximately 15 mm.
There is no soft tissue swelling and no further abnormality is demonstrated in the region of the obturator foramen. The neurovascular structures in the obturator space are normal and symmetrical with the left side.
There is no evidence of a pelvic haematoma. The bladder has a normal appearance.
No further abnormality is demonstrated in the soft tissue of the upper thigh.
The obturator externus muscle to which Dr Marshall refers is found on the anterior aspect of the obturator foramen, attached to the obturator membrane and the adjacent margin of the obturator foramen. Its insertion is on the neck of the femur and one of its actions is adduction of the thigh (moving the limb towards the midline). Dr Marshall observed that the mild oedema around the right obturator foramen and the adjacent obturator externus muscle was “consistent with post-operative changes in the area”.
When the plaintiff was again seen by the first defendant and Sr Doyle on 22 August 2013, her complaints regarding pain symptoms were recorded by Sr Doyle in these terms:
[…] thigh and pubic bone diastasis discomfort. […] [The first defendant suggested] gentle stretching of the thigh areas with slow return to more vigorous activity …
Diastasis is separation of normally joined parts of the body, apparently here referring to separation of right and left parts of the pubic bone, at the pubic symphysis. Sister Doyle’s letter to Dr Murray reporting on the consultation of 22 August 2013 noted that the plaintiff “had trouble in her pregnancies with pubic symphysis diastasis”.
some groin discomfort - getting better - running again
Fortunately [the plaintiff] has had a good response to [the TVT-O procedure] and has had no urinary leakages at all post-operatively although she is still experiencing some soreness in the right groin. [The plaintiff] advised that when she exercises she feels tightness in her inner thigh muscle and then feels that something will snap. She is still finding intercourse uncomfortable due to leg position.
All in all, she said it certainly is improving but was a little disappointed that it was taking so long. She is voiding well […]. [The first defendant has] reiterated some stretching exercises for her and has reassured her that as [her inner thigh discomfort] is improving each day, it should settle down with a little more time.
At this stage we are happy to discharge [the plaintiff] back to your care and the care of Dr Black, but would be happy to assist should there be any further problems.
At that consultation the plaintiff expressed concern about a hysteroscopy examination that Dr Black was to undertake shortly thereafter, because of the necessity to be anaesthetised and because “the soreness in the right groin” might be affected by her having to be placed in the lithotomy position for the procedure. The first defendant suggested that she ask Dr Black to take this into account and adjust the stirrup position accordingly. The procedure was carried out on 16 October 2013. Its results are not relevant to the issues in the case.
After the plaintiff’s report to the first defendant on 8 October 2013 of “some soreness in the right groin” and “tightness in the inner thigh muscle”, she made no further complaint to any doctor of any symptom of pain that could be referable to the TVT-O operation for 15 months, until 15 January 2015. Upon the same considerations as referred to at [112] above, I am satisfied that in the absence of her having reported relevant post-operative pain in that period she did not experience it. That is confirmed by evidence that during those 15 months the plaintiff was physically active in ways that are inconsistent with her having suffered at that time significant pain.
On 20 November 2013 the plaintiff consulted Dr Murray concerning injury to her left ankle and symptoms of apparent Achilles tendinitis, as a result of running in soft sand. She was having difficulty kicking when swimming. The plaintiff asked the doctor to prescribe an Enhanced Primary Care plan for those symptoms but was told that that could not be supported because her condition was not chronic and could be treated with rest, gentle return to exercise and avoidance of running on soft surfaces while the left ankle was weakened. There was no mention in this consultation of any recurrence or continuance of groin or thigh pain that the plaintiff might associate with her TVT-O operation.
At the plaintiff’s consultation with Dr Sandra Clarke on 11 September 2014, when she claimed to have had multiple UTIs, she also complained of “lower back pain today - worried about her kidneys”.
After the plaintiff consulted the first defendant on 15 January 2015 he reported to Dr Hasham the following with respect to pain symptoms:
She sometimes feels a discomfort in the right inner thigh and that may be the exit point of the right sided sling that may well be what is getting caught and being pulled up. Otherwise when things get better, she seems to void fairly well.
an ongoing issue has been pain in the right groin however she has been very reluctant for [the first defendant] to divide the sling with regard to this for fear of becoming incontinent again. At this stage he would just like to leave things open and see how she gets along in the next couple of months, during which time she will increase running and is hopeful with time that discomfort during intercourse will also resolve.
sling in horrible position
painful - like internal trauma [apparently referring to intercourse]
sciatica - nerve damage – esp right side - since sling
constant pain in right groin - attachment point pain
She is having ongoing issues with extreme pain on intercourse and voiding. She has periods of urinary retention and poor flow. She has right-sided groin pain. [She] went back to see [the first defendant]. Treatment has not gone well and she feels she can no longer see him. She needs a full evaluation and discussion of any treatment options.
[had testing] age 19 in WA […] was having incontinence - with running and jumping - natural births – 3 kids - the incontinence never worsen with kids […] then leaked playing football kicking the ball - she was told could have surgery - tired of wearing pads – coughing […] sport orgasm all caused leak - had to wear pads
pre-op urodynamics showed a residual - but now it’s markedly worse […] when has an orgasm bladder goes into a spasm – for 3-4 days after […] never empties her bladder properly
[…] last presented to ED with retention 1 year ago - now she manages it with not over distending
pain in right groin inner thigh groin pain - these days groin pain so can’t do any running […] the constant groin issue - always on the right – […] has to be careful with sex - no deep penetration as that causes more pain deeper on the right side
[The] post void residual was 50mls today. I could see the location of the tape in the mid-urethra. There were no groin neuromas [growths or tumours of nerve tissue] palpable. Vaginally there was no mesh erosion or obvious anatomical impediment in the right sulcal or left sulcus. [Tenderness was found on palpating a region of the pudendal nerve to the right]. She also had quite a hypertonic pelvic floor. She couldn’t really contract her pelvic floor very well and I think this because it is already in a tensile state. I tried to ask her to Valsalva to relax her pelvic floor muscles but she wasn’t able to do this very well.
The distribution of the pudendal nerve includes the genitals, perineum and the sphincters that control bladder and bowel function.
[She] is one of the unfortunate people who develop some kind of painful neuropathy, possibly pudendal neuropathy, following mid-urethral tapes. It probably happens in about 1/200 people who have such operations.
The voiding dysfunction may be due to the tape being slightly too tight though it also could be partially due to over tightening of the pelvic floor. I could incise the tape although she understands there would be a slight risk of increased leakage. She actually has some significant benefit from having the operation from a leakage point of view so she is not keen to have tape released at the moment.
Neuropathy is nerve damage that causes pain or other sensations and/or weakness in affected muscles. The plaintiff does not allege that the plaintiff’s pudendal nerve suffered any insult in the course of or as a result of the TVT-O implantation.
On 1 August 2016 the plaintiff told Dr Murray that she “feels nerve damage” and was experiencing “groin pain” and was “happy to take some out”, apparently referring to the tape, but was aware of the “risk of worsen incontinence”. In a further consultation on 11 November 2016 she said she was experiencing “bladder spasm” and that she was “passing urine ok - good flow - regularly going - feeling like emptying”.
In January 2017 the plaintiff informed another doctor in the general practice that she “has recurrent UTIs” and “some mild urinary retention […] and ongoing neuropathic pain”. On 2 February 2017 the same doctor diagnosed the plaintiff with a UTI and commenced her on an antibiotic.
The plaintiff was referred by Dr Murray to Dr Thierry Vancaillie, a gynaecologist and pain medicine specialist, whose report of 5 May 2017 includes the following:
History: […] bladder: retention, frequency, nocturia 3-4 […] intercourse: avoided because of pain specially afterwards […] experienced pain in the obturator distribution ever since the procedure has not abated since.
That history was inaccurate so far as it conveyed the impression of continuous pain since the operation. As earlier noted there was a 15 month interval from 8 October 2013 to 15 January 2015 in which no pain was complained of, either in the obturator distribution (the inner thigh) or otherwise.
Examination: sonography shows the position of the tape within the lower third of the urethra and can be traced to the groin on the right - palpation of the anterior vaginal wall, approximately 2cm from the meatus [external opening of the urethra] results in significant pain. There is no allodynia elsewhere, the right para-vaginal tissues are more tender than the left.
Allodynia is a type of neuropathic pain where a stimulus that does not normally provoke pain instead causes painful sensation. The para-vaginal tissues are those that support the vaginal wall within the pelvic space.
Dr Vancaillie suggested removal of the urethral sling “with unpredictable effect on the bladder and pain symptoms”. He recommended that an attempt to treat the pain should be undertaken first, with a pudendal nerve block.
In a consultation with Dr Murray on 9 June 2017 the plaintiff discussed Dr Vancaillie’s recommendations and described her current symptoms in the following terms:
nil recent infections
nil pain if does not have sex
physically no pain
emotional issues related to intimacy issues/loss of sex
On 12 July 2017 Dr George Angus, obstetrician and gynaecologist, carried out an ultrasound study of the plaintiff’s pelvic region, on referral from Dr Murray. This included a urodynamic study. In a letter to Dr Murray of 16 July 2017 Dr Angus said that the plaintiff “reports monthly urinary tract infections until she stopped having intercourse” and that she had not been “able to have intercourse for the last five months due to pain”. The plaintiff told Dr Angus that before she stopped having intercourse she had “bladder spasms for two days after, and recurrent urinary tract infections”.
Dr Angus’ clinical notes include the following
The bladder empties almost completely (61ml residual). There is a suburethral sling located under the distal third of the urethra. The right arm of the tape is tracking postero-laterally into the body of the right side of levator ani and appears to be close to the vaginal mucosa. Pressure in this area is reported as painful. […] The urethral sphincter closure appears adequate. Below the sphincter there appears to be a urethrocoele to the level of the tape. During dynamic testing the tape compresses the outer third of the urethra. There appears to be turbulence in this urethrocoele between the closed sphincter and the tape.
The levator ani is a principal muscle of the pelvic floor. The vaginal mucosa is the tissue lining the vagina internally.
Both Prof Korda and Dr Katelaris agree that, anatomically, the right arm of the tape could not possibly track “into the body of the right side of levator ani”. There is no evidence to explain how the tape could be relevantly “close to the vaginal mucosa” without penetration of the tape through a breach of the vaginal wall, which was not reported by Dr Angus. I am not satisfied on the balance of probabilities that Dr Angus was correct in these findings.
Dr Angus’ clinical notes include an annotated still image from the ultrasound study. It shows in light contrast the outline of the TVT-O tape, in the shape of two wave crests, left and right, with a trough between, being the location where the tape passes under the urethra.
The left side of the image corresponds with the right side of the patient. The outline of the tape appears to descend on the left side of the image. Both Prof Korda and Dr Katelaris agree that the two crests correspond with the passage of the tape, on each side of the body, through the obturator foramina. Dr Katelaris interprets the image as showing that the vaginal, or medial, segment of the tape is correctly aligned straight across the body with each passage through the respective foramina in the same plane. Professor Korda’s opinion is that symmetry cannot be concluded from a still image such as this and that one should defer to the conclusion of Dr Carey, referred to below, that the tape on the plaintiff’s right side passed through the obturator foramen at a point 4cm lower than the penetration of the left side.
On 13 December 2017 Dr Murray examined the plaintiff when she presented with reported symptoms of struggling to pass urine and “straining to get out” with a “dragging sensation”. The examination revealed a grade 2 cystocele (prolapse of the rectum into the posterior wall of the vagina) with associated swelling around the urethral opening. Dr Murray considered the possibility that the prolapse was “kinking” the urethra and suggested that the plaintiff use a finger inside her vagina to push the prolapse out of the way in order to void. There is no suggestion in the evidence that this source of interference with the plaintiff’s capacity to void was contributed to by the presence of the TVT-O tape. The plaintiff attended Port Macquarie Base Hospital the same day and received instruction in self-catheterisation.
Dr Murray referred the plaintiff to Dr Carey who examined her in Melbourne on 22 May 2018, with the following findings:
marked trigger point tenderness in the right of her urethra and also right groin tenderness. There was no evidence of any mesh exposure.
Surgery commenced with an inverted “U” shaped vaginal incision. The vaginal component of the TVT-O sling was mobilised to each obturator membrane and divided in the midline. Bilateral groin incisions were made. On the right side the groin [strap] of the TVT-O was located and was noted to be [misplaced] and approximately 4cm lower than the position of the left TVT-O groin strap. On each side both groin straps were completely mobilised and removed.
[Emphasis added]
The plaintiff reported to her general practitioner voiding difficulty for a few weeks after the removal of the sling but that appears to have resolved by late September 2018. In early November 2018 she told Dr Murray that “some incontinence has returned - worse in afternoon - stress incontinence”. She said that she had intermittent nerve pain in her right groin and a little numbness in that region and was abstaining from sexual intercourse because of the pain it caused. She has continued to report symptoms in those terms over the 6½ years from November 2018 to 2025.
The plaintiff sustained a dislocated left kneecap in a skiing accident in New Zealand on 13 July 2022. The records of her general practice consultations from late 2018 onwards reflect her ready and frequent recourse to medical advice, for all manner of ailments often arising from physical activities including golfing, recreational walking and group fitness training.
Legal principles – identification of risk: [185]
Legal principles – materiality of risk: [192]
Medical evidence of the risks alleged by the plaintiff: [196]
Findings as to material risks, scope of duty to warn: [216]
The first question is "what 'risk' is being spoken of here?" Put another way, it is "what are the facts and circumstances, the possibility of the occurrence of which constitutes that 'risk'?" Once that question is answered one may turn to consider whether the risk is "material". Where the action is brought in negligence and the plaintiff is seeking compensation for an injury suffered, the relevant risk is the possibility that the proposed treatment will result in the injury that in fact occurred [Chappel v Hart (1998) 195 CLR 232 at 239 [10] per Gaudron J, 260 [76] per Gummow J]. It is not, for example, the risk that the patient will make an uninformed decision or choose the wrong option, although that may well underpin the rationale behind the duty [Rogers v Whitake**r at 489].
It should be emphasised that a determination of whether the failure to warn of a risk was causative depends to a large extent on the definition or identification of the risk in question. Central to the identification of the risk are considerations of degree and severity. Those same considerations are also central to the question of whether the risk was material. If the Court comes to one view of those considerations when dealing with the materiality issue, the same view will direct the resolution of the causation issue.
[The] first step must be to define the relevant risk. It is appropriate in this context to define the risk by reference to the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur. These factors are to be considered from the point of view of what a reasonable medical practitioner in the position of the defendant ought to have foreseen at the time. This approach directs attention to the content of any warning that could have been given at the time.
[Emphasis in original]
Earlier, at [67], his Honour noted that the state of medical knowledge at the time when the duty to warn should have been performed is “relevant to, but not decisive of, the question of what a reasonable medical practitioner ought to have foreseen”, in that a medical practitioner cannot be expected to have foreseen “an event wholly uncomprehended by medical knowledge at the time”.
In Rosenberg v Percival the relevant risk was referred to in the Full Court of the Supreme Court of Western Australia as “TMJ [temporomandibular joint] complications”. The respondent’s symptoms, caused by the surgical operation performed by the appellant, included chronic, severe and disabling pain. Gummow J considered that the omnibus term “TMJ complications” was not sufficiently specific for the application of the legal tests of liability. His Honour said this at [66]:
What is lacking here is an identification of the "risk" with which the court should be concerned. For example, there is no reference to the severity of the potential injury or the likelihood of its occurrence. Indeed, in the present case it appears that the risk which the Full Court had in mind was a general risk of the occurrence of "TMJ complications". However, such a broad definition is of little use in determining either materiality or causation. […]
Adapting that passage to the present case, the relevant risk of which the plaintiff alleges she should have been warned was “the possibility that the [mid urethral sling would] result in the injuries that in fact occurred”. The risk, in those terms, has been particularised by the plaintiff as noted at [19] and [20] above. Two of the particulars are unsupported by the evidence: there was no permanent obstruction of the urethra, nor was a procedure carried out to loosen or divide the tape, only to remove it on 22 August 2018.
Making that allowance, the risk of which the plaintiff alleges she should have been warned and that she alleges came home to result in injury is the risk of the following possible post-operative complications:
(i) temporary obstruction of the urethra; (ii) urinary retention; (iii) a requirement for catheterisation to relieve urinary retention; (iv) a requirement for revision surgery to remove the tape; and (v) recurrent UTIs.
The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. […] [Except] in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. […] Generally speaking, [whether the patient has been given all the relevant information to choose between undergoing or not undergoing the treatment] is not a question the answer which depends upon medical standards or practices.
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material [1] if, in the circumstances of the particular case a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or [2] if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.
In Rosenberg v Percival at [75] Gummow J referred to alternatives [1] and [2] as “the objective limb” and the “the subjective limb”, respectively.
the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances.
With respect to symptom (2) described at [21] above, incomplete bladder emptying, it seems obvious that the seriousness of the symptom would increase with greater frequency of the occasions on which the patient would retain a residual of over 150 ml (see [24]) and that the larger the residual, the more severe the voiding problem. Retention, requiring catheterisation as described at [26] above, obviously constitutes a still greater severity of dysfunction than merely having a larger than normal (over 150mls) residual. Retention also, would escalate in severity according to the frequency of such events. I infer from the evidence that retention may be caused by obstruction, for example by kinking, of the urethra, or perhaps by some stimulus causing the sphincter to remain contracted. The evidence does not permit a definitive finding about the full range of possible causes of retention.
In his first report, dated 11 November 2019, Prof Korda said that a mid-urethral sling implantation that is successful in overcoming SUI would be “likely to cause deterioration of voiding dysfunction” in a patient where voiding dysfunction is apparent pre-operatively. With respect to the percentage chance of that risk being realised and how severely the dysfunction may be worsened, Prof Korda said this in his first report:
The true incidence of obstruction and voiding dysfunction after incontinence surgery is not known. However, data from the literature indicates that the intervention rate for these complications is between 1 to 2 percent.
Early intervention is indicated for women in retention requiring catheterisation. Beyond that the timing of intervention would depend on the degree of bother.
217 Postoperatively, a voiding dysfunction is typically managed initially with bladder catheterisation.
218 If urinary retention persists for 4 to 6 weeks, this may require release of the sling. 1.5% of patients require sling release or ureterolysis [scil urethrolysis].
219 If this is unsuccessful, then intermittent clean self catheterisation is appropriate, but if this continues beyond a certain and not necessarily defined time, then ultimately sling loosening or sling release is appropriate.
When Prof Korda and Dr Katelaris gave oral evidence concurrently, the plaintiff’s counsel asked them for their respective opinions on whether the plaintiff “should have been informed” by the first defendant of “the risk of urinary retention”. That and other similar questions conflated two stages of inquiry. The first stage concerns the nature of the risks associated with the procedure, including the degree of likelihood that those risks would be realised and the potential severity of the consequences for the patient. The second stage concerns the materiality of the identified risk, according to the Rogers v Whitaker test. It is nevertheless possible to extract from the doctors’ answers to questions that were asked in this form some information about the medically known risk that sling surgery may cause or exacerbate voiding problems.
Both experts answered affirmatively that the plaintiff should have been warned of the risk of urinary retention. Professor Korda’s reports, quoted above, contain his opinions about the degree of likelihood of the risk being realised. Further detail on the risk of retention was provided, indirectly, by the experts’ answers on the subject of whether the plaintiff “should have been warned” that she might need to be catheterised. On that topic Prof Korda gave the following answers, initially:
NAYLOR: … The need, the potential need, to be catheterised by someone else or to learn how to self-catheterise, is that a risk about which a patient such as Ms Stott should have been informed prior to the mid-urethral sling surgery, Dr Korda?
WITNESS KORDA: Yes. I think, in her case, your Honour, because the urodynamic study demonstrated a previously identifiable voiding problem, she ought to have been warned that the risk of worsening retention is quite significant, and she may need to self-catheterise afterwards or to have catheterisation by someone else.
NAYLOR: And a follow-up question. The risk of needing to be catheterised. Should that information have been imparted in this context, that if there was a risk of urinary retention, that need to catheterise might then arise?
WITNESS KORDA: Yes, your Honour.
WITNESS KATELARIS: I agree with the affirmative answer. But when you’re obtaining informed consent, you have to give context to the patient. A small number of women don’t void well after implantation, and they may need to be taught self-catheterisation. They’re in the minority. […] So you would warn them, yes, you would say it’s a low risk, and if it is necessary, it’s generally a temporary need to catheterise. [...]
NAYLOR: And by that, you mean it’s necessary for the patient to be informed of the likelihood of the need to be catheterised as a consequence of urinary retention.
WITNESS KATELARIS: Yes. But you need to give them perspective. Now, the risk of that is about 2% or so.
[…]
HIS HONOUR: 2% may experience thereafter a difficulty with voiding that may have to be addressed by catheterisation?
WITNESS KATELARIS: Yes. It’s a small percentage, for any length of time. It’s not unusual for the first week or two that sometimes we send a woman home with a catheter and take it out a week later in the clinic, and they’re voiding okay. But it’s a small percentage who would have to self-catheterise for any extended length of time.
WITNESS KORDA: [...] In a woman who has got a normal urodynamic study, who hasn’t got a voiding problem previously, demonstrated by the urodynamic study, I agree that there is a low percentage with a trans-obturator or TVT-O tape to have prolonged retention. And the figure of 2% is a little low. It’s more likely to be 4% short term.
In someone who has already demonstrated difficulty emptying her - their bladder, both in terms of symptoms and urodynamic studies, this is a much higher likelihood because the tapes all work by obstructing the outlet of the urethra. That’s the mechanism. How they work. And as a result of that, it’s likely to get worse when you put a tape in. So those patients are at increased risk of difficulty emptying, with a bladder emptying.
Professor Korda clarified that the “short term” for which 4% of women who receive a TVT-O implant might require catheterisation would be 1 to 2 weeks, post-operatively. He said that for patients who have voiding problems prior to the sling operation the increase in percentage risk depends upon the nature of the problems. In Prof Korda’s immediately following answers he portrayed the plaintiff’s preoperative voiding problems as significant, relying upon the residual in her second void during the 10 October 2012 urodynamic study. Notwithstanding that reliance he acknowledged that “the first void is probably more accurate than the second void”. Professor Korda considered that the plaintiff’s pre-operative voiding problems exposed her to a higher degree of likelihood that implantation of a mid-urethral sling might lead to her suffering inability to pass urine in the short term and having to be catheterised to overcome the retention. Dr Katelaris did not support that view.
For reasons already given at [77]-[84] above, I am satisfied on the balance of probabilities that on 10 October 2012, when the first defendant discussed the proposed TVT-O operation with the plaintiff, her voiding problems were mild and she did not have a voiding dysfunction according to the diagnostic criterion stated by Prof Korda. There is no evidence that her voiding problems worsened between the date of that consultation and 8 July 2013 when the operation was performed. I accept Dr Katelaris’ reasons for giving limited weight to the results of the second void during the 10 October 2012 study. I am not satisfied on the balance of probabilities that those problems were so significant as to increase materially the degree of risk that the mid-urethral sling might cause retention of such severity or persistence as to require catheterisation, relative to the percentage risk for the general run of candidates for this surgery.
In so finding I take into account that there is a difference of opinion as to whether a sling, properly fitted and operating as intended, acts by way of obstruction of the urethra, as Prof Korda opined. The contrary view expressed by Dr Katelaris is that the tape is deliberately placed loosely, as the first defendant placed it, and that its mode of operation is “giving the sphincter a stable base on which to work […] the surgical technique is not to obstruct the urethra”. I accept Dr Katelaris’ view, which I find more consistent with the descriptions of the implantation technique given by both experts and by the first defendant.
Professor Korda’s reports leave unanswered the question of whether voiding problems less severe than persistent and intractable retention (requiring catheterisation) result from TVT-O surgery at a rate higher than 2%. His reports shed no light upon what the medical profession knew in 2012 and 2013 regarding a possibly higher rate for voiding difficulties of a lower order, less acute than retention requiring catheterisation. His second report refers to a 2021 study that suggested an incidence of 4%-11% of cases in which sling surgery may cause one or more of the symptoms that fall within the spectrum of voiding problems. However, there is no evidence that that suggested incidence rate should have been known to the first defendant in 2012 or 2013. Nor is there evidence of the variety or relative seriousness of symptoms that have been taken into account in arriving at the risk rate of 4%-11%.
The PowerPoint slide routinely used by the first defendant to obtain patient consent (see [224] below) nominated four descriptions of complications for patients who receive a mid-urethral sling: “Frequency, urgency; Poor emptying; Infections; Pain (inner thigh)”. “Poor emptying” would include voiding dysfunction according to Prof Korda’s diagnostic criterion (residual of more than 150ml) as well as other less serious voiding problems. Professor Korda did not take issue, in his reports or in his oral evidence, with the statement on the PowerPoint slide that only 10% of patients suffer the named complications. It must be only a subset of the 10% who suffer the complication of “Poor emptying”, in some respect and to some degree.
Professor Korda and Dr Katelaris were asked by the plaintiff’s counsel whether she “should have been warned about the risk of the urethra becoming temporarily or permanently obstructed”. Both experts answered in the affirmative. Those bare affirmative answers leave gaps in the evidence about the degree of likelihood and severity of voiding problems short of total blockage (which would manifest as retention, considered above as a separate specific complication). For a patient such as the plaintiff with mild pre-operative voiding problems, what is the level of risk of temporary partial obstruction? Assuming a range of severity of obstruction, from mild reduction of flow to great difficulty in passing urine and requiring the patient to strain, what is the degree of risk of the plaintiff suffering less severe obstruction or more severe obstruction? If temporary obstruction should occur, what would be the likely range of duration of the symptom and with what degree of risk that the usual range might be exceeded? What would be the level of risk that a temporary partial obstruction might recur and at what intervals and over what total duration? Those questions cannot be answered on the evidence tendered.
Professor Korda perceives a risk associated with TVT-O surgery that a second procedure to loosen the sling may be required within “a couple of weeks”. In his view, loosening would be done by the second of the techniques described at [29] above (reopening the incision in the anterior vaginal wall and pulling the tape downward with forceps). He considers that a sling cannot be effectively loosened by dilatation of the urethra. Doctor Katelaris does not consider that either technique is capable of loosening a sling. It follows that in his view there is no risk of such post-operative intervention having to be undertaken.
It was and is clearly the view of the first defendant that post-operative loosening is achievable. On the balance of probabilities I am satisfied that, in undergoing mid-urethral sling implantation, the plaintiff faced a risk that she might require surgical revision of the kind that Prof Korda considers efficacious, within about two weeks after the original operation. The degree of likelihood that loosening would be required was very low, to the point of being negligible. It is accepted by both experts and by the first defendant that if loosening could be undertaken at all it would only be possible before the tape became fixed by engagement with surrounding tissue. I infer from the course of events in the plaintiff’s case that there would be very few, if any, cases in which such an immediate revision would be undertaken upon the manifestation of post-operative voiding problems. In almost every case the surgeon would wait for those short term reactive symptoms to settle, by which time it would be too late for a loosening procedure.
The following evidence from Dr Katelaris supports the above conclusion:
WITNESS KATELARIS: […] Firstly, if a sling is implanted and the patient has a very good result, that is, her incontinence is cured, to rush in because the patient has some post-operative symptoms within three weeks and fiddle with the sling is entirely inappropriate. Because it’s always the first operation in a woman that gives the best results. So with a sub-urethral sling, there’s an 80 to 85% cure rate. Any subsequent surgery for incontinence, that success rate plummets to about 40, maybe 50%. So if you put a sling in and the woman’s dry after all those years, you would be loath to fiddle with it because there are some expected post-operative symptoms.
Because the studies show, and our own experience shows, that in the overwhelming number of women, those symptoms settle down and do not become a chronic problem. So you have to have exceptionally strong indication to fiddle with a successful sling in the early post-operative period.
HIS HONOUR: To clarify part of that answer, you said that, if you had successful address, to - if you’d carry out the operation, you’d be very loath to undertake further surgery to address incontinence. Do you mean further surgery to address retention?
WITNESS KATELARIS: Well, to address post-operative symptoms.
[…]
WITNESS KATELARIS: It is normal to have post-operative pain. It is normal to have some change in bladder function. But that shouldn’t precipitate a sling revision in the early post-operative period.
But if the sling is properly implanted with no erosion [of the tape through the urethra], no bladder perforation, and post operatively the bladder function is acceptable, then there is not an increased risk of urinary tract infection.
20% of women suffer with recurrent infections, and they don’t have slings, so it is a very common clinical problem.
(1) There was the low risk that the plaintiff would have urinary retention in the short term after the operation, for about two weeks. As the plaintiff had some pre-operative voiding symptoms, to a mild degree, her risk of experiencing such short-term post-operative retention was greater than for a patient who did not have such problems, but to an extent that could not be firmly quantified. If the plaintiff should experience short-term urinary retention it would be managed with catheterisation, either by clinical staff or by the plaintiff learning to insert a catheter herself, until it resolved within an expected two weeks, or at most a few weeks.
(2) For between one and two patients in every 100 who undergo mid-urethral sling surgery, post-operative retention does not resolve with catheterisation over a few weeks and persists beyond that duration. In that 1%-2% of cases the problem could require further surgery to reverse the original procedure by removing the tape, or to free the tissues around the urethra by urethrolysis.
(3) The plaintiff would be at risk of acquiring a UTI following the operation if she experienced high residual volumes or if her difficulty passing urine reached the point of retention requiring catheterisation. The degree of increase in risk of infection, above the background level, could not be quantified.
(4) There was some degree of risk that the plaintiff would suffer a degree of worsening of her pre-operative voiding symptoms, short of retention. The common problems that might be experienced could include difficulty passing urine, a need to strain and/or higher than normal residual volumes. The risk of any one or more of such symptoms being caused by the operation would be less than 10%.
In her witness statement and oral evidence Sr Doyle did not purport to have an independent recollection of the consultation with the plaintiff on the afternoon of 10 October 2012. Her account of events was expressly based upon her own and the first defendant’s usual practice and upon contemporaneous records and correspondence. Urodynamic clinics were conducted by the Urology Centre fortnightly and Sr Doyle attended half of those, seeing about five patients at each clinic. Following each such clinic she would see each patient to explain in lay terms the test results, the procedure recommended by the specialist, the possible outcomes, the risks of the recommended procedure and the next steps in treatment.
In her statement dated 8 May 2025 Sr Doyle said she had “gone through this routine approximately 1000 times” from when she commenced at the Urology Centre in 2001 up to about May 2021. At the latter date she ceased to take part in the conduct of urodynamic studies. I infer that by 2012 Sr Doyle would have followed the procedure hundreds of times. She said there is no reason why she would have deviated from her usual practice in the consultation with the plaintiff on 10 October 2012.
Based on practice, Sr Doyle said that following the urodynamic study the first defendant would have prepared his report to Dr Hasham concerning the results and his consideration of implanting a mid-urethral sling: see [85] above. That would have been typed by the secretary in the middle of the day and would have been provided to Sr Doyle in anticipation of seeing the plaintiff in the afternoon. Sr Doyle said she would have read the report before the afternoon consultation and she would have gone through it with the plaintiff during the consultation to explain the test results in lay terms.
In oral evidence Sr Doyle said that the first defendant would join the consultation at some point and, depending upon when that was, he might explain the test results. She gave this answer:
It’s often repeated. I would often go through them [ie the results]. Professor Rashid would sometimes go back to them and refer. Sometimes they’re covered twice; sometimes purely by myself, sometimes by Professor Rashid.
12 Back in 2012, and up until about four years ago when I stopped assisting in urodynamic studies, I always explained the position of the bladder and the urethra using my hands to demonstrate where these sit in relation to each other. I describe the bladder and urethra as usually sitting at an angle, preventing people from leaking urine when they sneeze, cough or run. I would then explain that the mid-urethral sling is designed to restore this angle rather than pulling it up vertically, and that the sling is not very tight but does create some resistance to prevent leaking. I explained that this resistance can sometimes cause the flow of urine to be slower once the mid-urethral sling has been inserted.
13 When a doctor recommends a mid-urethral sling, I would also show the patient a slide that details the rates of different outcomes of this type of surgery for incontinence.
Female sling surgery for incontinence
- 80% happy and dry
- 10% better but not completely dry
- 10% mixed
- Urinary frequency, urgency
- Poor emptying
- Infections
- Pain (inner thigh, pelvis)
The plaintiff retained a copy of the slide and produced it in evidence.
14 When I showed the patient the slide describing rates of different outcomes, my usual practice was to explain the points on the slide in more detail. In 2012 I would usually have told the patient that 80% of patients are “happy and dry” after sling surgery, meaning that their stress urinary incontinence has completely resolved and they have no other issues. I would go on to explain that 10% of patients have some improvement after sling surgery but are not completely dry, meaning they may still need to wear a pad.
15 My practice in 2012, and up until about 4 years ago when I stopped assisting in urodynamic studies, was to tell the patient that 10% of patients who have sling surgery have a mixed outcome with other side effects. I would warn the patient that they may be dry but their need to urinate more frequently and/or their sense of urgency to urinate may feel worse. I would also tell the patient that they may have poor bladder emptying after the surgery due to increased resistance, and that this may be associated with a residual which may increase their risk of urinary tract infections. I would also warn the patient they may experience pain in the pelvis and inner thigh due to the insertion points I had shown them in the previous slide, but I would tell them this pain is usually temporary and would resolve.
16 It was my practice in 2012, and up until about 4 years ago when I stopped assisting in urodynamic studies, to explain to patients like [the plaintiff] (whose urodynamic study results have shown variable highish residuals for her age), that they may be at more risk of urinary tract infections, and that these were generally treatable with antibiotics but they may need a longer-term low dose antibiotic to control infection initially until symptoms settle.
17 During the same appointment I would give patients a brochure by the manufacturer of the TVT-O (Ethicon, Johnson & Johnson). I recorded that I had given the brochure in my file note of each consult, as I have done in [the plaintiff’s] case. It was my usual practice in 2012 to refer to some diagrams in that brochure during the appointment with the patient, but I recall that the brochure’s content about potential outcomes was similar to what I had already told the patient, so I did not go through that information again with them.
Date: Wednesday 10/10/2012 2:05 pm
Presenting problem: Post urodynamic visit
Provider: Sr Ann Doyle
History: Uros this morning for worsening SUI. Long history SUI since teenager. See Prem’s [i.e. the first defendant’s] letter - proceeding to TVT-O procedure - same discussed in detail along with procedure outcome and complications. Brochure given
Treatment/Plan: TVT-O procedure PMBH [Port Macquarie Base Hospital]
20 I would not have written the words “Brochure given” in the clinical record on 10 October 2012 unless that is what occurred. If, for example, we had run out of brochures or the plaintiff had left their brochure behind, I would have documented this and that the brochure needed to be posted to the patient, and I would then have arranged for that to be done. I would also tell the patient to call me if they did not receive the brochure in the mail so that I could ensure that this was received. It is true we did not take patients through the manufacturer’s brochure, these were given to patients to take away and read because we used our own slide set to explain the surgery and risks.
The GYNECARE TVT mesh will be placed in one of two [sic] possible configurations, based on your doctor’s assessment.
I would say nearly 100% of the time it’s given - it’s used during the consult, but it would be given over with the other paperwork at the end of the consult.
What are the risks?
All medical procedures present risks. Although rare, complications include difficulty urinating, injury to blood vessels of the pelvic sidewall and abdominal wall, and bladder and bowel injury. For a complete description of risks, see the adverse events section of the attached product information.
There is no evidence that any document fitting the description of “attached product information” was supplied to the plaintiff.
I saw [the plaintiff] for follow up of her urodynamics which took place this morning. She does have a long-standing issue with regard to stress incontinence and I think probably has some degree of sphincteric weakness. Nevertheless, with her good bladder capacity and being relatively fit, I think it reasonable to offer her a mid-urethral sling. She does have variable residuals and has been told that she has a short urethra so on this occasion when I do her sling I might actually do the cystoscopy initially before and then after the sling as well.
22 […] This appointment [in the afternoon following the urodynamic study] is allocated 30 minutes, and my usual practice in 2012, as now, is for one of my nurses to first meet with the patient and take them through the urodynamic test report. In this instance the nurse was Sister (Sr) Ann Doyle, who had been working with me for more than 10 years by that time and was familiar with my consult slides at consent process. My practice then, as it is now, is to join for part of the appointment with the nurse to provide my recommendation about what to do next. I discuss risks, and if I recommend a procedure I go through and/or complete the consent process and answer any questions the patient has. I usually participate for about 10 minutes of the 30 minute consult.
25 […] We use a PowerPoint slide when counselling patients, which helps to prompt the discussion with the patient; this was my practice in 2012 and remains my practice now. The consult with [the plaintiff] on 10 October 2012 was mostly done by Sr Ann Doyle […] [who] was aware that I recommended a mid-urethral sling as the next step.
26 I may have told [the plaintiff] the procedure had a low complication rate because this is what I believed in 2012. I may also have noted that her age, health and fitness were in her favour for the procedure to work well. […] [My] practice at the time as it is now, would have been to refer back to the slide she had been shown so that she understood the rates of different outcomes and the risks.
In oral evidence the first defendant said that when he joined the nurse and patient at an afternoon consultation following a urodynamic study, it was his practice to enquire of the nurse, “Where are you up to?”. If she had not already explained the proposed TVT-O procedure and the range of outcomes on the explanatory slide, then he would do so. If that had already been covered, the nurse would tell him what she had said to the patient and the first defendant would ask the patient something to the effect, “Is what Ann’s told me, are you happy with that?”.
The first defendant’s evidence was: “It’s very likely I did discuss the procedure”. He said that an explanation of the surgery and its risks could be covered in the 10 minutes which was the average period of time for which he would participate in the consultation. He said that he would use the slide to prompt him to ensure the relevant information was conveyed. Putting all his answers together, I infer that it was the first defendant’s practice to satisfy himself that the nurse had explained the procedure and conveyed the risk warnings by reference to the slide and to confirm with the patient that that had been done and that the patient understood, or, depending upon how early in the consultation the first defendant entered the room, he would provide the explanation and identify the risks himself.
In oral evidence the first defendant said that, following his usual practice, he would have expanded upon the risk of “Poor emptying”, as printed on the slide referred to at [224] above, and/or confirmed with the plaintiff that Sr Doyle had expanded that point and that the plaintiff understood. I accept the first defendant’s evidence that his explanation of the risk of poor emptying would not have been limited to merely reading out those words. He could not say whether or not his explanation would have extended to a warning specifically about the risk, albeit low, that retention would occur during the first two weeks after the operation, possibly requiring catheterisation (Risk No 1 referred to at [216] above). He gave the following evidence:
Q. The slide refers to poor emptying.
A. Yes.
Q. It doesn’t refer to urinary retention.
A. You’re reading the words and not following what could have extrapolated in a discussion around that. This conversation took a while. So it’s not just about saying poor emptying, it’s what did I say about poor emptying? So there are different words that one can use, but it is about the bladder not emptying effectively.
Q. The slide says nothing about the risk, does it, that it might become necessary for the woman to be catheterised--
[…]
Q. --or for her to self-catheterise?
A. That doesn’t mean that it didn’t come up in discussion. I don’t know that.
Q. It doesn’t say, does it, that there was a risk that the urethra might become obstructed?
A. No. But that doesn’t mean it didn’t come up in discussion. That’s the point I’m trying to make. We’re trying to recall a conversation that happened in 2012 with a prompted slide on voiding dysfunction after a TVT. The implication is I didn’t discuss any more than poor emptying and I don’t think that’s correct.
Q. Was it your understanding that, should it become necessary to completely remove the device--
[…]
Q. --after that initial window of time following the implant surgery? That might be a difficult task.
A. It was rare to remove it in 2012-2013. Very rare.
Q. Notwithstanding that it was rare, was that information that should be imparted to a patient because of its seriousness?
A. I don’t know the answer to that question. Because if something is so rare, what level does one go into to describe multiple things to try and talk a patient out of something? That’s - you’re getting to a very rare complication now.
[…]
Q. The slide says nothing about the risk that it might be necessary for revision surgery to occur--
A. No, the slide does not say anything about that. Correct.
HIS HONOUR
Q. And may we take it that it wasn’t your practice back in that day to issue as one of your warnings of risk to the patient to enable that person to make an informed - give an informed consent to warn them, you know, it may be necessary to go back in and change it? You didn’t--
A. No, I don’t believe that would’ve been commonly discussed. Correct.
28 […] Consistently with my usual practice in 2012 as now, I would have explained the risks of the procedure, which included bleeding, infection, recurrent urinary tract infections and residuals (because a sling can potentially make the bladder outlet tighter).
[The first defendant] stated words to the following effect:
“I recommend a mid-urethral sling procedure. You are young, healthy and fit and this procedure will work really well for you. It has a very low complication rate. It will resolve your stress incontinence. There is only a small chance that you may not be completely dry. It is a day procedure. There will be very little pain afterwards. The recovery time is minimal, about two days.”
That alleged passage of speech is deposed to by the plaintiff in definitive terms: “will work really well for you”, “will resolve your stress incontinence”, “will be very little pain afterwards”. The first defendant denies that he would have expressed himself so unequivocally and I find it highly unlikely that he would have done so. The whole tenor of his evidence and of his contemporaneous reports to general practitioners shows that he was careful and considered. The making of definitive forecasts of success would be inconsistent with the caution and reserve that is evident in everything else that the Court has seen of the first defendant’s professional conduct. Further, such confident oral claims during the consultation would have been inconsistent with the PowerPoint slide that was presented, showing that the best that could be said about the procedure was that it had a high percentage chance of success but also a 10% chance of undesirable complications.
I give very little credence to this purported recollection in the plaintiff’s first statement. It is inherently improbable that the plaintiff could reliably and accurately recall after 12 years the effect of brief oral advice given to her, on a technical scientific matter with which she was unfamiliar, during the course of a 10 minute encounter. Since October 2012 the plaintiff has seen many doctors about her urinary problems, in over a hundred consultations. It would be unrealistic to accord significant weight to her claimed recall of particular things said or not said on this single occasion so long before she gave evidence.
The plaintiff further said that the first defendant “did not mention the words TVT-O or any product names” and “did not draw any diagrams to explain the procedure”. The plaintiff’s first statement makes no mention of the presence of Sr Doyle. However, I find Sr Doyle’s evidence compelling, based as it is upon her well-established practice that I have no reason to doubt. In particular, I accept Sr Doyle’s evidence that she produced the Johnson & Johnson brochure, in which the acronym TVT is freely used, and that she would have circled the diagram of the TVT Obturator implantation. The PowerPoint slide, which the plaintiff acknowledges she received, also incorporated a diagram of the proposed sling implantation.
As Sr Doyle was expressly tasked by the first defendant to conduct most of the 30 minute consultation, I find it highly improbable that she would have refrained from providing to the plaintiff an explanation of the proposed procedure, which could most readily be conveyed by reference to a diagram such as that which was to hand on the first defendant’s slide and in the manufacturer’s brochure. The only circumstance in which it is realistically conceivable that Sr Doyle would not have explained the procedure to the plaintiff is if the first defendant joined the consultation at an earlier point and that he provided the explanation. In her statement in reply the plaintiff contradicted her earlier assertion that the first defendant “did not … explain the procedure”. She said that the first defendant showed her the PowerPoint slide with the diagram on it and that “from what I was told at the consultation I believed I was going to get a small piece of material under my urethra”. Her statement in reply continues with complaints about not being told how long the tape would be, not being informed that “large, curved needles” would be used to position it, not being told that there would be exit wounds at her inner thighs and other details. Those complaints are not relevant to the plaintiff’s case as finally formulated.
72 I was not provided with a list of the possible complications or risks associated with the surgery, including chronic pain, severe pain, pain, loss of sensation with intercourse and worsening of urinary incontinence.
73 [The first defendant] failed to advise me that any successful operative procedure was likely to cause deterioration of voiding dysfunction and that self catheterisation may be required following the procedure.[…]
75 [The first defendant] did not advise that it may be difficult or impossible to remove the sling in the event of complications. He did not advise that an attempt at removal could cause further complications.
Paragraph 72 may be disregarded for several reasons. First, the PowerPoint slide did contain a list of possible complications, including “Pain (inner thigh)”. Secondly, there is no longer an allegation of failure to warn about the risk of “chronic pain, severe pain, pain, loss of sensation with intercourse”. Thirdly, the evidence shows that the plaintiff’s incontinence was corrected by the mid-urethral sling so there is no relevance to the complaint that the plaintiff was not warned of the risk that the procedure might cause “worsening of urinary incontinence”.
Paragraph 75 of the plaintiff’s statement is also irrelevant to her case as ultimately formulated. She maintains an allegation that reasonable care on the part of the first defendant required that he warn of the risk that, in the event of complications, further surgery might be required “to loosen, divide or remove the device” (see [10] above). The plaintiff contends that had she known of that possibility she would not have undergone the procedure. If that should be proved then it would establish factual causation of whatever damage was occasioned by her undergoing the operation and then having to have the sling removed. It would be irrelevant to the case that there might have been a risk that any such further procedure would be difficult or impossible or might cause further complications.
In the plaintiff’s reply statement she said that the first defendant “read out what was on the slide. He didn’t provide me with any additional information”. I do not accept that evidence. I accept that the first defendant would have followed his usual practice of using the list of complications for the 10% mixed outcome category of patients as a prompt, from which to explain the nature of the complications and the degree of risk with respect to each. The evidence does not permit me to make affirmative findings as to the terms in which, or the effect to which, the elaboration of each complication was provided.
In her reply statement the plaintiff said this:
29 [The first defendant] did not explain what was meant by “Frequency, urgency”, “Poor emptying”, “Infections” or “Pain (inner thigh)”. Nor did [he] explain the possible severity of these complications, or how long they might last for. [The first defendant] did not explain why there was a risk of inner thigh pain. He did not explain how or in what circumstances I might get urinary frequency or urinary urgency. He did not explain how these possible complications, if they occurred, could be treated.
30 [The first defendant] did not tell me that there was a risk that because the sling is designed to support the urethra, there was a risk that if it was placed too tightly, it might be difficult to void. Nor did [the first defendant] explain that there was a risk that a voiding difficulty could get worse and that I might not be able to urinate at all without being catheterised. I would have remembered if he had said that. I had a fear of catheters.
31 [The first defendant] did not explain that the treatment for voiding difficulties or urinary retention might involve further surgery, to loosen, cut or take out the sling. […]
32 [The first defendant] did not say anything to me about the kinds of infections that I was at risk of from having the implant surgery. He did not tell me that I might be at risk of urinary tract infections, particularly if I developed voiding difficulties or urinary retention. […].
With respect to par 29 in the above extract, the terms “Frequency, urgency” are self-explanatory. Further, the plaintiff knew what the first defendant’s PowerPoint slide was intended to convey by the use of those terms because they were spelt out at questions 3 and 5 on the scoresheet that the plaintiff had responded to earlier in the day. Moreover I accept Sr Doyle’s evidence, referred to above, that she expanded on those terms. With respect to “Poor emptying”, again the plaintiff knew what was meant because this was one of the symptoms elaborated on the scoresheet, at question 2 under the description “incomplete emptying”, and because her high residual on the second voiding test during the morning was the subject of oral report to her and a written report to her general practitioner. Sister Doyle also explained the risk of pain to the effect that it could be experienced in the pelvis and in the thigh but that it usually would be temporary and would resolve.
Contrary to pars 29 and 32 I accept the evidence of Sr Doyle that the risk of “Infections” was explained as a reference to UTIs, the incidence of which might increase in the event of incomplete emptying and high residuals. The plaintiff was well aware that the type of infection that might be acquired in this context would be a UTI.
With respect to par 73 of the plaintiff’s first statement and pars 30 and 31 of her reply statement, for reasons given below I accept that, on the balance of probabilities, no warning was given about the risk of retention, in the sense of being unable to void without insertion of a catheter, either in the short term for about two weeks after the operation or in the longer term requiring a further procedure to remove the tape.
The Court has no reason to doubt the honesty of Mr Wilmot’s claim that he was in attendance at the consultation on the afternoon of 10 October 2012 but I am not satisfied on the balance of probabilities that he is correct in his recollection. It appears that Mr Wilmot first purported to recall being at the consultation in his reply statement of 1 July 2025, almost 13 years after the event. The absence of any mention of his presence in the first defendant’s records is significant, in circumstances where both the first defendant and Sr Doyle have described their practice of recording the names of any third parties who attended consultations with a patient, and that that practice is corroborated by an entry relating to a subsequent consultation when the plaintiff’s daughter accompanied her.
A further reason to doubt Mr Wilmot’s presence is that he does not recall Sr Doyle being present, although I am satisfied that in accordance with usual practice she was present throughout and conducted most of the consultation, and he does not claim to recall affirmatively any occurrence apart from the production of the PowerPoint slide and assurances by the first defendant that only a simple day procedure was involved. As to those matters, Mr Wilmot may have seen the slide after the consultation because the plaintiff took it away with her and she may have told him of her positive expectations with respect to the surgery. In all other respects, Mr Wilmot’s statements about the consultation are to the effect that numerous things were not said. He claimed that the whole consultation, including discussion with “the nurse” before the first defendant entered the room, lasted “10 to 15 minutes”.
Mr Wilmot’s reply statement includes the following:
15 [The first defendant] went through what was on the slide was on his computer screen. [He] did not elaborate on any of the points set out in the slide.
[…]
17 Referring to the slide [the first defendant] did not explain what was meant by “poor emptying”, nor did he describe the potential severity of this complication or for how long this possible complication might last.
18 [The first defendant] did not mention that [the plaintiff] was at risk of urinary tract infections.
With respect to the third of the material risks that I have identified at [216] above, that the plaintiff might suffer UTIs as a result of poor voiding after the operation, I accept Sr Doyle’s evidence about her standard practice of explaining potential complications of the TVT-O procedure: see [219]-[226] above. Sister Doyle was a very impressive witness. She described with assurance a thorough knowledge of her field, a rigorously professional approach to the work she performed in the first defendant’s practice and confidence in the consistency with which she had conducted, on hundreds of occasions over many years, consultations like the one with the plaintiff on the afternoon of 10 October 2012. I accept Sr Doyle’s evidence that in the consultation with the plaintiff she had no reason to depart from her routine provision of information.
As noted at [226] above, Sr Doyle made a contemporaneous record that she had discussed in detail with the plaintiff “procedure outcome and complications”. As set out in earlier paragraphs, that included providing to the plaintiff the slide which specifically identified “Infections” as a possible complication. That alone would have been sufficient to alert the plaintiff that UTIs may be suffered as a result of the operation. I earlier referred to the evidence that the plaintiff had had prior experience of UTIs, including a persistent infection during 2012. Further, as quoted at [225], Sr Doyle’s standard explanation would have included the following:
… they may have poor bladder emptying after the surgery due to increased resistance, and that this may be associated with a residual which may increase their risk of urinary tract infections.
… they may be at more risk of urinary tract infections, and that these were generally treatable with antibiotics but they may need a longer-term low dose antibiotic to control infection initially until symptoms settle.
In the face of this evidence, the plaintiff’s and Mr Wilmot’s denials that they received this risk warning do not persuade me on the balance of probabilities. I am satisfied it was a sufficient discharge of the first defendant’s duty for the risk warning to be issued by his specialist urological nurse, even if he did not personally express or repeat the warning when he joined the consultation. The plaintiff had no reason to hold any reservation about whether she needed to take this risk seriously, even if it was given by the nurse, only, and not repeated by the specialist.
If, contrary to my view, there was a failure to warn about the risk of UTIs as a complication of the surgery, that omission would not have been causative of any damage. A warning of this possible complication would not have deterred the plaintiff because she had long experience of UTIs (see [58] and [65]-[67]) and the possibility of suffering more of these infections would not have been a reason for her to decline the surgery that could overcome her SUI.
With respect to risk (4), that the operation might cause voiding problems short of retention that would call for catheterisation, again I accept the evidence of Sr Doyle. The slide that was given to the plaintiff refers to “Poor emptying” as a complication. The various manifestations of “Poor emptying” were elaborated in detail on the scoresheet that the plaintiff had submitted to the first defendant on the morning of 10 October 2012. The scoresheet is expressed in simple language. It is not credible that the plaintiff would have completed it without understanding the symptoms referred to. In addition, I am satisfied that during the consultation Sr Doyle explained the results of her urodynamic testing in accordance with her usual practice. From all of this, the risk of surgery that was identified by the words “Poor emptying” on the slide would have been amply understood by the plaintiff.
However, Sr Doyle’s evidence satisfies me that still more explicit information about this risk was provided. “Poor emptying” is a complication covered by Sr Doyle’s contemporaneous record that she discussed the “procedure outcome and complications” in detail. As quoted earlier in these reasons, Sr Doyle’s statement includes that her routine explanation of complications included the following risk warnings:
… that the sling is not very tight but does create some resistance to prevent leaking. I explained that this resistance can sometimes cause the flow of urine to be slower once the mid-urethral sling has been inserted.
… I would warn the patient that they may be dry but their need to urinate more frequently and/or their sense of urgency to urinate may feel worse. I would also tell the patient that they may have poor bladder emptying after the surgery due to increased resistance, and that this may be associated with a residual …
As with risk (3), the plaintiff’s and Mr Wilmot’s general denials are not persuasive in the face of Sr Doyle’s strong evidence of the routine that she followed in such cases. The plaintiff has not established that there was a failure of the first defendant to warn in this respect.
With respect to risk (1), the possibility of post-operative retention and catheterisation, and risk (2), the possibility that persistent retention might require further surgery and even removal of the TVT-O sling, it is significant that in describing her entrenched practice of explaining to a patient the risks of the procedure, Sr Doyle did not mention any warning about either of those things. Those possible complications were not listed on the slide that was shown and explained to the plaintiff and I do not consider that the substance of those two risks was conveyed implicitly by the reference to “Poor emptying”. Absence of either of those risk warnings from Sr Doyle’s usual practice and from her discussion with the plaintiff would be consistent with the first defendant’s view of the very low likelihood of either of these risks being realised.
In 2013 it was “very rare”, in the first defendant’s experience, to remove a sling. Given the context in which he gave that evidence, I am satisfied that it was also very rare in his experience for retention to persist beyond a few weeks after the operation. The first defendant justifiably took into account the plaintiff’s young age, particularly relative to the higher age range of most of the patients upon whom he had successfully performed this procedure. In his view, her age reduced the likelihood of complications. He assessed her as fit and otherwise in good health, which were factors “in her favour for the procedure to work well”. I find it more likely than not that he would have viewed it as trying “to talk a patient out of something” to discuss with the plaintiff the low incidence (1%-4%) risks of retention, catheterisation and further surgery. I am satisfied on the balance of probabilities that the first defendant did not give the plaintiff any warning of those risks.
I am satisfied on the balance of probabilities that neither the first defendant nor Sr Doyle warned the plaintiff, on 10 October 2012 or at any other time, of the risks that I have identified at [216] (1) and (2) above; that is, the low level risk that she might suffer retention, requiring catheterisation, for some weeks after the surgery and the very low level risk that retention might persist over a longer timeframe and require further surgery, including possibly removing of the sling.
A compelling consideration is the plaintiff’s significant concern about the SUI symptoms she had experienced since childhood and the evidence that by July 2013, at the age of 36 years, she had exhausted the possibility of finding a remedy short of surgery.
Dr Katelaris gave this evidence about his experience of how SUI adversely affects patients:
Women who are incontinent chronically suffer anxiety and depression, social isolation, poor self-esteem, they - they don’t go out, they’re embarrassed, they avoid sex with their husbands. It is a major incapacity. Women will often say, “I’d rather have a broken leg than leak urine.”
That generalisation cannot be ascribed automatically to the plaintiff but it provides insight into the ways in which the disorder may afflict a female patient and motivate her to accept surgical intervention. The plaintiff’s answers on her 10 October 2012 scoresheet – that she would be “mostly dissatisfied” if she had to spend the rest of her life with her urinary problems as they were at that time and that over the preceding month she had leaked urine “more than half the time when she coughed, sneezed or made a sudden movement” – strongly suggest that SUI interfered with her life in a manner consistent with Dr Katelaris’ clinical experience.
According to the plaintiff’s evidentiary statement, when she initially consulted the first defendant on 25 September 2012 she was experiencing urgency, poor urinary stream, incomplete bladder emptying and frequency as well as SUI. She said this:
63 The symptoms I experienced at that time were a small inconvenience in my life, rather than a major issue. They did not stop me from participating in activities or being physically active. They were not debilitating. They did not affect my sexual relationship with my partner and did not affect my ability to do my work. I had learned to live with them, and would make minor adjustments when required, for example if I knew I was going to be running, I would wear a pad in case of a leak.
I do not accept that evidence and regard it as an endeavour by the plaintiff to downplay the strength of her desire for a remedy for her SUI, knowing that her motivation in that respect is material to her case on causation of damage. In cross-examination the plaintiff acknowledged that from the beginning of 2011, one year following the birth of her third child, she was “having leaks regularly” during exercise and on social occasions, for example if she coughed or laughed. She agreed that running and socialising were important parts of her life.
In cross-examination the plaintiff attempted, unconvincingly, to minimise her symptoms in the two years prior to the operation, as illustrated by the following answers:
Q. And so these leaks must have been very inconvenient to your life.
A. They were not noticed by anybody else, only by myself.
Q. Were they an inconvenience to your life?
A. They were bothersome.
Q. Bothersome. You had to wear pads.
A. Only when I did the running I wore pads.
Q. And when you didn’t wear pads, did you have accidents?
A. Not huge accidents, no. Only if I coughed, I’d cross my legs, or sneeze, I’d just cross my legs.
Q. But you had accidents. Yes?
A. Only small ones.
Q. What’s a huge accident?
A. Back then?
Q. Yes.
A. Maybe a, like, a tablespoon of urine in my undies.
Q. What kind of accidents did you typically have back then in 2011 when you coughed or sneezed?
A. The same.
Q. Did you need to bring a change of clothes when you went out to social occasions?
A. Sometimes, I did, yes.
The plaintiff agreed in cross-examination that she also occasionally leaked urine during sexual intercourse. She raised all of her then current SUI symptoms with her gynaecologist, Dr Black, at a consultation in June 2013. Her active pursuit of medical advice to address the problem, from July 2011, shows that by then she had not satisfactorily reduced her symptoms despite nine years of pelvic floor exercises. It is clear from the history she gave to Dr Hasham and from her obtaining multiple referrals – to Dr Black, to the first defendant and to Nurse Hibbard – that the SUI symptoms were having such an adverse impact on the plaintiff’s life that she was keen to find a means of correcting the problem.
I infer that when the plaintiff saw Nurse Hibbard in January 2013 she did not learn from that consultation anything about pelvic floor strengthening that she had not already tried. I am satisfied that by then the plaintiff perceived she had run out of options to remedy her incontinence, other than to accept the TVT-O sling offered by the first defendant on 10 October 2012.
In oral evidence Dr Katelaris summed up the plaintiff’s history in this respect as follows:
WITNESS KATELARIS: There is no doubt at all from the history that the lady was seeking cure of her debilitating incontinence. She’d done pelvic floor exercises. She’d seen nurses to teach her that technique. And yet she was still wetting herself. She still had that significant debility. And it is a very significant debility.
I am satisfied that the plaintiff told Dr Hasham her SUI had worsened since the birth of her third child in January 2010 and that that was in fact the case. Worsening SUI post childbirth was a significant aspect of her history. I do not accept that Dr Hasham would have made a mistake in recording this deterioration. The doctor recounted it to specialists in at least three of her letters of referral, in July 2011 and September 2012. The plaintiff would not have said this to Dr Hasham in 2011 and 2012 unless it were true. However, after the plaintiff ceased to consult with the first defendant, from 1 June 2015, and when she had formed a view that his clinical advice and care had been deficient, she commenced to deny that her SUI had been worsening up to the time of the operation.
Having instructed Stacks solicitors in April 2016 that she had not been warned by the first defendant about risks of the TVT-O procedure, on 15 July 2016 the plaintiff gave Dr E Karantanis the following history of the incontinence (as quoted earlier but repeated for ease of reference):
[had testing] age 19 in WA […] was having incontinence - with running and jumping - natural births – 3 kids - the incontinence never worsen with kids […] then leaked playing football kicking the ball - she was told could have surgery - tired of wearing pads – coughing […] sport orgasm all caused leak - had to wear pads
[Emphasis added]
I do not recall saying this [that her SUI had become worse since her third pregnancy 18 months earlier] to Dr Hasham. My stress urinary incontinence did not become worse after the birth of my third child […]. My stress urinary incontinence was a long-term problem. I was interested to see what could be done about it.
I prefer the contemporaneous record of Dr Hasham. It is adverse to the credit and reliability of the plaintiff that she has sought to minimise the seriousness of her pre-operative SUI and the adverse effects of it upon her enjoyment of life. Those matters are central to the issue of causation of damage from the alleged failure to warn. The keenness that she felt in 2011, 2012 and 2013 to find a cure is confirmed by her reluctance, following the TVT-O operation, to undergo a further procedure that might reduce her post-operative voiding problems and pain but might also set back the correction of the SUI that had been achieved by implantation of the sling: see the events recorded in respect of 11 February 2015 at [130], 17 February and 18 March 2015 at [132], 27 March 2015 at [138] and 1 June 2015 at [139].
The records of those events, from 11 February 2015 onwards, substantiate the first defendant’s recollection of his discussions with the plaintiff in the first half of 2015 about the possibility of a further procedure to address voiding problems. In oral evidence he said this about his discussions with the plaintiff concerning a further procedure to relieve her post-operative voiding difficulties:
But the risk of her getting incontinence was unknown. That risk was probably low, but I did not know the exact figure. I couldn’t quote it for her. But under no circumstances did she want a risk of incontinence. That was what I understood. And that is documented in the notes. It put me in a difficult position of thinking that I should do something that I thought would work, but I needed her consent to understand what I was doing and accept the possibility that she would be wet again. She was not willing to accept that possibility.
I was fearful that I would have incontinence again if the sling was freed up too much.
I didn’t want [the first defendant] to cut me because I had lost confidence in him. I was not particularly worried about the risk of becoming incontinent again, as [the first defendant] says.
I prefer the evidence of the first defendant in this respect. The plaintiff’s very considerable concern about the risk of going back to incontinence if a further procedure were undertaken to redress voiding problems was consistently documented at the time.
The distress that SUI had caused the plaintiff prior to the operation on 10 July 2013 is further confirmed by her reluctance to have the TVT-O tape cut even as late as July 2016, by which time she had ceased to consult the first defendant and was claiming that she had suffered complications of retention, recurrent UTIs and groin pain for three years. In the consultation with Dr E Karantanis on 15 July 2016 she was not prepared to accept the “slight risk” of incontinence that would accompany revision surgery to have the tape released (see [165] above). When cross-examined about that consultation the plaintiff gave the following answers:
Q. And you told Dr Karantanis that you were not keen to have it released - you were not keen to have the sling released, didn’t you?
A. Because I was worried about more surgery and getting it cut.
Q. No, you told him you were not keen to have it released because you had had a significant benefit in terms of a leakage. Isn’t that correct?
A. Well, if it’s written there--
Q. No, just answer my question. At the time you were talking to Dr Karantanis in July 2016, you did not want the sling released because you liked the fact that it was stopping the leakage. Agreed?
A. Well, it did stop, yes.
Q. You agree?
A. (No verbal reply)
Q. And that was after three years of complications with the sling. You still wanted to keep it in there for that reason?
A. I didn’t want it to be cut.
Q. Because cutting it would mean that the leakage would return?
A. There was that, but I was also worried about what might happen if it was cut, complication-wise.
Q. And I suggest to you, the reason you didn’t want it cut was because you remembered how much the leakage had affected your life before you had the sling in. Yes?
A. Possibly. Yes.
Q. You must have remembered because you told Dr Karantanis about it. Yes?
A. Yes.
Q. And you were not keen to go back to what it was before you had the sling if there was a way to manage the surgical complications.
A. Sorry. Can you repeat that?
Q. If there was a way one or more of these doctors could find to manage these surgical complications like voiding and pain, you would keep the sling in.
A. I don’t recall saying that.
Q. No, I’m not saying you said it. I’m saying this is your mindset at the time in 2016. Do you agree?
A. I disagree.
Q. When you say you didn’t think you would experience [a problem emptying the bladder], you didn’t know whether you’d be in the 10% mixed group here, did you?
A. Dr Rashid assured me - well, that I - because I was young and fit I would have a good success with this surgery.
Q. He said to you that because you were young and fit the odds were in your favour.
A. Yes.
Q. That’s what he said. He didn’t say because you’re young and fit you could not possibly be in the 10% mixed group, did he?
A. I - I guess, I just focused on the positives.
The expert witnesses did not express any criticism of advice from the first defendant, if it was given, that the odds favoured her escaping complications because she was young and fit. The plaintiff’s evidence that she “focused on the positives” means that she discounted the possibility that she would be within the 10% of patients who experience a complication. Had she been told that she might suffer retention for two weeks or so (at a risk rate of up to 4%), or that she might require revision surgery (at 1%-2%), I am satisfied that the plaintiff would have taken the same approach. If she had been told that those risks were elevated to some extent in her case because she had pre-existing voiding symptoms, I am nevertheless satisfied that she would have discounted them, as with the other risks.
The plaintiff gave evidence that she had a dread of being catheterised. However, given the low risk level of which she would have been informed in relation to retention, I am not satisfied on the balance of probabilities that that concern would have deterred her from a procedure that could resolve the long-standing SUI that was interfering so significantly with her life.
The only documentation I was given was a one page Power Point printout emphasising the positive to the procedure (given to me by Dr Rashid himself) and when I requested more detail, Professor Rashid advised I was young so the statistics were in my favour and failed to fully disclose the possible complications (many of which I am now experiencing) […]
Given the choice, I can guarantee that I would have preferred to continue to live with the stress urinary incontinence, (which I had lived with all my life) to having had the operation and the complications that occurred […]
Pain should be expected to some degree. Possible causes include haematoma, positioning, retention and nerve entrapment. When using the transobturator approach, there may also be pain due to trauma to the adductor longus. Pain should be treated expectedly for the first 1 to 2 weeks after surgery. If it persists beyond this period one should then consider the possibility of nerve or muscle injury.
First three weeks, to the end of July 2013: complaints of groin pain, inner thigh discomfort and suprapubic tenderness.
2 August 2013: MRI scan identified only “some mild oedema in the area of the obturator foramen on the right-hand side, with some oedema in the obturator externus muscle over an area of approximately 15 mm”; no further abnormality in the region of the obturator foramen; neurovascular structures in the obturator space “normal and symmetrical with the left side”. The identified features were regarded by the radiologist, Dr Marshall, as “consistent with post-operative changes in the area”. No further abnormality was found in the soft tissue of the upper thigh.
Weeks 4 to 9 (up to 3 October 2013): complaints of some groin discomfort, or soreness or tightness, which was getting better each day and did not prevent the plaintiff from running.
The next 15 months, from 3 October 2013 to 15 January 2015: no complaint of any discomfort or pain that the plaintiff associated with the operation.
15 January 2015: complaint to the first defendant of discomfort in the right inner thigh.
4 February 2015: to Dr Murray, first complaint of pain during sexual intercourse; also “constant lower pelvic discomfort”.
1 June 2015 and 16 November 2015: to the first defendant and to Dr Murray, complaints of ongoing right groin pain.
20 April 2016: to Dr Murray, complaints of “constant pain in right groin”, painful sexual intercourse.
The next two years, leading up to Dr Carey’s explantation procedure on 22 August 2018: complaints of right groin pain and painful sexual intercourse, during consultations with various specialists, at intervals of about 3 to 6 months.
Following the insertion [the plaintiff] had significant groin pain on her right side and at the time of the removal of the tape by Dr Marcus Carey, it was evident that the right arm of the tape was not in an appropriate location hence, more likely than not, it caused her right sided pain and difficulties with sexual intercourse. This would imply that the TVT-O tape was not inserted appropriately by [the first defendant] on 8 July 2013.
93 Having the right side of the tape 4 cm lower than the left obviously meant that it was closer to the vaginal mucosa and therefore more likely to move and create pain during penetrative intercourse.
94 It is also more likely that malposition of the tape on the right side by being closer to the posterior branch of the obturator nerve makes it more likely that the nerve would be injured.
95 The obturator nerve terminates into anterior and posterior branches around the area of the obturator canal. This bifurcation of the nerve is known to vary in its location in relation to the obturator canal.
96 […]
97 The posterior branch of the obturator nerve emerges through the obturator externus muscle to enter the medial compartment of the thigh innervating that muscle. After branching from the obturator nerve, the posterior branch runs between the adductor brevis and the adductor magnus muscle only to innervate the latter.
98 Hence being lower in the right side is likely to have damaged the posterior branch of the obturator nerve and caused pain.
Professor Korda’s report does not contend that the anterior branch of the obturator nerve has been injured, only that it is likely some damage was occasioned to the posterior branch. In oral evidence he went further, stating that the posterior branch was “almost certainly” irritated by the placement of the tape.
In Dr Katelaris’ report of 30 October 2024 he states the following:
It is clear that the sling was well-placed, the bladder was not injured and the mesh did not erode. Furthermore, the stress incontinence was cured.
The comment that the sling was placed asymmetrically is subjective and not functionally or clinically significant. It is more than likely that if all women who have had slings underwent ultrasound assessment a degree of “asymmetry” would be reported in many, it is not relevant to the functional outcome.
The report also states Dr Katelaris’ opinion that “the main trunk of the obturator nerve is not at risk but rather the anterior sensory branch in a small number of cases”. In oral evidence he made the correction that the anterior branch is not purely sensory but is both a sensory and a motor nerve.
The differences of opinion between the two expert witnesses as to whether Dr Angus’ ultrasound image of 18 July 2017 shows asymmetry of the penetrations of the tape through the right and left obturator foramina, respectively, has been described at [177] above. Professor Korda accepted in oral evidence that on the right side “the entry point [from the pelvic cavity] into the obturator foramen and membrane is probably at the same level [as on the left side]” but that it emerged through the membrane lower down on the right side than the emergence point of the other end of the tape through the left obturator foramen.
Assuming Prof Korda’s interpretation of the ultrasound image to be correct, two questions remain:
1 Was the right side penetration too low, below the target area, or was the left side penetration higher than it should have been, or did the asymmetry result from a little of each?
2 If the right side penetration, only, was out of the target area by being too low (deep) did that bring the tape on the exit side, after it had passed through the foramen, into contact with either branch of the obturator nerve?
The first question is simply answered. There is no basis in the evidence upon which I could be satisfied, on the balance of probabilities, that the asymmetry involved penetration of the right end of the tape at a level that was too low and not consistent with the exercise of reasonable care and skill. Although Dr Carey described the right-hand side of the tape as “miss placed” [sic], his operation report of 22 August 2018 and his follow up report of 12 May 2019 contain no description of the location of the penetration through the right foramen in absolute terms, for example, relative to the obturator canal or to any other anatomical reference point. The position is only stated relative to the location of the left penetration. There is no evidence to rebut the possibility that any discernible asymmetry was due to the penetration of the obturator foramen on the left side being unduly high – without having caused nerve or other damage on that side. There is no evidence that asymmetry, of itself, would or did cause nerve damage.
As for the second question, Dr Katelaris said that after exiting the right side obturator foramen, the end of the tape that had been placed by the first defendant can be seen in Dr Angus’ ultrasound image to have formed a “redundant loop” between the foramen and the termination of the tape under the skin of the plaintiff’s right groin. On that interpretation, he said that the extra loop of tape would not interfere with the obturator nerve “because it’s anatomically remote”.
Relying upon anatomical diagrams amongst the evidence, as they were explained by both experts in the hearing, I accept Dr Katelaris’ answers as follows:
As you can see here, the obturator nerve and vessels come through [the obturator canal] in a superior and lateral aspect [relative to the target area for the trocar and the tape].
[…]
Now, if the tape is very low and on the external side of the obturator membrane [that is, after passing through the membrane from the pelvic cavity], it is very remote, anatomically, from both branches of the obturator nerve.
[…]
[The nerve] tracks down the face [of the obturator membrane], but in a more lateral position [than the tape]. Because its ultimate destination is the medial compartment of the thigh, where it innervates the adductor muscles of the thigh. So the obturator nerve does not swing medially, where that redundant tape is lying. It goes straight down into the medial compartment of the thigh. It [the nerve] is anatomically remote from the redundant extravaginal tape [that is, the tape on the exit, or external, side of the obturator foramen].
In a subsequent answer Dr Katelaris said that the anterior branch of the nerve “tracks down the membrane into the medial compartment [of the thigh], whereas the posterior branch goes behind”. By “goes behind” I understand him to mean that the posterior branch of the nerve proceeds towards the posterior part of the inner thigh, towards the muscle that it innervates.
Doctor Katelaris’ view that there was no contact of the tape with the obturator nerve and no causation of pain by irritation of that nerve is supported by other considerations. First, there is no report of any compromise of the function of the inner thigh muscle. Dr Katelaris’ report included the following opinion about the significance of that circumstance:
There is no evidence in the notes of motor injury to the obturator nerve, nor of inability to adduct the hips. In other words, no objective evidence of significant nerve injury.
It’s a mixed sensory and motor nerve. If that nerve was damaged, there’d be weakness of the adductor muscles of the thigh. The adductors are the muscles that bring the thighs together. And as far as I could determine in the record, in the, you know, the immediate post-operative period, there was no adductor weakness. So on clinical grounds, you would say the nerve has not been damaged.
[…]
The lady had no muscular weakness of the muscles of the medium [scil medial] compartment of the thigh, so there is no clinical evidence for obturator nerve injury. Furthermore, obturator nerve injury wouldn’t cause groin pain. It’s more likely to cause weakness of the adductors and numbness of the inner thigh.
So we then have to say what are the other possibilities for her groin pain? One is referred pain from the hip. I believe the patient is a runner. I don’t know how long distance runner, but she’s a runner, and when I read through the GP notes, she had a recurring problem with her Achilles tendon, so there is a history of her suffering musculoskeletal pain. So as well as problems in the lower limbs from extensive running, she may well have referred pain from the hip referring to the groin. That’s not uncommon.
Now, the other possibility is pudendal neuralgia. Now, pudendal neuralgia is something of a vague syndrome. Women with sphincter active voiding who have pelvic floor tightness - a failure of the pelvic floor to relax - can suffer with pudendal neuralgia, and this particular lady in question has that profile, and that can certainly be a cause of groin pain.
Thirdly, Dr Katelaris is of the opinion that had the obturator nerve, in either of its branches, been injured by negligent placement of the tape on the right side, “symptoms would manifest immediately post-operatively”. The chronology referred to above shows that within the first three weeks after the operation the plaintiff’s groin pain, inner thigh discomfort and suprapubic tenderness were within what Prof Korda described as normal expectation. It accords with common experience and common sense that some pain and discomfort would be experienced in the immediate proximity of intrusive surgery and implantation. Notably, the plaintiff’s groin/inner thigh pain and discomfort subsided over weeks 4-9.
It has earlier been noted that the history received by Dr Vancaille on 5 May 2017 (“pain in the obturator distribution ever since the procedure”) was incorrect: see [168]. The plaintiff had by the end of the ninth week after the operation resumed running and no further symptoms of pain that could possibly relate to the obturator nerve were reported over the next 15 months. That is a compelling indication that the nerve had not received an insult during the operation and was not thereafter incurring irritation from contact with the tape.
Fourthly, Dr Katelaris notes that objective tests of nerve damage can be performed and that no such tests appear to have been carried out in relation to the plaintiff’s right obturator nerve. In his report he made the following observation:
No nerve conduction studies have been undertaken as far as I could determine from the notes.
That understanding was not contradicted by any evidence in the plaintiff’s case. Dr Katelaris repeated the point during oral examination, as follows:
You can do electrophysiological studies. Neurologists do this. And that can test the action potentials in the obturator nerve. As far as I’m concerned, that wasn’t done. And I believe it wasn’t done because there was no complaint of adductor weakness.
Fifthly, the plaintiff’s other treating clinicians have not identified obturator nerve damage from placement of the tape as an explanation for her complaints of pain since the operation. As noted at [164]-[165] above, Dr E Karantanis found tenderness on palpation of the distribution of the pudendal nerve, which is entirely different from the distribution of the obturator. He postulated that, at the time of his examination in 2016, the plaintiff may have been affected by pudendal neuropathy (different from pudendal neuralgia, referred to above), which he did not ascribe to any aspect of the way in which the implantation procedure had been performed by the first defendant.
Dr Katelaris dismissed the possibility of damage to the pudendal nerve as follows:
The pudendal nerve is lateral in the pelvis whereas the trans-obturator sling is more medial. […]
The post-operative MRI studies are not consistent with pudendal nerve injury […]
The plaintiff has not attempted to support Dr E Karantanis’ opinion that the pudendal nerve may have been affected.
24% of women had some form of groin discomfort or pain within the first 6 months of surgery, but only 3% still had some form of groin pain or discomfort persisting at 12 months. Of the 3% of women reporting persisting groin pain or discomfort, only one patient (1%) developed significant enough groin discomfort to warrant surgical intervention and the other two patients (2%) were satisfied with conservative management as their symptoms of groin discomfort were mild. This clinical research suggests that even when the TVT-O sling is correctly placed 1% of women can develop significant groin pain and discomfort that require surgical intervention.
unable to provide a definitive opinion as to whether the misplacement of the right groin strap of the TVT-O was responsible or partly responsible for the complaints made to me by [the plaintiff].
The sum of those opinions is that the sling caused voiding difficulties and groin and vaginal pain but that the mechanism of causation is not revealed. The mechanism is not said to lie in any error of performance of the original surgery.
Well just to be a bit more simplistic, there was no groin pain before the operation. The procedure involves exiting the tape through the groin. The tape is demonstrated to be four centimetres lower on the side where the pain is. It’s temporally related to the operation.
[…]
It wouldn’t have involved specific neurological assessments. But, very simply, you do an operation. The tape exists through the groin. There’s pain in the groin. I think it makes simple sense to remove it if there is severe pain.
The plaintiff relied upon a report and oral evidence of Dr U K Dias, an occupational physician, to establish the extent of her pain symptoms following the surgery of 8 July 2013 and continuing after the explantation carried out by Dr Carey. This evidence was primary directed to establishing the extent of injury, upon the assumption that all the plaintiff’s allegations of negligence, including those that were abandoned at the hearing, would succeed. Dr Dias’ evidence was apparently intended to show the extent of the plaintiff’s compensable injuries on the premise that, but for certain omissions of risk warnings, she would not have proceeded with the surgery at all and that she is entitled to damages for everything she suffered in consequence of the implantation, irrespective of whether all components of injury resulted from realisation of risks about which no warning was given.
In view of my findings on liability, Dr Dias’ evidence does not have to be assessed for the above purposes. I have considered his opinions for any light they may shed upon whether the obturator nerve received insult through negligence of the first defendant. That is the only actionable fault in the performance of the surgery that the plaintiff has pursued.
Dr Dias’ report of 27 August 2024 commences with a detailed history that I accept as a faithful record of what the plaintiff told him but which comprehensively distorts the post-operative course of events according to my findings. Dr Dias was apparently told this:
Following surgery, Ms Stott recalls that she awoke in the recovery room with severe pelvic pain, bilateral groin pain and vaginal pain, this was a throbbing pain radiating into her right leg. She had significant difficulty urinating. She recalls that she was struggling to walk due to pain. […] She was discharged home on the evening of 8 July 2013 […]
Over the next few weeks and months, Ms Stott’s symptoms persisted. Specifically she was suffering from significant pelvic/ vaginal pain, right-sided groin pain, right inner thigh pain and right hip pain, associated with sensory dysaesthesia.. She was also suffering from voiding dysfunction with urinary retention, recurrent urinary tract infections, and ongoing stressing [sic] incontinence.
The plaintiff did not suffer this array of pain symptoms over the “few weeks and months” following the surgery. Left-sided groin and inner thigh pain subsided over four weeks to the point where she was running again after nine weeks and nothing further was heard of any pain symptoms for 15 months: see [145]-[155]. She did not suffer voiding dysfunction with urinary retention symptoms over the “few weeks and months” following 8 July 2013. Two episodes of retention occurred in the first three weeks and there was no other recurrence for 13 months up to September 2014: [111]-[112]. There were no UTIs during the first year after the operation (see [115]) and the plaintiff did not suffer, at all, from SUI while the sling was in place.
Dr Dias’ reports his diagnosis as follows:
Ms Stott suffers from chronic neuropathic pelvic/right groin/gluteal pain, stiffness and discomfort, with associated lumbar spine/right hip stiffness and pain, and associated worsening stress incontinence and altered gait patterns, secondary to the TVT-O mesh mid-urethral sling implant surgical procedure of 8 July 2013, with associated sensory deficits due to mesh scar nerve entrapment likely involving the right pudendal/obturator nerves.
Ms Stott underwent a sling removal procedure on 22 August 2018, resulting in an improvement in voiding dysfunction, recurrent urinary tract infections, and dyspareunia but has continued to struggle with ongoing chronic neuropathic pain, sensory loss, stiffness and pain affecting her right hip and lumbar spine, and worsening stress incontinence over the course of the past six years since undergoing sling removal surgery and over the course of the past 11 years since sling implantation surgery in July 2013.
[Emphasis added]
In addition to being based, at least in part, upon a materially inaccurate history, Dr Dias’ conclusions are expressed in terms of such generality with respect to the chain of causation that I cannot give them significant weight against the reasoned approach of Dr Katelaris. I find Dr Dias’ statement that the diverse pain symptoms of which the plaintiff complains are “secondary to” the TVT-O sling implantation extremely loose and lacking in any explanation of a mechanism by which the operation could have been causative. In particular, the description “secondary to” says nothing as to whether the pain symptoms may be traced to a negligently inflicted insult to an identifiable nerve.
The doctor’s assertion that “mesh scar nerve entrapment” occurred is unsupported by any MRI or other radiological report or by any findings of Dr Carey from the explantation surgery. Dr Dias’ opinion that such entrapment “likely [involved] the pudendal/obturator nerves” is unhelpful given the wide physical separation of those nerves and their discrete distributions, respectively. The Court would not act upon this opinion without scientific explanation of how both of those nerves could receive injury or irritation from one insult, or if multiple insults, what those might be. Mesh entrapment is a phenomenon quite distinct from negligent insult during surgery.
The plaintiff also relied upon a report of Dr T Ho, a pain medicine and rehabilitation medicine physician. Drs Dias and Ho gave oral evidence concurrently. The defendant’s rehabilitation physician, Dr L Eikens, testified at the same time. Dr Ho did not undertake a physical examination of the plaintiff nor conduct any nerve tests. He relied on medical records and a video conference with the plaintiff. His report appears to have been directed to the same ends as the report of Dr Dias.
Dr Ho stated his diagnosis in the following terms, referring to the surgery of 8 July 2013 as “the index event” and describing the diagnosis overall as “chronic pain syndrome”:
1 Chronic pain in the pelvis secondary to: mesh scar nerve entrapment, likely pudendal nerve/obturator nerves and sacral plexus due to the index event.
2 Chronic nociplastic pain in the pelvis secondary to: central sensitisation as triggered by the index event, with long-term potential and secondary hyperalgesia.
3 Cortical augmentation with adjustment issues and catastrophisation.
In my opinion, Ms Stott’s chronic pain diagnoses as above are caused by the index event […].
[Emphasis added]
Paragraph 1 of Dr Ho’s diagnosis is affected by the limitations I have noted in relation to Dr Dias’ report. Dr Ho uses the indeterminate expression “secondary to”, does not identify concrete evidence of “mesh scar nerve entrapment” and does not discriminate between the “likely” impact on the pudendal and obturator nerves respectively. In par 2, the term “nociplastic pain” does not refer to pain that can be organically attributed to insult or irritation of a particular nerve or group of nerves. Although Dr Ho opines that this generalised, indeterminate pain has been “triggered by” the operation, he is apparently unable to say how or by what aspect of the original surgery the triggering took place.
There is no support in Dr Ho’s evidence for the plaintiff’s case that poor execution of the procedure initiated the pain. The doctor’s opinions are consistent with the TVT-O operation having been carried out flawlessly, notwithstanding which, by some unknown process, pain has resulted.
The claim in contract does not add anything of substance to the claim in negligence*: Chappel v Hart* (1998) 195 CLR 232 at [58] per Gummow J.
Accepting that position, the plaintiff’s claim upon that cause of action is dismissed for the reasons already given in relation to her negligence action.
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
267 Action against suppliers of services
(1) A consumer may take action under this section if:
(a) a person (the supplier ) supplies, in trade or commerce, services to the consumer; and
(b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3 - 2 is not complied with; and
(c) unless the guarantee is the guarantee under section 60--the failure to comply with the guarantee did not occur only because of:
(i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or
(ii) a cause independent of human control that occurred after the services were supplied.
[…]
(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
The first defendant does not dispute that for the purposes of this legislation he was at the relevant time a supplier of services and that the plaintiff was a consumer. The plaintiff’s first way of framing her case on breach of the statutory guarantees is to allege that the first defendant’s advice with respect to the proposed surgery, given on 10 October 2012, was a service to the plaintiff as a consumer, to which there was attached by s 60 a guarantee of care and skill. It was conceded in opening that the plaintiff’s case for breach of the s 60 guarantee “overlaps entirely … with the case in negligence, the failure to warn”. The effect of findings that I have made in relation to the negligence action is that there was a breach of the s 60 guarantee insofar as warnings of two material risks were not given.
Secondly, the plaintiff submits that the first defendant’s advice of 10 October 2012 was not “reasonably fit for the purpose” for which the plaintiff “acquired” the advice, constituting a breach of the fitness for purpose guarantee in s 61(1). The submission is as follows:
[The advice] was not reasonably fit for purpose because the plaintiff was not informed of all the material risks attending the surgery. She was therefore not able to make an informed choice as to whether to have the surgery. By failing to inform the plaintiff of all of the material risks, the first defendant failed to comply with the guarantee provided for by s 61(1) … . The plaintiff suffered loss and damage because of this failure. She would not have had the surgery had she been informed of the material risks.
I am satisfied that the plaintiff expressly and by implication made known to the first defendant that his pre-operative advice of 10 October 2012 would be used by her to make a decision about proceeding with the surgery, informed of all material risks; that is, all risks to which a reasonable person in her position would be likely to attach significance. The plaintiff cited Karpik v Carnival plc [2023] FCA 1280 at [497], where Stewart J expounded upon the meaning of “reasonably fit for purpose”, with extensive reference to authority. Most of that exposition is concerned with the provision of services that are of a physical nature, in contrast with the first defendant’s intangible service of providing advice regarding risks of surgery. Nevertheless, taking such guidance as I can from authority, I am satisfied that breach of the statutory guarantee is established to that extent that the first defendant failed to warn the plaintiff of the two risks described at [216] at (1) and (2).
Thirdly, the plaintiff contends that the first defendant’s “supply” of pre-operative advice breached his guarantee under s 61(2) that the advice would be “of such a nature and quality, state or condition” that it might reasonably be expected to achieve the result that the plaintiff expressly and implicitly made known she wished to achieve. In final written submissions the plaintiff’s case on breach of this “result guarantee” is expressed in terms that conflate the expected result of the surgery with the expected result of the advice. As best I can understand her case, it is that she made known to the first defendant that “the result [she wished] the [advice] to achieve” was that she would be informed of all material risks of the procedure, to enable her either to withhold consent so as to avert any risk that she was not prepared to accept or to go ahead with the operation. On that understanding, there was a breach of the statutory guarantee insofar as she was not informed of the two material risks I have identified. In the words of the section, the “nature, and quality, state or condition” of the advice was that it fell short of the intended result and the plaintiff was left to make a decision about the surgery unaware that she might take into account the risks of retention and of a requirement for revision surgery.
It appears that the only reason this alternative legal basis was pleaded was to enable the plaintiff to rely upon developments in medical knowledge subsequent to the surgery, by which urology specialists have identified risks that were not generally understood at the time of the first defendant’s advice. The plaintiff’s counsel submitted that legal authority would permit the Court to measure the first defendant’s risk warnings against such after-acquired knowledge when determining whether the guarantees of fitness for purpose (s 61(1)) and of suitability to achieve the plaintiff’s intended “result” (s 61(2)) were not fulfilled – whereas, the question of breach of the first defendant’s common law duty of care and of his contractual obligation would turn upon measurement of the sufficiency of risk warning against medical knowledge at the time the advice was given.
In view of my conclusions on liability it is not strictly necessary that I should determine the defendants’ Limitation Act defence. The plaintiff’s case on failure to warn has failed because the shortfalls in the first defendant’s pre-operative risk warnings did not cause her to accept the surgery and therefore did not cause her damage when the risks of retention and of a requirement for explantation surgery came to pass. I will consider whether the causes of action in which the plaintiff has litigated the inadequacy of the risk warnings – negligence, breach of contract and breach of Australian Consumer Law (NSW) guarantees – fail for the additional reason that they are statute barred. The plaintiff’s case on negligent performance of the surgery has failed because no such negligence has been proved. Again, I will consider whether the causes of action in negligence and for breach of contract, so far as they relate to the performance of the surgery, are also statute barred.
The provisions from which the Limitation Act defence is said to arise are as follows, extracted so far as relevant:
Part 2 Periods of limitation and related matters
Division 6 Personal injury actions
50A Application of Division—kinds of causes of action
(1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.
[…]
50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,
(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.
[…]
50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts—
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
The defendants contend that the plaintiff’s causes of action were discoverable within the meaning of s 50D(1) no later than 19 March 2017. That is the date on which the plaintiff submitted to the HCCC her detailed complaint against the first defendant. The defendants submit that the complaint was substantially to the same effect as the case that she now brings in these proceedings, thereby disclosing that she actually knew by that date each of the matters listed in pars (a)-(c) of s 50D(1). Prior to filing that complaint, on about 21 April 2016, the plaintiff completed a Medical Evidence Client Questionnaire and submitted it to Stacks Law Firm, for the purpose of providing instructions about her complaint that the surgery performed by the first defendant had caused “voiding issues” and “nerve damage”. The contents of the questionnaire are also relied upon by the defendants as evidence of actual knowledge of the matters listed in s 50D(1). It is contended that the plaintiff’s claims became statute barred on 19 March 2020, three years after the HCCC was lodged and nearly 6 months before the statement of claim was filed.
The defendants bear the onus of proving that the plaintiff knew the matters listed in s 50D(1) more than three years before she commenced these proceedings: Murgolo v AAI Ltd [2019] NSWCA 295 at [106]. As earlier noted, with citation from Rogers v Whitaker at p 489, the first defendant’s “duty … to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty”. The earliest date which the plaintiff knew the three facts listed in s 50D(1) with respect to her causes of action in negligence and contract is the date upon which she knew those three facts in relation to her case on failure to warn of surgical risks, or the date upon which she knew the three facts with respect to her case alleging negligent execution of the surgery, whichever came first. The earliest date on which she knew the three facts in relation to her statutory cause of action under the Australian Consumer Law is the date on which she knew them with respect to the failure to warn of material risks.
In Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Basten JA (Ipp and Macfarlan JJA agreeing) held as follows at [45]:
In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person “knows” (or ought to “know”) the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings.
Although I have held that the “facts” listed in s 50D(1) have not been established with respect to any of the plaintiff’s causes of action, and therefore could not have been known to her, I must determine the application of the section by considering the date by which the plaintiff had “a belief that [the] matters [could] be established, […] on the balance of probabilities”.
For the purposes of the plaintiff’s allegation regarding failure to warn of the risk of post-operative urinary retention, the fact in par (a), that injury had occurred, was known to the plaintiff when she first experienced the post-operative complication and had to be catheterised. That was on 16 July 2013.
The plaintiff could not “know”, in the relevant sense, the fact in par (b), that urinary retention was “caused by the fault of the defendant”, until she appreciated that this was a risk of the vaginal sling procedure known to specialists in the first defendant’s field and that with reasonable care he could have warned her of it on 10 October 2012, or at least before the surgery was performed on 8 July 2013. Those were “key factors necessary to give rise to liability”: Baker-Morrison v State of New South Wales at [39]-[40]; State of New South Wales v Gillett [2012] NSWCA 83 at [94]. The plaintiff was not in a position to form a belief that those matters could be established until she was so informed by the fourth last paragraph of the report of Prof Korda dated 11 November 2019.
Under par (c) of s 50D(1), the question whether the plaintiff knew “the fact that the injury was sufficiently serious to justify the bringing of an action” is to be assessed with due regard to the following passage of Basten JA’s judgment in Baker-Morrison v State of New South Wales at [42], as follows:
The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, eg, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind.
In relation to each of the plaintiff’s causes of action based upon failure to warn of the risk of urinary retention, the plaintiff was aware by November 2015 that she had had to be catheterised on about six occasions since the operation and that, by her account, she had suffered inability to urinate for a duration of three days during July 2015 and again during November 2015. I do not consider that that course of experience would have conferred upon her knowledge that she would be entitled to any more than damages for non-economic loss, being compensation for pain and suffering. She could not know that that level of “injury”, representing the realisation of a risk about which she had not been warned, would justify an action for damages, unless and until she received legal advice with respect to s 16 of the Civil Liability Act 2002 (NSW), addressing the issue of whether her urinary retention would likely be held to exceed the threshold of a 15% whole person impairment. The answer to the latter question is not self-evident.
The defendant has not proved on the balance of probabilities that the plaintiff had advice from which she could know that her injury, constituted by episodes of retention, would justify bringing an action, at a date more than three years before she commenced these proceedings. In any event, s 50D(1) is concerned with knowledge of all three of the facts in (a), (b) and (c). That date could not be any earlier than 11 November 2019, for the reasons given above in relation to par (b).
So far as each of the three causes of action would be founded upon failure to warn of the possible requirement for further surgery to remove the TVT-O sling, the plaintiff knew “the fact that the injury […] concerned [had] occurred” (par (a)) only when that risk was realised on 22 August 2018, upon the explantation surgery being performed by Dr Carey. She only knew “the fact that the injury […] was caused by the fault of the defendant” (par (b)) when she had Prof Korda’s report of 11 November 2019, in which he explained on the second last page that chronic urinary retention is a risk of the procedure, albeit a low level risk, and that surgical intervention may be required in very small number of cases to resolve the problem. The plaintiff could not have known that the impact of the injury she sustained, when that risk was realised, should be regarded as sufficient to justify bringing an action (par (c)) until Dr Carey’s operation was carried out on 22 August 2018. The earliest date upon which all three matters were known was 11 November 2019.
It follows from the dates identified in the preceding paragraphs that with respect to any cause of action based upon either failure to warn of the risk of urinary retention or failure to warn that reversal surgery might be required, the three year limitation period in s 50C did not commence to run until 11 November 2019. If the plaintiff’s proceeding was based solely upon failure to warn, it was commenced within time.
The parties tendered several expert reports and a significant volume of documentary evidence directed to establishing, or contesting, the measure of the plaintiff’s damages. A large part of the cross-examination of the plaintiff and of Mr Wilmot concerned quantum. The three experts on pain gave concurrent evidence about the nature of the plaintiff’s ongoing symptoms and disabilities, all of which was relevant to assessment of damages.
In view of my conclusions on liability I will not attempt a hypothetical assessment of damages. Such an exercise would have to consider a number of alternative calculations, varying according to whether it be assumed that the plaintiff might be compensated only for the effects of urinary retention and further surgery, being the risks that were not warned of but came to pass, or for the consequences of irritation of her right obturator nerve, or both. To make any of the hypothetical assessments, the evidence would have to be significantly filtered because much of it concerns damages that might be attributed to particulars that have not been pursued – of failure to give additional warnings, inadequate post-operative care and additional flaws in the execution of the procedure.
Delay in delivering this decision has already been contributed to by the burden of claims that were belatedly withdrawn. I will not defer the decision further for the purpose of sifting such of the evidence on quantum as might remain relevant to hypothetically possible bases of liability.
The following orders will be entered:
**********
Stott
Rashid [2025] NSWSC 1379
(2009) 74 NSWLR 454
(1983) 33 SASR 189
(1992) 175 CLR 479
(2001) 205 CLR 434
(2013) 250 CLR 375
(1998) 195 CLR 232
From about June 2015 the plaintiff developed great hostility to the defendant based upon misapprehensions of fact and other irrational grounds. She commenced to blame the first defendant for alleged side effects of the surgery that emerged after 15 months and that were, in my view, manageable. Her sense of grievance was increased when she learned in about October 2015 that there was a Senate inquiry and a class action in the Federal Court, both of which were concerned with the risk of adverse bodily reactions to implanted mesh material. There is no evidence in the case before me that any quality of the tape used by the first defendant was a contributory cause of injury to the plaintiff.
In her instructions to lawyers from April 2016 the plaintiff claimed that the first defendant had not himself performed the operation but had allowed a registrar to do it. That came from the plaintiff’s misreading of the hospital’s operation record. She adhered to the claim for a considerable time.
The plaintiff complained to the Health Care Complaints Commission (HCCC) on 19 March 2017 that the first defendant had failed to attend to her symptoms in the weeks immediately after the operation. She told the HCCC that the first defendant had not performed revision surgery in the first few weeks but had adopted a “wait and see” approach with respect to the settling of her post-operative symptoms. That was exactly the approach that the plaintiff expressly elected, because of her fear that revision surgery might reverse the correction of her SUI that had been successfully achieved by implantation of the sling. The plaintiff also asserted to the HCCC that, “shortly after the surgery”, she asked the first defendant what type of sling material had been used and that he misled her. There is no evidentiary foundation for that complaint.
I accept that the plaintiff has suffered some level of discomfort that is likely to have resulted from the operation and that she has experienced instances of urinary retention that may have been caused, at least in part, by the sling. Against that, for the five years that the device remained in place it successfully corrected her SUI, a benefit that the plaintiff in retrospect has sought to minimise. I do not accept that the negative symptoms, so far as they can be attributed to the operation, have been as severe as the plaintiff has endeavoured to portray. Further, as will be seen, I do not accept that any of the adverse effects resulted from actionable fault on the part of either defendant.
If, following sling implantation, a patient suffers unacceptably high residuals, or retention, corrective surgical procedures may in some cases be undertaken. One procedure is to loosen the sling by dilatation of the urethra (stretching its diameter with a catheter) and manipulating it downwards so that the underside of the wall of the urethra pushes down on the sling and displaces it slightly. Loosening may also be attempted by reopening the incision in the anterior wall of the vagina through which the tape has been inserted and utilising forceps to pull the tape downward. If loosening cannot be achieved or is ineffective to resolve voiding dysfunction, the tape may be divided by reopening the incision in the vaginal wall and cutting the tape to relieve pressure that it might be exerting on the urethra. If deemed appropriate, the entire tape may be removed (“explanted”).
There is an issue about whether the possibility of carrying out one or more of the above further procedures to adjust or reverse the TVT-O implantation can properly be characterised as a risk concerning the original operation, about which a warning should have been given.
Mr Wilmot did not assert in his first statement that he had attended the consultation. After service of the defendants’ statements, he made a statement in reply asserting that he was present and denying that the usual explanation of the procedure and its risks, as described by the first defendant and Sr Doyle, had been given. The denials by the plaintiff and Mr Wilmot in their reply statements are so comprehensive that it is difficult to understand what, on their case, could have been said during the consultation or how the participants could have passed the time.
The witness statements were prepared when the plaintiff maintained in her pleading a large number of particulars of failure to warn that have since been abandoned. Many aspects of the divergences of evidence about what took place during the afternoon consultation on 10 October 2012 are no longer forensically significant. Having regard to the substantial narrowing of the case on failure to warn, the most economical course for these reasons is to defer further analysis of the competing evidence about what was said during the consultation until I have identified with precision what risk existed of the plaintiff’s voiding problems being worsened by the procedure and what aspect of that risk was material, such that the first defendant’s duty of care required that he should warn her, and in what terms. That will require consideration of the expert evidence about known risks of the TVT-O sling procedure, including evidence of the relative likelihood of those risks being realised and the relative gravity of the consequences for the patient.
Assessment of the materiality of the identified risks and a finding as to the consequent scope of the duty to warn requires application of the principles explained in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58. That assessment is made under the heading “The relevant risk warning that reasonable care required” commencing at [184] below. After identifying precisely what risks the first defendant was required to warn about, the Court’s focus in resolving evidentiary conflicts over what was said during the 10 October 2012 consultation will be upon whether the plaintiff has proved that the first defendant failed to give the plaintiff an appropriate warning about those specific risks.
In his witness statement of 24 September 2024, Mr Wilmot has similarly exaggerated the plaintiff’s experience of UTIs and catheterisations. With respect to the period described as “after the implant operation”, generally, he states that she required catheterisation at the hospital “approximately every 1-2 months” and had UTIs “at a frequency ranging from multiple infections within the same month to an infection every 2 months”. The reality, established by medical records, is that the plaintiff had only one UTI at the end of the first 12 months following the operation and in that initial 12 month period she was catheterised only twice, under the first defendant’s care during the second half of July 2013. During the next 24 months, from July 2014 to July 2016, the plaintiff had a catheter installed on four occasions, as the following chronology of medical records shows. The dates were 6 August 2014, 10 November 2014, 1 January 2015 and 28 March 2015. In those 24 months she had only one UTI, being the infection she had acquired on her holiday in Bali, which continued into September 2014.
On 11 September 2014 Dr Sandra Clarke referred the plaintiff for an ultrasound study – it is not clear for what purpose. Upon receipt of the ultrasound results the doctor referred the plaintiff back to the first defendant with a copy of the sonographer’s report, which is not in evidence. Dr Clarke informed the first defendant that the plaintiff had “started having recurring UTIs, usually with e. coli”. In his subsequent consultation with the plaintiff the first defendant apparently accepted that history at face value, and was not made aware that, in fact, the plaintiff had experienced only one UTI since the operation, commencing in early July 2014 and continuing into September 2014, only partly treated with antibiotics over its early course.
On 25 September 2014 the first defendant saw the plaintiff. He dictated in her presence a report to Dr Clarke that included the following:
Although the plaintiff in a supplementary statement acknowledged receipt of the PowerPoint slide, in her first statement she said this:
I have concluded above, in my consideration of the cause of action in negligence, that there was no warning given of two material risks of the surgery that were known at the time of the advice and that were omitted in breach of the first defendant’s common law and contractual duty of care. That conclusion has carried through to result in findings that all three of the statutory guarantees were breached. It is therefore not necessary for me to determine the correctness or otherwise of the plaintiff’s submission about deployment of after-acquired medical knowledge in a claim under the Australian Consumer Law (NSW). Nor is it necessary for me to determine as a matter of fact whether any significant additional knowledge of material risks has surfaced since 2013.
As recorded above in my consideration of the cause of action in negligence, the plaintiff has not proved on the balance of probabilities that if she had received the omitted risk warnings she would have declined the TVT-O implantation. She has therefore not proved, in the words of s 267(4), that she suffered any loss or damage “because of the failure to comply with the guarantee”. The plaintiff’s claim under the statutory guarantees therefore fails.
With respect to the allegation of negligent performance of the surgery, which arises only in the causes of action in negligence and contract, the plaintiff could not have known that the injury constituted by her experience of groin pain “was caused by the fault of the defendant” (par (b) of s 50D(1)) until she received Prof Korda’s report of 11 November 2019, containing the opinion, in the second last paragraph, that “the tape was not inserted appropriately by Dr Rashid on 8 July 2013”. Again, the plaintiff’s proceeding was commenced within time for the negligence and breach of contract causes of action so far as they are based upon substandard performance of the surgery involving damage to, or irritation of, the obturator nerve.
For those reasons, if the defendants had to rely upon their Limitation Act defence, I would find that it has not been made out.