Counsel for Defendants: T Pauling QC with him I Bruninghausen Solicitors for Defendants: Solicitor for the NT ORDER Judgment for the plaintiff against the first, third and fourth defendants in the sum of $274,178. JUDGE1 MILDREN J The Plaintiff brings this action against the defendants for damages for negligence, and breach of duty and breach of contract. 2. The plaintiff's case, as alleged in the Amended Statement of Claim, is that on 11 February 1984, she entered the Royal Darwin Hospital, which was at all material times operated and administered by the first defendant, the Northern Territory of Australia, in order to give birth. Her child, Samuel, was delivered normally at the hospital on 12 February 1984. As the child was underweight, the plaintiff, who was then twenty-four years of age, remained in hospital for a further two weeks. During this period she noticed a discoloured and smelly discharge, and, in consultation with the fourth defendant, Dr Evans, who was then a resident medical officer employed by the first defendant in the hospital, the third defendant, Dr Anderson, a specialist gynaecologist also employed by the first defendant at the hospital, performed a curettage of the plaintiff under general anaesthetic on 20 February 1984 to remove afterbirth still remaining in her uterus. 3. On 24 February 1984, the plaintiff and Samuel were discharged from the hospital, but on or about 28 February, the plaintiff suffered sudden blood loss, and subsequently, after the death of the plaintiff's father on 3 March 1984, further gynaecological problems, at which time her milk supply gradually dissipated. 4. On 23 March 1984, she attended the hospital for a six weekly post-natal check-up, and was seen by Dr Evans. The plaintiff had previously been prescribed the "mini pill" by Dr Evans. On this occasion, Dr Evans advised the plaintiff that the "mini pill" would be an inadequate means of contraception as she was not then able to fully breast feed. Dr Evans advised her to have an intra-uterine contraceptive device ("IUCD") inserted, and advised that this was the safest and best form of contraception. The plaintiff said that she did not wish to have an IUCD, because when she had previously used an IUCD, she suffered severe pain causing excessive bleeding. This resulted in the removal of the IUCD under anaesthetic and required a subsequent laparoscopy which had caused scarring. The plaintiff alleged that she was given no advice as to any alternative forms of contraception which may have been open to her; nor was she told about the possible dangers or side effects of the insertion of an IUCD. Dr Evans inserted the IUCD, so it was alleged, without the plaintiff's informed consent. 5. Immediately after insertion of the IUCD, the plaintiff suffered extreme pain, and was unable to locate the string to the device. She sought assistance from the Berrimah Clinic and was referred to the hospital for further treatment. On 1 April 1984, (the Amended Statement of Claim refers to 1987, but it is clear that 1984 is the correct year) Dr Anderson attempted to remove the IUCD. Being unable to do so, on 2 April 1984 Dr Anderson performed a further curettage and a laparoscopy to remove the IUCD which had perforated the uterus and which was located in the eploicacae of the sigmoid. 6. As a result, the plaintiff claims that she has suffered from amenorrhoea, dysmenorrhoea, Asherman's disease, left and right sided pelvic pain with dyspareunia, uterine fibrosis, a diseased uterus and bi-lateral tubal disease. 7. The plaintiff claims that the first defendant was negligent, in breach of duty to the plaintiff and/or breach of statutory duty and for breach of its contract with the plaintiff, in that it:- "(a) to exercise all due care, skill and competence appropriate to its position as a hospital employing and providing legal (sic) qualified medical practitioners and specialist gynaecologists in the examination and advice to and treatment of the plaintiff; (b) failed to perform appropriate and recognised diagnostic examination and testing procedures upon the plaintiff and failed to give appropriate diagnostic, management and treatment advice to the plaintiff; (c) failed to inform the plaintiff of the full range of options to contraception open to the plaintiff and the nature, effect and risks of each form of contraception; (d) failed to inform the plaintiff as to the effects, implications and risks of the insertion of the IUCD; (e) failed to inform the plaintiff of the effects,

implications and risks consequent upon the insertion of the IUCD, given the plaintiff's previous history; (f) failed to employ skilled and competent medical staff; (g) failed to properly supervise to advise and treatment (sic) of the fourth defendant." 8. The plaintiff claims that the third and fourth defendants were negligent and in breach of duty and in breach of their contract with the plaintiff in that they:- "(a) failed to exercise all due care, skill and competence appropriate to their positions both as legally qualified medical practitioners and in the case of the third defendant as a specialist gynaecologist in the examination and diagnosis and advice to and treatment of the plaintiff; (b) failed to perform appropriate and recognised examination and testing procedures upon the plaintiff and failed to give appropriate treatment advice (sic) to the plaintiff; (c) failed to inform the plaintiff of the effects, implications and risks associated with the insertion and use of an IUCD and in particular:- (i) at six weeks after delivery; (ii) given the plaintiff's past history with an IUCD; (iii) given the plaintiff's recent pelvic inflammatory disease; (d) failed to properly inform themselves as to the plaintiff's past history of infection in the uterus consequent upon the birth of her first child, previous scarring of the uterus as a result of previous laparoscopy and previous unsatisfactory experience with an IUCD; (e) failed to advise the plaintiff of and make use of other and more appropriate diagnostic and contraceptive measures that were freely available to them prior to making a decision and giving advice to the plaintiff as to the appropriate method of contraception; (f) made a decision to insert the IUCD and advised the plaintiff to have the IUCD inserted in the circumstances where they were in possession of insufficient information to decide or advise the plaintiff as to the appropriate form of contraception; (g) advised and inserted an IUCD without the informed consent of the plaintiff; (h) adopted a technique for the insertion of the IUCD whereby the plaintiff's uterus was perforated; (i) inserted an IUCD in circumstances where and at a time when it was reasonably foreseeable there would be risk of further injury to the plaintiff as a result of insertion of same; (j) performed a dilation and curettage procedure in circumstances where the number of such previous procedures performed on the plaintiff exposed her to risk of permanent uterine injury therefrom; (k) generally failed to exercise the appropriate degree of competence and skill in relation to their advice diagnosis and treatment of the plaintiff." 9. No claim was pursued against the Royal Darwin Hospital, which had been named as the second defendant, presumably because the hospital did not exist as a separate legal entity. 10. The defendants by their Amended Defence denied any negligence, breach of duty, breach of statutory duty or breach of contract, and denied that any illness from which the plaintiff is now suffering was causally related to any treatment which the plaintiff received from them at the Royal Darwin Hospital. However, certain matters were admitted by the defendants:-

1. that the Royal Darwin Hospital was at all material times administered by the first defendant;
2. that the third and fourth defendants were legally qualified medical practitioners employed by the first defendant;
3. that the third defendant is and was at all material times a qualified gynaecologist;
4. that the plaintiff gave birth to a child at the Royal Darwin Hospital on 12 February 1984;
5. that Dr Evans performed a curettage on 23 February 1984 for removal of remnant afterbirth;
6. that the plaintiff and her child were discharged from the Royal Darwin Hospital on 24 February 1984. THE EVIDENCE FOR THE PLAINTIFF ON LIABILITY
7. The plaintiff called the following witnesses in support of her case on liability:
8. The plaintiff herself.
9. Donald George Cave, an expert in obstetrics and gynaecology.

George Olesnicky, an expert in obstetrics and gynaecology. 4. The plaintiff's husband, Phillip Young. 5. Dr Patrick Wells, a general medical practitioner practising in Peterborough, South Australia. 6. Ross Sweet, an expert in obstetrics and gynaecology. 12. In addition, a number of exhibits were tendered by the plaintiff relevant to liability, including reports from and conference notes with the plaintiff's medical experts, the Royal Darwin Hospital file, the Peterborough Hospital file, a report from Dr Steven Scroggs, an expert in obstetrics and gynaecology, and interrogatories and answers to interrogatories of the plaintiff for the examination of the third and fourth defendants. THE EVIDENCE FOR THE DEFENDANTS ON LIABILITY 13. The defendants called the following witnesses in support of their case on liability:

1. Dr Evans.
2. Dr Anderson.
3. In addition, the defendants tendered inter alia certain letters from the plaintiff's solicitors to Dr Cave, an ultrasound and report, and some conference notes with Dr Sweet. THE EVENTS GIVING RISE TO THE CLAIM
4. The plaintiff was born on 9 December 1959 at Naracoorte, South Australia. She was educated to Year 10 at Peterborough High School, after which she obtained employment as a waitress at the Railway Hotel. When she was seventeen years old, she had a child, Sharn, and thereafter moved with Sharn's father to Hughes, a railway siding on the Nullarbor Plain, for a year. Whilst there, she had her first IUCD inserted by the Royal Flying Doctor Service. In 1979, she returned to Peterborough, and there consulted a doctor at the Peterborough Medical Clinic in December 1980. Her IUCD was then removed, and an attempt was made to insert a new one. This attempt failed, but shortly afterwards a second IUCD was inserted at the Peterborough Hospital under general anaesthetic. The plaintiff experienced severe pain, but thinking it might settle down, persisted with it until it was eventually removed at the Peterborough Medical Clinic by Dr Lynch on 5 May 1981. The type of IUCD then used was known as a "Copper 7." In January 1982 she again consulted a doctor at the Clinic, complaining of dyspareunia (painful sexual intercourse). At this time condoms were the form of contraception being used. She was referred to the Queen Elizabeth Hospital, Adelaide, for diagnostic laparoscopy, which was performed on 25 February 1982 by a Dr Heysen. According to the operating notes of Dr Heysen, and a typed report dated 2 March 1982, the plaintiff was then complaining of pelvic pain, dyspareunia and dysmenorrhoea (painful menstruation). On examination under the laparoscopy, the plaintiff had old adhesions to her left pelvic side wall and left ovary, and the left fallopian tube was thickened and tortuous. The right tube and ovary were normal. The uterus was normal. The opinion of Dr Heysen was that she doubted that those adhesions would produce significant pelvic pain. The plaintiff was prescribed a drug called Ponstan for her dysmenorrhoea. Dr Sweet and Dr Cave considered the adhesions to be compatible with a previous history of mild pelvic inflammatory disease. I will return to this issue later. Thereafter, the plaintiff's condition settled down, and from March 1982 onwards, she used an oral contraceptive, Microgynon 30 ED, and also condoms were used as well. The reason why her condition settled was not entirely explicable, but Dr Cave expressed the opinion that it may have been due to Ponstan which, depending on the cause of her dyspareunia, could have reduced her pain from that condition as well as reduced the painful dysmenorrhoea. It is not necessary to make any finding on this issue. None of the plaintiff's specialists thought it impossible for her pain to have been reduced after the laparoscopy in early 1982, although the laparoscopy itself would not have caused this. I accept the plaintiff's evidence that she was thereafter not in any pain. This is supported by the evidence of Dr Wells, that in the period thereafter, although seen at the Peterborough clinic for other conditions, there was no further complaint of pelvic pain, painful intercourse or painful menstruation.

On 1 April a plain x-ray was taken and on 2 April, the ultrasound was used. These reported that the IUCD was found in a position consistent with being inside the uterus. Dr Anderson was not satisfied that the IUCD was in the uterus, and having explained this to the plaintiff, he obtained her consent to perform a laparotomy if necessary. On 3 April, the plaintiff underwent a further D and C under general anaesthetic. Dr Anderson was unable to locate the device, and in the process of exploring the right corner of the uterus, he perforated it. He then inserted a sound, and using an image intensifier, was able to demonstrate that the IUCD was outside of the uterus. An image intensifier is an x-ray device which takes pictures which change as there is movement, so that if a probe is manipulated inside the uterus, it would be possible to see if there was a gap between the top of the probe and the IUCD, and which would be good evidence that the IUCD was not in the intrauterine cavity. Dr Anderson immediately performed a laparotomy. He found that part of the bowel, the epiplocele of the pelvic colon, was stuck to the posterior surface of the uterus. The IUCD was located stuck in the mesentery of the sigmoid colon parallel to and adjacent to the wall of the uterus in the pouch of the douglas and he removed it without injury to the bowel. The perforation of the uterus caused by the D and C was repaired. The small perforation caused by the insertion of the IUCD was not bleeding and needed no repair. Dr Anderson found that the right fallopian tube and ovary were normal. Apart from a small hydatid of morgagni of no significance which he removed, the left tube and ovary was also normal. He noticed no adhesions. 34. The plaintiff was discharged from hospital on 9 April. She was seen by Dr Anderson again on 16 April, when she was well, and a further appointment was made for her in a fortnight but she did not attend. The plaintiff's evidence, which I accept, was that she had a lot of pain in the pelvis and lower back during this period, but she was stoical about it, taking the view that she had to accept this as a consequence of major surgery. 35. I accept Dr Anderson's evidence as to these matters, and, with one exception which I will refer to later, I accept his findings at operation on 3 April 1984. In particular, I find that as at that date, the plaintiff did not have any active pelvic inflammatory diesease. 36. I will return to this sequence of the events later in my reasons. 37. The plaintiff consulted Dr Anderson again sometime in May. She was still experiencing pain, but was working and otherwise well. On examination, she appeared well, and nothing abnormal was detected. Thereafter she was seen on a number of occasions at the Royal Darwin Hospital gynaecological clinic by various doctors with complaints of amenorrhoea, constipation, per rectum bleeding, nausea and headaches. Various tests were done which showed that she was not pregnant, that there was no infection, there were no haemorrhoids, and no damage to the bowel. By September 1984 Dr Anderson concluded that an explanation for her amenorrhoea was Asherman's Syndrome, a rare condition where the uterine cavity is obliterated by the walls of the uterus sticking together, often following the removal of the endometrial lining by repeated curettage. On 11 October 1984, as the plaintiff had indicated that she and her husband were moving to Sydney, Dr Anderson wrote a letter of referral to a Professor Fraser asking him to take over her management with a view to possible hysteroscopy. At that time, a hysteroscope was not available in Darwin. (This is a form of speculum or fibre optic telescope enabling examination of the cavity of the uterus). The plaintiff in fact did not go to Sydney, but returned to Peterborough in late 1984, where she consulted Dr Wells, who referred her to the Queen Elizabeth Hospital. 38. In January 1985, the plaintiff saw Dr Olesnicky, an obstetrician and gynaecologist, who could find no hormonal cause for her amenorrhoea, and she was admitted to the Queen Elizabeth Hospital on 21 January for hysteroscopy and laparoscopy. Her only complaint to him was of amenorrhoea; there was no complaint of abdominal or pelvic pain. The hysteroscopy showed that in fact the uterine cavity was smooth and without intrauterine adhesions. Consequently, Dr Olesnicky concluded that she did not in fact have Asherman's Syndrome. A dilation and curettage was also performed, but no tissue was removed as there was no endometria in the uterus. Outside of the uterus, Dr Olesnicky found a lot of omental adhesions both to the fundus of the uterus and to the anterior abdominal wall where Dr Anderson's laparotomy had been performed. The left adnexa could not be seen. The right tube and ovary could be seen. The tube was slightly convoluted and enlarged (but not blocked) suggesting a mild hydrosalpinx. There were also some adhesions to the right side around the tube. He considered that the omental adhesions which he saw, were the result of the earlier laparotomy, and I so find. He considered that the cause of the tortuosity and swelling of the right tube was most likely to be due to infection, and the probable cause of the infection was the insertion and perforation of the uterus by the IUCD in February 1984. 39. His examination of the uterus showed that no endometrium had developed, which explained the amenorrhoea. In his opinion, there may have been a number of reasons for this, including the fact that the plaintiff was underweight, the use of a contraceptive pill, or it may have simply been the result of her earlier pregnancy. He concluded that the cause of the amenorrhoea was probably due to a hypothalamic pituitary problem caused by her being underweight, but he thought also that the stresses from having undergone three D and C's in 1984, the perforation of the uterus, and substantial hospitalisation probably were also directly related to the amenorrhoea. 40. Apart from these observations, there were no right sided adhesions of the pelvis, other than the mild adhesions to the right tube, and Dr Olesnicky was of the opinion that if later, the plaintiff developed right sided adhesions, these were not related to the events of 1984. 41. Dr Olesnicky's findings, as set out above, were not challenged and I accept them; however, I do not accept his conclusion about the right-sided adhesions being not related to the events of 1984. I will return to this topic later. 42. The plaintiff's evidence was that she suffered pelvic pain throughout 1984 and 1985. Although she consulted Dr Wells in December 1984, there was no complaint to him of pain. Her concern seemed to the be that she may not be able to have any more children. She did not consult the Peterborough Clinic again until 30 May 1986. Again, no complaint of pelvic pain was recorded. In the meantime, the plaintiff had, in early 1985, moved to Waikerie and consulted the local clinic there. She was seen regularly throughout 1985 for a number of conditions, but none relating to pelvic pain. In January 1986, she saw Dr Miller at the Waikerie clinic who noted a complaint of dysmenorrhoea. The plaintiff's concern as expressed to Dr Miller was that she wanted more children. Accordingly, she was referred to Dr Cave, a specialist obstetrician and gynaecologist then practising in Adelaide. I am unable to find that the plaintiff continued to suffer severe pelvic pain throughout the whole of 1984 and 1985. I consider it to be more likely that there was some mild pelvic pain throughout this period, but not sufficient to cause the plaintiff any significant distress or to seek further medical assistance. This is supported by her complaints to Dr Cave, as he recorded them in his report dated 2 May 1986. 43. The plaintiff saw Dr Cave on 8 April 1986. Her recent complaints, as Dr Cave recorded them, were of a brown serous discharge at period time with severe and disabling pain, and right lower quadrant pain on and off on occasion, and this radiated down her right leg. On examination, he noted tenderness in the right lower quadrant, and enlargement and tenderness of the left adnexa. His diagnosis at that time was Asherman's Syndrome and pelvic adhesions. He decided to verify this by performing a cervical dilation and exploration of the uterine cavity and a laparoscopy. 44. According to Dr Cave, there were gross and obvious intrauterine adhesions which were required to be broken down. He then inserted a Lippe's Loop to attempt to keep the anterior and posterior walls of the uterine cavity apart to see if the endometrium could regenerate. This confirmed his diagnosis of Asherman's Syndrome. Dr Cave said that he did not see these adhesions, but felt them using a uterine sound; in other words, no hysteroscopy was conducted. Dr Cave conceded in cross-examination that given Dr Olesnicky's findings in January 1985, there was no medical basis for concluding that the plaintiff had Asherman's Syndrome caused by the events of 1984. Dr Sweet thought that, if Dr Cave was correct in his finding that the plaintiff indeed had Asherman's Syndrome in 1986, a possible explanation for that was the D and C performed by Dr Olesnicky in 1985. In cross-examination, Dr Sweet said that he could think of no other explanation, assuming the findings of both Doctors Olesnicky and Cave were correct. I consider that Dr Olesnicky was correct in his observations, but that Dr Cave was mistaken. Firstly, Dr Cave did not use an hysteroscope and therefore did not see any adhesions. Secondly, Mrs Young gave birth to a further child in 1988. Dr Cave could not explain this. Indeed, Dr Miller, in a report dated 20 January 1987 considered her chances of having a further child depended upon a miracle. Dr Cave said he was surprised at the subsequent pregnancy, that spontaneous pregnancy was unlikely, and that the insertion of the Lippes Loop probably did not have anything to do with this. Dr Olesnicky said he removed no material during his D and C and his opinion was that that procedure was not the cause of any intrauterine adhesions, if they existed, in 1986. I consider that Dr Cave was mistaken in his diagnosis of Asherman's Syndrome and I find that the plaintiff did not have Asherman's Syndrome in 1986, or at any time prior to then. 45. I turn now to consider the rest of Dr Cave's findings in April 1986. At laparoscopy, Dr Cave found numerous adhesions obscuring a lot of the pelvic cavity. He was able to view the right ovary, which appeared normal, and the right fallopian tube which he recorded as being tortuous and kinked. The fimbriae, i.e. the ends of the right fallopian tube, were not normal, but were patent, or open. He concluded that the adhesions were probably the result of inflammation secondary to pelvic infection. He also said that those adhesions were not omental adhesions in his opinion, but were dense pelvic adhesions. 46. In his report, dated 22 May 1986, he considered that the occasions most likely to have given rise to infection were either the retained products of conception, with secondary infection of the pelvic cavity, or perforation of the uterus by the IUCD insertion with resulting pelvic infection. In his evidence in chief, Dr Cave said that as Mrs Young had been prescribed antibiotics by Dr Anderson in early 1984, he presumed that a diagnosis of P.I.D. had been made. 47. It was suggested to Dr Cave in cross-examination, that the adhesions he saw were no more than the same adhesions seen previously by Drs Olesnicky in 1985 and Heysen in 1982, which in turn were related to the problems with the IUCD in 1980, and that there was no evidence of any infection in 1984. Dr Cave conceded that the Royal Darwin Hospital records did not disclose any evidence of actual infection apart from the fact that Dr Anderson prescribed antibiotics, which he conceded might have been prescribed prophylactically. Dr Cave conceded that he was aware of Dr Olesnicky's findings as to the omental adhesions in the pelvic cavity, and said also, both in examination in chief and in cross-examination, that his findings were not substantially different from Dr Olesnicky's. Dr Olesnicky's evidence was to the same effect: he said that he could not find any difference between their respective findings, but he considered that it was possible that Dr Cave inserted his laparoscope in a slightly different position enabling him to see behind the omental adhesions, thus providing a view of other adhesions not apparent to him. Dr Olesnicky conceded that, if there had been pelvic adhesions caused in 1984, other than omental adhesions due to the laparotomy, there should have been signs of it on the right side, and there were not. Dr Sweet conceded that if there were further pelvic adhesions on the right side as allegedly seen by Dr Cave, and as not seen by Dr Olesnicky, this may have been caused by something which occurred after Dr Olesnicky's procedures. I will return to this later. 48. I will only briefly deal with the events after Dr Cave's operation in April 1986. The plaintiff said that she continued to have severe pelvic pain, and that she still has light spotting instead of normal menstruation. The Lippes Loop was removed in October 1986. Her general health continued to deteriorate. She has been given strong analgesics; she suffers from migraine headaches; she has experienced continuing dyspareunia with resultant frigidity which has caused her marriage to collapse; she has been unable to work full-time. There have been no further procedures since then, but she may need a hysterectomy, and admission to a pain clinic has been advised. She has consulted psychiatrists but no psychiatric evidence was called. I will return to these matters in more detail later. ARE THE DEFENDANTS LIABLE TO THE PLAINTIFF? 49. Was there any informed consent to the insertion of the IUCD by the plaintiff? - were the defendants negligent in advising the use of an IUCD? 50. The plaintiff submitted that the defendants were liable in damages for inserting the IUCD without her informed consent. Mr Eames QC submitted that whilst there were authorities which suggested that this was a cause of action separate from the other causes of action in negligence pleaded, and may result in different damages being awarded from those damages which might flow from an action based on negligent treatment in the performance of an operation, for example, it did not matter which approach was taken, as, on the evidence, as a whole, there was no responsible body of medical opinion which would have failed to have informed the plaintiff of the relevant risks of the insertion of an IUCD in her case, and this was not done. It is to be noted that Mr Eames QC did not frame the plaintiff's case in trespass; it was framed in negligence, i.e. that the defendants were in breach of their duty of care towards the plaintiff. 51. Mr Pauling QC for the defendants submitted that the correct test was that of McNair J in Bolam v Friern Hospital Management Committee at 587, viz. that a medical practitioner:- "... is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art." 52. In Sidaway v Board of Governors of the Bethlem Royal Hospital ; the House of Lords (Lord Scarman dissenting) held, in a case where the alleged negligence arose in failing to disclose an inherent risk of proposed surgery, that the question whether an omission to warn a patient of the inherent risks of proposed treatment constituted a breach of a doctor's duty of care, was to be determined by the Bolam test. Three of their Lordships, Lord Keith, Lord Bridge and Lord Templeman, held further, that although the degree of disclosure required for a particular patient was an issue to be judged primarily on the medical evidence, there might be circumstances where the proposed treatment involved a substantial risk of grave consequences in which a judge could conclude that, notwithstanding any practice to the contrary accepted as proper by a responsible body of medical opinion, a patient's right to decide whether to consent to the treatment was so obvious that no prudent medical man would fail to warn of the risk save in an emergency or save for some other sound clinical reason for non-disclosure. In that case, there was no evidence that the patient asked a single question of the surgeon: see per Lord Diplock at 891. 53. In Australia there is authority for a broader test than that applied in Sidaway. In F v R at 192 King CJ said that what a careful and responsible doctor should disclose depends upon the circumstances: "The relevant circumstances include 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." 54. His Honour said at 192: "The duty extends ... only to matters which might influence the decisions of a reasonable person in the situation of the patient. A risk of harm or of failure might be so slight in relation to the consequences of not undergoing the proposed treatment that no reasonable person would be influenced by it. The duty to disclose does not extend to such a risk. Of course a small risk of great harm might call for disclosure although a greater risk of slight harm would not." 55. His Honour, after generally discussing the relevant factors to be weighed, and what weight should be given to them, said at 193: "Finally, the question must be: 'Has the doctor in the disclosure or lack of disclosure which has occurred, acted reasonably in the exercise of his professional skill and

judgment, or, as Bristow J put it in Chatterton v Gerson (1981) 1 All ER 257, in the way a careful and responsible doctor in similar circumstances would have done?' In answering that question much assistance will be derived from evidence as to the practice obtaining in the medical profession. I am unable to accept, however, that such evidence can be decisive in all circumstances: Goode v Nash (1979) 21 SASR 419 at 422." 56. At 194, his Honour observed, after noting that in many cases an approved professional practice as to disclosure may be decisive:- "The ultimate question, however, is not whether the defendant's conduct accords with the practices of his

profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community." 57. The other members of the court, Legoe and Bollen JJ, expressed similar opinions. 58. That case has, since Sidaway, been followed in South Australia (Gover v State of South Australia (1985) 39 SASR 543) and New South Wales (Ellis v Wallsend District Hospital (1989) Aust Torts Reports par 80-259, per Cole J (not considered on appeal (1989) Aust Torts Reports par 80-289); and Badgery-Parker J, in H v Royal Alexandra Hospital for Children and Ors (1990) Aust Torts Reports par 81-000 at 67,541, said that if it had been necessary for him to have come to a specific conclusion, he would have preferred the views of King CJ in F v R and the dissenting opinion of Lord Scarman in Sidaway. In Golski v Kirk (1987) 72 ALR 443, the Federal Court found it unnecessary to decide the question: see especially per Beaumont J at 456. In Whitaker v Rogers (1990) Aust Torts Reports par 81-062, Campbell J at first instance considered that the proper course was to follow the judgment of the Full Court of a State Court rather than the House of Lords where the two courts differ, and accordingly he followed F v R. On appeal, the Court of Appeal of New South Wales (unreported 21 - 22 November 1990, Mahoney, Priestley and Handley JJA) did not follow the Bolam test. Handley JA, at 12 of his judgment, with whom Priestley JA agreed, distinguished Sidaway on the basis that the patient in Sidaway asked no questions of the surgeon, whereas in the instant case, the patient did ask questions and demonstrated a keen interest in the outcome of the suggested procedures. At 21, his Honour, after referring to a passage from the speech of Lord Diplock in Sidaway at 895 where his Lordship referred to the right of a patient to seek information about risks, said: "With the greatest of possible respect to an acknowledged master of the common law, in my opinion the distinction between diagnosis and treatment on the one hand and warning of risk on the other is a real one. In a case like the present where there was no question of therapeutic privilege and the surgeon was not called upon to draw a line between some complications and others in keeping his answer within reasonable limits the tribunal of fact, whether judge or jury, is not constrained by the Bolam test." 59. The other member of the court, Mahoney AJ, thought that the Bolam principle was not a general rule which applied in all circumstances, as their Lordships in Sidaway themselves acknowledged; alternatively, he thought that if it did apply to the circumstances of that case, it ought not be followed. 60. I note that the High Court has granted special leave to appeal from the Full Court's decision: see (1991) 14 Leg Rep at SL1. 61. In E v Australian Red Cross Society [1991] FCA 20; (1991) 27 FCR 310 at 356 - 360, Wilcox J, after reviewing all of the relevant authorities, preferred the views of King CJ in F v R and of Lord Scarman in Sidaway, and applied those general principles, as well as the general principles which apply to all cases where a breach of duty is alleged as laid down by Mason J (as he then was) in the well known case of Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8. That was not a case where the question of whether there was a breach of duty fell to be decided solely by reference to the question of whether or not the plaintiff should have been warned of the risks involved; rather, the breaches of duty alleged involved the question of whether or not the defendant Australian Red Cross Society was in breach of its general duty of care to the plaintiff in supplying blood to a hospital which was HIV infected and which was used in a transfusion supplied by that hospital to the patient. His Honour refused to apply the Bolam test as the sole determinant of legal responsibility to all of the relevant issues. His Honour's approach was upheld by the Full Court of the Federal Court: E v Australian Red Cross Society and Ors [1991] FCA 603; (1992) 105 ALR 53 at 66-8 per Lockhart J; at 81-4 per Shepperd J; and at 86-7 per Pincus J. 62. In these circumstances, I consider that the course I should follow is to adopt the approach of King CJ in F v R and of Wilcox J in E v Australian Red Cross Society for the same reasons as Campbell J did in Whitaker v Rogers. 63. The first question is whether or not either Dr Anderson or Dr Evans discussed with the plaintiff any of the risks associated with the insertion of the IUCD. I have already said that I am unable to find whether or not the risks Dr Evans 'would have discussed,' namely the possibility of infection, the possibility of pain at the time of insertion, that there would be some bleeding after insertion and the possibility of heavier and more painful periods were discussed with the plaintiff. In my opinion, nothing flows from this. The plaintiff already knew this, and obviously, as she agreed to the procedure, these were not matters which, had they been brought to the plaintiff's attention again, would have altered her decision. Of more critical importance, were the risks of perforation of the uterus, and of pelvic inflammatory disease. 64. Before considering the medical evidence concerning these matters, it is important to recall the plaintiff's evidence as to whether or not, had she known of these risks, she would have continued to have consented to the procedure. At transcript pp 14-15, she was asked, in examination in chief:- "Mr Eames: Prior to the insertion of that IUCD was there anything said to you by Dr Evans as to the risks that may be associated with the insertion of an IUCD? --- No. In particular --- ? --- Not that I recall. I'm sorry? --- Not that I recall. In particular was there anything said about the possibility of the uterus being perforated? --- No. By an IUD? .... No. At the time that you had the discussion with Dr Evans did she say anything to you about the risk of pelvic inflammatory disease as the result of the insertion of an IUD? .... No, I don't recall. Was there anything said about there being a risk of one in forty of pelvic inflammatory disease occurring? --- No. Was there anything said about there being a risk of uterine perforation of one in 400? --- No, definitely not. I didn't even know about uterine perforation until after it had happened to me, no." 65. Perhaps a minute later, still in chief, she was asked (transcript pp 15 - 16): "Mr Eames: If Dr Evans had said to you that there was a risk associated with an IUD, that the uterus could be perforated, would that have had an effect on you? --- Of course it would've. I would never ever have considered it. If Dr Evans had discussed with you any risks of continued pain or pelvic inflammatory disease as a result of the insertion of the IUCD, would that have had an effect on you?

I wouldn't have been able to be convinced." 66. No cross-examination was directed to this evidence by counsel for the defendants. This was the only evidence given by the plaintiff on this topic. 67. It was, of course, necessary for the plaintiff to show that, had she been told of the relevant risks, she would not have consented to the insertion of the IUCD. The relevant test of causation to be applied in these circumstances is a subjective, and not an objective one. In other words, the question is not whether a reasonable person would have refused to consent to the procedure, but whether the plaintiff would have so refused: see Gover v State of South Australia, supra, at 566; Ellis v Wallsend District Hospital, supra, per Cole J at 68,769; upheld on appeal; per Kirby P at 69,068-9; per Samuels AJ at 69,084-5. As the plaintiff's evidence was not subjected to cross-examination, I should accept it, unless it was inherently incredible, or unless I had some other good reason for not accepting it: see the discussion by Samuels AJ in Ellis, supra, at 69,089 - 69,091. The difficulty I have, is what to make of her answers. Did she mean that if she had been told, for example, merely that there was a risk of perforation of the uterus, she would have refused, or did she mean that, if she had been told of a risk of uterine perforation of one in 400, she would have refused? My distinct impression was the latter, because firstly, her counsel only moments before asked her whether she knew of a risk of this magnitude, and secondly, because I find it hard to believe that this plaintiff would have refused that risk if it had been a negligible one. Her general approach to her problems seems to me to have been reasonable -certainly there was nothing to suggest that she had any reluctance to submit to other procedures suggested to her by her medical advisers on unreasonable grounds; nor did she express any particular fears that she may have had, at the time she gave evidence, related to the taking of negligible risks of perforation or of P.I.D., and I bear in mind her evidence that in 1984 she had little medical knowledge; and there was nothing in the evidence before me to suggest that she had any particular reason to be afraid of taking negligible risks. 68. I should mention also that, as to other forms of contraception, there is no specific evidence before me that if she had been offered any other particular form of contraception, she would have preferred to take it. However, I infer from the fact that the plaintiff and her husband had used condoms over lengthy periods in the past, without any apparent difficulty, that this form of contraception, as well as other forms of barrier contraception, would have been an acceptable alternative, if the full pill or the mini-pill was not advisable because of her breast feeding problems. 69. I turn now to consider the evidence as to the magnitude of the two risks concerned. Dr Cave said (transcript pp 51, 52, 53 and 54) that the use of an IUCD had a risk of P.I.D. and of perforation; that there was an increased risk of P.I.D. if the patient had a past history of P.I.D. (which he was unable to quantify); that there was an increased risk of perforation where there had been a prior curettage twenty-two days before for retained products of conception and where the patient had been placed on antibiotics (which again he was unable to quantify, other than to say that the risk was "significantly increased"); and that there were "lesser risks of using other methods of contraception" which do not carry any risk of the creation of P.I.D. He also said that barrier methods of contraception had a failure rate twice that of the IUCD or the mini-pill, and that the failure rate of the latter forms of contraception was two per hundred woman years, i.e. if one hundred women used those forms of contraception for a year, two of them would conceive (transcript p.59). Dr Cave also said that he would not have recommended using an IUCD given the plaintiff's medical history. Although this conclusion is of more importance to another issue, it cannot be ignored in considering the risks of the use of an IUCD in the plaintiff's case and whether the plaintiff should have been told of those risks. The value of that opinion depends upon two factors: (a) whether the medical history, as Dr Cave understood it, was correct, and (b) whether the defendants knew or ought to have known of all of the relevant elements of that history. An expert's opinion, if it is based upon a false premise is valueless: see the discussion by Mahoney AJ in X and Anor v Pal and Ors (1991) Aust Torts Reports par 81-098 at 68,873 - 68,875. 70. Dr Cave based his opinion upon a number of factors. Firstly, he said that he would have been circumspect about recommending the use of an IUCD to a patient who had had a prior history of severe pain on the insertion of an IUCD, had had to have it removed, and a history of dysmenorrhoea and dyspareunia following those events. I accept as proven the factual basis on which that opinion is based. 71. Evidence as to the risks of perforation was also given by Dr Sweet. His evidence was that if the uterus was at normal size at the time of insertion, the risk of perforation was no greater than normal, even taking into account the possibility that she may have had an infection on 1 March, and assuming that she had a prior history of P.I.D., and had had a D and C to remove the placental remains (see transcript p.330). 72. Other evidence as to the likelihood of the risk of perforation was contained in Ext 1, which simply refers to perforation as a possibility. Ext D4, an article by Drs Mishell and Roy, refer to the report of a hospital in Singapore which recorded a perforation rate of 1.8 per cent for loops inserted between four and eight weeks post partum. The writers concluded that those results may have been related to the technique of insertion used. The writers of the article reported on a study in California during 1970 - 1977 involving inter alia a total of 411 patients using a variety of types of IUCD's, with no uterine perforations recorded in the study. Although criticism of this study was made by Dr Sweet, and the authors themselves recognised that the sample (411 patients) was too small, nevertheless the study suggests that the risk of perforation at six weeks post partum is small indeed. 73. All the medical experts agreed that the risk of perforation was higher if the uterus was softer than normal, i.e. had not returned to its normal size. Dr Olesnicky said that he would not have warned of the risks of perforation if the uterus was of normal size. Dr Anderson's practice appears to have been the same. On the other hand, the evidence was clear that if the uterus had not returned to its normal size, an IUCD should not have been used due to the added risk of perforation, and I note that Dr Anderson on this topic, whilst prevaricating, virtually conceded as much (transcript pp 588-9). 74. Finally, I note that the manufacturer's prescribing information (see Ext 1), whilst it recommends warning of other risks to patients, does not specifically recommend warning of the risk of perforation. 75. In so far as Dr Cave's testimony differs from that of Dr Sweet, I prefer the latter. The significance of past dysmenorrhoea, dyspareunia and pain on insertion of the IUCD is relevant to whether or not the plaintiff had previously had P.I.D. I make no particular criticisms of Dr Cave, but I was more impressed by Dr Sweet in the witness box, and, again without any criticism of Dr Cave, I considered that Dr Sweet was more experienced and knowledgeable than Dr Cave. I noted in particular that Dr Sweet was head of the obstetric unit at the Queen Elizabeth Hospital, was a member of the Federal Council of the Royal Australian College of Obstetricians and Gynaecologists, and chairman of the training and accreditation committee of the Federal Council. 76. The findings and conclusions that I reach so far are as follows: (1) there was no generally accepted practice amongst responsible members of the medical profession, whether gynaecologists or not, to warn against the risk of perforation where the uterus had returned to normal size (or was not soft), (2) the generally accepted practice amongst responsible members of the medical profession was not to recommend the use of an IUCD if the uterus had not returned to normal size or was soft, (3) the risk of uterine perforation if the uterus had returned to normal size was minimal, (4) the risk of perforation was no greater, assuming that the uterus was of normal size, than in the case of a patient with the plaintiff's known medical history, (5) applying either the Bolam test or the tests in F v R to those conclusions, there was no duty to warn the plaintiff of the risks of perforation, in the absence of any inquiries at all by the patient if the uterus had returned to normal size, (6) there is no evidence that the plaintiff made any inquiries as to that risk or to risks generally, (7) there is no reliable evidence, and certainly none that I am prepared to accept, that the risk of perforation in the case of a uterus of normal size was as great as one in 400. 77. I now turn to the critical question - was the uterus of normal size as at 23 March 1984? Dr Evans' evidence was that in her opinion the uterus was of normal size for a multiparous woman, but she conceded the possibility that she may have been mistaken. At that time, she was inexperienced. Her explanation for recording in the notes that the uterus was 6/52 was that this was her way of recording that the uterus was of normal size, as a multiparous woman's uterus is normally larger than that of a woman who had had no children or only one child. However, the evidence is that the customary way to record that the uterus had returned to normal size was to write simply, 'normal'; whereas to record the size as 6/52 would customarily indicate that the uterus had not returned to its normal size. In cross-examination, the following exchanges took place: "In examining Mrs Young on 23 March 1984 you said to Mr Pauling that the entry, if you have the page, which is page 19 --- ? --- Yes. --- is a reference to - this is for uterus "anteverted, 6 weeks size", and just so we're quite clear about this, there's no doubt whatsoever, is there, that 6 over 52 means 6 weeks pregnancy size? --- That's what we're usually referring to. I mean, you weren't referring to - it was the sixth week after birth that she was visiting or anything like that? You were talking about the size in terms of a uterus , a pregnant uterus size? --- I have to say I presume so, although I normally write 6 on 40 and I, to this day, am not too sure why that's 6 on 52. But some doctors do it either way, don't they, 6 over 40 or 6 over 52? --- Well, I'm more familiar with the 6 on 40, but

But, in any event, doctor, isn't it the case that, so far as you're concerned, what you were intending to convey there was a reference to a size of a pregnant uterus? --- Of - the size of the 6 week - of the 6 week pregnant uterus, yes. So whatever it was that you observed, what you observed led you to say, 'I have just observed a uterus which is its 6 week size'? --- Four - between 4 and 6 weeks size there's like a multip uterus is bulkier, is slightly larger than a uterus that has never been pregnant and I - I imagine, by what I have written, that it was, - like a multip size, so it wasn't really small like someone that's never been pregnant; it was just slightly larger. I appreciate how difficult it is, doctor, in these circumstances - and you've been very frank to the court, if I might say - but let me put this to you. You say, 'I imagine that that's what I was thinking of when I was writing this down', but there's one other possibility, isn't there, that it wasn't a question of saying, 'I must have meant that I was comparing it with a multiparous woman. The other possibility is, I was recording exactly what I saw, a uterus which looked to me like 6 weeks than otherwise? --- I'm sorry, I can't agree with that. I find that, even now in practice, 4 - the difference between a 4 week and a 6 week uterus, I can't pick a difference." (Transcript p.484-5). "At the time that you observed Mrs Young on 23 March 1984 and recorded that this was a 6 weeks size uterus, I suggest to you, firstly, there's nothing on your notes to suggest that that was a reference to nulliparous, multiparous, or whatever the expressions are, women, there's nothing on the notes to suggest that that was the basis of your size calculation, is there? --- No, I've just written "size". And you've said, in answer to my learned friend, that the recording that you've got there is, you believe, a recording of a normal size uterus; is that right? --- Yes. Do you agree though, doctor, though that even in 1984 a 6 week uterus was never described as being a normal uterus no matter how many children the woman had previously had? --- No, I can't agree with that, no. His Honour: If it was normal size - and that's what you were intending to convey - is that right? --- I was probably trying to - well, it's hard now. I was probably trying to convey that it was a multip size. It was a what? --- The size of a woman that's had two pregnancies, so that's slightly larger than the uterus - it never goes back to normal like to the size - it never goes back to the size of someone that's never had a pregnancy before. It was normal for a woman that's had two children. Is that what you're trying to say? --- Yes. Why didn't you just --- ? --- Why didn't I write 'normal size'? Either that or put a tick there? --- Well, I can't answer for that. As I say, it was my - it was earlier days in obstetrics and whether I had an established a particular recording

• way of recording, I'm - I can't answer that question Your Honour." (Transcript p.486). "Let me ask you about what your understanding was of other practitioners whose notes you would see in those days in 1984. Would you agree that there seemed to be a very wide practice in use, that if people wanted to write 'normal' they wrote 'normal'? --- Yes. And if people wanted to give an indication that it was something other than normal, they write a size by reference to numbers of weeks? --- I suppose you have to say yes. Doctor, in the entry of 23 March 1984 would you agree that there is no reference anywhere to show that the uterus was firm? --- There's no entry there, but there's no entry there to say that it was soft either or ... There was a practice, however, in use in 1984, was there not, that when one was recording whether a uterus was firm or otherwise the expressions were used, expressions such as firm, semi-firm, soft and soggy were actually written down? Boggy, sorry? ---With the consultants I'd say yes, and I can't answer for myself at that stage. Because I was still training I was, as I said to you before, I was still establishing a way of recording my notes and - and to write like obstetricians write and use the right terminology. You were, obviously, dependant on the - because of your inexperience on the supervision and experience of those above you? --- Yes. You knew in 1984 that if one was going to record that there was - a uterus had been tested and it was firm, it would appear under the heading 'Uterus' and it would read something like this: 'Body size and position, AV firm, 6/52 size'; isn't that so? --- The fact that I haven't said it doesn't mean it wasn't firm. I understand what you're saying but do you agree that that's what would appear in the common experience in 1984? If one was wanting to record that there was a firm uterus that's the entry where it would be made and that's how it would be written? --- Probably. And you agree that you have made no record that it was firm or otherwise? --- No, I haven't. (Transcript, p.487).

78. I conclude that Dr Evans is mistaken in her belief that the uterus had returned to normal size. I do not accept her explanation for recording the uterus' size in the way she did was because that was another way of saying the same thing. I consider that Dr Evans has reconstructed her evidence, and that she has no real memory of why she recorded the size in the manner she did. She was very inexperienced. She had only inserted an IUCD on ten previous occasions. She conceded that she may well have been mistaken that the uterus was not soft when she inserted the IUCD. On the other hand, Dr Anderson said that the uterus had returned to normal size on 1 March. If this was so, there was no possibility that Dr Evans was mistaken. Dr Anderson's evidence was attacked because he recorded in the hospital notes the word "resolution." It was suggested that he meant "resolving." As I understand the evidence, the word "resolution" was not commonly used to refer to an involuted uterus. Dr Anderson conceded that the more common expression used would have been "involuted" or "normal." In any event, the word used was not 'resolved.' Dr Sweet said that the word "resolution" was not a word having any technical meaning relating to uterus size in his experience (transcript p.327). Further, Dr Sweet was of the opinion that it was most unlikely that the uterus had fully involuted as at 1 March, and, due to the fact that the patient had had a D and C for retained products, the uterus could well be sub-involuted by 23 March. Dr Cave also thought that is was most unlikely that the uterus was fully involuted at 1 March.
79. I consider that, on reflection, I should not accept Dr Anderson's evidence. I think that the word 'resolution' recorded in the Royal Darwin Hospital notes is more likely to have referred to the fact that there was no longer evidence of retained products in the uterus rather than a reference to the size of the uterus. I note that in medical dictionaries 'resolve' means (in cases of infection) to return to its normal state and 'resolution' has a similar meaning: see Blakiston's Pocket Medical Dictionary 3rd ed (1973) at 674; Black's Medical Dictionary 33rd ed (1981) at 752-3; Butterworth's Medical Dictionary 2nd ed (1978) at 1462. The Shorter Oxford Dictionary defines 'resolution' to mean (1) 'dissolution or dispersion of humours or of morbid matter in the body' and (2) disappearance of inflammation without coming to suppuration; and 'resolve' means 'to soften (a hard tumour); to disperse or dissipate (humours, swellings etc)', 'to remove inflammation by resolution.' Also, Dr Anderson was not a good witness. His demeanour in the witness box left me with the impression that he was well aware of the significance of his evidence on this point, and that he was trying to rationalise. I do not accuse him of conscious dishonesty; but I do think he was mistaken on this issue, and I am not prepared to accept his evidence.
80. The fact is that the uterus was perforated, and although this could have occurred even though the uterus had returned to its normal size, on the evidence it was far more likely to occur if the uterus had not fully involuted. I note also Dr Sweet's evidence that if the uterus had had retained products of conception it may not have fully involuted in six weeks. On the whole of the evidence, I consider that it is more probable that the uterus had not fully involuted, and I so find.

• 175). However, Dr Olesnicky was also of the opinion that there was nevertheless still a risk of which the patient should have been warned. I consider, on the evidence before me, that such a warning was still required whether or not the patient had evidence of infection at the time of insertion.

88. As to the second question, the evidence was that Dr Evans had no knowledge of any history from the patient sufficient to have warned her or put her on notice that the plaintiff may have had P.I.D. in the past. The evidence available to Dr Anderson was that contained in the Royal Darwin Hospital file. It consisted of the following history, relevant to the events of 1982: (a) the plaintiff had a previous confinement in 1977 (b) on that occasion an episiotomy was required (c) in 1982 a laparoscopy was performed (d) scar tissue from the 1977 confinement was evident at the time of the 1982 laparoscopy (e) the laparoscopy was for abdominal pain and showed adhesions. In addition, Dr Anderson believed, correctly, that the plaintiff did not then suffer from any infection. There was no history recorded of amenorrhoea, dyspareunia or dysmenorrhoea. The plaintiff did not tell Dr Anderson or Dr Evans of these matters, but she did tell Dr Evans that she had had previously suffered from pain when using an IUCD in 1981, and Dr Anderson was aware of this. In my opinion, on the evidence before me, that information was enough to cause Dr Anderson to become suspicious of past P.I.D. Indeed Dr Anderson eventually conceded as much (transcript p. 552). I consider that Dr Sweet confirmed this, because his evidence was, when these matters were put to him, that whilst taken at face value, one might be lead to believe that there was no association between those matters and a past history of P.I.D., that those matters were sufficient to have put Dr Anderson upon further enquiry (transcript p.405). Dr Anderson did not take any further history from the plaintiff. Had he turned his mind to the possibility of previous P.I.D., he could have elicited from the plaintiff her previous history of dysmenorrhoea, dyspareunia and pelvic pain, and had this occurred, Dr Anderson would have had even stronger grounds to suspect a prior history of mild P.I.D. I do not accept that Dr Anderson did turn his mind to the possibility of P.I.D., although he said in his evidence that he considered the possibility, but thought he had eliminated it . I reject this evidence. He also said that he thought the plaintiff had been counselled about the possibility of pelvic infection by Dr Evans. Why he thought this is not clear; I expect it was an assumption he made. He said also he agreed that in 1984 no responsible body of medical opinion would have failed to have counselled her about this possibility. Later in cross-examination, Dr Anderson claimed (transcript p.558) that he had been told by Mrs Young that her 1982 adhesions followed her previous delivery, she was given no treatment and had no pain subsequently. There is no record of this on the hospital notes; nor was any such conversation put to Mrs Young in cross-examination. I formed the view that Dr Anderson was extremely evasive in his answers to Mr Eames QC in cross-examination, and that his evidence cannot be relied upon on these issues, except to the extent that he made admissions. At the conclusion of his cross-examination the following exchange took place: "Doctor, I put it to you on the day that the procedure was probably something like this: that you were told by Dr Evans that Mrs Young was showing some reluctance about an IUCD, you went in, said: 'There you are, don't you worry about that', reassured her and off you went again. It was more or less like that, wasn't it? --- I - I did speak to her, there's no question about this. I would've - I certainly didn't warn her about perforation. I would've said - I'd given her an explanation of why I thought she'd had trouble, asked her why she was worried about it. She would've mentioned that she'd had trouble. I would've reassured her on the fact that in my view her problems were not due to infection or anything like that but due to misplacement. I

mean, the question of infection basically didn't arise in my mind but that's one of the things that was generally discussed with her by both my houseman and myself. I mean, the risk of infection of any IUCD is there. Doctor, let's decide which one it is going to be. Was the risk of infection in your mind at the time when you spoke with Mrs Young or was it not? You can have one or the other but you can't have both, can you? --- It was in my mind, yes. So did you discuss it with her? --- I - only in passing, if you like, to say: 'Well, I don't think there's much' - I - I would've discussed the fact that I didn't feel that her previous ID - IUCD's and pain was the result of infection in that fashion. Doctor, where would that blinding insight have come from for you to know that it wasn't due to infection? --- Well, from speaking to the patient, reading her note. I - see, my view is an old PID anyway and there's a body of opinion to support me, is not an absolute contra-indication of insertion of an IUCD. But it might be? --- It might be, yes. And the way you decide whether it is or it isn't is you investigate? --- Well, I felt I had investigated and had excluded any current infection or - and as I said, past infection would not exclude me from inserting an IUCD. Of course, if you had to say that you were actually going to investigate rather than have a guess, I suggest, about whether there was any history of infection, you might have to send her away and say: 'Come back tomorrow, we'll make some inquiries? --- She seemed to be worried about (1) breast milk and (2) conception. I mean, she goes through her coming up every couple of months seeing if she's pregnant, so obviously in her mind she is worried about

getting pregnant. Was it a case, doctor, of you decided what was best for her? --- Well, in my view there were two things that were best at that stage in '84. Would be IUCD or the combined pill. And you made the decision for her, didn't you? --- Well, someone's got to make the decision." (transcript, pp 589 - 90) 89. I find that Dr Anderson gave no consideration to the question of whether or not the plaintiff had ever had P.I.D. in the past. I also find that, on the evidence before him, there was ample evidence sufficient to put him upon further enquiry. I also find that the accepted practice amongst gynaecologists, when there was a possibility of previous P.I.D., was either to counsel the patient against using an IUCD, or at least to make further enquiries to see if the possibility of previous P.I.D. could be eliminated. I find that Dr Anderson did neither of these things, and that had he spoken to Mrs Young, he would probably have elicited from her that she had previously had a history of dyspareunia, dysmenorrhoea and pelvic pain. I find that had he elicited that information from her, the accepted practice amongst responsible gynaecologists was to counsel the plaintiff against the use of an IUCD. On this issue I prefer the evidence of Dr Sweet, especially at pp 407 - 409 of the transcript. I find that neither Dr Evans nor Dr Anderson counselled the plaintiff against using an IUCD when they should have done so, because of the increased risk of future P.I.D. with the possibility of subsequent pelvic pain and infertility. I find also that had such counselling occurred, the plaintiff would not have consented to the use of an IUCD. Accordingly, in my opinion Dr Anderson was in breach of his duty of care to the plaintiff. 90. However, I do not consider that Dr Evans was in breach of her duty of care to Mrs Young in failing to recognise the possibility of previous P.I.D. When she was told by Mrs Young that she had previously had pain when using an IUCD she referred the problem to Dr Anderson who was her superior. Dr Evans was only a trainee in obstetrics. It was reasonable for her to refer the plaintiff to Dr Anderson and to rely upon his opinion. She knew that Dr Anderson had more knowledge both of the patient and of gynaecology than she possessed herself. Although it maybe said that she may have also taken more of a history from the plaintiff than she did, she knew enough to refer the plaintiff to her superior once she had been told of the previous painful use of an IUCD and any further history needed was to be elicited by Dr Anderson or at his suggestion or direction. I am unable to see how she failed in her duty to the plaintiff by doing what she did. There was no evidence that, by referring the patient to Dr Anderson, she failed in her duty in any way, or that she ought not to have relied upon him. 91. As to my finding that the uterus had not returned to normal size, I find that Dr Evans, even as a trainee, (she was after all fully qualified as a general practitioner) ought to have known then that if the uterus had not returned to normal size, that it would have been wrong to recommend an IUCD due to the increased risk of perforation. There is no direct evidence one way or the other whether she knew this in 1984, but I think that the likely inference is that she did not know this then, and this is the explanation why she went ahead even though the uterus had not fully involuted. The evidence before me is that no responsible medical practitioner would have recommended the insertion of an IUCD in these circumstances. I consider, also, that as Dr Anderson's opinion had also been sought he ought to have personally examined Mrs Young. He did not do so. There was no particular reason for this that I could ascertain, other than his evidence that he had already previously ascertained on 1 March that the uterus was normal, which evidence I have rejected. He knew that Dr Evans was inexperienced, and he knew enough of the plaintiff's medical history to have been put on his guard. Dr Evans had referred the patient to him for advice. Dr Anderson gave Dr Evans the "all clear" to go ahead. I find that both defendants were negligent in failing to warn the plaintiff that there was an unacceptable risk in inserting an IUCD at that time, and in proceeding to insert the IUCD in those circumstances. 92. There was no evidence that Dr Evans inserted the IUCD in a negligent manner. I find that she perforated the uterus because it was too soft and had not returned to its normal size. 93. As to the subsequent treatment of the plaintiff by Dr Anderson after 23 March 1984, I am unable to find that this treatment was in any way negligently performed. Some criticism was directed at Dr Anderson for not using the techniques he ultimately used to find the IUCD when he went looking for it on the first occasion, but there is no evidence that the methods he adopted were not in accordance with commonly accepted medical practice by competent gynaecologists, and I am unable to conclude that, notwithstanding that Dr Anderson followed commonly accepted medical practice, that I ought to find that nevertheless Dr Anderson breached his duty of care to the plaintiff. Accordingly I acquit Dr Anderson of any negligence in this regard. 94. It is unnecessary, in view of these findings, to consider whether the defendants were in breach of their contract with the plaintiff. Similarly, as the fourth defendant is vicariously liable for the negligence of the first and second defendants, it is unnecessary to consider whether the fourth defendant, as the operator of the hospital, was in breach of its non-delegable duty of care to the plaintiff arising out of the relationship between the plaintiff and the defendant's hospital. DAMAGES 95. I turn now to consider what are the consequences of the defendants' negligence. The plaintiff suffered severe pain as the result of the perforation of her uterus. It was necessary for her to seek medical treatment from Dr Anderson, and this involved her being hospitalised on 31 March, she underwent the procedures I have referred to earlier on 31 March and 1 April, and she was eventually discharged on 9 April. Thereafter she had severe pain and discomfort for a short period whilst recovering from the operations. She had a number of other complaints, but, except for her amenorrhoea, these were not, I find, related in any way to the use of the IUCD or to the operations that she had had. Dr Anderson believed that her amenorrhoea was due to Asherman's Syndrome, and referred her to Professor Fraser. She in fact saw Dr Olesnicky for this problem, and she was admitted to the Queen Elizabeth Hospital for treatment of this condition by Dr Olesnicky in January 1985. Although she did not have Asherman's Syndrome, her endometrium had not returned in the uterus, and the reason for this, I find, was caused by her having to undergo the operations in March and April 1984. Similarly, I find that the tortuosity and swelling of the right tube and the hydrosalpinx found by Dr Olesnicky were caused by infection as a result of the perforation of the uterus on 23 March 1984; either it was directly the result of the perforation itself, or it was the result of the D and C's and laparotomy which soon followed. There is no evidence which would provide any other reasonable explanation for this. Some right sided adhesions were also noted by Dr Olesnicky, and I find that those adhesions were also the result of that infection. 96. I find that the procedures conducted by Dr Olesnicky were a direct consequence of the perforation of the uterus. 97. On the basis of Dr Cave's findings, I find that the plaintiff by 1986 had developed pelvic adhesions which were the consequence of the infection brought about as a result of the perforation of the uterus. I think it is more likely than not that those adhesions were present in 1985, but due to the omental adhesions obscuring Dr Olesnicky's view, he was unable to see them. Whilst the pelvis adhesions could have been due to other causes, there is no evidence that those causes were present in the plaintiff, and I therefore find on the balance of probabilities that those adhesions were the result of infection following the perforation of the uterus. I note Dr Sweet's and Dr Cave's evidence that that may also have been caused by the retained products of conception, but as Dr Anderson had ruled out any infection by 1 March, which I accept, I think the explanation is more likely to be the perforation of the uterus itself or the procedures undertaken thereafter to remove the IUCD. 98. So far as any intrauterine adhesions are concerned, even if the plaintiff did have some intrauterine adhesions, as suggested by Dr Cave, these were unlikely to be painful and the fact is that the plaintiff was later able to conceive. I find that it was reasonable for the plaintiff to continue to seek medical treatment for her problems relating to infertility after 1984 and 1985 and that Dr Cave's operation was also a consequence of her 1984 uterine perforation. I find that the plaintiff's mild pelvic pain in 1984 and throughout 1985 was due to those adhesions, which became progressively worse until 1986 when they were quite severe. It is likely that the plaintiff's pain and continuing dyspareunia is due to these adhesions, and on the balance of probabilities I so find. 99. By the middle of 1986, I find that the plaintiff's pelvic pain became markedly more severe intermittently, and she had very painful periods with little or no menstrual flow, as well as continuing dyspareunia. She was prescribed various painkillers, including Panadeine Forte and Prothiaden and was admitted to hospital on two or three occasions when pethidine injections were administered. She also suffered severe migraine headaches during this period and was referred to Dr Marantos, a general physician, for this condition in January 1988. Dr Marantos' evidence was that the plaintiff had been suffering from migraine headache since 1978, but his evidence was, which I accept, that the pelvic pain which the plaintiff experienced after the surgery in March 1984 to remove the IUCD probably aggravated her migraine headaches. The migraines resulted in blurring of vision; spots before the eyes; occasionally vertigo; severe and sometimes constant right sided head pain, followed by severe and intractable nausea and vomiting. The worst symptoms of these attacks could last two to three days, followed by mild nausea and blurring of vision for up to two weeks. These attacks occurred once every three or four months, and the plaintiff was forced to put herself to bed for the duration of each attack. 100. The plaintiff also suffered from mild depression by this time which I find was a consequence of what Dr Marantos described as being "chronic" pain. By January 1988 Dr Marantos considered that the plaintiff was in danger of developing a chronic pain disorder, but as she was then eleven weeks pregnant, he recommended that her migraines be treated as they arose by hospitalisation and intravenous valium as necessary. Once her child was born, he recommended Indocid, or if this was unsuccessful, a trial on an antidepressant. 101. The plaintiff, prior to 1984, had enjoyed swimming, aerobics, callisthenics, gardening and played netball. Over the years since 1984, her pain has prevented her from fully enjoying or engaging in these activities. The plaintiff said that she is still able to water the garden and attend to basic garden maintenance, but she is unable to do heavy shovelling or lifting for long periods without pain. Her pain has prevented her from engaging in netball, or in other team sports such as basketball or indoor cricket which she has had the opportunity to take up with her sisters since returning to South Australia, but because of her pain, she felt unable to do. The plaintiff was still able to attend to her household duties (such as washing clothes, cleaning etc) but it takes her longer and she usually is so tired by the end of the day that she is in bed fairly early most nights. She has also been less able to enjoy her children's upbringing and has not been able to spend as much time playing with them and taking them out as she might otherwise have done. 102. In 1990 the plaintiff and her family moved from Waikerie back to Peterborough because the plaintiff's mother, who lived in Peterborough, was available to help the plaintiff with the children. In June 1991 the plaintiff separated from her husband. I find that the main cause of the separation was the continuing problem of painful intercourse, which ultimately resulted in the plaintiff losing any interest in sexual relations with her husband. 103. The plaintiff's medical advisers have considered offering her an hysterectomy as a partial solution to her problems. This operation has not been performed so far. Dr Cave considered that the plaintiff might well be advised to have this procedure and this may result in the removal of the ovaries as well. Mr Cave was not prepared to say that that operation would definitely remove her on-going symptoms, but I find on the balance of probabilities that such a procedure is likely to be advised in the future, is likely to be carried out, and is likely to significantly reduce her symptoms. However I do not consider that it is unreasonable for her to defer this procedure for a few more years, given her age, and the possibility that the ovaries may have to be removed as well. I note that Dr Sweet is of the view that there is a functional element in her pain syndrome, so, although the procedure ought to remove any anatomical basis for her pain, it is unlikely to remove her pain completely. This view is consistent with that of Dr Marantos whose opinion is that pain can be felt by memory of pain experienced in the past, although I do not accept Dr Marantos' pessimism that she will continue to experience chronic pelvic or low abdominal pain to the same degree as she is presently experiencing. At the very least, if she does continue to have chronic pain, Dr Marantos is optimistic that future treatment will help her to cope better with her pain and this should assist in restoring more of her enjoyment in life as well as have an ameliorating effect on her lost earning capacity. In my opinion, the plaintiff is a fairly stoical person and is likely to respond fairly well to her future treatment. 104. The plaintiff has been referred to psychiatrists, none of whom were called to give evidence on her behalf. I infer from this and from the fact that an anatomical basis exists to explain her pain that the plaintiff does not suffer unduly from any psychiatric disorder, such as to prevent her from achieving a reasonable degree of recovery from her pain in the future. However, I accept Dr Marantos' opinion that she now has chronic pain which dominates her life although I find that she is coping with the pain reasonably well, as is evidenced by her ability to work twenty hours a week at present. I find that she will need to enter a pain clinic, such as that run by Dr Marantos, for assessment of her future treatment, and the likely result is, as I have indicated, improvement in her well being, as well as further surgery, probably within the next three to five years, which together will probably significantly reduce, but not eliminate, her pain, or at least her ability to cope with her pain. I am unable to find that it is likely that the ovaries will be removed, but given that this is a possibility, I shall make allowance for that possibility, and the consequences thereof, viz. premature menopause, and the possible need for hormone treatment therapy. Also, I will need to make allowance for the possibility that Dr Marantos is correct, and there will be no significant reduction in her pain. 105. I turn now to consider the plaintiff's employment history and claim for lost earning capacity. The plaintiff was educated to year 10 at Peterborough High School. She left school in 1974 and obtained part-time employment for a few months as a waitress at an hotel. In 1977, when the plaintiff was seventeen, she had her first child. There is no evidence that the plaintiff was then in any employment. After spending about twelve months at Hughes, a railway siding on the Nullarbor Plain, the plaintiff returned to Peterborough in about 1980. For about six months thereafter the plaintiff was employed part-time minding some children. Later, she went back to waitressing at various hotels in Peterborough for a period of about three years, earning about $7 to $9 an hour. It is not clear if this was part-time or full-time work. The plaintiff's next employment was in Darwin at the Casino in 1984. This was immediately after her return from her father's funeral in March of that year. She was working on a full-time basis, earning $320 per week gross. During 1983-84, the plaintiff also obtained a receptionist's certificate whilst in Darwin as an external student of the New South Wales College of TAFE. She remained in employment at the Casino until about a month before she returned to South Australia. Her original plan before the events of March 1984 was to go on a working holiday around Australia for an uncertain duration, stopping at various places and obtaining employment where it was available. Upon her return to Peterborough, she worked in her sister's motel as a domestic, waitress and kitchen hand. In early 1985, the plaintiff and her husband moved to Waikerie. She there attempted fruit picking, but was unable to do this work because of pain. Payment was on the basis of the amount of fruit picked. Mr Young's evidence was that pickers earned $38 a bin, and it would take on average four hours to fill a bin. This works out to about $9.50 an hour. As the plaintiff did not continue this work, she was unable to say what she might have earned. Her evidence was that packers were paid $8 an hour, and that that work was also available, but she was unable to perform it. Similarly, she claimed that waitressing work was available, at about $9 to $10 an hour, but she was not able to do this work either, once she got to Waikerie. She did, however, engage in pear cutting for about a month, working about three hours per day, but said she was unable to work longer hours due to pain. For this work she was paid about $8 an hour. She also obtained some casual work as a census collector in 1985, for which she earned about $800 gross. This work was done on weekends. The evidence is unclear as to how many hours work was involved. She claimed that, but for the pain, she would have worked the equivalent of six months full-time in 1985, 1986 and 1987 either doing waitressing, fruit picking, packing or the like, i.e. an average of twenty hours per week over a full year. Although I have found that her pain was not as severe in 1985, I find that it was severe enough to prevent her from working in the kinds of employment available to her in 1985, except in the limited way she actually worked. 106. As to 1988, the plaintiff had a further child, Chloe, in July of that year. The plaintiff said she would not have worked in the late stages of her pregnancy and would not have worked for six months thereafter in any event. Otherwise, her evidence was that she would have remained in the same type of employment during that early part of 1988. In 1989, she said that she would have resumed her employment, on the same basis, for the whole of that year. However, I note that in 1989 she had a lot of illness with glandular fever, pleurisy and pneumonia, so that it seems unlikely that she would have been able to exercise her earning capacity at all for part of this period due to health problems unrelated to her pelvic pain. 107. In January 1990, she returned to Peterborough so as to be nearer to her family who were able to look after her children, particularly whilst she was incapacitated through her migraine headaches. Employment would have been available to her in Peterborough through her sister who ran a supermarket and a motel in the town, and the plaintiff could have been employed as a waitress, receptionist or domestic. She in fact did work at the motel until her sister sold the motel. Her sister's evidence, which was tendered in the form of a statement, was that she had a minimum of twenty hours work a week, earning $11 an hour, available to her, that she did work during this period, but was having significant difficulty coping. Her sister was unable to say how much she earned during this period. 108. At the beginning of 1991, the plaintiff obtained employment as a special education school assistant, at Peterborough, working with intellectually handicapped children, underprivileged children and children with behavioural problems. The plaintiff had also previously done this sort of work on a voluntary basis at Waikerie for a few hours a week; as well, she did voluntary work at the Waikerie Hospital, looking after geriatric patients. Her present employment is part-time - twenty hours per week. She says that she would not be able to work longer hours than this, but at present, the position is not full-time in any event. She enjoys this work, which, whilst physically demanding on her, is very rewarding. She said that, if she had no pain at all, she would prefer to remain at this work, even on a part-time basis, than work full-time in a supermarket, although she also said that she would probably do both jobs on a part-time basis if she could. It appears likely that this present employment will remain available to the plaintiff in the foreseeable future. She is presently earning $200 per week net (or $227 per week gross). As to her future intentions, she intends to work until aged sixty, or sixty-five, or until she no longer needs to work to support herself, whichever comes first. 109. As to pain and suffering and loss of amenities of life, I assess the plaintiff's damages at $60,000, of which I attribute $35,000 to the period up to now. In arriving at that figure, I have taken into account the possibility that the hysterectomy may not in fact significantly alter her pain, although I believe it will, and that it will not remove her pain completely. I have also allowed for the pain and discomfort she will experience in having this procedure in the future, and the possibility of premature menopause. 110. As to the plaintiff's lost earnings to the date of trial, it is impossible to calculate the value of those earnings with any precision. The plaintiff's counsel submitted raw figures based on the most optimistic view of the plaintiff's evidence, which resulted in a loss in the order of $66,500 net. Projecting those figures up to now, results in a loss in the order of about a further $3,000, making the total loss, in round figures, about $69,500 net. However, that figure has to be discounted to take into account a number of factors. Firstly, the plaintiff has had periods of sickness unrelated to the consequences of the defendant's negligence. It is not possible to put a precise figure on the amount of time involved but it would appear to amount to several months in all since 1984. Secondly, the plaintiff's figures assume that work would have been available to her, and that she would have exercised her full earning capacity, on the basis of thirty-eight to forty hours a week after she returned to Peterborough in 1990, and on the basis of thirty hours a week after she obtained her job with the Education Department. There is nothing in the plaintiff's pre-1984 work history to indicate that she had ever worked full-time, and the evidence of her sister does not support the proposition that a full-time job would have been available to her in the supermarket business. I think it is more likely that in 1990 she would not have worked as long as forty hours a week on average, and that such jobs as she did secure would have been on a casual basis in waitressing, domestic work, as a kitchen hand, receptionist, and supermarket filler. Also, it is to be remembered that, but for the events of March 1984, the plaintiff's intentions were to go on an around Australia working holiday, so there would have been gaps in her employment from time to time as she moved from one place to another. It is impossible to be precise, but I consider that a fair assessment of the likely extent to which she would have exercised her earning capacity in 1990 is probably in the order of thirty hours a week on average, bearing in mind the casual nature of the work. Thirdly, although I consider that the plaintiff would have continued to work for about thirty hours a week after she obtained her job in the Education Department, again because the other jobs were casual and affected by seasonal conditions, and as well, the plaintiff has three young children of her own whose demands are likely to make inroads into her ability to fully exercise her earning capacity, some allowance has to be made for these factors and for holiday time which is unpaid given that her employment is casual. Finally, the plaintiff's figures make no allowance for what she actually earned between 1985 and 1990 when she moved to Peterborough. The evidence as to her actual earnings is most imprecise, but, doing the best I can, it appears likely that she earned between $5,500 to $6,000 in this period. Doing the best I can I assess the plaintiff's damages for lost earnings to date at $50,000. 111. As to the plaintiff's claim for future lost earning capacity, it is impossible to approach this question other than by making an estimate given the lack of precision of the raw data. I consider that she has probably lost the capacity to earn something in the nature of about $90 per week net, at least for the next three to five years. Thereafter, I consider that her pain is likely to diminish significantly, or at least that she will better able to cope with her pain, after treatment at the pain clinic and after she has had the hysterectomy. I am unable to find that she will recover completely, and I consider it likely that some loss is likely to continue for the rest of her life. In addition, I have to allow for the contingency that her pain may not significantly improve, and that consequently, her loss could be far greater. There will also be time lost for the period of her visits to the clinic (which I will discuss in more detail below) as well as for the hospitalisation and recuperation period of six to eight weeks for the operation, and if the ovaries are removed, and she has to endure hormone replacement therapy, this may involve some loss of working time in seeking treatment from time to time. The plaintiff is now aged thirty-two and is likely to continue working until at least aged sixty, and possibly aged sixty-five. The likely duration of any continuing loss is therefore in the order of about thirty years. Doing the best I can, and taking into account the vicissitudes of life as that expression is explained by Barwick CJ in Arthur Robinson (Grafton) Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 659, and without attempting to approach the assessment of this loss by reference to mathematical calculation, I award the sum of $65,000 under this head. 112. The quantum of special damages has been agreed at $3,000. 113. As to the cost of the hysterectomy, Dr Sweet's evidence was that the cost is in the order of $2,775 and I allow this sum. I allow also a sum of about $3 per week for continuing pharmacy costs. The present net value of this claim using 3 per cent tables over the plaintiff's life time is $4,000 and I allow this sum. 114. I find that the plaintiff will need to be admitted to a pain clinic. The cost to the plaintiff is difficult to ascertain with precision bearing in mind that treatment may be an ongoing process over several years. On the other hand, only one attendance may be necessary. At the least, the plaintiff will require a week during the assessment phase and a further three weeks of attendance at what is known as the pain management unit. In most cases, this is likely to be ongoing, and it is possible that the plaintiff may require treatment over a period of time. As Dr Marantos said, a lot will depend on how the plaintiff feels and reacts to the treatment. As I consider that the plaintiff is stoical, and likely to respond well to treatment, I am unable to find on the balance of probabilities that she will require ongoing treatment, but I must allow for that possibility. Doing the best I can, I propose to allow for a total of two periods of treatment as representing the initial treatment I have found she will require and as representing a fair allowance for the chance that she may require ongoing treatment, taking into account her present condition, the fact that she lives in the country, the level of enjoyment she presently gets out of her work and the severity of her pain and its likely causes. The costs involved are set out in the report of the Ashford Pain Clinic. The initial assessment cost is $10,000 and the costs for a three week period in the pain management unit total $21,000. Allowing for a total of two such periods, the total cost of this treatment would be $52,000 and I allow that sum. In arriving at that figure, I am conscious that my estimate may be either too high or too low; but it is not possible on the evidence to be precise, and I have had to do the best I can on the information available. 115. In summary, therefore, I have allowed the following: Pain and suffering and Loss of amenities to now $ 35,000 Future pain and suffering and loss of amenities of life $ 25,000 Lost earnings to date
$ 50,000 Future lost earning capacity $ 65,000 Special damages
$ 3,000 Cost of future hysterectomy $ 2,775 Continuing pharmacy costs $ 4,000 Cost of treatment at a pain clinic $ 52,000 $236,775 116. In addition, the plaintiff is entitled to interest pursuant to s84 of the Supreme Court Act on the pre-trial components of her damages award. In the case of pain and suffering and loss of amenities of life, the appropriate rate is 4 per cent : see MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1990-91) 171 CLR 657; (1990-91) 98 ALR 193. The period of time involved, from March 1984 to now, is eight years and two months. On my calculations this amounts to $11,433. 117. The rate of interest to be applied to the other pre-trial losses, as they are losses of an economic kind, is at commercial rates. Over the relevant period, 1984 to 1992, these have fluctuated considerably. No evidence was called allowing for any precision, and accordingly it has been left by the parties for the Court to apply its own knowledge as to these rates. I consider that a reasonably fair average over the whole period is about 12 per cent, but, as the loss has occurred over most of the whole of that period on a week by week basis, I consider that the correct approach is to reduce the rate to 6 per cent to allow for that factor: see Volmer v Northern Territory Electricity Commission (1985) 34 NTR 12. Accordingly, I will allow interest at that rate over the period of eight years and two months on the economic components of the pre-trial losses (which total $53,000). I calculate this sum to amount to $25,970. 118. The total amount of the award is therefore as follows: 119. Damages $236,775 Interest on non-economic losses $ 11,433 Interest on economic losses $ 25,970 $274,178 120. Accordingly, there will be judgment for the plaintiff against the first, third and fourth defendants in the sum of $274,178. 121. I will hear the parties as to costs.