Archer v Blackstock

[2023] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:

Archer v Blackstock [2023] NSWDC 50

Hearing dates:

21 February, 1 & 8 March 2023

Date of orders:

10 March 2023

Decision date:

10 March 2023

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the amount of $371,000;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Pursuant to s 98 and s 99 of the Civil Procedure Act 2005 (NSW), at the time the plaintiff’s solicitor renders his bill of costs to the plaintiff he is required to file a certificate with the Court file evidencing the fact that he has not charged the plaintiff any professional fees for the wasted listing of the matter on 21 February 2023;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – professional negligence – medical – cosmetic surgery – damages claim against medical practitioner concerning adverse results from breast augmentation surgery; DAMAGES – assessment of heads of damage claimed by plaintiff

Legislation Cited:

Civil Liability Act 2002 (NSW), s 16

Civil Procedure Act 2005 (NSW), s 98, s 99

Category:

Principal judgment

Parties:

Rachael Archer (Plaintiff)
Leslie Blackstock (Defendant)

Representation:

Counsel:
Mr A Campbell (Plaintiff)
No appearance by the defendant

Solicitors:
Gerard Malouf & Partners (Plaintiff)
No appearance by the defendant

File Number(s):

2018/135513

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Procedural context and issues	[2]
Evidence overview	[3]
Facts	[4] – [27]
Plaintiff’s background circumstances	[5] – [7]
Operation by Dr Blackstock on 7 September 2017	[8] – [9]
Intra-operative and post-operative problems	[10]
Medical treatment	[11] – [12]
Review by Dr Howard de Torres, consultant plastic surgeon	[13] – [16]
Review by Dr Robert Kaplan, consultant psychiatrist	[17] – [18]
Disabilities that remain	[19] – [27]
Assessment of damages	[28] – [35]
Disposition & costs	[36]
Orders	[37]

Nature of case

1. The plaintiff, Ms Rachael Archer, claims damages for professional negligence against Mr Leslie Blackstock, a former medical practitioner, in respect of breast augmentation surgery he performed on her whilst still a registered medical practitioner. He performed that operation on Thursday 7 September 2017, at his consulting rooms at a house in Woodriff Street, Penrith, NSW.

Procedural context and issues

2. In the absence of any appearance by the defendant, or any other litigation activity on his part, a default judgment has been entered in favour of the plaintiff, leaving the remaining question of damages to be assessed. The proceedings were listed for hearing on 21 February 2023. The matter could not proceed on that day due to procedural failures on the part of the plaintiff’s solicitor which necessitated an adjournment. Following a further interlocutory listing on 1 March 2023, those procedural failures were remediated so that the assessment could proceed. That hearing proceeded on 8 March 2023. The proceedings are governed by the Civil Liability Act 2002 (NSW) (“CL Act”). At the hearing it was made clear to the plaintiff’s legal representatives that the plaintiff was not to have those wasted costs visited upon her because her solicitor had been at fault.

Evidence overview

3. The plaintiff tendered a Court Book which was marked Exhibit “A”. It contained relevant reports from two medico-legal assessors. A supplementary bundle was also tendered: Exhibit “B”. The plaintiff’s chronology was marked Exhibit “C”. The Court Book included a statement from the plaintiff dated 17 February 2023. That statement was supplemented with oral evidence from the plaintiff and her partner. In my assessment, her oral evidence was characterised as being stoic and understated. I found her evidence to be entirely credible and compelling.

Facts

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

Plaintiff’s background circumstances

5. The plaintiff is presently aged 44 years. She is married and has two adult children aged 19 and 21 years. She works from home as a business development manager on a commission basis. Beforehand, she had worked in the childcare and hospitality sectors.

6. For some 20 years prior to Dr Blackstock’s surgery in 2017, the plaintiff had been contemplating having plastic surgery to achieve a fuller and larger appearance of her breasts. Prior to having the surgery which led to these proceedings she was a healthy and happy person. She had not been subjected to any serious trauma. She had not been anxious or affected by any psychological issues.

7. She had delayed pursuing breast augmentation surgery when her children were young because she thought the recovery phase might interfere with their needs. She was looking forward to a positive outcome from breast augmentation surgery.

Operation by Dr Blackstock on 7 September 2017

8. On 7 September 2017, Dr Blackstock operated on the plaintiff at the abovementioned premises. The procedure commenced at 2.30pm and the plaintiff was in recovery by 3.05pm. The plaintiff was told there were no complications but that was not the case.

9. Initially, the plaintiff was blindfolded for the procedure. However, despite sedation, she found the whole experience extremely traumatic. She became extremely upset and lost composure when relating those events. It is clear that she is still traumatised and experiences re-traumatisation when she is required to speak about them.

Intra-operative and post-operative problems

10. Whilst Dr Blackstock was operating on the plaintiff’s left breast she felt intense pain whilst he used his hands, particularly his thumb and index finger to rip apart her breast tissues. At that time she was screaming in excruciating pain. Her partner, who was in the next room, heard her screams. She recalled, in horror, having been roused to sit up in a chair during the procedure in order to see herself in a nearby full length mirror. She was shocked at the sight of the lacerated cuts to her breasts. She was also shocked to see the tubes, blood, and protruding fatty tissues. She became aware of Dr Blackstock forcefully pushing in the breast implants. She then blacked out and remained unconscious until she awoke in the recovery room.

Medical treatment

11. The plaintiff experienced painful post-operative complications comprising bilateral post-operative haematomas with associated but undue breast swelling and enlargement. She subsequently required several hospital admissions and antibiotic treatment for two haematomas in each breast.

12. Post-operatively, after leaving Dr Blackstock’s rooms, the plaintiff continued to experience excruciating pain in her breasts. At home, she required considerable doses of painkilling medication, including opiates. After a week, she required an emergency hospital admission and a later re-admission for treatment for post-operative infections.

Review by Dr Howard de Torres, consultant plastic surgeon

13. On 22 March 2018, at the request of her solicitor, the plaintiff was examined by Dr Howard de Torres, a consultant plastic and reconstructive surgeon.

14. Dr de Torres noted that Dr Blackstock had not undertaken the procedure on the plaintiff’s breasts in a properly certified operating theatre.

15. Dr de Torres was critical of Dr Blackstock’s failure to properly manage the plaintiff’s post-operative breast haematomas which should have been kept under observation. Dr de Torres stated that there should have been a surgical drain in place and monitoring should have occurred under proper conditions. He was also critical of the absence of provision of appropriate post-operative care.

16. Dr de Torres concluded the plaintiff’s breast implants had been placed in a position that was too high on her chest. He considered that her described pain was probably due to nerve damage caused by the way in which the implants were installed.

Review by Dr Robert Kaplan, consultant psychiatrist

17. On 18 June 2018, at the request of her solicitor, the plaintiff was assessed by Dr Robert Kaplan, a forensic psychiatrist.

18. Dr Kaplan noted that the plaintiff now suffers from mood disturbance. She is unhappy and frequently in tears as a result of the ill-effects of Dr Blackstock’s surgery. He diagnosed her as suffering from consequential depression with a mixed prognosis, and it will be very much dependent upon proposed remedial surgery. He suggested the plaintiff have 6 – 12 consultations with a psychologist to deal with her depression and body image problems.

Disabilities that remain

19. The plaintiff has been left in a distressed state. She faces further surgery for bilateral implant removal. She is self-conscious about her appearance. She has low self-esteem and her mental health has been adversely impacted.

20. Specifically, she finds the appearance of her breasts very upsetting. The 3 photographs comprising Exhibit “D”, show the pre-operative appearance of her breasts, the swollen appearance 2 weeks post-operatively, and at 6 months post-operatively.

21. The plaintiff describes her post-operative breasts as being extremely heavy. She described them as drooping. She feels she does not have a normal womanly appearance and she is embarrassed by this. She was very tearful in giving her account of those problems.

22. The plaintiff has difficulty wearing a bra for much of the time. She has nerve pain in the left breast and a stabbing pain on that side of her chest wall. Her nipples feel sore. She feels damaged. She is depressed, she has an impaired body image and she has resultant difficulty with intimacy.

23. The plaintiff described how, day-to-day she feels she “crumbles”, especially when her thoughts take her back to Dr Blackstock’s surgical treatment of her. She said that it can variously take hours or days for her to recover her equilibrium and a normal mental state. In the past she tried to obtain benefit from counselling but found she just cried throughout the sessions. Her partner is very supportive and encouraging of her, but she still gets despondent about the ill-effects of Dr Blackstock’s treatment of her.

24. On a daily basis, the plaintiff cannot bear to look in the mirror to see her breasts. She wants to have remedial surgery, which will have to be in 2 to 3 bouts, and she worries about how she might look if she has to endure having no implants at all, a possible result of such surgery.

25. She feels the prospect of first, surgery for implant removal, secondly, repair of her chest wall, and thirdly, a lift procedure, with new implants. The estimated cost of those procedures is about $60,000.

26. The plaintiff’s partner describes the change in her personality post-operatively. He described her lack of self-confidence, and a complete change from how she used to be. He described how she easily breaks down when in pain and suffering from her mental trauma. In his view she is not getting any better. She frequently gets re-traumatised as a result of her involvement in a help group that assists other patients who have been similarly damaged by Dr Blackstock.

27. The plaintiff has intimacy reticence issues, she feels emotional about this and considers herself damaged and ruined. She cannot exercise as she used to do. She is in constant “stabbing” pain from nerve damage which she believes to be irreversible. She has additional pain when wearing a bra. She continues to take painkilling medication.

Assessment of damages

28. My assessment of the plaintiff’s damages now follows.

Non-economic loss

29. The plaintiff has been left with disfiguring scars to her chest. The appearance of her breasts has become unsatisfactory and is upsetting to her as already described. She now faces several bouts of future surgical treatment. She has impaired self-esteem and has suffered significant mental trauma that affects her equilibrium. The plaintiff’s mental health adversely affects her mood on a daily basis. She is randomly subjected to re-traumatising thoughts. All of these matters, including her loss of self-esteem and embarrassment have a severe adverse and marring impact on her ability to enjoy the amenity of her life.

30. I assess the plaintiff’s damages for non-economic loss pursuant to s 16 of the CL Act at 40 per cent of a most extreme case. This equates to $282,000.

Economic loss

31. The plaintiff stoically makes no claim for economic loss.

Future out-of-pocket expenses

32. The plaintiff makes a claim for future treatment expenses, including future surgery, medical consultations, psychological and pharmaceutical treatment. I accept the plaintiff’s evidence that as soon as she has the funds she will pursue the recommended surgeries to try and mitigate the damage she has suffered. That surgery is estimated to cost $60,000. In addition, she will require an additional buffer allowance for future pharmaceutical, medical and psychologist’s expenses. I assess that buffer in the amount of $20,000.

33. I assess the plaintiff’s damages for future out-of-pocket expenses in the total amount of $80,000.

Past out-of-pocket expenses

34. The plaintiff’s claim for out-of-pocket expenses is made up of $2800 for the claimable items on the Medicare schedule and a further amount for past pharmaceutical and non-repayable items. I assess those claims in the total sum of $9000.

Summary of damages assessment

35. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$282,000
(b) Future out-of-pocket expenses	$80,000
(c) Past out-of-pocket expenses	$9,000
Total	$371,000

Disposition and costs

36. The plaintiff is entitled to a judgment for a damages award of $371,000 and she should have a verdict and judgment in her favour for that amount. As the plaintiff has succeeded in obtaining a judgment in her favour, she should also have an order that the defendant should pay her costs of the proceedings on the ordinary basis.

Orders

37. I make the following orders:

1. Verdict and judgment for the plaintiff in the amount of $371,000;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered

3. The exhibits may be returned;

4. Pursuant to s 98 and s 99 of the Civil Procedure Act 2005 (NSW), at the time the plaintiff’s solicitor renders his bill of costs to the plaintiff he is required to file a certificate with the Court file evidencing the fact that he has not charged the plaintiff any professional fees for the wasted listing of the matter on 21 February 2023;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 10 March 2023