Bergman v Haertsch
[2000] NSWSC 528
•22/06/2000
NEW SOUTH WALES SUPREME COURT
CITATION: Bergman v Haertsch [2000] NSWSC 528
CURRENT JURISDICTION:
FILE NUMBER(S): 20394/96
HEARING DATE{S): 22/02/00; 24/02/00; 28/02/00; 29/02/00;
01/03/00; 06/03/00; 07/03/00
JUDGMENT DATE: 22/06/2000
PARTIES:
Britt-Channelle BERGMAN v Peter Anthony HAERTSCH
JUDGMENT OF: Abadee J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
Mr D. Cassidy QC; Ms Hanna - Plaintiff
Mr P. Greenwood SC - Defendant
SOLICITORS:
Mark Phillip Symonds - Plaintiff
Tress Cocks & Maddox - Defendant
CATCHWORDS:
PROFESSIONAL NEGLIGENCE - Specialist medical practitioner - Gender reassignment surgery - Male to female transsexual - Whether breach of duty to warn of material risks - Whether breach of duty in performance of surgery - Whether res ipsa loquitur applicable - contractural term(s) - Whether breach of contract - Whether cause of action in assault available.
ACTS CITED:
Births Deaths & Marriage Act
DECISION:
Verdict and judgment for the defendant; The plaintiff to pay the defendant's costs; Grant liberty to the parties to bring in "interest" calculations if they consider such to be appropriate within 14 days; Exhibits may be returned.
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONPROFESSIONAL NEGLIGENCE LIST
ABADEE J
THURSDAY 22 June 2000
20394/96 - Britt-Chanelle BERGMAN v Peter Anthony
HAERTSCH
JUDGMENT
HIS HONOUR: The plaintiff by the amended statement of claim, seeks to recover damages against the defendant, a medical practitioner, and plastic/gender reassignment surgeon. The proceedings in broad terms relate to what is called gender reassignment surgery performed by the defendant on the plaintiff on 23 May 1994. The plaintiff relies on three causes of action being in contract, negligence and assault (trespass). The plaintiff’s case in negligence is put upon two bases: first an alleged failure to warn of material risks inherent or associated with the gender reassignment surgery; and further, or alternatively, negligent performance of the gender reassignment surgery itself. That said, it is appropriate to immediately note that in his final submission the plaintiff’s counsel did state (T 338) his view that he always thought that “this case was all about” the issue relating to the performance of the surgery.
The action involves issues of human, legal and medical interest. It is a case concerning matters normally of a highly personal and private nature to a human being. It is a case of some sensitivity and delicacy calling for understanding and some sympathy. That said, it is an action which puts these matters into the open. The action is to be determined according to the evidence and according to law. This is a case where for obvious reasons it is not appropriate to always utilise gender neutral language. Against this background I make no apology for the length of this judgment.
Background and Introduction
The plaintiff is a male to female transsexual. The plaintiff was born on 6 September 1969. She was born a biological male and of the male gender. The plaintiff at birth had male genitalia. The plaintiff’s sex was that of a male. The plaintiff was registered as being of the male sex. From early childhood the plaintiff experienced what has been called gender dysphoria or transsexualism.
For a number of years prior to the surgery of 1994 the plaintiff had long been pre-occupied with her gender. Prior to 1994, though physically of the male sex, the plaintiff felt herself to be of the psychological disposition of the female sex. The situation was not of her own choice or making. That said, this is not the occasion to explore the cause or causes of gender dysphoria or transsexualism. The plaintiff’s pre-operation situation may conveniently be summarised by reference to the history of Dr Walker’s report of 10 March 1998. The history recorded I generally accept. I quote:
“Chanelle was born the only child in her family. She had three female cousins, one the same age as she was, another one year older, and a third two years older. She grew up with these 3 girls and had a close affinity to them, going on shared holidays together. Right from the earliest age that she can remember, she enjoyed doing things that other girls did. Problems began to emerge when Chanelle had to wear shorts and go to a co-educational primary school as a boy. Somehow she felt that she was a girl dressed as a boy. She did not enjoy socialising at school, and was harassed at primary and secondary schools because of her effeminate demeanour. She was molested as a child at home from age 7 years. She remembers when she was at high school that she was attracted to boys, believing that she was a girl, so she was attracted to them as heterosexuals not from a homosexual point of view.
At aged 15 she met a transsexual and felt aligned to the way that that transsexual thought. After seeing her family physician she was started on feminising hormones from the age of 16 to 17 years but, because she was unsure of her sexuality at that time she started and stopped feminising hormones. She soon realised however, that she felt better as a female and had good breast development with feminising hormones. She left home and went to live in Melbourne. She dressed as a female from aged 17 years. She has qualified as a beauty therapist in 1993.
Previous medical history - breast augmentation ….”.
On 23 May 1994 an operation was performed at the plaintiff’s request of gender reassignment surgery male to female by the defendant in Sydney.
Further, for many years before this surgery the plaintiff too had long been concerned with her gender, as well as presenting with the appearance of a female. The gender dysphoria and preparation for gender reassignment surgery had for many years (between 1989-1992) allegedly caused her to be unable to work, caused her to suffer some alleged discrimination, and for many years qualified her for receipt of social service sickness benefits for total incapacity for inter alia gender reassignment, nervous disorder and transsexualism: (see Exhibit 2). At school due to the effeminate condition she felt harassed. From the age of eight she experienced feelings that she did not belong. From 1987 to 1991 she lived on a day to day basis as a woman. She commenced taking female hormones, including oestrogen tablets and aldactone. From the age of 17 she started to feel better as a female enjoying good breast development. By 1991 she had already considered gender reassignment surgery.
Prior to 1994 the plaintiff had done some female modelling and appeared in photographs in the Magazine Playgirl some of which appear in a Woman’s Day article in September 1994 (Exhibit 4). A photograph of the plaintiff and of her female appearance prior to the 1994 surgery may be seen in photographs (Exhibit “E”). Again for many years prior to the May 1994 surgery the plaintiff too had lived under a female first name. Again prior to surgery in her eyes she regarded herself as a woman and said she felt like a woman. She did not feel like a man.
Further, prior to surgery, the plaintiff had breast augmentation (mammaplasty). She had, in accordance with usual and proper practice, undergone extensive psychiatric assessments as to her understanding of gender reassignment surgery. For reasons that will appear, following full investigation on her part and medical assessments, the plaintiff elected to have the surgery. I conclude that this too was surgery undertaken by her with full understanding of the material risks. Indeed, the plaintiff appeared to be a person of intelligence with full and sound adult capacity to understand the issues concerned with the surgery. These matters will be expanded upon in greater detail. The surgery took place against a background of due research and inquiry, and further of years of the feeling of being a woman and in effect of being a member of the opposite female sex. At the time of the surgery she felt like a woman, dressed like a woman and presented herself as a woman in general external appearance. She acted and behaved like a woman, in effect holding herself out and representing herself as a woman. Prior to the operation she had lived (since 1991) with a male partner friend Darren R in a relationship which ceased in about June 1995. The relationship too was a sexual one involving, and it is necessary to state it, oral and anal sex. Her evidence was that she had not experienced orgasm in her waking hours before the surgery of 1994.
In terms of her situation before surgery she was described in evidence by Dr Orsmond as being a “primary transsexual”.
10 Elective gender reassignment surgery was performed on her by the defendant on 23 May 1994. On 10 August 1994 the defendant issued a certificate to assist her in obtaining a passport. That certificate was in the following terms:
“This is to certify that Britt Bergman DOB 6 September 1969 had undergone gender reassignment surgery [23 May 1994]. She is to all intents and purposes a female. The surgery is irreversible”. (Exhibit “F”).
11 Later, on 22 November 1996 pursuant to the Births Deaths and Marriages Act, a Change of Name Certificate was issued confirming a lawful change of name including the particularisation of new female Christian names. The Certificate revealed the plaintiff’s sex as “Female” (Exhibit “G”).
12 As at 23 May 1994 the defendant was a highly qualified and experienced specialist plastic surgeon carrying on gender reassignment surgery. The plaintiff had met him on 30 October 1991 with a referral letter of 24 October 1991 from Professor Steinbeck, an Endocrinologist. At the time of surgery the defendant had carried out about 100 gender reassignment surgery cases using the surgical technique known as the penile inversion procedure.
13 Prior to the surgery the plaintiff also had been psychiatrically assessed and cleared for surgery by Dr Orsmond and Dr Greenway and by Professor Steinbeck. The plaintiff had been seen on a number of occasions by the defendant and his Nurse (who will be referred to as “Nurse 1”) (a transsexual who had gender reassignment surgery performed upon her by the defendant in 1990). I find that the plaintiff too had received advice from time to time about the surgery and verbal warnings of the risks of surgery from the doctors. She obtained a full understanding of the surgery, its aims and objectives from doctors, the defendant’s Nurse 1, and from transsexuals and other friends. She too had earlier seen a specialist medical group, who assist and advise transsexuals in respect of their situation. This group was led by a Dr Trudy Kennedy and was associated with Monash University in Melbourne.
14 By the time of the operation the plaintiff had read, and I find also understood, an extensive booklet given to her by the defendant: “Neo Vaginal Surgery - Patient Information” (Exhibit 1).
15 Prior to the surgery (on 22 May 1994) the plaintiff signed a consent form to surgery at the Westside Private Hospital (part of Exhibit 11). The surgery performed was described as “gender reassignment surgery male to female with principal diagnosis being gender dysphoria”. In that document the plaintiff too accepted the possible risks “associated” with the procedure.
16 The surgery when ultimately performed (with full understanding of the risks) followed as I have said years of consideration, investigation and enquiry. The plaintiff’s decision was not hasty but was in my view, the subject of long consideration and mature reflection. The plaintiff wanted the surgery when she did, and wanted it to be performed by the defendant. She had arranged for the fees to be paid to the defendant (with whom she had a contract to perform the surgery) and for the hospital to be also paid. She had arranged (prior to surgery) for the magazine Woman’s Day to be given an “exclusive” story in return for “reimbursement” or payment of her surgery expenses of $12,000. In the Woman’s Day article of 9 September 1994 (Exhibit 4), the plaintiff was quoted as inter alia saying when referring to the surgery:
“It’s something I’ve wanted for a long time … I wanted it gone and I’d do whatever I had to achieve it, whatever it took.” [my emphasis]
17 The reference to “it” was in my view a reference to her “manhood”.
18 In cross-examination the plaintiff agreed that she said this but denied also saying “I wasn’t afraid of having my manhood surgically removed”. That she probably said it or something like it too is supported by that part of her history to Dr Dent (report of 31 August 1999) which I accept: “But if you’ve got the wrong genitals you’d do anything” [my emphasis]. These matters are further of particular significance on the issue of causation in the context of the duty to warn case advanced.
19 I note that in the same Woman’s Day article the plaintiff said (and it would seem to have been part of an interview prior to the operation) that she did not feel like a man, to quote: “I’ll be glad when its all gone” (presumably here too referring pre-operatively to her “manhood”). Following the operation the plaintiff described herself as having always felt very female, and that she was “already a woman” with surgery being “just one step in the process”!
20 In his final submission after the conclusion of her evidence Mr Cassidy QC for the plaintiff appeared to have at least accepted that the operation had been performed for a “multitude” of purposes including to relieve the plaintiff’s distress associated with feelings of being a young woman in a man’s body: see also her statement to Dr Dent supra.
21 I have endeavoured to provide an introduction or outline to assist in understanding the issues in the case. That said, I believe it is now here appropriate and convenient to here quote from the 18 page booklet - “Neo Vaginal Surgery - Patient Information” (with in my view its contents being relevant to and forming part of the contract as well as to the issue of negligence) that the defendant furnished to the plaintiff pre-operatively (Exhibit 1). In my view the plaintiff received it and had full opportunity to study it before the operation. In respect of it I am satisfied that the plaintiff read it and understood it. She too had the intellectual and educational capacity to both read it, understand it and to fully absorb its contents. The booklet too was part of the material relevant to the contract, and to the duty to warn and provide information and advice to the plaintiff. I consider it is appropriate to here quote from the booklet. I believe it will better assist in understanding what the issues are. I quote:
“Introduction
The following has been written, for you the client preparing for surgery. It has been written in conjunction with Dr Haertsch and with the assistance of medical specialists working in related fields. You may find some of the information covers issues that you are already comfortable with, however please read it carefully to ensure that you have not missed anything that may assist your recovery. It may be valuable to read it a number of times and to take it with you into the hospital as a reference. Should problems or concerns arise that are not discussed here, please do not hesitate to contact Dr Haertsch or his support staff.
AIM
The surgical procedure you are planning to undergo is intended to achieve for you a vagina and genital area similar to that of a biological female and is irreversible. Every effort will be made by the surgical team to ensure that your vagina is functional for the purpose of sexual-intercourse and your clitoris is sensitive and capable of stimulation leading to orgasm. These surgical goals however can not be guaranteed and although recipients are generally pleased with the results, there are risks. It is important that you are satisfied that these have been explained to you by the surgeon prior to your hospitalisation. If surgical complications arise then further surgery may be required to ensure a satisfactory outcome. It is important that you accept these risks, as this surgery is elective and is being performed at your request.
In preparation for this surgery you have seen two psychiatrists who agree that it is reasonable for you to pursue this surgery. You may also have been diagnosed as having a condition described as gender dysphoria and/or transsexualism. It is acknowledged however that many individuals whom doctors have described as having one or both of these conditions, have chosen not to pursue surgery and have made instead lifestyle changes to manage their situation.
The surgery that you are preparing for, also called genital sex or gender reassignment surgery is not considered by the medical and health care professionals who are providing this service to you as a cure of gender dysphoria or transsexualism. Both hormonal and surgical reassignment are viewed as specific strategies to assist individuals. These individuals consistently demonstrate a commitment to manage their lives and the distress they have experienced through a permanent change of gender role and a change of their genital-sex status. The surgical goal therefore is to comfort and if possible to assist the client in achieving an improvement in their quality of life. If you are unclear, confused or uncomfortable about any of the above issues we strongly recommend that you reschedule your surgical date and seek further counselling. This surgery will affect how the law defines your gender in N.S.W. and in some other states and countries.”
22 To what I have said above, it is also here convenient to also state and refer to some other matters that appear from the booklet. Under the heading “About the Surgery” reference is made to the patient having discussed the nature of the surgery in detail prior to surgery and to having “the opportunity to discuss any final details and ask any further questions you may have”. Reference too is made to the need post operatively, following removal of the catheter and packing, to begin dilating. The ability to begin sexual activity was stated as follows:
“usually under normal circumstances if everything occurs uneventfully then this will be around 6 - 8 weeks after surgery.”
23 Again reference is further made to vaginal dilating and to the consequences of failing to dilate fully. Such failure would eventually result in loss of depth and make sexual intercourse difficult and eventually impossible.
24 As to sexual function and previous sexual function both are also discussed in the booklet (Exhibit 1). Reference is made to sexual function being related to a number of different identified factors. I would note in passing that neither the booklet nor the surgery addresses such issues as the ability of a male to female transsexual post gender reassignment surgery of being able to find male persons ready willing or able to enter into a relationship (regular or irregular), including a sexual relationship involving penile vaginal sexual intercourse. Indeed, there was no statistical evidence on this subject. This too is an issue relevant to the issues arising for consideration in the case including on damages. The matter too of alleged “loneliness” complained of by the plaintiff to Dr Dyball in November 1998 is not one addressed or capable of being addressed by the operation. Next, in Exhibit 1 advice was given, including that poor depth and width post-operatively can be related to “surgical complications”. The possibility of the need for further correctional surgery is discussed. There is reference to “average size penis” (whatever such might mean). There is no definition of the “average”, but there is a recognition that there may not be an accommodation, even without complications, of anything more than the average. Further, advice is given that intercourse may not be pleasurable “as is the case with some biological women”. A qualification too is introduced in relation to orgasm, “if … achievable at all after surgery” noting that for some the main stimulation may be achieved around the clitoral area, but not overlooking that “sometimes orgasm is an emotional experience”. The matter of hygiene too is particularly addressed. The book also contains a conclusion.
Glossary of Medical Terms
25 For the purpose of understanding the evidence it is appropriate to set forth a glossary of undisputed medical terms. The glossary is as follows:
Term | Definition |
| Areola Tissue | flimsy, connective tissue (not erectile) |
| Caruncle | a small fleshy projection. In this case referring to a bit of the urethral mucosa which is prominent. |
| Corpora, Corporeal | prefix meaning body |
| Corpus Cavernosum | the two cylinders of spongy erectile tissue within the penis. This tissue becomes engorged with blood during sexual excitement. |
| Corpus Spongiosum | a cylinder of spongy tissue surrounding the male urethra. |
| Fistula (recto-vaginal fistula) | an abnormal hole between the rectum and the neo-vagina allowing air or a combination of air and faeces to enter the neo-vagina. |
| Galactorrhea | an abnormal discharge of milk from a female or a male breast not associated with childbirth or nursing. The condition is sometimes a symptom of pituitary gland tumour. |
| Labia Majora | two long flaps of skin, one on each side of the vaginal orifice outside the labia minora. |
| Labia Minora | two folds of skin between the labia majora, extending from the clitoris backward on both sides of the vaginal orifice, ending between it and the labia majora. |
| Levator Ani | one of the pair of muscles of the pelvic diaphragm that stretches across the bottom of the pelvic cavity like a hammock, supporting the pelvic organs. |
| Microadenoma | a pituitary adenoma less than 10mm in diameter. |
| Pituitary Adenoma | tumour on the Pituitary gland diagnosed on a CAT scan. |
| Prolactin | a hormone produced and secreted into the blood stream by the anterior pituitary gland. |
| Pubo-coccygeus Muscle | the muscles on the male pelvic floor. |
| Urethral Meatus | a meatus is a natural body passage or canal. In the male, the external urethral meatus is located at the summit of the glans penis. |
| Urethral Bulb | In the neo-vagina, the urethral bulb is the spongiosum (expansive tissue) found directly in front of the vagina. In a non-stimulated stage, the bulb is soft and pliable. In the aroused state the bulb becomes hard. |
| Vaginismus | a psycho-physiologic genital reaction of women characterised by intense contraction of the muscles surrounding the vaginal introitus. |
The Transsexual (male to female) and Gender Reassignment Surgery
26 It is appropriate if I now turn to discuss the nature of gender dysphoria and/or transsexualism. In this case the cause of it has not been fully explored. Nevertheless, I believe it is of some importance to have some understanding of it for the purposes of this case and the general issues raised in it.
27 Transsexualism (or gender dysphoria) is a medically recognised condition affecting a number of human beings, both male and female. In the Westside Private Hospital Notes (Exhibit 2) “Gender dysphoria” in the plaintiff’s case was stated as the “principal diagnosis” with the principal operation “Gender reassignment - male to female”. For purposes of supporting the plaintiff’s claim for sickness benefits, the plaintiff’s general practitioner (between 1989 and 1992) provided regular three monthly certificates of total incapacity for work because of the plaintiff’s “gender reassignment surgery”! Why such would prevent the performance of work and/or for such a long period is not completely clear.
28 At the time of her birth the plaintiff had the sex, indeed the anatomical sex of a male. This, like her gender, was assigned at birth. The sex of the person in a biological sense is cast by the time of birth. The history reveals that the plaintiff as she grew older progressively started to have the subjective feelings of the female gender, albeit being a member of the assigned male gender. The plaintiff sought to achieve, as in this case, a more unambiguous identity by gender reassignment surgery, which would enable the plaintiff to adapt his physical characteristics to “his” psychological nature. As Dr Orsmond said (T 307):
“This lady … was born with a very complicated psychological state, if you like, which would have followed her around wherever she went. And these people by and large have quite difficult lives in adjusting to the apparent dilemma that they confront with having genitals of one sort and yet being absolutely sure that they are of the opposite sex.”
29 The plaintiff in my view was in this situation. She too had a pre-surgery difficult life. She had the incentive and the full desire to undergo the surgery which she ultimately had. Indeed, the “wanted” surgery when ultimately undertaken also took place against a long period of preparation, consultation and investigation on the plaintiff’s part and to address and meet the personal “need” for it.
30 Thus a transsexual is a person (in this case a male) with the anatomical sex of a male who feels a belief that he is of the opposite sex (again in this case a female). This is sometimes expressed in terms of the male person having the belief of being a woman trapped in a male body. Perhaps without being unduly technical the term describes a person, who whilst biologically belonging to one sex, is convinced or feels that he/she belongs to the other sex. In the case of the male transsexual there too is perhaps the desire in the transsexual to have his body appearance and social status to further conform to his “rightful gender”. For a useful discussion as to who is a transsexual and as to transsexualism see the decision of the Federal Court of Australia in Social Security, Department of v SRA (1993) 118 ALR 467 particularly the judgment of Lockhart J. His Honour also discussed the ordinary meaning of such words as “male” and “female” and the meaning of “sex” which he considered related to the anatomical and psychological difference and not a psychological one. For a general discussion as who is a man for the purpose for example, of the criminal law see also R v Harris & Anor (1988) 17 NSWLR 158 where the Court of Criminal Appeal held that a post-operative male to female transsexual was not a man for the purpose of the particular offence that was charged.
31 In the instant case the evidence reveals the plaintiff’s condition of gender dysphoria was not one which she sought to have solely addressed by mere female hormonal treatment or indeed for example by counselling, both or either. She actively actually sought the gender reassignment surgery to address or further address her situation.
32 I would note that the word “transsexual” (the noun) is defined in the Oxford Dictionary (2nd ed, 1994) as: “Of or pertaining to transsexualism; having physical characteristics of one sex and psychological characteristics of the other”. “Transsexualism” is defined as being: “The state or condition of being transsexual, manifested by overwhelming desire to belong to the opposite sex”.
33 As to the surgery the male to female transsexual may with gender re-assignment surgery adopt the external genitalia of a female but still would remain incapable of bearing children. The operation does not provide ovaries or a uterus. As I would also understand it, with inter alia surgery (and other training, learning and treatment), a biological male may thus be given the appearance, as in this case of a female, with detection of her previous gender in terms of appearance to the unassisted eye or by the uninformed lay person post-operatively, being somewhat difficult.
34 Next, following surgery a male to female transsexual is no longer a functioning male, her psychological sex “accords” with her new anatomical sex. The surgery is draconian, complex and difficult. It is no mere simple surgery. The sex change procedures are inter alia intended to also bring the individual body into alignment with his or her psychological gender.
35 The surgery is not mere repair type surgery. It is elective surgery. In the case of a male to female transsexual there is a removal of the external male sexual organ and genitalia and the creation of female genitalia including a neo-vagina and neo-clitoris from human tissue, in this case involving use of the removed male penis. The surgery does not create a biological or genetic woman out of a man, with all the qualities, characteristics, sensitivities, feelings or emotions of a woman.
36 To be eligible for reassignment surgery a diagnosed transsexual is required to undergo psychiatric assessment. This she did with inter alia Dr Orsmond and Dr Greenway. I accept their general evidence including that which conflicts with that of the plaintiff. The plaintiff too had consulted an Endocrinologist, Professor Steinbeck whose evidence I likewise generally accept and also specifically so where it is in conflict with that of the plaintiff. As I have broadly indicated, at the time of surgery on 23 May 1994 the plaintiff transsexual presented with hormone developed secondary sexual characteristics. By May 1994 she had received extensive hormone treatment over years. In December 1993 she has been operated on and received breast argumentation (mammaplasty). She still retained male genitalia but dressed like a woman, had well developed breasts, appeared to be the world at large like woman, and had the physical attributes of a woman above the genitalia level. I would add that subsequent to the operation in 1994 the plaintiff had further cosmetic treatment including facial repair to her nose and liposuction by Dr Hodgkinson. Indeed in 1995 she was speaking to Dr Townson of having “20 other operative procedures,” reflecting an attitude then discouraged by Dr Townson.
37 Following surgery the situation thus was created where it would become and did become increasingly more difficult for the uninformed lay person to detect (at least in terms of the plaintiff’s external appearance and presentation in a dressed condition) the plaintiff as being a former gender male.
Plaintiff’s Amended Statement of Claim
38 It is convenient to more particularly identify the issues to the way the plaintiff puts her case by reference to the plaintiff’s amended statement of claim.
39 The plaintiff claims that in or about October 1991 she consulted the defendant concerning the undertaking of gender reassignment surgery. The plaintiff asserts that the defendant gave advice in substance to the effect that he could perform surgery which would result in her no longer being a male whilst simultaneously creating specific genital features to enable her to carry on life as a female and “all that entails save and except for bearing children”.
40 The plaintiff asserts, that in reliance upon this advice she entered into a contractual arrangement to perform the surgery of gender reassignment, the principal purpose of such being to enable the plaintiff to “engage in vaginal intercourse with a partner of the opposite sex, to achieve orgasm, to have the genital sensation of a woman, to live and function as a woman, and to achieve a positive self image and to work in female environments”. Further, it is claimed that the purpose of the surgery was to also permit the plaintiff to engage in a normal social life as a functioning female, to enjoy a normal social and sexual life with a male partner, to engaged in the “normal” hygiene practises of a female and to be able to live as a female free of pain and discomfort. [my emphasis]. I would here note that there may be in some cases some difficulty in defining the word “normal”: cf Murphy v The Queen (1988-89) 167 CLR 94 at 111 (“psychiatric condition” case).
41 The plaintiff further claims that on 23 May 1994 the defendant performed the gender reassignment surgery but that the operation failed in a number of respects. She asserts that the neo-vagina was unsatisfactory and inadequate for vaginal intercourse, with the vaginal length being too short, the width also being too narrow. The urethral positioning was alleged to be incorrect, the urethral bulb too large and surrounded by dense musculature leading to obstruction of the neo-vaginal cavity, the labia was abnormal and too pronounced, and the posterior skin fold too large and cumbersome causing “extreme pain with any attempted vaginal intercourse”.
42 As a result of the alleged failure to perform the surgery it is alleged that the plaintiff suffered injury and disability and required subsequent radical surgery, more particularly in 1998 and 1999 in New Zealand.
43 The plaintiff also alleges that the gender reassignment surgery did not have the effect of reassigning the plaintiff from a male to a female, including being able to “function” as a female.
44 As I have said, the plaintiff alleges a number of causes of action namely in contract, negligence and assault.
45 In respect of the contract count the plaintiff claimed there was a reward for the surgery. At the trial it was initially asserted that in consideration of the payment of twelve thousand dollars ($12,000) such would include all costs including anaesthesia and hospitalisation, the performance of gender reassignment surgery by the defendant to enable the plaintiff to function as a woman.
46 I would here add that at the trial, despite the opening address and the allegations and evidence of the plaintiff, the plaintiff did ultimately concede that the agreement was not for one indivisible sum of $12,000 to be paid to the defendant, but a lesser sum to be paid in part to him and in part to the hospital. Next, both in the amended statement of claim and at the trial it was alleged that there were a number of implied terms in the contract. These were that the defendant would exercise reasonable care and skill in carrying out the surgical procedure; that the defendant would warn the plaintiff of any material risk inherent in the proposed surgical procedure including the risk of a number of complications including lack of vaginal depth and width, lack of orgasmic ability, lack of genital sensation, inability to have vaginal intercourse and a number of genital abnormalities; and other specified matters. These allegations (elaborated upon at the trial) included that the defendant would warn the plaintiff of any risk that the operation would not be a success. Additionally, in his final address Mr Cassidy further or alternatively specifically asserted that there was an implied term that the neo-vagina created by the defendant would be reasonably fit for the purpose intended, namely the reception of an erect male penis. [my emphasis]. That said, I might here digress and note that in his final address Mr Cassidy (T 374) appeared not to disagree with the proposition that the defendant was not bound to create a neo-vagina taking the insertion of a “any size male penis” but still nevertheless arguing that “it is fitness for purpose and merchandise”!
47 The plaintiff specifically alleged that in breach of the term alleged, and in breach of the duty to exercise reasonable care, that the defendant failed to warn the plaintiff in a number of respects being failures to warn: of the risk of complications; of risks associated with the procedure; and of the increased risk of complications following the surgery and during the recovery period. It is also alleged that the defendant failed to advise the plaintiff in a number of respects being that the proposed surgery namely for gender reassignment, may be: unsuccessful or fail; of the risks associated with a procedure utilising a general anaesthetic; and of all risks associated with the procedure and operation generally.
48 In paragraph 16 of the amended statement of claim the plaintiff further alleged that in breach of the term and of the duty alleged (in negligence the defendant failed to perform the surgery in a proper and professional manner and was otherwise negligent as in several respects). [my emphasis]. These were particularised under the heading Particulars as follows:
“(a) failed to take adequate care in the preparation of the site for surgery;
(b) failed to properly assess the adequacy or otherwise of the site for surgery;
(c) failed to properly investigate the adequacy of the available penile skin;
(d) failed to take adequate precaution in the removal of the urethral bulb;
(e) failed to take adequate precaution in the placement of the vaginal cavity;
(f) failed to take adequate precaution in the making of the vaginal opening;
(g) failed to medically examine and assess the skeletal capacity of the Plaintiff for the procedure;
(h) failed to provide adequate pre operative treatment and preparation;
(i) failed to follow established practises in carrying out the medical procedure;
(j) failed to provide adequate post operative treatment for the Plaintiff;
(k) failed to remove sufficient corpus cavernosum in the clitoral region;
(l) failed to remove the spongiosum from the urethra;
(m) caused the urethra to be stenotic”.
49 I would here comment that no allegation in terms was made of negligence (in any respect), in that the defendant failed to carry out the gender reassignment surgery using inter alia the slightly modified penile inversion technique described and adopted by Dr Royle, or using the colo-vaginoplasty technique later performed by inter alia Dr Walker on the plaintiff in New Zealand in 1999. It was a matter touched upon at the trial at least in evidence. The defendant in this case performed the actual surgery by his usual method involving the penile inversion technique. In my view no sound allegation could be made, let alone could there be any finding, of negligence whether in terms of surgery or provision of information, advice or warning, rather than some other procedure. Nor did the plaintiff in the amended statement of claim in terms assert or particularise a reliance upon the matter of res ipsa loquitur. The doctrine of res ipsa loquitur was not only not pleaded, but in any event in my view in a case such as the present inter alia involving complex technical surgery, it would not apply in the present circumstances to make out or support a case in negligence: see Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594: see also my later remarks. I mention the matter of res ipsa loquitur because the plaintiff in final address purported to seek to rely upon it. In my opinion it is unavailable to support any case of the plaintiff.
50 Further, in paragraph 17 of the amended statement of claim the plaintiff alleges that had the defendant given her proper advice [my emphasis] concerning the inherent risk in the proposed surgical procedure namely the risk of loss of sexual intercourse and consequent or associated injury and/or deformity, then the plaintiff would not have consented to and would not have undergone the surgical procedure upon her by the defendant. In paragraph 17A to 17D inclusive of the amended statement of claim the plaintiff also further alleges that the defendant was negligent in that he had a duty (which he allegedly breached) to consider and warn the plaintiff of possible risks of psychological damage as a result of the procedure being performed; of a duty (which he allegedly breached) to consider prior to undertaking surgery whether the plaintiff was psychologically suitable for surgery; a duty (which he breached) to take a medical and psychological history of the plaintiff and thereafter assess the suitability of the plaintiff for surgery prior to undertaking surgery. Again it is alleged (para 17D) that had the defendant given her prior advice concerning the inherent risks of psychological disorders, the plaintiff would not have consented to the surgery.
51 At the trial, and perhaps to summarise the plaintiff’s case in negligence, the plaintiff asserted that the defendant departed from the standard required of a doctor claiming expertise in gender reassignment surgery in that his technique fell below that standard; failed to warn the plaintiff of the risks that the operation would not be a success; and failed to exercise reasonable care in assessing the suitability of the plaintiff to undergo the gender reassignment operation.
52 Further, in paragraph 17E of the amended statement of claim the plaintiff alleges that the defendant assaulted her. This was particularised in a number of respects with it being inter alia alleged that the plaintiff’s consent to surgery was not true consent in that the plaintiff was not properly or adequately advised of the material risks (as particularised) involved with surgery. The claim in assault (added on the eve of the hearing) is untenable and has no substance and maybe disregarded as an issue on any view of the evidence.
53 Indeed, at the trial it was asserted that the defendant at all times represented to her that the procedure was straight forward and did not warn her of the risks of failure and that had she been properly warned of the risk that the operation might fail or be unsuccessful she would not have undergone it, and therefore the defendant in operating upon her constituted an assault.
The Law
54 Patients will frequently be disappointed by the outcome of treatment or surgery. Operations cannot guarantee perfect outcomes with patients frequently being disappointed by outcomes from an operation. A patient’s expectations of surgery will often exceed their entitlements. This point can in fact be illustrated by reference for example to the view of Dr Ceber who the plaintiff saw in January 1996. In his report of 9 January 1996 he observed that the plaintiff would be “a very difficult patient to please” and that he thought the plaintiff had “generally unreal expectations of the outcome of genital reassignment surgery and in particular cannot accept the fact that the vulva never exactly mimics a normal female …”. As late as 10 March 1998 (prior to May 1998 surgery in New Zealand) Dr Perry (one of the New Zealand surgeons consulted by the plaintiff) observed:
“It is my impression that Chanelle is looking for perfection with a truly female form. This would be an unrealistic expectation doomed to disappointment”
55 On 10 January 1996 Dr Isaacs too made the point that “everyone wants perfection and unfortunately in this type of surgery perfection is virtually impossible”.
56 There is no liability of a doctor without fault. Negligence at common law is still a fault based system. There is no liability based upon a mere view that unless the surgeon operates “successfully” or produces an outcome “acceptable” to the patient or matching the patient’s expectations or hopes that without more liability will be established. A mere failed operation of itself does not establish a liability. Indeed, generally speaking surgery or an operation is attended by risks, or complications: cf Chappel v Hart (1998) 195 CLR 232 (a case concerning causation particularly in the context of an alleged breach of duty in failing to warn of material risks). A doctor may perform an operation with reasonable care and not be liable for an accidental injury occurring in the course of the surgery or as a result of it. Further, every advance in surgical technique is attended by some risk. Doctors learn by experience, and “experience” often teaches in a “hard way”: Roe v Minister of Health [1954] 2 QB 66 at 83. In surgery, as in life, frequently to obtain benefits one must accept the risk(s). Indeed, Mr Cassidy properly conceded in his final submission that even if surgery goes “wrong” that such does not mean there has been negligence (T 369). The result of any form of surgery (absent specific contractual terms) generally cannot be, or is incapable of being, guaranteed. Surgery as I have stated carries risks. Whether the surgeon is sued in contract or tort he/she is not obligated (at peril of being held liable in a law suit) to achieve “success” (whatever such may mean in any particular case) unless he/she undertakes for example in contract to produce a specific or guaranteed result. It is not suggested in this case there was any such guarantee, nor in my view could it be. Ordinarily the doctor’s duty (both in contract or in tort), and like that of other professional persons, is to exercise reasonable care and skill. No principle of the law of contract or tort or of risk allocation requires the defendant to be liable for those risks (in this case surgery), that cannot be avoided or reduced by the exercise of reasonable care, unless statute, contract or a duty otherwise imposed by law has made the defendant responsible for those risks: Chappel per McHugh J at 245. The performance of an operation with reasonable care with attendant complications and risks does not ordinarily render a surgeon liable for such attendant complications and risks that materialise, whether this be so in contract or in tort. Further, proof of a cause of action in negligence or contract requires the plaintiff to also prove that the breach of duty caused the particular damage that the plaintiff has suffered: Chappel per McHugh J at 242. In the context of a duty to warn a defendant is not causally liable for wrongful acts or omissions if those acts or omissions would not have caused a plaintiff to have altered, as in his/her course of action to proceed to have the surgery: see Chappel per McHugh J at 247.
57 In Naxakis v Western General Hospital (1999) 73 ALJR 782 as Callinan J observed (at 807):
“In the practice of medicine, usually a definite, successful result will not be able to be guaranteed. Just as the practitioner should not suffer on that account …”.
58 I repeat it is not suggested in this case that even in respect of the cause of action in contract, that there was a contractual term providing in effect a guarantee of a definite successful result.
59 In the recent case of Boland v Yates Property Corporation Pty Limited (1999) 74 ALJR 209 (a case discussing negligence of barristers and solicitors when litigation is in prospect or on foot) Callinan J said at 272:
“Whether a duty of care has been duly fulfilled cannot be decided just by looking at the outcome of the efforts of a professional person. Cases will be lost, and regrettably patients will not be cured notwithstanding that their lawyers and doctors have been diligent and careful.
The nature and scope of the duty of lawyers to exercise reasonable care, particularly when litigation is in prospect …. must be assessed in the knowledge that litigation always involves some uncertainties.”
60 In the context of a case such as the present perhaps one can readily substitute for “litigation” the word “surgery” in the case of a doctor performing “surgery”.
61 Perhaps a similar or variable view on this point was made recently by Lord Slynn in Barrett v Enfield London Borough Council [1999] 3 WLR 79 when he observed that the mere fact that “something has gone wrong or that a mistake has been made or that someone has been inefficient does not mean that … the duty of care has been broken”. Indeed, as Kirby J said in Chappel (at 271):
“In judging the performance of a health care or other professional, the law does not require perfection. It recognises the variability of professional skills. Even an expert, acting at the highest standards of the profession, may turn in a less than a perfect performance on a particular day.”
62 Further the medical practitioner or surgeon too frequently has to exercise medical and clinical judgment “on the spot”, even making decisions and choices sometimes in “unfolding surgery” when problems are suddenly encountered, exposed or perhaps suddenly emerge or arise. Indeed, many surgeons (like other professionals including barristers) utilise different methods, techniques or procedures in performing their professional duties, without it being capable of being suggested or maintained, that the mere following of a particular proper and correct technique (even though one of a number) will necessarily expose the professional to the risk of a negligence action.
63 Further, there will be in the nature of things, ongoing changes in medical and surgical thinking and in treatment with different views and approaches to a medical problem. Such might be considered as part and parcel of professional practice, learning and experience involving changes. Medicine does not stand still. Surgery does not stand still. Surgery, its mode, manner and techniques develops and changes. Indeed in determining whether a doctor is or has been negligent so too will regard be had to whether the approach was one upon which minds might differ: see Boland per Callinan J at 272-273.
64 Surgery too is “developmental” in one sense. Indeed, in the instant case, as Dr Royle, the highly experienced and very well qualified gender reassignment surgeon (indeed in my view the most experienced expert in the case and whose expert opinions I accept where such are in conflict with the expert “opinions” advanced in the plaintiff’s case), said that in 1994 the gender reassignment surgery was “developmental surgery”. Thus for example, this most impressive expert witness, when speaking on an aspect of the gender reassignment surgery namely the creation of a neo clitoris and a “hood” for such, said (at T 219):
“So until we got a proper hood, we picked around trying to do things, reducing the size, fiddling about and none of it worked.”
65 And that so far as the hood of the clitoris was concerned the surgery in 1993-1994 “‘was’ developing, as surgery always does.”
66 He also said in his evidence “every time we operate we are moving forward, often in a minute way, where I maybe doing something a little bit differently”. (T 219).
67 Next, in considering the nature and scope of the duty of a surgeon (in this case of a plastic surgeon specialising in gender reassignment surgery) it is appropriate to also observe that unavoidable mischance, every mistake, or error does not bespeak of negligence or indicate a breach of contract. I have already mentioned the views of Lord Slynn in the decision in Barrett supra. Indeed for example, it is not every action, a step of the surgeon in surgery which imports negligence. An error of judgment too may or may not be negligent: Whitehouse v Jordan [1981] 1 WLR 246 per Lord Fraser at 263. Further, the dividing line between a non negligent error of judgment and a negligent error of judgment in the case of a professional in a particular factual situation may not be always easy to draw: cf Saif Ali v Sydney Mitchell & Co [1980] AC 198 per Lord Diplock at 220-221 cited by Mahoney JA at 30-31 in Public Trustee & Ors v The Commonwealth of Australia (NSWCA, 20 December 1995, unreported) where his Honour inter alia discussed the distinction between error and negligent error: see also my judgment in Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1999) Aust Torts R 81-526. Thus even where error is established, this does not necessarily mean that such error must be equated with negligent error, including giving rise to an entitlement to recover damages. I have already mentioned that even with the exercise of reasonable care “accidental” injury may occur in the course of an operation” Chappel per McHugh J at 242.
68 The generally accepted statement of principle in relation to the matter of breach of duty of care is that of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
69 Next, in determining whether the defendant acted in breach of a duty of care the matter of reasonable care is to be considered (and also the standard of care) by reference to the state of knowledge at the time that the conduct in question occurred. As I have already observed, like other areas of science and medicine there is the ongoing expansion of the boundaries of knowledge. Surgical techniques change and reflect such. Practice introduces different experiences and changing procedures in medicine as in law: see Boland per Callinan J (at 272). Procedures and techniques change in medicine (as at law and indeed in the performance of other professional activity. Advances of medical science or medical knowledge, improvements or developments in surgical techniques and methods employed in surgery procedures between the date of the alleged negligence and the date of the trial should ordinarily be ignored and disregarded in determining whether the doctor surgeon exercised reasonable care: Roe v Minister of Health supra. This point in relation to the matter of reasonable care generally in the law of negligence was made by Barwick CJ in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 when he said (at 292):
“It is easy to overlook the all important emphasis upon the word “reasonable” in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect not in retrospect”. [my emphasis]
70 The happening of the “accident” fixes the relevant time for the examination of the requirements necessary to satisfy the [employers] duty of care and that what will satisfy that duty at any particular time will depend upon the circumstances prevailing at that time: Quigley v The Commonwealth of Australia (1981) 55 ALJR 579. Williams supra on this question on time: see Kruger v The Commonwealth of Australia (1997) 190 CLR 1 at 36-37; see my judgment in Williams.
71 These points just made may again be illustrated by reference to the evidence of Dr Royle who observed (T 201), when questioned about whether the neo-clitoris created in May 1994 (by the gender reassignment surgery) was larger than the “common” natural female clitoris said that “ … when this operation was done in 1994, Dr Haertsch, myself, and a lot of other surgeons were only just beginning to do clitoroplasty using the tip of the glans penis to form the clitoris.” He added “As we have developed the clitoris in male to female transsexuals over the years, we have been able to produce a better hood for the clitoris …”.
72 It is appropriate to emphasise (and I make no apology for repetition) that in determining whether the professional man has been negligent, is the recognition that a surgical approach or medical view is not necessarily negligent merely because it is one upon which reasonable minds or approaches may differ: cf Boland supra at 272; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639 per Lord Scarman who considered that “the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another”. Nor does the mere establishment of the existence of two or more available respectable surgical techniques or operating procedures, with its own risks disadvantages and benefits prove negligence. Indeed, even the mere existence of an alternative or different procedure which would or might have avoided the particular mishap does not necessarily furnish evidence of negligence: Ainsworth v Levi (NSWCA, 30 August 1995, unreported) per Handley JA at 9 (in also discussing also the relevance of “alternative schools of opinion”). The existence of possible alternative procedures in my view in a case such as the present provides no evidence of negligence in any respect, or at all. A doctor is not negligent merely because there are different competing practices adopted by a responsible body of medical opinion: cf Naxakis supra. Again in risking repetition, I repeat no allegation in terms of negligence in using one surgical technique or procedure to perform the gender reassignment surgery in 1994 is particularised in the amended statement of claim nor can be found in this case. No negligence, whether in terms of advice, surgery or otherwise, is established on the evidence, although there is some evidence as to the availability of “different” gender reassignment surgical methods. As I have adverted to before, the defendant used the penile inversion technique in 1994 inter alia inverting penile skin to form the vagina. Dr Royle used a slightly modified penile inversion procedure to form the vagina with a modification involving use of a gusset of “scrotal skin” (scrotal flap) to enhance the amount of skin that is inserted. Dr Walker was involved in using the colo-vaginoplasty procedure involving using the bowel. He did not use the method of inverted penile skin to form the vagina.
73 I consider the point as to differences of opinion in personal procedures and techniques again also made by Dr Royle when he discussed the clitoral aspect of the first New Zealand operative procedure (May 1998) involving Dr Walker. Dr Royle said:
“I deal with it in a slightly different way because that is what surgeons are like, they all do things differently and I would have approached it in a slightly different way.”
74 Again the point was illustrated in respect of Dr. Walker’s operation in May 1998 (apparently involving or followed by denervation of the neo-clitoris with death of a portion of the clitoral tissue at least). Dr Royle said for example he personally would not have done a reduction in the size of the neo-clitoris that was done stating: “I am not saying it is necessarily wrong”. The point I believe to be made is that professional views and minds may legitimately and reasonably differ. This point further illustrates that the mere doing of things differently does not establish negligence on the part of a professional
75 Next, to the extent that it may even have been indirectly suggested or raised, in my view there was no negligence or breach of duty by the defendant in using or adopting the penile inversion technique (which was the one he had least used and followed in 100 cases before 1994). That was his technique of surgery. There is no negligence alleged in terms or capable of being found on the matter of failure to “warn” or advise of different procedures: see also Ainsworth per Handley JA at 16. If I am wrong I would still find no negligence concerning that matter in any respect.
76 I have already mentioned the matter of res ipsa loquitur and not the content of the amended statement of claim. The plaintiff in his final submission seemed to directly or indirectly invoke it. Having regard to the nature of surgery and to the evidence, the plaintiff is unable to invoke the doctrine to support the case. I repeat in my view in the circumstances of this case the plaintiff cannot rely upon the doctrine of res ipsa loquitur to make out a case of negligence in the performance of the actual gender reassignment surgery: see also the recent decision of the High Court in Schellenberg supra; Ainsworth supra; Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 per Reynolds JA at 554; Elliott v Bickerstaff (1999) NSWCA 453.
77 Indeed, in his closing submission Mr Greenwood QC submitted that the plaintiff was in effect also seeking to establish a case of negligent surgery in reliance in effect upon the doctrine. There is force in this submission. However, the doctrine in the circumstances has no operation and provides no assistance to the plaintiff in seeking to establish any negligence or breach of duty.
78 In Australia the standard of care to be observed by a person with some special skill or competence to that of the ordinary skilled person exercising and professing to have that special skill that is, a doctor practising in the area concerned. In this case it is the skill of a plastic surgeon specialising in gender reassignment surgery with which one is concerned. The principal issues are whether there was negligent performance of the surgery and/or whether there was a breach of that duty in failing to warn of a material risk inherent in the proposed gender reassignment surgery procedure in the sense as formulated and explained in Rogers v Whitaker (1992) 175 CLR 479. If the answer is that the duty to warn was not performed (or properly performed) then the second question concerns causation in the sense whether any such failure to warn, was causally related to any injury. Perhaps the causation question in the context of a duty to warn may further or alternatively, be expressed another way, namely whether any alleged omission to warn (if any) would have caused the plaintiff to alter her option or election of action to have the gender reassignment surgery, or whether it would otherwise made no difference to the plaintiff’s course of action to proceed with the gender reassignment surgery (including when she did) with the defendant. There too are further potential complicated questions of damages in the event of breach being found, depending upon the nature of such breach(es) found.
The plaintiff is I consider an unreliable source of information for the views of Dr Dent or indeed Dr Dyball. I am not bound to accept the opinions of either or both of them.
Next, I do not accept that there was a need for colo-vaginoplasty procedure in May 1999 arising from any breach of duty by the defendant. It was, as I consider, primarily done to address a matter of length (or depth of the neo-vagina). Between 1994 and 1999 the neo-vagina in my view was of appropriate and adequate length or depth.
I have already indicated that if I were wrong in my view as to liability I would at most hold that the plaintiff would be entitled to the cost of the May 1998 surgery in New Zealand but not the 1999 surgery. She would not be entitled to damages for pain and suffering following convalescence after the 1998 surgery or associated with the 1999 surgery..
For these reasons had the plaintiff been entitled to a verdict I would have allowed the sum of $40,000 for the “closed period 1994-1998” by way of general damages.
Interest
I grant liberty to the parties to apply in respect of the matter of any interest on general damages. Such would need to be done having regard to the principles reflected in well established case law: cf Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54; Pacific Power v Royal (1999) 47 NSWLR 366 at 373.
Economic Loss
In a case such as the present I am not prepared to allow any significant sum for past economic loss. None is warranted for “loss” after 1998 or in the future. Mr Cassidy in opening conceded that the plaintiff had prior to surgery never worked with great success. This is clearly so. He accepted it would be difficult to assess damages for economic loss. I am not prepared to make findings as to past loss by reference to the plaintiff’s evidence or otherwise. Her prospects of income earning as a “model” (which she described herself as being in October 1999 ) provide no measure or guidance. I do not accept she has been or is unable to work as either or both due to any injury caused by negligence. As to pursuing a career as a beauty therapist, I am unable to see why she could not have done so. According to the evidence of Mr Blinman, earnings of a beauty therapist are in the order of $500 per week net plus overtime. Save for perhaps limited periods for example, associated with seeing doctors or being operated upon in 1998 there really has been no proved loss of earning capacity in the past ie since 1994 and up to 1998. Indeed, I do not accept that the plaintiff has established a past incapacity to work as a model or beauty therapist because of any breach of duty or at all. There may be some small periods of incapacity between 1994 and 1998 including the surgery period. At most there may have been some loss but of a minor order. By way of value judgment I would have allowed $5,000 plus interest on that sum. I grant the parties liberty to apply in respect of interest on that sum.
Out of pocket expenses: past, present and future
The plaintiff spoke in terms of hoping to have another operation “for that to let me lead my life as a normal female would.” I am not satisfied that there is any reasonable need for such operation arising from any breach or for that otherwise, even if the plaintiff had established a case of negligence. Having regard to the medical evidence no breach or accident caused need for such has been established. Further, there is not medical evidence, or medical evidence I would accept showing that any future operation is reasonably needed or for that matter will possibly or otherwise take place. Indeed to say the least I have further considerable reservations whether any surgeon would undertake any further procedure. If he/she did such not be due to breach of duty by the defendant. Next the plaintiff says she takes Zinax for “claimed panic attacks”. I do not accept that any breach, even if found, is the cause of such panic attacks. The explanation of such (if any) is unproven.
As to the claims for psychiatric care, I reject it. I do not accept Dr Dent’s view on past or future psychiatric need. I do not accept a view of any psychiatric condition having been caused by a breach of duty or at all. Even assuming some breach of duty negligent or accident caused need has not been established for drugs or other consultative treatment relevant to such psychiatric condition. Further I do not consider the plaintiff needs such consultative treatment or would undertake it.
Thus I do not accept there is, or was, any psychiatric condition “proved” requiring an allowance in the past, present or future for any expenses relating to any such alleged condition.
If I am wrong in finding no negligence, I would made a finding of entitlement to expenses relating to the May 1998 “revisionary” procedure but not otherwise. I allow nothing for the 1999 procedure. Such, as I understand it and according to the parties agreement (9 March 2000), is to be allowed in the amount of $7,362.98. Interest thereon is to be calculated by the parties if they wish. I grant leave to bring in such an interest calculation.
Aggravatory and Exemplary Damages
A claim for such was made on the eve of the hearing. I do not know why! In the circumstances I see there is no tenable basis for such, and the claims are without merit, even assuming liability had been established. There is no warrant for any award of any such damages both or either: see Williams; Lamb v Cotogno (1987) 164 CLR 1; Trend Management Pty Ltd v Borg (1996) 40 NSWLR 500; Gray v Motor Accident Commission (1998) 196 CLR 1. The authorities referred to also discuss the difference between aggravatory damages and compensatory damages. Further, there is no need to explore the question of whether exemplary damages can be awarded in any event for breach of contract, as to which the case law would suggest a negative answer. Ordinarily the question of aggravatory or exemplary damages would not arise in cases of professional negligence. That said, there have been few cases far removed from the present where exemplary damages have been awarded in medical negligence cases in circumstances far removed from those involved in the present case: cf B v Marinovich (1999) NTSC 127; Backwell v AAA (1997) 1 VR 182. Nevertheless, I would not have allowed any exemplary or aggravated damages in the circumstances to be found even had the plaintiff been entitled to a verdict, which she is not.
Had the plaintiff been entitled to a verdict (interest aside) I would have assessed damages in the sum of $52,362.98.
The orders I make are as follows:
1. Verdict and judgment for the defendant.
2. The plaintiff to pay the defendant’s costs.
3.Grant liberty to the parties to bring in “interest” calculations if they consider such to be appropriate within 14 days.
4. Exhibits may be returned.
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