Christou v King Edward Memorial and Princess Margaret Hospitals Board of Management - [2007] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHRISTOU -v- KING EDWARD MEMORIAL AND PRINCESS MARGARET HOSPITALS BOARD OF MANAGEMENT [2007] WADC 44

CORAM: EATON DCJ

HEARD: 3-6, 9-13 & 16 OCTOBER 2006

DELIVERED : 4 APRIL 2007

FILE NO/S: CIV 2400 of 1997

BETWEEN: SABRINA COLLEEN CHRISTOU
Plaintiff
AND
KING EDWARD MEMORIAL AND PRINCESS MARGARET HOSPITALS BOARD OF MANAGEMENT
Defendant

Catchwords:

Torts - Medical negligence - Performance of abdominal hysterectomy - Personal injuries - Whether failure to warn of risks of hysterectomy - Causation

Legislation:

Nil

Result:

Plaintiff's claim fails
Provisional assessment of damages

Representation:

Counsel:

Plaintiff: Mr R I Viner AO, QC and Mr A P Skerritt
Defendant: Ms C Thatcher

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: The State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Gaunt v Amaca Pty Ltd, unreported; DCt of NSW; Library No 151; 28 August 2003
Hannell v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2006] WASC 310
Rogers v Whitaker [1992] 175 CLR 481
Strempel v Wood & Anor [2005] WASCA 163

EATON DCJ: The plaintiff began her action by writ of summons filed on 10 July 1997. Her indorsement of claim alleged negligence in the performance of an abdominal hysterectomy on 25 October 1996 and sought damages resulting therefrom. Following amendment from time to time her statement of claim pleaded that on 25 October 1996 Dr Sailesh Kumar, a gynaecologist in the employ of the defendant, performed an abdominal hysterectomy on her at King Edward Memorial Hospital. She pleaded, that as a result of that operation, she suffered injuries being, inter alia, perforation of her jejunum and "removal of incorrect ovary". She pleaded that between 25 and 27 October 1996 her bowel contents continued to leak into her abdominal cavity and blood stream.
The plaintiff particularised her alleged injuries said to result from the negligence of the defendant, its servants and/or agents as follows:
"(a)failed to take any or any adequate care to avoid perforation of the plaintiff's jejunum;
(b)failed to take any or any adequate steps to diagnose and/or treat and/or detect the perforation of the plaintiff's jejunum at the time of the operation;
(c)failed to review or to adequately review the plaintiff after the operation;
(d)failed to prescribe or administer any or any adequate antibiotic treatment;
(e)failed to take any or any adequate steps to diagnose and/or treat and/or detect the cause of the plaintiff's post‑operative abdominal pain, distension, and other complaints;
(f)failed to repair and/or deal with the plaintiff's jejunum expeditiously;
(g)removed the plaintiff's healthy left ovary;
(h)left a diseased right ovary in the plaintiff's body."
The pleading of the amended statement of claim is unusual in that the negligence particularised as being the removal of the plaintiff's healthy left ovary and the leaving of a diseased right ovary in her body do not relate to the alleged negligent act being the injury to the plaintiff's jejunum. The amended statement of claim then pleads the removal of the left ovary as being a separate injury and alleges that the removal of that ovary as opposed to the right ovary was itself an act of negligence.
Further, the plaintiff pleads that the defendant was under a duty to inform her of all likely risks and possible consequences associated with the hysterectomy procedure and that she would not have consented to the operation had she been informed of those risks. She particularised those risks as being:
"(a)perforation of the jejunum;
(b)consequential effects of the perforation of the jejunum;
(c)removal of wrong ovary;
(d)consequential effects of removal of wrong ovary."
The plaintiff, in her amended statement of claim, pleads that by reason of the two acts of negligence and the failure to warn she suffered permanent injury, required treatment, suffered pain and suffering, required voluntary nursing and domestic services and suffered economic loss and special damage. Particulars of those various claims for damages are provided.
In response to the plaintiff's claim the defendant, by its further re‑amended defence, admits that the Minister for Health for the State of Western Australia is the body corporate vested with the management and control of King Edward Memorial Hospital for Women and that the Minister was vicariously liable for the actions of the staff at that hospital acting within the scope of their employment. The defendant admits that the plaintiff underwent an abdominal hysterectomy at that hospital on 25 October 1996 and that the operation was performed by Dr Kumar who was acting as a servant of the defendant.
The defendant admitted that during the operation the plaintiff sustained a tear or, alternatively, a perforation to the proximal small bowel but otherwise denied that the surgeon who undertook the surgery had been negligent. The defendant further denied negligence in the removal of the left ovary and that the remaining ovary was, at the time, abnormal.
On the question of warning as to risk the defendant pleaded that the plaintiff was advised on 10 September 1996 by a consultant responsible for her care and on 25 October 1996 by the registrar who performed the operation that abdominal hysterectomy carried with it a risk of potential damage to bowel and injury to internal structures and infection. The defendant pleaded further that removal of the "wrong ovary" and the consequential effects thereof were not likely risks and consequences associated with the hysterectomy or matters in relation to which the defendant was under a duty to inform the plaintiff. The defendant pleaded that if the plaintiff was not informed of the likely risks and possible consequences associated with the hysterectomy, had she been so informed, she would have consented to the operation in any event. Finally, the defendant denied that any further treatment following the operation, any permanent injury, pain, suffering, requisite voluntary nursing and domestic services, economic loss and special damages occurred as a result of any negligence of the defendant, its servants or agents. There is a denial of the various heads of damage in any event.
The plaintiff's action came to trial before me and was heard between 3 October 2006 and 16 October 2006. During the course of his closing address counsel for the plaintiff indicated that, so far as the alleged act of negligence resulting in perforation of the jejunum was concerned, the particulars of negligence being pursued by the plaintiff were an alleged failure to take any or any adequate care to avoid perforation of her jejunum and an alleged failure to take any or any adequate steps to diagnose and/or treat and/or detect the perforation of her jejunum at the time of the operation. The remaining particulars pleaded with respect to that alleged act of negligence were not pursued.

The plaintiff's background

The plaintiff was born on 30 September 1961 at Bangalore, India. She was educated to year 8. At the age of about 18 years she gave birth to a son, Mario Julian Browne, but did not marry the child's father. In her 20's she worked as a receptionist in the middle east and also trained as a beautician.
In 1988 the plaintiff and her son migrated to Australia. Not long after their arrival they went to Port Hedland where, on 9 April 1989, she was married to Ivan Ernest Butson. That marriage was dissolved by a decree nisi of dissolution of marriage under the provisions of the Family Law Act 1975, which decree became absolute on 19 December 1992. Given that a party to a marriage may not apply to dissolve a marriage until the parties to the marriage have been separated for at least 12 months I assume that the plaintiff and Mr Butson separated some time in 1991, if not earlier.
The plaintiff married John Christou on 26 December 1992. She had stopped taking oral contraception in 1992 in order to fall pregnant and did so, becoming pregnant in November or December of 1992. In February of 1993 she suffered a miscarriage. Shortly after the miscarriage Mr Christou committed suicide. They were then living in Padbury.
In February 1996 the plaintiff travelled to Melbourne to marry a man who lived there. She knew him from India. When she moved to Melbourne he proposed marriage and they lived together as de facto husband and wife in his house. He committed suicide in March 1996. The plaintiff returned from Melbourne to Perth in April 1996. They had not married.
On 16 October 1997 the plaintiff married Darryl Christopher Cunningham at Bangalore, India. That marriage was dissolved by decree nisi made under the provisions of the Family Law Act 1975 in Perth on 13 November 2000. That decree became absolute on 14 December 2000.
It appears that the plaintiff remarried Darryl Christopher Cunningham on 7 January 2002 at Bangalore and that that marriage also was dissolved under the provisions of the Family Law Act 1975 by a decree nisi pronounced in Perth on 23 November 2005 which decree became absolute on 24 December 2005.
The plaintiff was asked in cross‑examination how many times she had been married. She replied three. The first, she said, was to Ivan Butson. It came to an end when she and Mr Butson separated in 1992. The plaintiff said, again in cross‑examination, that she became pregnant in Port Hedland, leaving there in April 1992. Somewhat confusingly the plaintiff agreed in cross‑examination, that she became pregnant in late 1992 after leaving Port Hedland. She said she was living in Perth with her son and Mr Christou. That pregnancy was lost in February 1993 with Mr Christou taking his life some four days later.
At the time of trial the plaintiff was living in Tuart Hill with her mother who moved in with her in 2005. She has been, since 1999, in receipt of a disability pension. She is presently unemployed and has been since 2001.

The plaintiff's circumstances prior to the surgery on 25 October 1996

The plaintiff said in evidence that during 1994 she regularly consulted a Dr Collins who prescribed anti‑depressant medication called Aropax. In 1994 she made an attempt on her life and was admitted to Graylands Hospital for a month. There were, it seems, subsequent attempts at suicide. According to the plaintiff there were two admissions to Graylands Hospital, the second being in April 1996. In July 1996 she began attending meetings of the Jehovah's Witness Church. She was continuing, at that time, to see a Dr Graham, a psychiatrist, as an out‑patient at the Osborne Park Hospital.
The progress notes of the Osborne Park Hospital Outpatients Clinic indicate the involvement of the suicide prevention team on 4 April 1996. As a result of the attendance of the team at the plaintiff's home she was taken by ambulance to Sir Charles Gairdner Hospital. She maintained contact with the Osborne Park Hospital Outpatients Clinic for mental health reasons. Particular stresses on the plaintiff at the time seem to have been the delinquent behaviour of her teenage son and the death of her partner by suicide. The plaintiff was in a depressive state with suicidal ideation and substantial alcohol use from time to time. On 25 July 1996 Dr P M Graham, a consultant psychiatrist at the Osborne Park Clinic, recorded that the plaintiff was attending Dr Harry Cohen concerning menstrual tension and menorrhagia. She reported having discussed the possibility of a hysterectomy. He recorded, at the time, that the plaintiff's mental state remained precarious.
The plaintiff's general practitioner at the time was Dr G E Smith of the Seacrest Medical Centre. He had, on 2 February 1996, written to King Edward Memorial Hospital advising that his patient, who had a history of menorrhagia and dysmenorrhoea, was seeking advice as to the possibility of a hysterectomy. He advised that the plaintiff was then taking Aropax for depression. She had, he said, seen a gynaecologist, Dr Lilburne, at Sir Charles Gairdner Hospital. He carried out a dilation and curettage in September 1995. It seems that Dr Lilburne ordered an ultrasound which detected a fibroid on the plaintiff's uterus. That occurred on 1 September 1995. Apart from the presence of the suspected fibroid the radiologist reported that the uterus and both ovaries were otherwise normal and that no adnexal masses were identified.
The plaintiff eventually attended Dr Harry Cohen, a consultant gynaecologist in the employ of the defendant at King Edward Memorial Hospital for Women on 9 July 1996. He recorded that she became very depressed before periods with a tendency to anger and self‑destructive behaviour. He noted an admission to Graylands Hospital in April 1996. He noted that the plaintiff's periods were painful and excessive and that for the preceding three years she had suffered suicidal ideation which developed after her partner's suicide in 1993.
Dr Cohen recommended conservative treatment, prescribing a course of Provera for a period of three months to be taken daily in 10 milligram doses. He then wrote out a prescription for that medication.
On 8 August 1986 the plaintiff told Dr Graham that she had not been taking Provera as prescribed. She was continuing to take Aropax daily, some natural medication and multi‑vitamin tablets.
The plaintiff again saw Dr Cohen as an outpatient at King Edward Memorial Hospital on 10 September 1996. She had, he recorded, begun taking Provera on 4 September 1996. She complained of continuing to suffer difficult periods with heavy bleeding and pain. He recorded that she was "fed up" and that she wanted a total abdominal hysterectomy. He provided her with an information sheet and proposed that she be booked in for that operation. The plaintiff, on 18 September 1996, advised Dr Graham that she was to have the hysterectomy.
On 15 October 1996 the plaintiff attended Dr Linda Wong as an outpatient at King Edward Memorial Hospital. Dr Wong recorded that the plaintiff had for many years suffered dysmenorrhoea and heavy periods, becoming worse in the preceding two years. The heavy bleeding often prevented her from going to work. She had also suffered menstrual stress in the form of depression and suicidal ideation.
Dr Wong, by way of previous medical history noted that the plaintiff had undergone an appendectomy followed by a further two laparotomies. She noted that the plaintiff had suffered depression and had been twice admitted to Graylands and once to Sir Charles Gairdner Hospital for that reason. She noted that the plaintiff had undergone a dilation and curettage at Sir Charles Gairdner Hospital in November 1995. The plaintiff reported another laparoscopy undertaken at Glengarrie Hospital and that there were "few adhesions". The plaintiff also mentioned an ectopic pregnancy. In that regard Dr Wong noted "not sure what was done". The plaintiff also made mention of a fibroid.
Dr Wong described the plan for the plaintiff as involving, inter alia, a liver function test for alcohol abuse and an electrocardiograph for chest symptoms. She noted the plaintiff's consent to such matters. Also noted was the plaintiff's request to see a clinical psychologist in hospital to help her "get over" the abdominal hysterectomy. Dr Wong emphasised the need to contact a clinical psychologist to assist the patient on admission. She reassured the plaintiff that she would not be discharged until she was physically fit to return home. Finally, she noted "no blood products at any time".
It seems that the plaintiff had embraced the Jehovah's Witness religion and that adherence to the tenets of that religion required that she not have a blood transfusion or take blood products.
In evidence‑in‑chief the plaintiff spoke of her first meeting with Dr Cohen. She said that he examined her and prescribed Provera but that she did not take it because it had been the cause of her earlier miscarriage. When asked whether he explained what a hysterectomy was she replied that he did not. When asked whether he told her anything about the surgery she replied that he didn't explain it exactly but that he reassured her that she would have no more problems with her bleeding. When asked whether she was informed by him of any complications or problems that might occur in the course of or from the hysterectomy she replied that he did not. In cross‑examination the plaintiff said that, given her circumstances, she was keen to have a hysterectomy. She denied that he spoke to her about the risks of that surgery. Specifically, she denied that he said anything to her about the possibility of haemorrhage, infection, wound problems, urinary tract problems or the risk of damage to internal organs.
The plaintiff identified her signature on a form of consent dated 10 September 1996 saying: "I signed it but it wasn't explained to me and I didn't read it." She was asked again, having identified that document, whether there had been a discussion with Dr Cohen about the risks of surgery. She said that there had not.
The plaintiff agreed in cross‑examination that during her consultation with Dr Cohen on 10 September 1996 he had given her a pamphlet. She identified the pamphlet or a copy of it when it was produced to her. It became an exhibit. She said that she was given the pamphlet after she signed the consent form and took it home.
The plaintiff was asked about consultations with other medical practitioners prior to her surgery on 25 October 1996. She recalled a discussion with her anaesthetist and another lady who may have been Dr Linda Wong. When asked if she was given any information about the risks of surgery during those discussions she said that she was not. She spoke only of a discussion with the anaesthetist about her refusal to have a blood transfusion and the possibility that she might die as a result thereof.
As to the day of surgery, 25 October 1996, she confirmed that she arrived at the hospital at 6.30 am. She denied having spoken to Dr Kumar prior to surgery and that he spoke to her about the risks of haemorrhage, infection or organ damage. She insisted that she only saw a lady anaesthetist.
Of those who did have contact with the plaintiff in the period between her initial discussion with Dr Cohen and the surgery on 25 October 1996 only Dr Cohen and Dr Kumar gave evidence. The former said that he recalled seeing the plaintiff at King Edward Memorial Hospital and had refreshed his memory from the notes of his attendances. He was able to say that he did see her initially on 9 July 1996. He confirmed that he took a history from her, examined her and recommended that there be no surgery but rather that she try the drug Provera. He said that it was used then and now to control or reduce heavy bleeding during menstruation.
Dr Cohen referred to his notes of the attendance upon the plaintiff of 10 September 1996 commenting that he had no actual recollection of the conversation with her on that occasion but that he did remember her. He commented that, at the time, hysterectomy seemed like a logical solution to the plaintiff's problems. Given developments in medicine since then hysterectomy, he said, has been relegated to the last line of treatment with other options for solving those problems now available.
He noted that he had given the plaintiff an information sheet and that she had signed the relevant consent form. When shown the information pamphlet identified by the plaintiff he was uncertain as to whether that was the document given to her or whether he had used another information sheet devised by himself. Given the plaintiff's identification of the pamphlet produced to her as being that which was handed to her by Dr Cohen I find, as a matter of fact, that the pamphlet which became Exhibit 13.7 was the pamphlet handed by Dr Cohen to the plaintiff on 10 September 1996.

When asked as to whether it was his usual practice in 1996 to say something to a patient in the plaintiff's position about the nature of the operation and the potential risks he said that it was. When asked to detail his usual practice he said that he would talk about the procedure, the method of operation that would be used, the incision, what would be removed, the conservation of ovaries if normal, how the patient might feel post‑operatively and the need to dispel various misinformation and myths concerning hysterectomy extant in the community at that time.
He said that he would probably have touched upon the basic common risks such as infection, haemorrhage, wound problems or wound breakdown, and damage to hollow structures within the abdomen such as the bladder or the bowel. He had no recollection of his discussion with her as to those matters but said that there certainly would have been discussion "along those lines". He could think of no reason why he would depart from his usual practice in the case of the plaintiff.
In cross‑examination Dr Cohen said that he probably would have explained to the plaintiff that it might be necessary to remove an ovary during the course of the hysterectomy. He said that he probably would not have referred to a risk of perforation of the jejunum but rather confined his warning to the risk of perforation of hollow structures within the abdomen. In his view perforation of the jejunum in the course of a hysterectomy was extremely rare. It was not a risk that he would ever broach with a patient.
Dr Kumar gave evidence that his full name and that by which he is registered with the Medical Board of Western Australia is Sailesh Kumar Surendran. He is referred to in the transcript of these proceedings as S K Surendran. Very clearly he is known by the plaintiff and by his colleagues and nursing staff as Dr Kumar and for convenience I will refer to him as Dr Kumar in the course of this judgment.
Dr Kumar confirmed that he did not see the plaintiff before 25 October 1996. He met her for the first time on the morning of the surgery when she was already in the anaesthetic room prior to her being anaesthetised. He said that he had an actual recollection of visiting her there. He recalled her demeanour then. She was particularly anxious. He remembered that she held his hand and asked him if she was going to die. He said that he reassured her that she wasn't. He had not seen her prior to that day which, he admitted, was not ideal, there being no pre‑operative opportunity to counsel her about possible complications. He said that he briefly told her of the risk of infection, bleeding and damage to adjacent structures emphasising that the risk of the latter was low. Given that she was a Jehovah's Witness the bigger risk was that of excessive bleeding. He was aware that she had refused blood transfusion. He said that he would not have used the term "adjacent structures" but would rather refer specifically to the possibility of damage to the bladder, the tube leading from the kidneys to the bladder and the lesser likelihood of damage to the bowel.
When asked whether, in the case of the plaintiff, Dr Kumar could think of any reason why he might depart from his usual practice in terms of warning of risks of surgery he replied:
"No, I don't think so. I – that's my standard form of counselling, whether I see a patient in the gynaecology clinic, on the wards prior to surgery, you know, whenever, and I have done that for a very long time ever since I started training in obstetrics and gynaecology. Its one of the few things that we were trained to counsel patients about."

The operation on 25 October 1996

The records of King Edward Memorial Hospital for Women indicate that on 25 October 1996 the plaintiff underwent surgery in Theatre No 2 at that hospital. The theatre register completed by the nursing staff records that the operation performed was a laparotomy, hysterectomy, bi‑lateral salpingectomy and left oophorectomy. The surgery was conducted by Dr Kumar assisted by Dr Manley. The anaesthetist was Dr Carlton. The scrub nurse was Nurse Varga, the circulating nurse was Nurse Karra and the anaesthetic nurse was Nurse Muntz. According to the theatre register general anaesthetic was administered commencing at 10:10 am. The operation was commenced at 10:25 am and complete by 11:35 am. The plaintiff had been admitted to Theatre No 2 at 9.43 am.
Of those actually involved in the surgery I have heard evidence from Dr Kumar and Nurse Karra. The former identified the operation record written up by him at the completion of the surgery. It was usually, he said, completed in the theatre. The record is of surgery conducted on 25 October 1996, the preoperative diagnosis being uterine fibroid. The operation was described in abbreviated form as a total abdominal hysterectomy and left salpingo‑oophorectomy (TAH LSO).
Under the heading "Findings at Operation" Dr Kumar recorded that the uterus was found to be of a size comparable with an 18 week pregnancy, enlarged with fibroids, with the right ovary adherent to the back of the uterus with endometriosis present. He recorded that the left ovary appeared normal and that the rest of the pelvis was normal.
Under the heading "Specimen sent for Pathological Examination" he wrote, in abbreviated form, uterus, cervix and right ovary. He recorded that the estimated blood loss was 400 millilitres, that there had been no blood transfusion and that the surgical count was correct.
Under the heading "Technique" was the word "catheterised". In evidence Dr Kumar explained that it was his practice before operating and once the patient is anaesthetised to examine the patient vaginally to ascertain the size and mobility of the uterus and any other pelvic masses that might be present. He would catheterise the patient himself. He then recorded that he made a pfannanstiel incision which, he said, was a transverse low abdominal incision just above the line of the pubic hair. He recorded "routine entry" and a routine total abdominal hysterectomy with right salpingo‑oophorectomy performed in four pedicles. All pedicles, he said, were ligated with absorbable sutures and, in accordance with his usual practice, the ureters were palpated to confirm that they were away from any sutures. Inadvertent closure of a ureter with a suture might cause a blockage in the tube preventing the flow of urine from the kidney to the bladder. That, he said, could lead to renal failure and would be, of course, a serious condition. He confirmed in the operation register that the ureters were away from the sutures. Having done so he said that he then clamped adjacent to the cervix, isolated the cervical pedicle then opened the top of the vagina so that the entire uterus and specimen could be removed. Once that was done the vagina was closed with absorbable sutures described in the operation record as "vault oversewn". He then checked haemostasis to ensure that there was no excessive bleeding. Satisfied that there wasn't, the abdomen was then closed in the usual manner with staples to the skin and a drain to the rectus sheath. In the operation record underneath the words "drain to sheath" is an arrow followed by the word "adhesions +". By way of explanation, in evidence, Dr Kumar said that because the patient had had previous abdominal surgery it was apparent that the fascial sheath covering the rectus muscles was quite scarred as a result. That could be, he said, an impediment to the healing process and could lead to the collection of blood which might, in turn, lead to infection of the wound itself or the fascial sheath. As a consequence, his regime was to put in place a drain if it was apparent that there had been previous abdominal surgery. There had been in the case of the plaintiff.
When asked whether, in the course of the surgery, he had divided adhesions he replied that he had not and, by way of explanation, said that if he had he would have recorded that he had done so in the operation record. Dr Kumar gave evidence of his procedure in such an operation. He explained that once there is access to the pelvis as a result of the incision he requires that the anaesthetist put the plaintiff slightly head‑down so that the bowel, with the aid of gravity, moves towards the upper abdomen and away from the field of surgery. It is then, he said, carefully packed away with large moist packs so that it does not slide back into the pelvic cavity. The incision is held open with self‑retaining retractors. With the bowel packed away there is access to the pelvic organs.
Dr Kumar then, in evidence‑in‑chief, described in detail how he would conduct a hysterectomy and, if necessary, the removal of ovaries. Having undertaken that task he said that he would make a visual survey of the pelvis to make sure that there were no vessels actively bleeding and would check all pedicles to ensure that the sutures on those pedicles were tight with no possibility of a vessel slipping through. Once assured of haemostasis in the pelvis the packs used to hold the bowel away were then removed. The patient is then returned to a horizontal position and the bowel moves back into the pelvic cavity. The abdomen is then closed. He again referred to the drain being inserted as a prophylactic measure, usually to be removed on the following day, the purpose being to prevent the collection of blood which might lead to infection.
Dr Kumar gave evidence of the administration of antibiotic medication in the form of Cefotetan, Flagyl and Gentamicin, the first, according to the inpatient medication chart being administered to the patient at 10:30 am on 25 October 1996 and the second and third being administered to her at 11:30 am. Dr Kumar described those as administered intra‑operatively. He said that it was routine practice in surgery to give a dose of antibiotics to prevent infection. The dose is a prophylactic dose. Routinely, no further antibiotics are administered unless there is, in fact, evidence of infection.
Dr Kumar, in evidence‑in‑chief, admitted that he had made an error in completing the operation record at the conclusion of the surgery. He had described the surgery as being a total abdominal hysterectomy with a left sapingo‑oophorectomy when in fact, his record suggested that the right ovary had been removed with the uterus and sent to pathology. In evidence‑in‑chief he said:
"What I did was – to remove the ovary that was adherent to the back of the uterus. I cannot in all honesty tell you now whether it was the right or the left ovary because, you know, in one part of the operation I said left salpingo‑oophorectomy and in other sections I have said the right ovary was removed. What I do remember was that the ovary that was inherent to the back of the uterus was removed and the reason it was removed was because it was apparent and difficult to dissect off and I didn't want to create any extra bleeding, so it was just easier to remove that particular ovary at the time of the operation."
He said that the ovary which was left intact was normal, adding that the ovary which was adherent to the back of the uterus was morphologically normal. He confirmed that the only reason for its removal was because of the technical difficulty of leaving it behind. The implication lying behind what Dr Kumar said was that had the plaintiff not, for religious reasons, refused a blood transfusion he would have attempted to dissect the adherent ovary from the back of the uterus thus leaving it behind also. He explained that in a relatively young woman a surgeon would endeavour to leave both ovaries behind if healthy to prevent the immediate onset of menopause.
Dr Kumar gave evidence that the surgery was conducted on Friday and that he was not on call on the weekend. He discovered from a colleague that the plaintiff had become very ill on the Sunday and been transferred to Royal Perth Hospital. He went to Royal Perth Hospital on the day following the remedial surgery there and spoke to the surgeon who had undertaken that work. He was told that the surgeon had detected a discrete perforation of the jejunum which had led to intra‑abdominal sepsis. It seems that he visited the plaintiff on that day and made another visit to her following her discharge from the intensive care unit. He offered to talk to her again at his clinic at the hospital when she was well. She did not take up that offer. Dr Kumar left King Edward Memorial Hospital in mid‑January 1997.
In her evidence the plaintiff confirmed that she had been discharged from Royal Perth Hospital on 29 November 1996. She confirmed that, while in Royal Perth Hospital, she received a visit from Dr Kumar while in the intensive care unit. He expressed his sorrow at her plight.
Paula Marie Karra gave evidence that she worked at King Edward Memorial Hospital for Women from January 1996 until August 1998 as a nurse, having qualified in November 1992. She was referred to the theatre register which included entries with respect to the plaintiff. She said that the theatre register is normally completed by the theatre ward clerk, the information being passed on to him or her by the circulating nurse or, less frequently, the anaesthetic nurse. She identified her own handwriting in the hospital records noting that the information provided by her had been passed to her from the instrument nurse who was present at the operating table. Her role was that of circulating nurse being on the outer of the surgery rather than being part of the sterile team at the operating table. She had no memory whatsoever of the plaintiff's surgery. She said that the information contained in the theatre register had been passed to her by Nurse Varga within minutes of completion of the surgery marked by the surgeon stepping away from the operating table. The theatre clerk then completed the register with information provided by her.

Post‑operative developments

The hospital records and, in particular, the inpatient case notes provide the best record of what happened in the wake of the surgery. The plaintiff was returned to the ward following her surgery at 1.00 pm. She was, not surprisingly, very drowsy but rousable. At 9:00 pm she was observed to be stable with some pain. The redivac was draining a small amount of blood. She was administered analgesic medication for pain and medication to deal with nausea and vomiting. It seems that she slept well overnight and that the plan on the following morning was that the drain be removed and that she be mobilised. The redivac drain was, in fact, removed at about 11.30 am on 26 October 1996. At 7:30 pm on that day she was noted to be resting in bed with good pain relief. At 7.00 am on 27 October 1996 a nurse recorded that the plaintiff had slept for short periods and had experienced some pain and vomiting. At 10:15 am she was noted to be not well with a dry tongue and tachycardia. A registrar was called to make an assessment. It appears from the notes that her condition thereafter worsened giving cause for heightened concern amongst the medical staff. The registrar in attendance was Dr Aitken. At 6:00 pm one of those attending the plaintiff noted "the consensus at present is that she doesn't have abdominal bleeding/infection." At 7:30 pm Dr Aitken appears to have arranged for a lung scan at Royal Perth Hospital and for a transfer to the intensive care unit there. The transfer was eventually effected at 8:35 pm.
The medical officer's operation report from Royal Perth Hospital is in evidence. It appears that the plaintiff underwent surgery at Royal Perth Hospital conducted by Dr Kevin Smith. The operation report records a mid‑line incision and findings as follows:
"Upper small bowel contents free fluid
Perforation mid jejunum
Adhesions to mid‑line wound divided
Oversewn perforation."
It appears that Dr Kevin Smith conducted a further laparotomy at Royal Perth Hospital at 4:00 pm on 29 October 1996 again making a mid‑line incision. On this occasion he found turbid fluid in the peritoneal cavity.
The plaintiff underwent a further laparotomy, again conducted by Dr Smith, on 2 November 1996. On this occasion he found a subhepatic abscess giving rise to localised pus. He also found turbid fluid from the supra‑pubic wound. That wound was opened with a drain to the posterior rectus and lavage or washing out. The mid‑line wound was opened into the peritoneal cavity. The abscess was opened and a betadine lavage carried out. Mid‑line and supra‑pubic incisions were closed with sutures and staples and drains were put in place.
The plaintiff underwent a further laparotomy and washout at Royal Perth Hospital conducted by Dr Smith on 7 November 1996. The procedure involved an evacuation of the abscess found on the previous occasion and a further lavage.
Another laparotomy and washout was conducted by Dr Smith at Royal Perth Hospital on 9 November 1996. Again, there was a mid‑line incision. Further infected fluid was found under the diaphragm. On this occasion, prior to closure of the wound a sheet of mesh was inserted to add some strength and firmness to the abdominal wall and thereby avoid the possibility of hernia.
It appears that the plaintiff underwent a percutaneous tracheostomy at Royal Perth Hospital on 28 November 1996, the day before her discharge. The surgeon on that occasion was a Dr Oliver. I am uncertain as to whether that particular procedure was in any way associated with the difficulties that were encountered following the surgery conducted at King Edward Memorial Hospital.
Dr Kevin Smith reported to the plaintiff's practitioner, Dr Greg Smith, on 17 December 1996 with a copy to Dr Aitken at King Edward Memorial Hospital. He had, on that day, seen the plaintiff as an outpatient. He remarked that she looked particularly well and that her affect was bright and cheerful. He said:
"The next major problem is her abdominal wound. After repeated laparotomies and washouts the wound margins were unsuitable for further suturing and I chose to suture a large sheet of prolene mesh to the mulculoaponeurotic margins of the wound. The skin was closed over this and the drains were brought out through the lower end of the wound to drain the cavity superficial to the mesh. These drains are not yet healed and are continuing to drain about 20‑30 mls of purulent material per day. The prolene mesh is fortunately fairly resistant to infection and I would expect this problem to gradually resolve. Hopefully, she will be left with a firm abdominal wall rather than developing a massive hernia."

The duties owed by a medical practitioner to a patient concerning the risks of surgery and the conduct of surgery

In Rogers v Whitaker [1992] 175 CLR 481 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said [at p 483]:
"That the law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his or her skill and judgment, extending to the examination, diagnosis and treatment of a patient and the provision of information in an appropriate case. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill."
As to the duty to warn of risks they said [at p 490]:
"The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk would be likely to attach significance to it."

In this case the plaintiff relies principally upon the assertion that the perforation of the jejunum was effected by the negligent act of Dr Kumar. He was, at the time of surgery, a senior registrar in the employ of the defendant. The plaintiff had been initially seen at King Edward Memorial Hospital by Dr Harry Cohen who had, when he gave evidence, been at King Edward Memorial Hospital as a medical practitioner for 45 years. He was then currently an employee of the Health Department of Western Australia at that hospital. He had become a consultant obstetrician and gynaecologist and later director of the Gynaecological Department at that hospital. He was a consultant gynaecologist when he saw the plaintiff on 9 July 1996. In evidence Dr Cohen confirmed that Dr Kumar was a senior registrar and was well known and highly regarded at the hospital. He said that prior to 25 October 1996 he had been able to observe Dr Kumar and, as a result, considered him to be a skilled and careful surgeon. He was, at that time, undertaking the work of a senior registrar which would include the day by day management of patients, giving instruction to junior staff, reporting to the consultants in charge, and carrying out the work of their own operating lists. Dr Cohen regarded his own role as a supervisory one. It is clear that, in the case of Dr Kumar, he was confident that Dr Kumar could carry out his own surgery list and would only need to undertake surgery with the assistance of a consultant from time to time depending upon the complexity of the surgery to be undertaken.
Somewhat confusingly, in par 2 of her Amended Statement of Claim, the plaintiff alleged that the defendant, in employing Dr Kumar, was vicariously liable to the plaintiff for his acts and omissions and was directly liable. By way of particulars the plaintiff asserted:
"The Defendant (sic) duty of care, either directly or vicariously, was to ensure that Dr Kumar exercised the care, skill and diligence of a competent consultant gynaecologist."
It is very clear that Dr Kumar was not, on 25 October 1996, a consultant gynaecologist. He was, as already mentioned, a senior registrar in the employ of the defendant. Putting that to one side the plaintiff's assertion is that Dr Kumar, an employee of the defendant, was negligent in failing to take any or any adequate care to avoid perforation of the plaintiff's jejunum and failing to take any or any adequate steps to diagnose and/or treat and/or detect the perforation of the plaintiff's jejunum at the time of the operation. The plaintiff does not plead that Dr Kumar actually perforated the plaintiff's jejunum but rather that he failed to take any adequate care to avoid its perforation and then failed to detect the perforation prior to completing the surgery.
The defendant admits that he is vicariously liable for the actions of his staff at King Edward Memorial Hospital while acting within the scope of their employment at that hospital. The defendant further admits that the plaintiff underwent an abdominal hysterectomy at that hospital on 25 October 1996, that the operation was performed by Dr Kumar who was an employee of the defendant and that during the operation the plaintiff sustained a tear or a perforation to the proximal small bowel.
It is clear that Dr Kumar completed the operation without any awareness of any tear or perforation of the jejunum. Dr Cohen, who was present and observed for some of the surgery saw no perforation or tear. Ms Karra had no recollection of the surgery itself. It follows that the only evidence of that before me is the operation report completed by Dr Smith following his initial surgery at Royal Perth Hospital which noted a finding: "perforation mid jejunum". There is no direct evidence as to how that occurred. There is no evidence as to the size, shape or characteristics of that perforation.
The implication which lies behind the plaintiff's assertion that Dr Kumar failed to take any or any adequate care to avoid perforation of the jejunum is that there was something that he did or omitted to do in the course of the surgery which caused the perforation and which was a breach of his duty to conduct the surgery with the reasonable care and skill required of a gynaecological surgeon.

What caused the perforation?

In opening counsel for the plaintiff said:
"Your Honour in the end, I think, if I may put it this way, we'll be left with really a simple proposition: the jejunum was perforated in the course of the surgery. Careful surgery would not have perforated the jejunum. No explanation of any certainty as to how the perforation may have occurred has been given and therefore there was negligence in the conduct of the surgery. It comes very close to, if not a situation of, the facts speaking for themselves."
I find, as a matter of fact, that the plaintiff's jejunum was perforated in the course of the surgery. Dr Kumar was not aware of any perforation. It is inconceivable that, if he had been aware, he would have completed the operation without dealing with the perforation in such a way as to prevent leakage from the jejunum into the abdominal cavity. Of those who were present throughout the surgery, or for part of it, not one gave evidence of having observed a perforation of the jejunum or anything, in the course of the surgery, which might give some indication as to its cause.
The plaintiff called Dr William B Molloy, an obstetrician and gynaecologist in current practice in gynaecology with consulting rooms in Macquarie Street, Sydney and Miller Street, North Sydney, New South Wales. At the time of giving evidence he held a number of current hospital appointments including one at the Prince of Wales Private Hospital in New South Wales, being his principal place of work and the place at which he did his major operating. He ceased practice in obstetrics in January 2000 following 34 years of practice and, at the time of giving evidence, practised only in gynaecology. He was well qualified to give expert evidence in the field of obstetrics and gynaecology.
Dr Molloy wrote several reports at the request of the plaintiff's solicitors, the first dated 15 February 1999. In that report in answer to the question: "To what do you attribute the perforation of the jejunum?" he said that he could not be exactly sure how it occurred but that the jejunum must have been cut whilst the uterus was being removed. When asked in evidence‑in‑chief why he had given that answer he said:
"Well, there's no other way that subsequently – because this lady finished up in the Royal Perth Hospital with an obvious injury to the jejunum that it must have been nicked at the time. The only other way would have been if adhesions were being divided and sometimes that can occur but if you're being very careful then you don't avoid it but here, Dr Kumar hasn't stated anywhere that there are adhesions, so the only way then the injury could have occurred was that he nicked the bowel and didn't realise it."
In a report of 22 December 2005 to the plaintiff's solicitors Dr Molloy suggested that there was a "strong possibility" that the bowel was nicked during the surgical procedure.
During the course of his evidence‑in‑chief Dr Molloy accepted that observation of a perforation of the jejunum during the course of the operation may depend on their being obvious blood loss or peritoneal soiling from that injury. Dr Molloy agreed that the jejunum could have been cut without immediate soiling and in the absence of immediate soiling that the surgeon might not be aware of the injury.
In cross‑examination Dr Molloy accepted that perforation of the bowel might be brought about by other than a "nick". He also agreed that it would be possible for perforation to occur and not be identified during surgery saying:
"You can certainly not identify it if you've nicked it or whichever way its torn when you're removing an adhesion. Unless you are very diligent, well, you might miss it at that very time."
He agreed that a perforation might be missed in the absence of peritoneal soiling.
In cross‑examination Dr Molloy was asked whether the mere fact of perforation of the bowel during surgery would indicate a want of care. He replied:
"Well, it all depends, you know. We don't know exactly what happened here and how…"
He then seemed to suggest that the mere perforation of the bowel during surgery did demonstrate a want of care. He was then referred to par 7 of his report of 15 February 1999 and to the following passage:
"I don't think it was lack of care but certainly it was probably lack of experience on Dr Kumar's part, and, of course, whether he was assisted by a specialist gynaecologist at the time of operation. That specialist gynaecologist may well have prevented the perforation of the jejunum, or if it had occurred, to either seek surgical help or treat the patient before the obvious subsequent problems could arise."
Having been referred to that passage Dr Molloy said:
"Yes, I put that down there. It just all depends what Dr Kumar did and he can't explain at the moment how he did it."
Obviously Dr Molloy was of the belief that Dr Kumar had nicked the jejunum during the course of surgery, perforating it. He later said that he was endeavouring to find out what actually happened. He then agreed that perforations of the bowel could occur during surgery without negligence and
that the surgeon might not be aware of the perforation at the time of surgery. He did regard perforation of the bowel as being a very rare occurrence in the course of hysterectomy.
As to the proposition that there might be a tear or perforation of the jejunum during the packing away of the bowel preparatory to removal of the uterus, Dr Molloy said that, in his opinion, if the bowel is packed away with no adhesions present there would be no tearing or perforation. He was then asked whether, in general, the packing away of the bowel could cause traction on adhesions and lead to laceration of the bowel. He replied that it could. When asked again whether a perforation could occur other than by means of a nick with a scalpel of scissors he replied:
"I suppose there are, but we're talking about this case. We have to state clearly what we think here."
The plaintiff also called Professor John Ham, Emeritus Professor of Surgery at the University of New South Wales and a consultant to the Faculty of Medicine at that university. He was also a consultant to Prince of Wales Private Hospital. Professor Ham said that he had 35 years experience in general surgery and was generally well qualified in that regard. His two reports to the plaintiff's solicitors dated 21 March 2006 and 29 September 2006 became evidence at the trial. In the first of those reports he expressed the opinion that jejunum perforation is a known risk or complication of abdominal hysterectomy but is uncommon. It is, he said, largely, but not totally, preventable. In the plaintiff's case the cause of the perforation was, he said, uncertain suggesting that the bowel may have been damaged during dissection of adhesions or during the hysterectomy. He expressed the opinion that there was no evidence that there was any cause of jejunum perforation other than operative injury. By that phrase I assume that he meant injury during the operation.
In evidence‑in‑chief Professor Ham said that if, during surgery, it was necessary to divide adhesions then there was a well recognised technique for doing so. He emphasised that division of adhesions needed to be done with care because of the possibility that the adhesion might obscure the bowel wall and that the wall of the bowel might be damaged in the course of dissection. He commented that perforation of the jejunum should be very unlikely in a pelvic operation. The jejunum, he said, is part of the upper part of the small bowel. The case of the plaintiff was unusual in that what was perforated was the jejunum. It would normally be the ileum which is the lower part of the small bowel. He accepted that it was possible that a part of the jejunum could become adherent to some area of the lower abdomen and therefore be damaged.
In response to the proposition that there were no adhesions found by Dr Kumar in the pelvis he said that he had no explanation for perforation of the jejunum other than damage to it at the time of entry by reason of that part of the bowel being adherent to the posterior part of the abdominal wall at the time of the initial incision. Other than that, he said, he could only explain it on the basis of some injury that might have occurred with the use of an instrument while the hysterectomy was being carried out. In cross‑examination Professor Ham confirmed that he was a general surgeon not a specialist gynaecologist. He said that he had a speciality interest in gastrointestinal‑abdominal surgery.
When asked in cross‑examination whether it was likely that, in the event of perforation of the bowel while dividing adhesions, the perforation would be identified at the time of surgery he said that it depended on the nature of the adhesions being divided. He was asked by counsel for the defendant about the possibility of a perforation of the jejunum being caused by a tearing of the bowel wall during the course of packing away the bowel because of an adhesion between the jejunum and the abdominal wall. He replied:
"I guess its possible, yes. I would be a little surprised if it produced a full thickness tear; in other words, going right through the bowel wall. I can easily understand a tear to the outer lining but – full thickness, I would be a little surprised but it's possible, yes."
He agreed that he would have been surprised if perforation of the jejunum had occurred in the absence of division of adhesions. If there had been division of adhesions then that occurrence would not have been so surprising. When asked if he would accept that there were mechanisms by which the perforation could have occurred other than by division of adhesions he replied that he did. He added that in most cases that he had dealt with over the years such injury had been due to direct damage. He accepted that such an injury could occur with packing away but said that it would be much less likely than direct damage by cutting or by the use of instruments. In the case of the plaintiff he agreed that it depended very much on precisely what happened during the course of surgery. In the absence of adhesions, said Professor Ham one might have to look at some other cause of the injury.
Professor Ham did agree with the proposition that if the perforation occurred as a result of packing the bowel away it would be unlikely to be observed. The surgeon might, he said, observe soiling on the pack at the time of its removal which would be an obvious clue but in the absence of soiling there may be no indication of the perforation.
As to adhesions generally, Professor Ham said that they were caused by the handling of the bowel during surgery. The introduction of something foreign to the contents of the abdomen, even a surgeon's gloves and other instruments, however sterile, might result in adhesions. He said that adhesions resulted from irritation of the surface of the bowel causing inflammation and adhesion between one surface and another. For that reason although one could not, during surgery, avoid contact with the internal organs, it was important that it be minimised.
In re‑examination Professor Ham confirmed that there might be both direct and indirect damage to the jejunum with the former being more likely. The former would be likely to result from the dissection of adhesions or the use of a clamp, for example. He spoke of the direct relationship between an instrument being used and the damage to the bowel. So far as indirect damage was concerned he referred to damage that might result from pressure from packs producing a stretching effect on some part of the bowel leading to tearing.
The defendant called David Gordon Allen, a gynaecological oncologist working, at the time of giving evidence, at the Mercy Hospital for Women at Heidelberg, Victoria, where he was medical director of the Division of Gynaecological and Surgical Services. He was also head of gynaecological surgery at the Peter McCallum Cancer Centre in Melbourne. He was an Associate Professor and Principal Fellow of the Department of Surgery at the University of Melbourne and a Senior Fellow in the Department of Obstetrics and Gynaecology at that university.
In a report to the defendant's solicitors of 3 March 2006 Associate Professor Allen said:
"The tear in the jejunum was not necessarily negligent. There was obviously no indication at the time of surgery that the bowel had been damaged. All due care may not have prevented this complication. This complication is rare and occurs in less than 0.5 per cent of laparotomy cases for benign disease. Good exposure, good surgical principles and adequate experience helps to prevent these injuries."
By way of explanation of the foregoing passage Associate Professor Allen said, in evidence‑in‑chief:
"This patient had had, as we said earlier, as I understand it, at least three laparotomies because of appendicitis and peritonitis in India and this was very likely to have resulted in some adhesion formation higher up in the pelvis. Now, one might not have noticed those adhesions through a transversal pfannanstiel incision which was performed for this operation, which is very commonly performed for gynaecological procedures as it does expose the pelvis very well for surgery. With that incision they do need to pack away the bowel, using a retractor and then pack away the bowel, and its fairly obvious from the documentation that any tearing in the jejunum higher up or anywhere else – there's no description in the operative record anyway of someone dissecting the jejunum out of the pelvis or from the pelvis. So I can only presume that this tear happened outside of the operative field, and one of the ways that this may have happened is with packing the bowel away where one of these adhesions, where it has been adherent, has been torn and this has not been evident, as it wouldn't be because it would be outside the operative field. I believe that that – well, its not necessarily negligent. It is something which has happened which is very unfortunate, but all due care may not have picked that up…"
In cross‑examination counsel for the plaintiff put to Associate Professor Allen that if careful surgery is undertaken in accordance with good surgical principles and with adequate experience then perforation of the jejunum should not occur. Associate Professor Allen disagreed. He did agree that, according to the operative record relating to the plaintiff, there was no indication of dissection of adhesions. He agreed that if the perforation of the jejunum did not occur in the course of dissection of adhesions then it must have happened in some other way. It could, he said, have occurred by a surgical instrument or a piece of equipment piercing or tearing the jejunum.
The defendant called Anthony Keith House who, at the time of giving evidence was Emeritus Consultant Surgeon at Sir Charles Gairdner Hospital in Nedlands, Emeritus Professor of Surgery at the University of Western Australia and a Senior Honorary Research Fellow at that institution. In a report of 7 July 1999 to the defendant's solicitors Professor House said:
"Perforation of the jejunum is an unusual complication of hysterectomy, it rarely occurs spontaneously and most frequently occurs as a result of blunt trauma from a seatbelt injury but may occur from other forms of trauma or in the division of intestinal adhesions at a laparotomy. There was no division of adhesions at the time of hysterectomy and the only possible blunt trauma was that of packing the intestines out of the operative field. This was considered by Mr Smith at the time of his laparotomy to be the reason for the small perforation in the jejunum. The bowel having been stripped from the adhesion to the abdominal wall by packing with a resulting small perforation. This injury could not have been anticipated or expected by the operating surgeon performing the hysterectomy. The septic shock that ensured (sic) on the 27^th October was the consequence of the spillage of small bowel content in the peritoneal cavity. Again without knowledge of the tear, it was not possible to prevent this, management with antibiotics would not have prevented it and indeed the patient had been given prophylactic antibiotics which have a prolonged influence in the post‑operative period particularly Cefotetan."

The reference within that passage to the opinion of Mr Smith was not the subject of objection at the trial. I regard it as hearsay and have excluded it from my consideration.
In evidence‑in‑chief Professor House was asked whether he had formed any impression from the papers received by him as to the possible ways that the injury to the plaintiff's jejunum might have occurred. He replied:
"The hysterectomy appeared to be straightforward from the operative reports and from the King Edward notes. There did not appear to be intestinal adhesions within the pelvis or the operating field which made the likelihood of direct trauma at the time of surgery unlikely. The small perforation described by the operating surgeon at Royal Perth Hospital would suggest that it was a minor perforation, with major consequences but a minor perforation, that the probable or most likely cause of the perforation was the trauma due to packing of the bowel out of the operative field."
In cross‑examination counsel for the plaintiff put to Professor House that there was no division of adhesions at the time of the hysterectomy suggesting that there could not, therefore, have been a stripping of an adhesion joining the jejunum to the abdominal wall. Professor House clarified that by pointing out that the abdomen extends from the chest to the pelvis and that the area of operation for the purpose of a hysterectomy is the pelvis not the upper abdomen, the area in which the jejunum is found. Counsel then put to Professor House that there was no evidence of adhesion of the jejunum to the abdominal wall. Professor House disagreed, referring to scans conducted at Royal Perth Hospital shortly after the plaintiff's admission there which, he suggested, noted adhesion of the bowel to the anterior abdominal wall. He said that, in the case of the plaintiff, the most likely scenario was that there was an adhesion of the jejunum which was stripped during the course of the packing of the bowel away from the operative area. He agreed that blunt trauma may have been the result of contact with a surgical instrument such as a retractor during the course of packing. He thought that perforation by means of scalpel or scissors was unlikely because, he said, the bowel was not in the pelvis where the surgeon was working. He commented that injury by means of scissors during the course of cutting would be something that the surgeon would most likely be aware of. Referring to Dr Kumar's comment that the bowel was "carefully packed away" counsel for the plaintiff put to Professor House that if that was so one would not expect any blunt trauma resulting in perforation of the jejunum. He replied:
"The bowel is a highly – that part of the bowel and the small intestine are highly mobile bits of gut. They don't stay in one place, they extend from the pelvis to the diaphragm and can be in any locality at any time. If they become fixed by adhesions to any point, then if you push on them there is a risk that you might tear the adhesion, which in turn might tear the bowel or strip the bowel of its serosa, which is the outside lining, and therefore it doesn't matter how careful you pack things away, there is still that risk."
Professor House was challenged in cross‑examination as to his suggestion that a CAT scan at Royal Perth Hospital demonstrated the presence of adhesions as between the bowel and the abdominal wall. He was referred to Exhibit 3, being a book of imaging reports relating to the plaintiff. At p 4 of that book is the second page of a report of an examination done at the Department of Radiology at Royal Perth Hospital on 27 October 1996, being the day of the plaintiff's admission to that hospital from King Edward Memorial Hospital. Professor House referred to p 2 of that report and to the passage:
"Further small bowel loops are seen layered against the anterior abdominal wall adjacent to the previous midline incision."
Professor House said that the reference to an incision was a reference to an old incision made for the purpose of an appendectomy or at the time of the ectopic pregnancy. He interpreted the passage to mean that the small bowel was adherent to the old incision. He also noted that the report referred to "several abnormal loops of small bowel in the left upper quadrant" and "marked jejunal wall thickening up to one centimetre despite distension with contrast". Professor House suggested that the latter reference may have been to traumatisation of the small bowel secondary to the packing away of the bowel and the retraction used. He agreed that part of the bowel can protrude from the packing during an operation and that in doing so it may suffer trauma although he considered that outcome possible but unlikely. He thought that trauma resultant upon contact with a surgical instrument in that situation would be unlikely because of its ready visibility in the field of operation. Professor House thought that the reference to adhesion to the earlier incision in the CAT scan under reference was a basis for his conclusion that the tear of perforation of the jejunum resulted from the packing away of the bowel and a tear of the adhesion to the abdominal wall.
In re‑examination Professor House was asked further about the foundation for his hypothesis as to the cause of injury. He said:
"The patient was perfectly well for 48 hours. Suddenly she developed abdominal pain and it was from that time – and that was recorded as colic – from that time the progression of the illness occurred. Now, this CAT scan that we're referring outlines a source for the intra‑abdominal adhesions; that is, to the previous wounds that had been inflicted on the abdomen at a former stage, either the appendix or the tubal pregnancy operations that had occurred. Now, with that adhesion which is documented you also have minor adhesions; you know, another out of the jejunum could have been stuck onto that, and in pushing that away you tear it off but also in holding the bowel out there is obviously also some trauma, as also depicted in the CAT scan, where there is marked jejunal‑wall thickening which would imply that that bit of bowel had either been squashed and squeezed to make it become swollen and inflamed. Now, I would suggest that what has happened is there has been trauma of that nature, then when the bowel became active and she developed colic, that she squeezed the contact of the gut against that area and effected the completion of the perforation with soiling and from then on the process of events that occurred."
I asked Professor House to amplify his conclusion as to the course of he immediate post‑operative illness. He said:
"The questions that were being asked by the caring doctors were: is it a chest problem because she had chest symptoms? Is it a bowel obstruction, meaning there's blockage of the bowel causing the colic that she had? This CAT scan would substantiate that theory of obstruction by swelling in the bowel wall, not complete obstructions but impedance of the onward movement of the gut contents. So if there had been even minor trauma to the bowel wall with raised intracranial (sic) pressure, you complete the perforation and soil the peritoneal cavity which appears – which in retrospect appears to have been what happened, because from that point onward she became progressively unwell; in other words, you know, as soon as you perforate a bit of bowel for any reason, you soil the peritoneal cavity and you get with it sepsis, infection, pain, all the scenario that this patient had."
The plaintiff had been given, during the course of the operation, a prophylactic dose of antibiotics. Professor House thought that the impact of that dose might last for about 48 hours and would have been finished or was finishing by the time of the onset of colic and the perforation and/or major soiling of the peritoneal cavity.
When asked in re‑examination to expand upon his use of the phrase "blunt trauma" he referred to the use of retractors used, in the course of surgery, to retract the abdominal wall. They are, he said, three pronged. There are two lateral arms that open the wound from side to side and a third which pulls the wound upwards enabling a surgeon to retract the bowel with packs. In pushing the bowel out of the way with packs and then pulling it up with the retractor there is, he said, potential to injure the bowel. Retractors, he said, are not sharp but smooth with rounded edges. The back of the abdomen, he said, is largely made up of solid muscles and back bone. If part of the bowel was squeezed between a retractor and the back bone there would be potential to inflict trauma.
My understanding of Professor House's evidence in that regard was not that injury might be inflicted on the bowel as a result of direct contact between the retractor and the bowel itself, rather that injury might be inflicted as a result of the use of the retractor pulling the wound upwards towards the diaphragm facilitating the packing of the bowel away in the upper abdomen. The blunt trauma referred to by him was, I infer, not the result of direct contact between a retractor and the bowel itself but rather the result of the movement of the bowel in that process.
During cross‑examination by counsel for the plaintiff Dr Kumar confirmed that there were no bowel adhesions anywhere in the pelvis and that the small and large bowel were not adherent to any pelvic structure. There was, he said, no reason therefore for him to dissect in the area of the jejunum or any other part of the bowel. The only adhesion that he did encounter was that which attached the ovary to the uterus. He could not remember whether he attempted to separate or dissect that ovary from the uterus. In closing his cross‑examination of Dr Kumar counsel for the plaintiff put to Dr Kumar the proposition that if there was careful surgery in a hysterectomy there would be no perforation of the jejunum. He agreed with that proposition. In re‑examination he was asked whether there was any part of the surgery performed by him on 25 October 1996 on the plaintiff which was not carefully performed. He said that there was not. He continued:
"I am a careful surgeon and, you know, you're very conscious of the fact that you're operating on someone's mother, daughter, wife and it would not be fair to say that you take undue care in some patients and not in others. Every operation I perform is careful and, as I said before, I have never had a complication such as this up to October 1996 and have not had a complication like this since. As far as my practice is concerned, it has been an extremely rare complication."
In his closing speech, as in his opening speech, counsel for the plaintiff relied upon the doctrine of res ipsa loquitur. Professor J G Fleming in the 9^th ed of his work "The Law of Torts" at p 353 comments that res ipsa loquitur is no more than a convenient label to describe situations where, notwithstanding the plaintiff's inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient, in the absence of an explanation, to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury. The nature of the accident, in this case the perforation of the jejunum, must be such as to raise two inferences: firstly, that the perforation was caused by a breach by somebody of a duty of care to the plaintiff and, secondly, that the defendant was that somebody. Post‑operatively, the injury suffered by the plaintiff manifested itself some two days later with the sudden deterioration of her health. Putting aside the spontaneous perforation of the abdomen unrelated to the surgery on 25 October 1996 as being unlikely I conclude that the perforation of the jejunum was the result of something that occurred during the course of the operation. The subsequent manifestation of it in the sudden onset of illness may have been the result of the worsening of the tear over a period of time leading to leakage of the contents of the jejunum combined with the diminishing effect of the prophylactic dose of antibiotics administered at the time of the operation.
On the evidence that I have heard the fact of the perforation of the plaintiff's jejunum does not necessarily raise an inference that it was caused by Dr Kumar's negligence. His negligence is a possible cause of the injury. Is it the probable cause of the injury? He said in evidence that he conducted the hysterectomy in question with appropriate care, he being customarily a careful surgeon. Dr Harry Cohen was called by the defendant and gave evidence that he was a consultant gynaecologist at King Edward Memorial Hospital and that, he had been from 1992 to 2003 the medical director of the Gynaecology Clinical Care Unit at that hospital and a director of post‑graduate studies. In evidence Dr Cohen said that he remembered Dr Kumar who had worked at King Edward Memorial Hospital as a senior registrar, the position occupied by him at the time of the surgery the subject of this action. Dr Cohen remarked that Dr Kumar was well known at the hospital and highly regarded. He had completed his training in the United Kingdom, reaching the status of a consultant in gynaecology. At that stage of his career Dr Kumar moved to Western Australia, his parents being resident here. He was employed as a senior registrar at King Edward Memorial Hospital. A senior registrar is a practitioner who has reached the final phase of training before being granted a fellowship of the Australian College of Obstetricians and Gynaecologists. Dr Kumar, said Dr Cohen, was in the unusual position of having his fellowship of the English college with higher degrees while undertaking his final training for admission as a fellow of the Australian college. In fact, Dr Kumar's curriculum vitae indicated that he had obtained his Bachelor of Medicine and Bachelor of Surgery from the National University of Singapore in April 1990. He was admitted as a fellow of the Royal College of Surgeons of Edinburgh in June 1994 and became a member of the Royal College of Obstetricians and Gynaecologists in the United Kingdom in November of that year. He became a fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists in December 1997 having become a member of that college in 1995. He had completed the degree of Master of Medicine (Obstetrics and Gynaecology) at the National University of Singapore in September 1995.
Dr Cohen said that, prior to 25 October 1996, he had had opportunities to observe Dr Kumar in the course of surgery and regarded him as a skilled and careful surgeon.
Although Dr Kumar's claim of customarily being a careful surgeon might be said to be self‑serving I accept the evidence of Dr Cohen to that effect. I find, as a matter of fact, that at the time of the surgery the subject of this action Dr Kumar was customarily a skilled and careful surgeon employed as a senior registrar at King Edward Memorial Hospital in the final phase of his training to become a consultant in gynaecology and obstetrics in this country.
In evidence‑in‑chief Dr Kumar was asked whether he was able to recall whether he had divided adhesions during the course of the surgery undertaken by him upon the plaintiff. He said that he had not, based on his belief that, if he had, he would have noted that he did so in the operation record. I find that if there had been, as the result of Dr Kumar's use of a sharp surgical instrument, a perforation of the jejunum which led immediately to the leakage of bowel contents into the field of operation he would have noticed that injury and taken steps to deal with it. I find, therefore, that the perforation of the jejunum was not such that there was immediate leakage of its contents into the field of operation. That leaves open the possibility that Dr Kumar inflicted the injury while using a sharp surgical instrument but that the injury or perforation was, when inflicted, so minor as to not give rise to immediate leakage. I accept his evidence that he found no bowel adhesions and was not required to dissect bowel adhesions in the course of the hysterectomy. That being the case, it does seem to me that it is less likely that the perforation of the jejunum resulted from the use of a sharp surgical instrument by Dr Kumar in the course of the surgery performed by him. He did undertake, as he said, the careful packing away of the bowel into the upper abdomen, removing it from the field of operation. There is, on the evidence, some possibility that a portion of bowel protruded around the packs during the surgery and was perforated by the use of a sharp surgical instrument. Dr Kumar was asked whether that occurred. He replied:
"I honestly can't remember if that happened in this particular case but the scenario you describe does occur because even with the best will in the world, bowel does sort of sneak up from behind packs and frequently flops into the operative field. At that point what I would do is to stop the operation and re‑pack the bowel because it's not safe to continue operating with bowel in the region of the operative field."
I accept that evidence as being an honest statement as to that scenario developing from time to time and as to the way in which Dr Kumar would have dealt with it. Having done so I conclude that such a development was not a likely cause of the perforation of the jejunum.
Dr Kumar was at a loss to explain the perforation of the jejunum stating that he did not go anywhere near the jejunum, emphasising that such a perforation is likely to be obvious because of the leakage of bowel contents into the operative field. He said that, in the case of the small bowel, the contents are usually green because of the presence of bile whereas, in the large bowel, one is more likely to encounter leakage of faeces.
I do not accept the conclusion drawn by Dr Molloy in his report to the plaintiff's solicitors of 15 February 1999 that the jejunum must have been cut whilst the uterus was being removed. In fact, I conclude that the jejunum had been packed away in the upper part of the abdomen prior to the removal of the uterus. He was of the opinion, during the course of his evidence, that if the bowel was packed away with no adhesions present there would be no tearing or perforation. The fact of the matter is that there was ample evidence of prior abdominal surgery which must, almost inevitably, have left adhesions affecting the bowel in the upper part of the abdomen notwithstanding that Dr Kumar found none in the pelvis. Professor House derived confirmation for that proposition from the CT scan conducted at Royal Perth Hospital on 27 October 1996. I find, as a matter of fact, that there were no bowel adhesions dissected by Dr Kumar and that there were bowel adhesions which were moved by him in the course of his careful packing away of the bowel, including the jejunum, from the field of surgery. I am drawn to the conclusion that the most probable explanation for the perforation of the jejunum found by Dr Smith at Royal Perth Hospital is that there was a tear or perforation of the jejunum during the course of packing away the bowel resultant upon the necessary movement of the bowel, including the jejunum, in that process. Most likely that tear or perforation was associated with a pre‑existing adhesion, probably to the abdominal wall following earlier surgery. I find that it did not result from contact with a sharp surgical instrument employed during surgery by Dr Kumar. In any event, as noted earlier, the plaintiff does not plead that Dr Kumar actually perforated her jejunum but rather that he failed to take any adequate care to avoid its perforation and then failed to detect the perforation prior to completing the surgery. I find that, on the balance of probabilities, the tearing or perforation of the jejunum occurred in circumstances which were not readily observable by Dr Kumar and were not observed by him. As already noted, perforation by a sharp instrument employed by Dr Kumar would, in all probability, have been readily observed and dealt with. The fact that he completed the operation, apparently without any complication, tends to suggest that he did not observe any tear or perforation. I find that he conducted the surgery in a careful and appropriate manner and that the perforation of the jejunum was not the consequence of any lack of care or negligence on the part of Dr Kumar. To suggest negligence based on the proposition that he failed to avoid the perforation is to suggest that he negligently caused or allowed the perforation to occur. This is not a case of res ipsa loquitur. The fact of the perforation does not speak for itself. If one excludes direction perforation by a sharp instrument and spontaneous tearing or perforation unrelated to the surgery the cause of the perforation must have been some form of tension or blunt trauma resultant upon the movement of the bowel. I accept that movement of the bowel in the form of the packing away of the bowel was necessary and appropriate for the purpose of the surgery upon the plaintiff. On the whole of the evidence, the most probable cause of the perforation or tearing was blunt trauma in the form of movement of the bowel in the course of packing away in circumstances where there was no lack of care or negligence on the part of Dr Kumar. I also conclude, that his failure to detect the perforation, depending as it does in those circumstances just described, on the immediate appearance of leakage of bowel contents, was not the result of negligence or lack of care on his part.

In her evidence‑in‑chief the plaintiff told me that in 1998 she tried to return to work as a cleaner and that in 1999 and 2000 she worked for Excel Education. She has, she said, had no employment between 2001 and 2006. Since 1999 she has received a disability pension. She described having problems bending, lifting and lying down. She is unable to sit for too long before the onset of stomach and lower back pain. She presently wears a corset.
From 1998 to 2006 she has benefited from the assistance of others. Her mother moved in with her in 2004. Prior to that her mother assisted with meals and laundry. Others assisted with travel and household tasks.
The plaintiff relied upon the evidence of Dr R J Warner, an occupational physician. He presented a report of 3 November 2004 having seen the plaintiff on 28 October 2004. In that report he noted that the plaintiff had undertaken primary and high school education in India and that her higher education comprised a beautician's course. He mentioned her job history as being a receptionist in Abu Dhabi for three years and, in Australia, work at Chicken Treat, as a receptionist for a Member of Parliament, in meal preparation for Ansett Airways, cleaning jobs and as a carer/cleaner at a hospital. When he saw her she was five foot three inches tall and weighed 97 kilograms. He considered that she had no ability to work in any job for which she presently has education, training or experience. She has, he said, a restricted capacity for return to her pre‑injury employment noting that she was unable to sit or stand. He described her disability as immediate and permanent. Her working life, he said, had been lessened by some 15 years by reason of the number of operations endured by her. In evidence‑in‑chief before me he confirmed that opinion noting that her abdominal muscles had been destroyed by numerous bouts of abdominal surgery. He assumed that she would have worked to age 60 years.
In cross‑examination he accepted that he had seen the plaintiff on one occasion for the purpose of providing a medico‑legal report. He did not, he said, see any possibility of improvement in her situation. He did not, however, require that the plaintiff undertake a functional assessment but rather relied on what she told him.
The plaintiff also relied on the evidence and reports of Dr F K F Ng, a consultant psychiatrist. He provided two reports, the first dated 31 January 2006 and the second dated 21 August 2006. Prior to the first he had interviewed the plaintiff on 31 January 2006. In that first report he expressed, based on the history elicited from the plaintiff, the opinion that the plaintiff suffered from a chronic major depressive episode with anxiety symptoms to a moderate extent which is, he said, partially treated. He noted her claim that her depression occurred in the context of a bi‑polar affective disorder which, she said, had been diagnosed in 1994. He expressed the view that the plaintiff's mood difficulties were precipitated by the death of her first husband. The sequelae of the surgery at King Edward Memorial Hospital on 25 October 1996 had acted significantly to exacerbate her pre‑existing mood difficulties. He expressed the view that the plaintiff was, as at 31 January 2006, unfit for any form of return to work due to her psychiatric condition.
He again reviewed the plaintiff on 21 August 2006 and provided the second of his two reports. When he spoke with the plaintiff on that occasion she told him that she had ceased all alcohol use in the preceding few months noting that in January 2006 she had been binge drinking. In his second report he expressed the same psychiatric diagnosis as he had in the first. He thought that her psychiatric condition had improved in the intervening period noting ongoing treatment with the antidepressant, Aropax, and support from her mother, her church community, friends and her general practitioner. He expressed the view that, having regard to the fact that the plaintiff had suffered from a depressive illness for in excess of a decade, that illness having been exacerbated by the complications of her surgery at King Edward Memorial Hospital, it was more likely than not that she would have at least a partial disability for work for the foreseeable future from a psychiatric perspective. He said that her future working life had been affected in that her capacity to work full‑time had been compromised. He thought that she would have a partial capacity for the foreseeable future for work. The prognosis for further improvement in her psychiatric condition was "reasonably good". The prognosis for total resolution was "exceedingly poor" given the persistence of the depressive symptoms and the report of ongoing physical symptoms.
In cross‑examination Dr Ng referred to the obvious limitations in providing a medico‑legal report as opposed to being a treating practitioner. He did not diagnose a bi‑polar disorder confirming that that diagnosis had been related to him by the plaintiff. He emphasised that he was reliant upon information from the plaintiff. He confirmed that the plaintiff was predisposed to depression by a number of events prior to the surgery on 25 October 2006.
In her Amended Schedule of Damages dated 13 October 2006 the plaintiff, in support of her claim for general damages, claimed to have experienced:
1.Septic shock.
2.Extensive discoloured and permanent scarring on the stomach.
3.Constant pain radiating from the operation area and the left side of the chest where the drainage was performed.
4.Indigestion.
5.Disturbed sleeping pattern.
6.Psychological trauma.
7.Difficulty walking.
8.Difficulty climbing stairs.
9.Flaccid stomach on the side when sitting.
10.Epigastric pain radiating to the back and worse on bending.
11.Bloated feeling and abdominal pain/cramp.
12.Nausea.
13.Abdominal and chest wall pain at the site where pleural collections were drained.
14.Respiratory failure and hypotension.
15.Tracheotomy.
16.Multiple organ failure.
I note an absence of evidence to support the claim of multiple organ failure, tracheotomy, respiratory failure and hypotension. On the evidence the plaintiff's substantial weight gain in recent years may well have had an impact upon her disturbed sleeping pattern and her claimed difficulty in walking and climbing stairs as well as the claim of having a flaccid stomach on the side when sitting. That may also be associated with the claimed bloated feeling. I am uncertain as to the claimed psychological trauma beyond that which was described by Dr Ng above. The claim of indigestion seems to me to be barely supported on the evidence.
Further, in her Amended Schedule of damages of 13 October 2006 the plaintiff particularises her permanent injury and disability as:
1.Extensive, discoloured and permanent scarring on the stomach.
2.Right sided paramedian incisor scar.
3.Psychological trauma.
4.Replacement of abdominal musculature with prolene mesh.
5.Reduced ability to participate in, and enjoy, sexual intercourse.
6.Inability to participate in physical exercise.
7.Reduced physical mobility.
8.Reduced domestic independence.
9.Ongoing abdominal pain.
10.Ongoing back pain.
11.Disturbed sleep and insomnia.
Again, I have concerns about the impact of obesity on a number of the claimed permanent disabilities. It does seem to me that the plaintiff has the ability to address the problem of weight gain. There does not appear to be any evidence to attribute that problem in any causative way to the surgery at King Edward Memorial Hospital and its sequelae.
The plaintiff claims by way of general damages $220,000. The defendant submits that the plaintiff's claim in that regard is grossly excessive.
In Apex Holiday Centre (Inc) v Lynn [2005] WASCA 58 there was an appeal, inter alia, against an award of general damages in the sum of $100,000 on the basis that it was erroneously excessive. In his judgment [at par 40] E M Heenan J said:
"Nevertheless, in the present case, an award of $100,000 for general damages appears to me to be beyond the scope of a sound discretionary judgment and to make out this ground of appeal. – Wilson v Peisley (supra) and Gamser v Nominal Independent (supra). True it is that the respondent has suffered serious injury, has endured complications which may not have occurred had it not been for the delay in correct diagnosis and subsequent treatment and that none of this diminishes the liability of the appellant – see Chapman v Hearse (1961) 106 CLR 112 and Mahony v J Kruscich (Demolitions) Pty Ltd (1985) 165 CLR 522. The situation however, is that the respondent who was a woman in good health, at the age of 45 years, has undergone major surgery, has had an artificial hip implanted, is subject to future long term medical supervision with major surgery at 10 year intervals and now faces significant limitations upon her work and recreational capacities. On the occasions when she does require surgical revision she is likely to be in hospital for a week or so and then will need to convalesce off work for up to three months and undergo significant discomfort, handicap and inconvenience. In my view an appropriate allowance for general damages in these circumstances would have been $75,000."
Simmonds J was of a similar view and re‑assessed the general damages for pain and suffering from $100,000 to $75,000. Wheeler J agreed with both in that regard. That case was not one in which there was any statutory limitation on the imposition of general damages such as that found in the Motor Vehicle (Third Party Insurance) Act 1943.
In Strempel v Wood & Anor [2005] WASCA 163 the appellant, having suffered personal injuries as the result of complications following a knee replacement operation performed by an orthopaedic surgeon at Hollywood Hospital on 24 September 1998. The trial judge assessed damages including general damages at $40,000 as a result of the negligent administration of a drug. The appellant developed symptoms of giddiness, vertigo, imbalance, nausea, hearing loss and tinnitus as a result of the toxicity which was induced by that negligent administration. The effects were permanent and irreparable beyond the appellant being taught to be more dependent upon other senses in order to compensate for the loss of balance. The appellant suffered difficulty in walking, particularly if tired or distracted. He had difficulty in negotiating steps and driving again, particularly when tired, distracted or at night. At the time of the hearing in the Court of Appeal the appellant was reliant on crutches to walk resulting in symptoms in his wrists, arms and shoulders. McClure J thought that the award of $40,000 was neither manifestly inadequate nor disproportionate to the injuries received. The plaintiff had undergone an arthroplasty. He had a prosthetic left leg and stiffness and foot drop in the right leg. The consequences of the drug induced toxicity were the subject of the award in question. Justice Le Miere J agreed with McClure J that $40,000 for general damages was not so unreasonable or plainly unjust that the Court of Appeal should interfere.
In Hannell v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2006] WASC 310 Le Miere J observed that there had been a number of awards delivered in mesothelioma cases in recent years for general damages in excess $180,000. He mentioned several, the highest being an award in the matter of Gaunt v Amaca Pty Ltd, unreported; DCt of NSW; Library No 151; 28 August 2003 in the sum of $220,000. In the matter before Le Miere J the plaintiff was aged 63 years and had been informed in November 2005 that he had a life expectancy to 6‑12 months. He had undergone two surgical procedures both of which were very painful. He had, since the removal of a lung, undergone three cycles of chemotherapy which made him feel sick and caused some constipation, diarrhoea and an upset stomach. He had difficulty breathing and experienced pain in the chest. He had quite severe and physical limitations in terms of his ability to walk. There was another expert opinion as to life expectancy of around three or four years. Le Miere J gave an award of general damages in the sum of $180,000.
I do regard that the plaintiff's claim for general damages in the sum of $220,000 as being excessive. She did, however, suffer a near death experience and has suffered debilitating consequences. I consider, having regard to all of the circumstances, that an appropriate award of general damages would be $75,000.
The plaintiff has claimed travel expenditure which is agreed at $3,500 and future travel expenses which is also agreed at $3,500. I would make those awards.
The plaintiff claims an indemnity in respect of Medicare recovery. The defendant, in response, indicates that it will agree all relevant Medicare expenses but reserves the right to dispute any figures in the Notice of Charge which do not relate to the surgery or its sequelae.
Past pharmaceutical expenses are agreed at $915.77. I would make that award.
Future pharmaceutical expenses are agreed at $2,000. I would make that award. Future consultations and reviews are agreed at $10,000. I would make that award.
There is agreement as to the plaintiff's claim for a surgical belt in the sum of $500 and a surgical bra in the sum of $1,200. I would make that award. I do not agree that the claim for further surgery is, on the evidence, made out. I decline to make an award for further gynaecological and abdominal/bowel surgery.
The plaintiff claims an award for past and future gratuitous services. It is submitted that she is unable to cope as a result of the surgery on 25 October 1996 and has been dependent on the assistance of others for her personal living needs and daily living activities such as showering, preparation or meals, driving and household chores. Those services have been provided by members of her congregation, family and friends. The claim is for five hours per day from 25 October 1996 to 25 January 1997 and from 26 January 1997 to the present at the rate of four hours per week at $15 per hour. The plaintiff submits that her sister was required to travel from India to nurse her and that she provided nursing care services for a month, the estimated value of those services being calculated on the basis of $15 per hour at the rate of five hours per day for four weeks. The plaintiff claims that Silver Chain provided daily nursing care services for a period of four weeks after the surgery and claims an indemnity against any costs recovered by that organisation. The plaintiff claims that her mother provided gratuitous services for a period of approximately eight months and that she had to move from her own house to her mother's house to accommodate provision of those services. It is submitted that the plaintiff's mother continues to provide gratuitous services for approximately two hours per day. The total claim for past gratuitous services is $5,400 and for future gratuitous services, $47,508.
The defendant submits that the plaintiff did not require services from 25 October 1996 to 29 November 1996, being the period that she was hospitalised. The defendant, while denying that the claim is fully made out on the evidence, does agree to an award for past gratuitous services in the sum of $44,300. I am inclined, given the difficulty of making precise assessments and the positions taken by the parties, to allow an award for past gratuitous services in the sum of $45,000.
The plaintiff claims by way of future gratuitous services that she will need assistance with her personal living and daily activities for the foreseeable future at the rate of four hours of gratuitous assistance per week. She claims an amount of $47,508 based on a life expectancy of 37.2 years, applying the appropriate multiplier. The defendant rejects the claim submitting that with the provision of items included in the "OT West" report dated 4 October 2006 the need for future gratuitous services is minimal but would accept a claim based on one hour per week. The defendant therefore submits that an amount of $11,877 is appropriate. I would propose to allow an amount of $20,000 taking a robust approach to this particular claim.
So far as past and future economic loss is concerned the defendant rejects the plaintiff's claim completely. The plaintiff claims that as at 26 October 2006 her earning rate was, as a meat packer with Kanga Pet Meats, in the sum of $346 per week net on the rates then applicable to the meat industry with additional earned income in 1996 as a casual invigilator with Excel Education Pty Ltd. The plaintiff submits that due to the injuries and disabilities sustained she is now incapacitated and unable to return to work on a full‑time basis. She has only been able to undertake sporadic casual work as an invigilator in 1999 and, between 1999 and 2003, in house cleaning receiving non‑taxable nominal earnings. Since 2003 the plaintiff has been, she submits, unable to work. The plaintiff also claims past and future loss of superannuation.
The evidence relating to the plaintiff's work history is somewhat sketchy. It does seem clear to me that she has worked sporadically throughout her life. I have been provided with no income tax returns but rather copies of Australian Taxation Office Notices of Assessment issued to the plaintiff for the years ended 30 June 1995, 1996, 1997 and 1998. Her taxable income in the year ended 30 June 1995 was $9,544. Her taxable income for the year ended 30 June 1996 was $6,288. Her taxable income in the year ended 30 June 1997 being the year which included the surgery the subject matter of her claim was $9,702 being greater than in each of the two preceding financial years. Her taxable income in the year ended 30 June 1998 was $8,535. The plaintiff's evidence was that immediately prior to the surgery in October 1996 she was employed by Kanga Pet Meats of Osborne Park. Exhibit 4 is a letter on the letterhead of that firm detailing wages received by the plaintiff from 1 July 1995 to her last day's work which appears to have been 11 October 1996. In that period she appears to have worked in the weeks ending 26 September 1996, 4 October 1996 and 11 October 1996, deriving a net total income of $786.
Exhibit 6 is a letter from Excel Education Pty Ltd confirming that the plaintiff was employed as an exam invigilator on a casual basis. The plaintiff worked in that capacity for six days in January/February 1997, for a week in June 1997, for a week in September 1997, for a week in November 1997, for three days in April 1998, for two weeks in June 1998, for three days in July 1998, for five days in November 1998 and for three days in February 1999. For that work the plaintiff received net pay of $1,991. The plaintiff said that she also worked in that period for cleaning companies. There is no documentation in that regard.
The plaintiff claims past economic loss on the net rate for a process worker (level 1) in the meat industry based on full‑time work for 52 weeks of the year in the years 1997 to 2006. Having regard to the evidence, what is proposed is, in my view, entirely unrealistic. As to future loss of earning capacity the plaintiff is presently 45 years and says that, but for the operation and her injuries, she would have continued to work until the age of 65 years but cannot do so because she is now unfit for casual or full‑time employment. I have no doubt that the plaintiff has, since the surgery on 25 October 1996, suffered a loss in her capacity to earn an income. I must take into account, however, that to the extent that prior to 25 October 1996, the plaintiff presumably had full capacity to earn an income, she failed to exercise it other than to work from time to time in casual employment. I assume that she would have continued to work in the same sporadic fashion had it not been for the surgery on 25 October 1996. It is, in my view, impossible to assess both her past and future economic loss with any precision. The same applies for her past and future loss of superannuation. I note, in that regard, that Excel Education Pty Ltd were not obliged to pay superannuation benefits during the period 19 November 1997 to 24 November 1997 as her earnings for the period were less than $450. The manager of Excel Education Pty Ltd pointed out, in his letter of 15 March 1999, that the company was not obliged to contribute to superannuation for a casual employee if the monthly wage of that employee was less than $450. That appears to have been the case with the plaintiff. There is no mention of superannuation so far as Kanga Pet Meats are concerned. All in all, there is a paucity of evidence in that regard.

Prior to the surgery on 25 October 1996 the plaintiff suffered from a number of problems including, apparently, excessive consumption of alcohol from time to time and what appear to be long standing psychological or psychiatric problems. She mentioned to Dr Ng a past diagnosis of bi‑polar affective disorder. He did not make that diagnosis. There does appear to be, since the surgery of 25 October 1996, a continuation of a number of those earlier problems including something of a struggle with excessive alcohol use from time to time. Dr Watson was concerned about the plaintiff's weight gain in recent years and about the plaintiff's contemplation of that problem being dealt with by way of bariatric surgery. It would seem that future abdominal surgery with respect to both the problem of the ovarian cystic mass and weight gain is contra‑indicated. The plaintiff's weight does seem to be a problem which might, if overcome, resolve a number of the plaintiff's difficulties. It is a problem capable of resolution with some degree of determination on her part. Obesity is clearly not only a factor affecting her state of wellbeing but also her ability to return to the workforce.
I accept that her ability to earn an income has been compromised to some degree by the impact of the surgery of 25 October 1996 and its sequelae. I do not, however, accept that she is now, has been or will be completely without any capacity for work. The claimed past and future economic loss in the sum of $232,359.66 and $243,388.33 respectively is, in my view, wildly optimistic and, unfortunately, not well founded on the evidence. The same applies, in my view, to the claimed loss of past and future superannuation. The best that I can do is to take, again, a robust approach to all four components of her claimed loss of capacity to earn an income and to fix a global amount. I would propose to make an award for past and future economic loss incorporating past and future loss of superannuation entitlements in the sum of $75,000.
In summary, therefore, the provisional assessment that I would make in the case of the plaintiff is itemised as follows:
General damages  $ 75,000.00
Past travel expenditure  $    3,500.00
Future travel expenditure  $    3,500.00
Past pharmaceutical expenditure  $      915.77
Future pharmaceutical expenditure                $    2,000.00
Future medical consultations and reviews      $ 10,000.00
Surgical belt  $      500.00
Surgical bra  $    1,200.00
Past gratuitous services  $ 45,000.00
Future gratuitous services  $ 20,000.00
Past and future economic loss incorporating
the loss of superannuation benefits             $ 75,000.00
Total  $236,615.77
In the plaintiff's Amended Schedule of Damages there is a claim for occupational therapy equipment recommended by Sharon Cannell, an occupational therapist, in a report dated 5 October 2006. That detailed the cost of the provision and replacement every five years of a body line head lift, an electronic bidet, a classic shower chair, a side opening bra with supportive back, a supportive corset or belt, a general mop, a floor express handle, a clothes airer, a pick‑up reacher, a long handled brush and pan and a driving assessment by an occupational therapist. The total amount of the claim of the provision of those items and renewal is $25,478.51. I have made an allowance for future gratuitous services and for the surgical belt and bra. I am not inclined to make an award in the terms of the schedule of occupational therapy equipment just referred to as some items would appear to be superfluous given the provision of gratuitous services to the plaintiff. Many of the items referred to are, in my view, not required or would not be required if the plaintiff were to take effective steps so far as her obesity is concerned.