G & C v Down - [2008] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
G & C v DOWN
[2008] SADC 135
Judgment of His Honour Judge Robertson
22 October 2008
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - LIABILITY IN TORT
First Plaintiff consulted with Defendant for purpose of undergoing tubal ligation surgery - First Plaintiff seeking permanent contraception through the surgery - First Plaintiff became pregnant shortly after surgery and later gave birth to her fifth child - Defendant warned the First Plaintiff of the risk of falling pregnant - scope of duty of care to warn of risk - whether warning given adequate - standard of care - Defendant in breach of duty of care in failing to adequately warn - claim for loss and damages - First Plaintiff failed to establish that breach of duty caused the loss and damages claimed - claim dismissed.
Rogers v Whitaker (1992) 175 CLR 479; F v R (1984) 33 SASR 189; Rosenberg v Percival (2001) 205 CLR 434; Gover v The State of South Australia and Perriam (1985) 39 SASR 543, applied.
Chappel v Hart (1998) 195 CLR 232, considered.

G & C v DOWN
[2008] SADC 135
Judge Robertson
Civil
Introduction

The Plaintiffs have been in a de facto relationship for about eleven to twelve years. The Defendant is an experienced specialist Obstetrician and Gynaecologist. The female Plaintiff ("First Plaintiff") consulted with the Defendant on 12 December 2001 for the purpose of undergoing tubal ligation surgery, the objective of which was to obtain permanent contraception.
On 6 February 2002, at a country Hospital, the Defendant performed a laparoscopic tubal ligation on the First Plaintiff. The surgery involved the application of Hulka clips to the First Plaintiff's fallopian tubes for the purpose of occluding (closing) each of them. The tubal ligation surgery did not permanently sterilise the First Plaintiff. She became pregnant a few months after the surgery and gave birth to her fifth child, whom I shall call “J”, on 30 March 2003.
The Plaintiffs bring separate claims for damages against the Defendant, alleging negligence in failing to adequately warn the First Plaintiff regarding the risk that the tubal ligation procedure may not succeed in permanently sterilising her, and thus expose her to becoming pregnant again.
Initially the Plaintiffs also alleged the Defendant had negligently performed the tubal ligation procedure with the result that it failed to permanently sterilise her. This claim was abandoned by the Plaintiffs towards the end of the Trial.
Issues
It is not in dispute that the Defendant owed a duty of care to the First Plaintiff to provide information to her relevant to the procedure of tubal ligation, including the risk of falling pregnant following the procedure. It was accepted within the gynaecological specialty in 2001 that pregnancy could occur following tubal ligation surgery using Hulka clips, without the surgeon misapplying the clips or placing them in the incorrect position. It was thought that recanalisation of the fallopian tubes could occur although there was no negligence on the part of the surgeon in performing this procedure. That remains the current position. Furthermore, it is not in dispute that the Defendant did provide the First Plaintiff with information relevant to the surgery and the risk that she may fall pregnant, although she had undergone the surgery.
The issue in this Trial relates to the adequacy of the information supplied by the Defendant to the First Plaintiff regarding the risk of falling pregnant after undergoing the surgery. From that broad main issue three sub-issues arise. First, the scope of the duty of care owed by the Defendant regarding the level of information to be provided relevant to the risk of becoming pregnant. Secondly, whether the Defendant in providing the information found to have been supplied to the First Plaintiff, fulfilled that duty of care. The final issue of causation, will only arise if it is found that the Defendant has not fulfilled the duty of care he owed to the First Plaintiff.
Legal Principles
Before turning to the facts, it is instructive to address the legal principles relevant to a claim of this nature to the First Plaintiff, regarding the risk of falling pregnant after undergoing the surgery.
The High Court in Rogers v Whitaker[1] set out the relevant principles. With regard to the duty of care the Majority (Mason CJ, Brennan J, Dawson J, Toohey J and McHugh J) said:2
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 skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.
(Reference to footnotes have been omitted)
(Emphasis Added)
[1] (1992) 175 CLR 479
2 Ibid at 483
The Majority in their Joint Judgment proceeded to explain that the duty to warn a patient of an inherent risk in any treatment arises when the risk is “material”. They explained when a risk is “material” in the following passage: 3
The law should recognize 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.
3 Ibid at 490
With respect to the standard of care the Majority said: 4
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …
4 Ibid at 483
In F v R,5 a case involving a tubal ligation procedure which failed, King CJ made the following observations regarding the duty of care in the provision of information:6
What is in question is the scope of the doctor's duty of care. He is required to act reasonably, not only in his actual treatment of the patient, but also in relation to the disclosure of information. In Chatterton v. Gerson, Bristow J. held that it is “the duty of a doctor to explain what he intends to do, and its implications, in the way a careful and responsible doctor in similar circumstances would have done”. It is my opinion that that is a correct statement of the law, and that the duty extends, not only to the disclosure of real risks of misfortune inherent in the treatment, but also any real risk that the treatment, especially if it involves major surgery, may prove ineffective.
(Reference to footnotes have been omitted)
5 (1984) 33 SASR 189
6 Ibid at 191
King CJ also expressed the view that the information or advice to be conveyed by the medical practitioner to the patient depended upon the circumstances which existed at the time.7
7 Ibid at 192
With respect to the standard of care King CJ observed: 8
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of care is that to be expected of an ordinarily careful and competent practitioner of the class to which the practitioner belongs. The standard required of the appellant was therefore that of an ordinarily careful and competent specialist in gynaecology.
8 Ibid at 190 - 191
It can be seen that the law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. Furthermore, the standard of care is that to be expected of an ordinary skilled practitioner of the class to which the practitioner belongs. The standard required of the Defendant was therefore that of an ordinary skilled specialist in gynaecology.
In F v R, King CJ concluded that the ultimate question of whether the standard of care had been met by the medical practitioner is to be determined by the court, and not by medical standards or medical practice. He said:9
The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.
9 Ibid at 194
This passage was cited with approval by the Majority in their Judgment in Rogers v Whitaker.10
10 (1992) 175 CLR 479 at 488
The Majority in Rogers v Whitaker set out the reasoning which has led courts in Australia to adopt the position, that it is for the court to determine whether a medical practitioner has or has not met the standard of care.
They stated:11
The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient’s contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone, or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient’s apprehended capacity to understand that information.
(Reference to footnotes have been omitted)
11 Ibid at 489 - 490
Background of the Plaintiff
At the time of the surgery the First Plaintiff was 31 years of age, having been born on 15 January 1971. Her first child, a boy, was born in April 1992 out of a relationship with a man whom she married shortly thereafter. In June 1994, a daughter was born from that marriage. Shortly after, the marriage broke down with the First Plaintiff and her husband separating.
Approximately two years later, the First Plaintiff entered into a de facto relationship with the Second Plaintiff, having met him some time before entering into the relationship. From that relationship a son was born in December 1999.
In the early part of 2000, the Plaintiffs moved to a country town to live. They decided that they should have another child, to be a companion for their son born in 1999. In June 2001 the First Plaintiff gave birth to her fourth child, whom I shall call “B”.
During the periods between the births of her children the First Plaintiff undertook contraception by taking medication known commonly as the “Pill”. She continued with the Pill after the birth of B. At that time, she was taking the contraceptive pill called Microgynon 20 ("Microgynon"). She had also been taking Microgynon prior to becoming pregnant with B. Each of her pregnancies with her partner, the Second Plaintiff, was planned. Her second child was also a planned pregnancy. Her evidence was that she had been using the Pill for contraceptive purposes for about 15 to 16 years prior to 2001.
Following the birth of each of her children, the First Plaintiff breast-fed each child. During the period of breast-feeding, she took what is described as the “mini-pill”. She could not return to the Pill for the purpose of contraception whilst she was breast‑feeding each child. She understood that there was a greater risk of becoming pregnant while taking the mini-pill than when she was taking the Pill. During the period that the First Plaintiff was taking the mini-pill, the Second Plaintiff used condoms as an extra precaution.
The First Plaintiff knew there was a risk of falling pregnant while she was taking the Pill. She said that she did not know the degree of risk of becoming pregnant, but she felt it was safe as she had not fallen pregnant in all the years she had been using it. She said that she was prepared to run the small risk of becoming pregnant while she was taking the Pill.
Events Leading up to the Consultation with the Defendant
After B was born, the First Plaintiff was bleeding intermittently. She also felt depressed. The First Plaintiff said she did not wish to have any more children. She discussed the matter with her partner, the Second Plaintiff, and he agreed. The First Plaintiff said that she decided to have her "tubes tied". She said her mother had undergone surgery to have her tubes cauterised many years earlier.
The First Plaintiff consulted with her General Practitioner, in early October 2001. The purpose of the consultation was to seek advice from her General Practitioner for the purpose of proceeding to undergo surgery to have her "tubes tied". At the time of that consultation she did not have any knowledge of the procedure of tubal ligation. She said that she did not care what type of surgical procedure she needed to undergo. The First Plaintiff said that she was prepared to have any type of procedure because she did not want to have any more children [T.91.1].
The First Plaintiff was referred by her General Practitioner to the Defendant for the purpose of undergoing tubal ligation surgery. She consulted with the Defendant at the Hospital on 12 December 2001. At the end of the consultation, the First Plaintiff signed a document indicating her consent to the tubal ligation procedure. She also signed a form indicating her consent to the anaesthetic procedure. In addition to agreeing to undergo the laparoscopic tubal ligation procedure the First Plaintiff, on the advice of the Defendant, agreed to have a curette.
After the First Plaintiff had seen the Defendant on 12 December 2001 she consulted with her General Practitioner again. He was to be the Anaesthetist during the surgery. At this consultation discussion took place regarding his role as the Anaesthetist.
Tubal Ligation Procedure
The Defendant described the procedure in the following terms. The patient is first anaesthetised by way of a general anaesthetic. Following this, the patient is then positioned to enable the procedure to be undertaken. Upon the patient being properly positioned, a small surgical incision of about 10mm in length is made, immediately below the umbilicus. The purpose of this is to enable the insertion of a small tube-like instrument called a Trochar. This is done to allow the laparoscope to be inserted inside the patient. The laparoscope (telescope) is connected to a television monitor in the operating theatre and the surgery is undertaken via the television monitor.
Once the fallopian tubes are stretched, another incision of about 5mm in length is made in the area adjacent the pubic hairline of the patient at the mid-line. Another Trochar is inserted into that incision to allow an instrument called an Applicator to be passed through. The Applicator is used to apply clips to the fallopian tubes. All of this is done by visualising the relevant section of the patient's reproductive system on the television via the laparoscope. The surgeon then proceeds to apply clips over each of the fallopian tubes. The clips used are known as Hulka clips. Each clip is applied about 2cm from the lateral edge of the uterus. That is, there is one clip attached to each fallopian tube on either side of the uterus. The purpose of the application of the clips is to occlude the fallopian tubes. In other words, the clips are designed to close each of the fallopian tubes thus effectively sterilising the patient.
The Defendant said that when he first began his career in gynaecology, the only type of surgery then used was to actually ligate the fallopian tubes. In other words, to tie each fallopian tube. It was from this procedure that the common expression “tubes tied” arose. He said that in the early 1970's another procedure was developed using the technique of cauterising in which the fallopian tubes were actually burnt and then divided. He said that subsequently, the clip application became the preferred method of occluding the fallopian tubes. There were two types of clips in vogue at the time of the surgery of the First Plaintiff (and still in vogue), one called the Hulka clip and the other, the Filchie clip. Both types of clips perform a similar function.
The First Plaintiff's Tubal Ligation Procedure
The First Plaintiff underwent a laparoscopic tubal ligation procedure at the Hospital on 6 February 2002. The surgery was performed by the Defendant, with her General Practitioner as the Anaesthetist. The Defendant does not have any independent recollection of the surgery, however, the Hospital Notes of the surgery written by the Defendant were available. He gave his evidence regarding the surgery by refreshing his memory from the Hospital Notes. Those Notes were made at the time of the surgery.
The Defendant said that after the First Plaintiff was positioned, he gave her a curette. The purpose of the curette was to remove anything which was likely to account for the abnormal bleeding, which the First Plaintiff had reported at the consultation in December.
The Defendant said that with regard to the laparoscopic tubal ligation, the Hospital Notes indicated he used a Hassan method of entry. By this method a surgical incision is made just below the umbilicus which allows the laparoscope to be inserted. The Defendant said that where the Hospital Notes state "normal pelvis", this is an indication that he made an inspection for the purpose of determining whether there was any abnormal pathology. He said that in the First Plaintiff's case that there had been two previous entries into the abdominal cavity. One was an earlier laparoscopic procedure and the other was an appendectomy. He said that in any procedure such as this an inspection is made to ensure that the procedure can be carried out and to determine if there is any other pathology present. The Defendant said this entry in the Hospital Notes indicates that he carried out an inspection by visualising the area of the reproductive organs and the surrounding organs and tissue by use of the laparoscope.

The Defendant said, that a further incision was made in the area known as the suprapubic area, which is just above the pubic hairline. Following this a Trochar was inserted which then allowed the Defendant to use the Applicator to apply the Hulka clips to the First Plaintiff’s fallopian tubes.
The Hospital Notes contained a diagram which the Defendant said indicated the position of the application of the Hulka clip on each fallopian tube. He said that in applying the clips, the surgeon needs to be careful that each clip is applied solely to the fallopian tube. The Defendant said the surgeon needs to be careful not to also apply the clip to the round ligament or the ovarian ligament. If this occurred, the clip would not be successful in occluding the fallopian tube. The Defendant said the diagram was made at the time of the surgery and allows him to state that he had properly visualised the surgical site and had applied each clip in the correct position.
The Defendant said that he did not consult with the First Plaintiff following the surgery. The follow-up regarding the surgery was the responsibility of her General Practitioner.
Before leaving this topic, I should note that I have not referred to every step taken by the Defendant in the surgery as it is unnecessary to do so.
Events Following the Surgery
After the surgery the First Plaintiff was feeling quite unwell. She consulted with her General Practitioner the following day. Her health gradually improved. When she was ready, the First Plaintiff resumed sexual relations with the Second Plaintiff. She did not adopt any contraceptive precaution as she had undergone the tubal ligation surgery.
Some time later, the First Plaintiff said she began to feel sick in the mornings. She consulted her General Practitioner who undertook some tests. Her General Practitioner advised her that she was pregnant. The First Plaintiff said that she was totally devastated on receiving this advice.
The First Plaintiff said that shortly after being advised by her General Practitioner that she was pregnant, she telephoned the Defendant. The First Plaintiff said that she told the Defendant that she was pregnant and asked him how this could have happened. She said the Defendant said that he was sorry and that it had never happened to him before. It is the only occasion that the First Plaintiff spoke to the Defendant subsequent to her becoming pregnant.
The First Plaintiff said that in the ensuing months, her relationship with the Second Plaintiff was difficult. There was considerable stress between them. The Second Plaintiff wanted her to terminate the pregnancy but she refused to do so. She said that she was against abortion.
On 30 March 2003 her fifth child J was born. The First Plaintiff clearly loves J. She gave evidence about the joy she receives from her child. At the time of trial, J was four years of age. She said that it was intended that J would start school in the second term of this year.
Following the birth of J, the First Plaintiff recommenced using the Pill.
Shortly after becoming pregnant, the First Plaintiff consulted with solicitors regarding these events. Proceedings were instituted in this Court in March 2006. There is no evidence regarding the reason the proceedings were instituted so long after the First Plaintiff consulted with her solicitors.
Consultation with Defendant in December 2001
I mentioned earlier that at the First Plaintiff's request, her General Practitioner referred the First Plaintiff to the Defendant for the purpose of undergoing a tubal ligation procedure. She consulted with the Defendant on 12 December 2001 at the hospital. Both the First Plaintiff and the Defendant gave evidence regarding the consultation. It is necessary to refer to the evidence of each of them.
(i) Evidence of the First Plaintiff
At the commencement of the First Plaintiff's consultation with the Defendant, she said she told the Defendant that she did not want any more children; that she had four and was not coping. She told him that she wanted her tubes tied.
The First Plaintiff said that the Defendant gave her a physical examination during the consultation but did not examine her internally. She said that the Defendant talked to her during the physical examination. She said she cannot remember much of the conversation whilst she was being examined [T.103.34]. Indeed, she said that she had very limited memory of the consultation. It was clear that time had eroded much of her memory regarding the consultation.
The First Plaintiff said that she could recall the Defendant explaining to her the tubal ligation surgery. She could not remember the words. The First Plaintiff said that the Defendant told her that surgeons no longer use the cauterising procedure. She said the Defendant told her that clips were now used. The First Plaintiff said the Defendant told her that he used a laparoscope which enabled him to make observations on television. She said, the Defendant explained that a small incision would be made just below her umbilicus. The First Plaintiff said that the Defendant stated that he used a laparoscope to visualise the area of the fallopian tubes [T.107.24]. She could not recall the Defendant drawing a diagram on a piece of paper but she could remember that the Defendant produced a diagram of the inside of a female [T.108.18]. I understood from this evidence that the First Plaintiff was referring to a formal diagram of the female reproductive system in contrast to a drawing made by the Defendant.
The First Plaintiff said the Defendant informed her that clips would be placed on her fallopian tubes and that he used the diagram of the female reproductive system to assist in explaining this procedure [T.113.17]. The Defendant also mentioned another incision in the pubic area through which the instrument was introduced to apply the clips [T.108.3]. This incision was additional to the incision below the umbilicus through which the laparoscope was introduced.
It was the First Plaintiff's evidence that the Defendant mentioned the risk of becoming pregnant, even after the surgery. Part of her evidence on this subject was a little confusing. In her evidence in chief, the First Plaintiff said that the Defendant told her "…that there is a risk, a 2000:1 percentage that I could fall pregnant" [T.32.32]. She also said he told her"… the percentage was 2000:1 and that's what the risk was" [T.38.6]. When she was later queried about the expression "2000 to one percentage" she said she was not sure if the Defendant used the word "percentage" but she was sure he said "2000 to 1" [T.114.25]. It was her evidence that the Defendant did not tell her from where that figure was derived. The First Plaintiff said she did not remember the Defendant using the expression "in his hands" when he was describing the risk in numeric terms. She said that from the figure given by the Defendant she understood there was a small risk or a small percentage that after having the surgery, she would become pregnant [T.115.27 to T.115.37]. Later in her evidence she said she understood that there was a small or very small risk of becoming pregnant even if she had a tubal ligation procedure [T.180.27 to T.180.32].
The First Plaintiff said she could not recall the Defendant using phrases like "small chance" or "small risk" or something similar. The First Plaintiff said she could only remember the Defendant describing the risk in numeric terms as 2000 to 1. She could not recall the Defendant saying words to the effect that even when the clips were placed in the correct position that sometimes a person falls pregnant.
(ii) Evidence of the Defendant
The Defendant said he did not have any independent recollection of the consultation of 12 December 2001. He gave his evidence relying upon his practice in consultations of this nature. He also gave evidence by using contemporaneous notes (Consultation Notes) he made during the consultation.
The Defendant said that at December 2001 he had a practice he adopted when consulting with a patient regarding a tubal ligation procedure. In the first instance, the Defendant said he would explore the patient's reasons in seeking the surgery. He said he was anxious to ensure that the patient was seeking the surgery voluntarily and not under duress from any source. He also wished to determine whether the patient was ambivalent about the surgery. He said that the surgery had long-range consequences for a person's reproductive situation and it was therefore important to be satisfied that the patient's decision was a definite one. The Defendant said that if he was concerned that the patient was uncertain about undergoing the surgery or the nature of the consultation was one of the patient simply seeking information regarding the surgery, then the consultation would take a different direction. In those circumstances, the Defendant said that he would provide information, including alternatives, to assist in the decision making process and he would send the patient away to digest the information for the purpose of giving further consideration to whether the patient wished to have the surgery. He said this process may involve a further follow-up and the communication of other information.
The Defendant said that the first step in the consultation involved obtaining a full medical history and full social history in the period leading up to the consultation to assist him in determining whether there was a definite wish on the part of the patient to proceed. He said that if he was satisfied, then he would proceed with a physical examination, which examination would include an internal examination. The Defendant said that prior to that examination and during the course of the examination he would discuss the actual nature of the operation and he would also address with the patient the risk that the surgery may fail to sterilise the patient. He said that almost without exception, this latter issue would arise as a result of the patient seeking information regarding failure of the surgery to provide permanent contraception.
It was the Defendant's evidence that in describing the procedure, he would draw a diagram or illustrate what occurred in the procedure with the use of a formal diagram depicting the female reproductive system. He said that he would usually do a rough drawing and also use a more formal reproductive system diagram, but not always. In the case of the consultation in December 2001, he said that he could not remember what he did.
The Defendant said that it was his practice to discuss with the patient the laparoscope and how it functions in the surgery. He said he would also describe the use of the clips and how they were clipped over the fallopian tubes.
The evidence of the Defendant was that he would discuss the risk that the surgery may fail and the patient becoming pregnant. He said it was his practice to describe the risk adjectivally. He said that he did not have a set format describing the risk. The Defendant said that he would at times use "small", "very small", "rare", or "very rare" in describing the risk. He said that sometimes he would provide a numerical figure regarding the magnitude of the risk. He said that if he described the risk in numerical terms, he would not necessarily identify the source of the numerical figure.
I mentioned earlier that the Defendant made Consultation Notes at the time that he was consulting with the First Plaintiff. They were brief notes. To some extent, the structure and contents of the Consultation Notes supports the evidence of the Defendant regarding the practice he said he adopted in a consultation with a patient regarding tubal ligation surgery.
Early in the Defendant's Consultation Notes is a quote - "enough is enough". He said this indicated that they were the First Plaintiff's precise words. He said that the First Plaintiff was a mature woman, with a mature experience having given birth previously to four children and that those words indicated to him that she had no thought of entertaining any extension of her family. The Consultation Notes also record the First Plaintiff's past medical history including the fact that she had been bleeding in the period prior to the consultation. Furthermore, the Consultation Notes recorded that she had two previous procedures, one a laparoscopy and the other, an appendectomy. The Defendant further noted that the First Plaintiff was on the pill, Microgynon 20, and had previously been on the mini-pill. The Defendant noted "op explained". He said that this indicated that he had explained the procedure to the First Plaintiff.
There was a further note - "failure 1/2000". The Defendant said that was a reference to his own experience. He said that he had, up until that time, performed approximately two thousand tubal ligation procedures and that he had never had a failure [T.346.25]. He acknowledged in his evidence that whilst at that time he had not received any notice of a tubal ligation procedure previously undertaken by him having failed, and the patient becoming pregnant, there was the possibility that there may have been a failure or failures, which had not been reported. He said that it was his practice to inform the patient that there was a risk of pregnancy even though the Hulka clips were correctly applied. The Defendant said that he had no memory of what he said to the First Plaintiff regarding the risk of failure. He said that he needed to rely upon his Consultation Notes and his practice in giving evidence.
The Consultation Notes contain a reference to "tender fundus of uterus". The Defendant said that note indicated that he conducted a vaginal examination of the First Plaintiff. Such an examination was in accordance with his practice.
Finally, the Consultation Notes indicated the surgical plan to be undertaken. First, a curettage and thereafter, a laparoscopic tubal ligation.
(iii) College Pamphlet
The Defendant said that at the time the First Plaintiff consulted with him in December 2001 he was familiar with a "Ask Your Doctor" pamphlet relating to tubal ligation and vasectomy surgery, issued by the Royal Australian College of Obstetricians and Gynaecologists ("College") (Exhibit P8). The pamphlet appears to have been published about January 1998. It seems that the objective of the College in producing the pamphlet was that it be used by the members to impart information to patients by handing the pamphlet to patients during the consultation process. The Defendant was a member of the College and had been for many years.
Included in the pamphlet regarding the tubal ligation surgery was the following statement:
The risk of failure is extremely small but approximately 1 in 500 women who have had the operation will become pregnant.
The Defendant said that he did not use the pamphlet in the course of his practice. I will return to this pamphlet and other scientific and medical literature shortly.
Evaluation of the Evidence of the First Plaintiff and the Defendant
I turn first to consider the evidence of the First Plaintiff and the Defendant regarding their evidence of the consultation.
The First Plaintiff had a quite limited memory of conversations which took place during the consultation. Indeed, I felt her recollection of the entire consultation was limited. The Defendant had no independent recollection of the consultation. He relied upon his clinical notes, made at the time, and his practice in such consultations, to give his evidence. I felt that both the First Plaintiff and the Defendant tried to tell the truth in giving their evidence regarding the consultation.
In some cases their evidence was not in conflict. For example, the Defendant said he would usually use a diagram of the female reproductive system during the course of explaining the tubal ligation procedure to a patient. The First Plaintiff said the Defendant used such a diagram when he was explaining the procedure to her.
There was also some evidence which was in conflict. The First Plaintiff said that the Defendant did not give her an internal examination at the consultation on 12 December 2001. The Consultation Notes of the Defendant indicate that he undertook an internal examination. In his notes of the consultation, the Defendant noted that the First Plaintiff was tender at the fundus of the uterus. His evidence, which I accept, is that he would have only made such a note as a result of giving the First Plaintiff an internal examination. He also gave evidence that it was his practice in such a consultation as the one on 12 December 2001, to give the patient an internal examination. In my opinion, the First Plaintiff was mistaken when she said she did not receive an internal examination.
I have already mentioned that the First Plaintiff had a limited memory of the consultation. The issue regarding the internal examination also demonstrates that her memory is not entirely reliable in every instance where she said she had an independent recollection of some of the consultation. She frankly accepted that her recollection of the consultation was limited.
With regard to her evidence of the consultation, what I found impressive was that the First Plaintiff readily made concessions regarding her lack of memory. She did not attempt to hide that she had only a limited recollection. On the other hand, I thought the Defendant was equally impressive in that he was prepared to make concessions against self-interest when they were warranted.
In my opinion, the Defendant's evidence of the consultation based upon his contemporaneous Consultation Notes and his practice, is a more reliable base than the First Plaintiff's evidence, relying upon her memory of events over six years ago. Accordingly, if there is any conflict between the evidence of the First Plaintiff and the evidence of the Defendant then I am of the view that the evidence of the Defendant is more reliable and should therefore be relied upon.
Setting aside the First Plaintiff's evidence of the consultation, I thought that for the most part, I could rely upon the remainder of her evidence relevant to the issue of liability except for one very important section, namely, her evidence relating to the issue of causation. I will come to this evidence later in these Reasons.
With respect to the remainder of the Defendant's evidence, I felt I could rely upon it. His evidence with respect to the surgery was given by referring to his usual practice and the use of his notes. Much of the balance of his evidence largely related to evidence arising from his expertise as an experienced gynaecologist. He clearly has the expertise to give evidence regarding gynaecology.
Findings regarding the Consultation
Having evaluated the evidence of the First Plaintiff and the Defendant, I make the following findings of relevant facts regarding the consultation on 12 December 2001:
·the First Plaintiff had made up her mind prior to the consultation that she wanted to have her "tubes tied";
·at the time of the consultation she did not have any knowledge of the tubal ligation procedure;
·during the consultation the Defendant explained the methodology of the tubal ligation surgery;
·the explanation of the surgery included a reference to a formal diagram of the female reproductive system and the Defendant identified the position on each fallopian tube where the Hulka clips were to be applied;
·the Defendant said to the First Plaintiff that the risk of the procedure failing was 1 in 2000;
·the Defendant described the risk of the procedure failing in a word or words which indicated the degree of risk;
·the Defendant told the First Plaintiff there was a risk she would become pregnant even if she had a tubal ligation procedure and the clips were applied correctly;
·arising from the consultation the First Plaintiff understood that the risk of becoming pregnant after the surgery was small or very small.

It was part of the Defendant’s pleaded case that at the time the Defendant mentioned a failure rate of 1 in 2000 he said words “in my hands” or something similar. The evidence does not establish that such an expression was used to indicate that the numerical failure rate reference arose from his own experience. The Defendant frankly stated that when he provided a numerical figure with reference to the failure rate during a consultation, he would not necessarily indicate the source of that figure [T.350.6]. He did not express anywhere in his evidence that on this occasion when he expressed the ratio of 1 in 2000 that he stated “in my hands” or like words to indicate he was referring to his experience. The Defendant’s Consultation Notes only refer to the “failure 1/2000”. The First Plaintiff said she could not recall if the Defendant used the words “in my hands” or not.
In the end there is simply no evidence to support the Defendant’s pleaded case of using the words “in my hands” or similar words to indicate that the failure rate ratio related to his experience.
The College Pamphlet and Other Medical Studies
I mentioned earlier that in 1998 the College published a pamphlet. It was entitled Tubal Ligation and Vasectomy - Contraception for Women and Men. I also stated that it is clear that the objective of the College in publishing the pamphlet was to make it available to members of the College, for the purpose of practitioners furnishing it to a patient seeking a tubal ligation procedure (or vasectomy procedure). In the early part of the pamphlet it stated:
These are very effective forms of contraception with a failure rate of less than 1% for both sexes.
The pamphlet referred to the various methods of blocking the fallopian tubes including the use of clips. Included in the pamphlet was a brief description of the surgery using a laparoscope and clips. Under the heading of Risks and benefits, as I mentioned earlier, was the following paragraph:
The risk of failure is extremely small but approximately 1 in 500 women who have had the operation will become pregnant.
It was the Defendant's evidence that the pamphlet could be taken up by practitioners who wish to use it but it was a matter of choice. His evidence was that there was no directive from the College that members should use it. He accepted that underlying the production of the pamphlet is the implication that the College recommended its use. However, he said the position was that each member was free to choose whether the pamphlet was used or not. The Defendant said that he did not choose to use it except in cases where a patient may want more written information. He said he did not use it because it did not suit his method of practice. He said that he preferred to provide oral explanations, together with use of a drawing by him or a more formal diagram (or both), explaining the surgery.
The Defendant acknowledged that there were other studies in circulation of which he was aware in 2001 and 2002 relating to the failure rate of tubal ligation surgery. One such study was a United States study published in 1997 which was referred to by the acronym “CREST”. This study appeared to be over a long period. It reported tubal occlusion failure rates close to 18 per 1000 but it stated that those results depended upon the occlusion method used and the characteristics of the patient. The Defendant was familiar with that study. He said he put that aside because the failure rate was not his experience.
The Defendant described these published studies by using the expression "the literature". This is the terminology used by the expert witnesses, who also gave evidence, to describe generally the published articles and other written material. I will adopt that expression in these Reasons when I refer to such studies and published articles.
The Defendant said that in December 2001, it was his opinion that the literature generally indicated the failure rate of tubal ligation surgery was 1 in 500 or 1 in 1000. He said the failure rate statistics were referrable to a female becoming pregnant. The Defendant said that the delivery rate of a baby was significantly less as approximately 50% of pregnancies following failure of tubal ligation surgery were ectopic. An ectopic pregnancy is where the pregnancy is developed in the fallopian tube as opposed to the womb. Ectopic pregnancies require termination. The Defendant also acknowledged that none of the statistics from any of the studies took into account pregnancies following the procedure, which were not reported.
The Defendant said that it was not his practice to give patients any information regarding the failure rates quoted in any of the literature as he did not believe that was necessary. It was only if a patient specifically wanted information in published literature that he would be prepared to inform the patient regarding these published rates [T.399.13]. He said he preferred the method he generally adopted to inform a patient, to which I made reference earlier.
Another pamphlet circulated by the College was also introduced into evidence. This pamphlet was produced in 2004 and clearly was not available in December 2001. The pamphlet contained far more information relating to the procedure than the 1998 pamphlet. It is doubtful that it has any relevance although it did express the view that the risk of pregnancy in the first year after the tubal ligation procedure is about 1 or 2 for every 1000 women.
I pause here to mention that Dr Michael McEvoy, an experienced Gynaecologist, gave evidence in the Defendant's case. He is a member of the College and a member of the College's Medico-Legal Committee. I will return to his evidence in more detail later. For present purposes I wish to refer to his evidence regarding the 1998 College pamphlet and the other literature regarding failure rates. Although his evidence at times varied regarding the statistics of failure from 1 in 500 to 1 or 2 in 1000, he said the statement in the 1998 pamphlet of 1 in 500 was around the mark. However, he emphasised that this statistic was not accurate if it was treated as applying to the first year after surgery.
He described statistics such as those contained in the 1998 College pamphlet and in other published literature as generic figures. He said he used this expression because the statistics are produced from the results of surgery conducted by surgeons of all levels of experience and operative skills. In other words, the statistics include the results from surgeons who are inexperienced and surgeons with great experience and also surgeons with varying degrees of operative skill. Dr McEvoy said the failure rates of sterilisation depend on many factors including the experience of the operator, technique, operating theatre equipment, as well as patient factors such as obesity, adhesions and scarring.
With regard to the CREST results, Dr McEvoy said they were referrable to all methods of sterilisation. He said that the modern clip sterilisation method had limited availability in the United States until recently. It was his opinion that these results were based on out‑dated techniques and might have over-estimated risk compared to the modern clip method.
Dr McEvoy said that the 2004 pamphlet produced by the College was to be used by members on their own volition. He said that it is by no means standard for members to use the pamphlet. He said it is his view that members of the College used the 1998 pamphlet in, or around December 2001, even less than they use the current 2004 pamphlet.
Dr John Newlinds, who is also an experienced Gynaecologist, and a member of the College was called to give evidence in the First Plaintiff's case. In broad terms he gave similar evidence regarding the variables which are included in statistics regarding the failure rate of tubal ligation surgery published in various literature. He agreed with the evidence of Dr McEvoy regarding those variables [T.153.10].
Both Dr Newlinds and Dr McEvoy acknowledged that there was a wide range of failure rates published in the literature. I accept the evidence of Dr McEvoy and Dr Newlinds regarding the literature.
Finally, I should mention that whether the Defendant should have furnished the college pamphlet to the Plaintiff is not an issue. The only relevance of the pamphlet is its contents and specifically the reference to a failure rate of 1 in 500.
Evidence of the Second Plaintiff
The Second Plaintiff gave evidence. He said the fourth child, B, had been planned. It was decided that he and the First Plaintiff would have another child to keep the third child company. He said that after B was born, the First Plaintiff suffered from depression. He said it was agreed between them that the First Plaintiff would not have any more children. The Second Plaintiff said that they were not in a financial state to have any more children. He said that the First Plaintiff underwent sterilisation surgery. He said she became pregnant shortly after the surgery. The Second Plaintiff said he became quite depressed when he learnt that she was pregnant. He said he wanted to have the pregnancy terminated but the First Plaintiff refused. He said this and other factors caused considerable tension between them.
The Second Plaintiff said that after the birth of J, he and the first Plaintiff purchased a new house to enable the family to be properly accommodated. He said they also purchased a larger motor vehicle to transport their large family.
Expert Medical Evidence
I mentioned earlier that Dr Newlinds and Dr McEvoy gave expert evidence.
The evidence of Dr Newlinds and Dr McEvoy also included their respective opinions regarding the extent of the information which a gynaecologist needed to convey to a patient about the risk that tubal ligation surgery could fail, with the patient becoming pregnant. They also provided their respective opinions regarding whether the information conveyed by the Defendant to the First Plaintiff met the standard required of an ordinary skilled gynaecologist. I now turn to consider that evidence.
(i) Evidence of Dr John Newlinds
Dr Newlinds expressed the opinion that the stated failure rate by the Defendant of 1 in 2000 was considerably more optimistic than the failure rates provided in the published literature and in his own personal experience. Indeed, in his Second Report dated 6 March 2007, he described the failure rate stated by the Defendant as “a manifest underestimation”.
In his Report of 20 February 2006, Dr Newlinds expressed the view that "the more generally accepted failure rate is in the order of 1/200 - 1/500". When he gave evidence he said that the failure rate accepted by gynaecologists was 2 or 3 per 1000 [T.125.8]. Dr Newlinds said it was his opinion that around December 2001 the failure rate was 1 in 200 although he said he could accept a failure rate of 1 in 500 as the outer limit [T.128.11]. He explained that the variation in figures took into account variables such as the skill of the surgeon and that the patient was better equipped to deal with the surgery "… and that sort of thing". He did not explain what he meant by "the patient being better equipped to deal with the surgery". Furthermore, he did not expand on the words "… that sort of thing".
Dr Newlinds expressed the view that he did not think that the failure rate "in good hands" is of the order of 1 in 2000 [T.131.10]. However, he said that the procedure does not fail very often "in good hands" [T.125.38].
Dr Newlinds said the first matter which should be conveyed to the patient is that there was a risk of failure of the procedure even though it was performed properly and therefore a risk that the patient could fall pregnant following the procedure [T.145.20]. He said that the patient should be provided with information to allow the patient to appreciate the magnitude of the risk [T.145.30]. He also agreed that the level of information conveyed to some extent depends on the inquisitiveness of the patient [T.145.37]. I understood him to be saying that the level of information to be conveyed depends to some extent, on the depth of information sought by the patient.
Dr Newlinds said that the source of the information which he imparted to patients were from the combination of what the general population of gynaecologists were doing; his own experience, and information contained in the literature. He said he advised of the numerical ratio of the failure rate. Dr Newlinds said that he would also give the pamphlet from the College to patients from time-to-time but not in every case [T.148.2].
Dr Newlinds said that a competent and experienced medical practitioner should convey his own experience regarding the failure, and the failure rate, sourced from recognised literature [T.171.1]. This evidence of Dr Newlinds should be seen in the light of earlier evidence where he said that in imparting information to a patient, a gynaecologist would not be expected to quote the results of collaborative studies (literature) by identifying them or describing their authors and indicating the incidents of failure rates contained in the literature [T.156.31]. Dr Newlinds acknowledged that in 2001 there was a wide range of reported failure across the gynaecology speciality. He said that the specialist medical practitioner would need to synthesise that body of information for the purpose of conveying meaningful information to the patient [T.156.37].
(ii) Evidence of Dr Michael McEvoy
Dr McEvoy's evidence was that the Defendant, in giving the failure rate of 1 in 2000 according to his personal experience, by indicating that that failure rate was "in his hands", met the standard of an ordinary, skilled gynaecologist in imparting information regarding the risk of failure of the surgery to a patient [T.475.18; Exhibit D12 (Report 16 August 2006, p5; Report 17 March 2008, p3)]. It is to be noted that this evidence is premised on the basis that the Defendant used the words "in his hands" when he conveyed that numerical ratio to the First Plaintiff.
Dr McEvoy was of the opinion that when a patient is not seeking detailed information at the consultation regarding the risk of failure of the procedure (he used the word "inquisitive"), then it would not be necessary for a surgeon of Dr Down's experience to refer to the numerical figures in the literature in addition to a numerical failure rate based upon his own experience.
He expressed this opinion initially, in his Report of 16 August 2006, in the following terms:
4. Was it, in your opinion, reasonable for Dr Down to advise that failure in his hands of this procedure was 1 in 2000?
As mentioned above, Dr Down was entirely valid in advising the plaintiff that failure in his hands of this procedure was 1 in 2000. It would have been inappropriate for him to give a generic (including all levels of experience and operative skill) failure rate. Given his level of experience and skill, a failure rate of 1 in 2000 is entirely expected and acceptable.
Dr McEvoy said it was his practice when discussing with a patient the risk of failure, and of the patient falling pregnant, that he would give the patient his failure rate relating to his own experience and also the literature rate. He said that when giving the quoted literature rate that he would explain to the patient that the failure rate of a gynaecologist with considerable experience and operative acumen would be much lower than a practitioner with a lesser level of experience [Report 16 August 2006, p4].
Dr McEvoy said that his personal failure rate was 1 in 3000. He said that when he referred to literature failure rates with a patient he would state the risk of failure as 1 or 2 in 1000 [T.465.34]. In his evidence, Dr McEvoy said that the failure rate expressed in the College pamphlet (Exhibit P8) of 1 in 500 was about the mark in 2001 as a failure rate accepted across the entire spectrum of gynaecologists, covering experienced and less experienced surgeons. It was Dr McEvoy's evidence that he would also indicate the magnitude of the risk by describing it in words such as "extremely small" or "quite small" [T.466.10].
With regard to the numerical failure rates, Dr McEvoy was of the opinion that figures of 1 in 500, 1 in 1000, or 1 in 2000 were not materially different. He said that numerical ratios such as these could properly be accompanied when describing the risk of pregnancy (following a tubal ligation procedure) as "very small", or "quite small", "extremely small", or "rare". He said the most important factor in providing information to a patient is that even if the procedure was performed competently, there is a risk of pregnancy [T.476.10-T.476.35].
When Dr McEvoy was asked how he reconciled his practice of referring to the literature failure rate and his own personal failure rates when consulting with a patient, with his opinion that the Defendant, in referring to only his own personal failure rate or experience, had met the standard required of an ordinary skilled gynaecologist in providing information, he said that his practice was a "sinecure of excellence". He explained his position in the following passage of evidence [T.475.14-T.476.7]:
QBut you say in para.4 or the paragraph number question 4 that it would be inappropriate for him to do so. Why is it appropriate for you to do so and it is inappropriate for him to do so.
AThe question that I was asked was: in Dr Down's hands, what is his failure rate? And he's entirely capable I believe or entitled to say exactly what it is in his hands rather than the generic or literature failure rate which would be 1 in 500 to 1 in 1000.
QDo you say that what you undertake, that is giving the literature material in the way that you have explained and your own personal experience, is something above what would be required as the standard of a competent practitioner informing a patient.
AI believe so and it depends very much as we discussed before on the level of inquiry and the level of ambivalence of the patient and the particular circumstances in which they are uncertain of a procedure etc., or if they are particularly inquisitive about it, the failure rate. The majority of them, they would say: in your hands what is the failure rate that would give it, they wouldn't necessarily go into the most ultimate degree of detail.
QYou don't see it as a necessary piece of information that you should be giving your own experience, which is clearly very important, but also the failure rate as expressed by the literature with the qualification that you have referred. You don't see that as being -
AI think it is a sinecure of excellence but not necessarily a requirement. That would be my personal opinion. It depends on the level of inquiry and level of intelligence and the level of ambivalence of the particular individual.
Evaluation of the Evidence of the Expert Medical Witnesses
I mentioned earlier that both Dr Newlinds and Dr McEvoy were experienced Gynaecologists. They expressed similar opinions in some areas and expressed differing opinions in others. They expressed differing opinions regarding the failure rate of tubal ligation surgery published in medical literature about 2001 and 2002. They expressed different opinions regarding whether a competent, experienced surgeon could have a failure rate of 1 in 2000. Dr Newlinds was sceptical that any surgeon performing tubal ligation surgery could have a failure rate as small as 1 in 2000. Dr McEvoy accepted that the Defendant had a failure rate of 1 in 2000. I should mention that I accept the evidence of both the Defendant and Dr McEvoy regarding their personal failure rates with tubal ligation surgery.
There were a number of aspects regarding the evidence of Dr Newlinds which caused me some concern. In his Report of 20 February 2006, he reported that in the College pamphlet, which he stated was issued about the time of the First Plaintiff's procedure, indicated a failure rate of 1 in 50 or 1 in 100. The pamphlet he was referring to was that published by the College in 2004, and not the pamphlet published in 1998, which was current at the time of the First Plaintiff’s procedure.

Dr McEvoy, in his Report, pointed out that this was a mis-statement of information contained in the 2004 pamphlet. He expressed his opinion that if the failure rate of sterilisation was 1 in 50, then no-one would perform tubal ligation surgery.
During his evidence, Dr Newlinds accepted that he had mis-stated the information contained in the College publication. He agreed with Dr McEvoy's contention that if the rate of pregnancy following tubal ligation surgery was 1 in 50 then no surgeon would perform the surgery. He also said that he did not accept that the failure rate was 1 in 50 or 1 in 100 at the time that he referred to those figures in his Report.
It is difficult to understand why Dr Newlinds did not reach the conclusion that he must have been incorrect when he referred to the rates in his 20 February Report as those put forward by the College as he agreed that no-one would perform surgery if the failure rate was 1 in 50. Apart from that factor it was his opinion that the figures 1 in 50 or 1 in 100 were incorrect. He thought that the failure rate was 1 in 200 to 1 in 500. However, he published these failure rates in his Report without making any adverse comment regarding them. Armed with those two factors I cannot understand why he did not check his conclusion drawn from the College pamphlet again. After all, this was a College publication he was relying upon. It would be expected that the College would be extremely careful in expressing rates of failure in a publication designed for dissemination to patients of members of the College. The figures could not have possibly been correct. A careful check of the College pamphlet would have revealed that he had misunderstood the College figures. Added to this error is the fact that he used the 2004 College pamphlet which was clearly not relevant to the events of 2001 / 2002.
This was not the only mis-statement Dr Newlinds made in a Report. In his second Report of 6 March 2007, in which he was responding to Dr McEvoy's Report of 16 August 2006, he states that Dr McEvoy had quoted him as suggesting a failure figure of 1 in 2000. During his evidence, he was asked to point out where Dr McEvoy made that suggestion. He could not do so. He accepted that the statement he attributed to Dr McEvoy was incorrect.
There was another occurrence in the course of his evidence which I found difficult to comprehend. At one point in cross-examination, he was asked to assume that the Defendant told the First Plaintiff that the failure rate of the surgery in his hands was 1 in 2000. He was asked to make that assumption by Mr Harris QC, Counsel for the Defendant, clearly preparatory to Mr Harris putting some proposition to him. Dr Newlinds appeared to not wish to make that assumption and indeed, was resistant to making it. In the end, that process was abandoned. I could not understand Dr Newlinds' difficulty in making the assumption. Perhaps it had something to do with scepticism regarding the Defendant's statement that his failure rate was 1 in 2000. Indeed, when it was put to him that Dr McEvoy's evidence was that Dr McEvoy’s failure rate was 1 in 3000, he said he was suspicious of that figure. He said he did not think the failure rate in expert hands was 1 in 3000 [T.174.8].
I thought that the mis-quotes which I referred to, and the reliance on the 2004 pamphlet instead of the 1998 pamphlet, were an indication of lack of care and indeed with respect to the mis-quote of 1 in 50 or 1 in 100 failure rate, an indication of a lack of careful thought about the figures before expressing them in his Report.
With regard to Dr McEvoy's evidence, I concluded he was a careful witness. He gave his opinions in a reasoned manner. He impressed as a witness who was very familiar with the subject matters of his evidence.
In weighing up the evidence of both Dr Newlinds and Dr McEvoy I have reached the conclusion that I prefer to rely upon the evidence of Dr McEvoy where it conflicts with the evidence of Dr Newlinds. That is not to say I do not accept some of the evidence of Dr Newlinds. However, as I said, where it conflicts with the evidence of Dr McEvoy, I prefer to rely upon the evidence of Dr McEvoy.
Did the Defendant owe a Duty of Care?
I mentioned at the beginning of these Reasons that it was not in dispute that the Defendant owed a duty of care to the First Plaintiff to provide information regarding the risk of falling pregnant following the tubal ligation procedure.
The concession that the Defendant owed a duty of care was properly made by him. The risk of falling pregnant as a result of the failure of the tubal ligation surgery was a material risk in the sense explained in Rogers v Whitaker12. A reasonable person in the First Plaintiff’s position if warned of the risk would be likely to attach significance to it. In other words, it is the objective limb of the Rogers v Whitaker definition of “material risk” which is applicable to this case.
12 (1992) 175 CLR 479 at 490
As I mentioned earlier, the issues are first the scope or content of the duty of care, in the circumstances of this case and secondly, whether the Defendant fulfilled his duty of care.
Was the Defendant in breach of his Duty of Care?
I have referred earlier in these Reasons to the legal principles applicable to the duty of care owed by the Defendant to the First Plaintiff, regarding the provision of information relating to the risk of becoming pregnant, as a result of the failure of the tubal ligation surgery to sterilise her, the scope of that duty and the relevant standard of care. Those principles do not need repeating. However, it is worth emphasising that whilst the opinions of expert medical practitioners regarding acceptable medical practice is a guide, in considering the standard of care, the ultimate decision regarding the appropriate standard of care is for the Court. The following observations in the Majority Judgment in Rogers v Whitaker makes this clear:13
In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to the “paramount consideration that a person is entitled to make his own decisions about his life”.
(Reference to footnotes have been omitted)
(Emphasis Added)
13 Ibid 487
The standard of care required in imparting information regarding risk to a patient where there is a duty to do so will depend upon the scope or content of that duty of care. As King CJ in F v R pointed out what a careful and responsible medical practitioner is required to disclose to a patient will depend upon the circumstances. In this regard King CJ said:14
What a careful and responsible doctor would disclose depends upon the circumstances. The relevant circumstances include the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information, the temperament and health of the patient, and the general surrounding circumstances.
14 (1984) 33 SASR 189 at 192
This passage was cited with approval by the Majority in Rogers v Whitaker.15
15 (1992) 175 CLR 479 at 488
Whilst King CJ’s comments arose from a case where the issue was whether the gynaecologist had a duty to disclose that there was a risk, those comments are also relevant to determining the scope or content of the duty, once the conclusion is reached that there is a duty to disclose the risk. It is the scope or content of the duty, as I have said, which will determine whether the standard of care has been met.
I have also found that the First Plaintiff came to the consultation with the Defendant on 12 December 2001 having made her decision to have her "tubes tied". She had previously discussed the subject with her partner, the Second Plaintiff, and a decision had been taken. The evidence does not disclose that the First Plaintiff expressed a desire for information at the consultation regarding the procedure itself, or the risk of the procedure failing and she becoming pregnant.
The conclusion that she did not attend the consultation seeking information is to be seen in the context that she had made up her mind to have the surgery before she consulted the Defendant. It was not a consultation where the First Plaintiff was seeking information to assist her in making a determination whether to have the surgery or not. As the Defendant recorded in his Consultation Notes, the First Plaintiff said "enough is enough". The First Plaintiff also came with the knowledge of her mother having been sterilised by the fallopian tubes being occluded, albeit by the cauterising procedure. Furthermore, she was aware that the Second Plaintiff’s mother had undergone tubal ligation surgery. It is against this background that the scope or content of the duty of care is to be determined and whether the Defendant fulfilled that duty of care by furnishing to the First Plaintiff the information I have found he provided.
I have also found that the Defendant, when referring to the risk of the surgery failing and the First Plaintiff falling pregnant, said there was a 1 in 2000 chance and used words like "small", "very small", "rare", or "very rare" when describing the risk. As I mentioned earlier, there is no evidence to support the Defendant's pleaded case that the reference to 1 in 2000 was accompanied by words like "in my hands". It follows that the First Plaintiff was left in the position that she was not told the source of the numerical risk of 1 in 2000. The information imparted to the First Plaintiff, in the consultation, led her to understand that the risk of the procedure failing and she falling pregnant was small or very small. That was her evidence. The question which arises is whether the information conveyed to her meets the standard of an ordinary skilled gynaecologist in the circumstances to which I have referred.
In his evidence, Dr Newlinds said that in his practice he would inform the patient of the level of risk of becoming pregnant understood in the gynaecology profession, what he read in the literature, his own experience, and what he thought was the risk ratio [T.148.2].
Dr McEvoy said in his practice, he would convey to a patient his own failure rate experience and would also quote the literature failure rate of 1 or 2 in 1000. When referring to the literature failure rate, Dr McEvoy said he provided an explanation to the patient that these failure rate figures cover the entire spectrum of gynaecologists, both experienced and inexperienced practitioners, with varying degrees of operative skills. He said that he would also describe the risk in terms of "very small", "quite small", "extremely small" or "rare" [T.476.18]. As I have mentioned, Dr McEvoy said his personal failure rate is 1 in 3000. I understood Dr McEvoy, to be referring to his practice at about December 2001.
Whilst Dr McEvoy said that he generally conveyed that information to his patients he felt that was a "sinecure of excellence but not necessarily a requirement" [T.476.4]. Dr McEvoy was of the opinion that the Defendant, a gynaecologist of great experience, met the standard of care required of an ordinary skilled gynaecologist, by furnishing solely his own experience of 1 in 2000, in advising the First Plaintiff of the risk of failure and of becoming pregnant. He said that in circumstances where the patient was not "inquisitive" the giving of the gynaecologist's personal experience failure rate is adequate and it is not necessary to give the "…generic or literature failure rate which would be 1 in 500 to 1 in 1000" [T.475.20].
Dr Newlinds did not give an opinion directly upon the Defendant's personal failure rate of 1 in 2000 other than to indicate that he doubted the accuracy of that figure. He did not feel that even in "good hands" the risk of failure of the surgery and the patient becoming pregnant could be as low as that figure.
As I mentioned earlier, I prefer to rely upon the evidence of Dr McEvoy where it conflicts with the evidence of Dr Newlinds. He accepts the Defendant's statement that his failure rate was 1 in 2000. In fact, the Defendant said he had performed about 2000 tubal ligation procedures to that time and never had a reported failure. However, he expressed the failure rate to the First Plaintiff as 1 in 2000.
Dr McEvoy's opinion regarding the Defendant meeting the standard was premised on the assumption that the Defendant had informed the First Plaintiff that the risk of 1 in 2000 was "in my hands". In other words, that the Defendant made it clear that the risk figure was his personal experience. As I have stated, there is no evidence to support that he did say this. Accordingly, Dr McEvoy’s opinion that the Defendant had met the appropriate standard cannot be of assistance on this point.
The evidence is that the Defendant simply informed the risk rate of 1 in 2000 and described the risk adjectivally using one of the following word or words, namely, "small”, "very small”, "rare" or "very rare". Whatever word or words the Defendant used it conveyed to the First Plaintiff that the risk was small or very small. In giving this information, has the Defendant fulfilled the standard of care in the circumstances that existed at the time he conveyed that information?
Dr McEvoy said the risk of failure and falling pregnant of 1 in 500 or 1 in 1000 or 1 in 2000 were not materially different and such numerical ratios can validly be described as "very small" or "quite small", "extremely small" or "rare". The 1998 College pamphlet (Exhibit P8) stated that approximately 1 in 500 women who have the surgery will become pregnant and described that risk of failure as "extremely small".
In his written Outline of Argument, Mr Ward submitted that it was immaterial whether the Defendant had used words “in my hands”, or similar words. As I understand the submission, whether the words were used or not, the numerical ratio supplied by the Defendant was far beyond that of approximately 1 in 500 contained in the College pamphlet which he submitted was the relevant numerical ratio. He submitted that a gynaecologist in the position of the Defendant is obliged to give the “industry standard” [T.553.22] of 1 in 500. Mr Ward submitted that whilst the gynaecologist might furnish the numerical ratio relevant to his own experience, he needs to also provide the College numerical ratio as the “industry standard” risk figures.
In my opinion, the Defendant failed to meet the standard required of him in that he did not make it clear that the numerical ratio of 1 in 2000 related to his experience. Using the standard of an ordinary skilled gynaecologist, such a practitioner would have made it clear. In my view, where the gynaecologist’s personal experience is conveyed in numerical terms, it is important that it be made clear to the patient that it refers the gynaecologist’s failure rate. The personal experience of the gynaecologist would be of great significance to the patient.
I am also of the opinion that where the numerical ratio of the gynaecologist’s personal failure rate is conveyed, either in response to questioning by the patient or being volunteered by the gynaecologist, then in order to provide a proper balance for the patient, the literature failure rate should be conveyed. The picture would not be complete otherwise. The fact that the gynaecologist does not know whether there has been a pregnancy, or more than one, following a procedure which has not been reported to him provides support for the proposition that the personal figures should be balanced by furnishing the literature figures. In the circumstances here, a reference to approximately 1 in 500 as the numerical risk contained in the College publication, or a reference to 1 or 2 in 1000 which would appear to have been accepted as the literature figures at the time, would have sufficed. I think the practice adopted by Dr McEvoy in briefly explaining that the literature figures cover the entire spectrum of gynaecologists both experienced, and inexperienced, and with varying degrees of operative skills would have needed to accompany the literature figures in order to make them meaningful.
It follows from my conclusion I would have rejected the opinion of Dr McEvoy that even if the Defendant had used the words “in my hands” or similar when furnishing the numerical ratio, that in the circumstances of this case, the Defendant would have met the standard required of him. Once the Defendant introduced his personal figures, in my opinion, he would have needed to proceed, as I have outlined above, by giving the literature figures, to meet the standard of care.
In my view, the fact that the Defendant also described the risk in one of the adjectival ways referred to earlier does not in some way remedy or mend his omission to make it clear that the numerical ratio related to his own experience. Furthermore, even if the Defendant had made it clear that the figures related to his personal experience and described the risk in one of the adjectival ways, that would not have spared him from the obligation to refer to the literature figures in the manner I have described.
As I stated, the failure of the Defendant to explain that the failure rate ratio of 1 in 2000, was his personal experience, standing alone, leads to the conclusion that the Defendant did not meet the standard of care required of him. However, as I have said, even if the Defendant had made it clear, his failure to also furnish the literature numerical failure rate at the same time, and provide the explanation regarding that figure as I explained earlier, would also have led me to the conclusion that he had not met the standard of care.
It follows from my conclusion that the Defendant has breached his duty of care.
Causation
(i) Issue
Having determined that the Defendant was in breach of his duty of care, the final question to resolve is whether the First Plaintiff has established, on the balance of probabilities, that she would not have undergone the tubal ligation surgery if the Defendant had met the standard of care by providing adequate information regarding the risk of pregnancy following the surgery. In other words, the onus is on the Plaintiff to prove that the damages claimed were caused by the Defendant’s breach of duty of care.
(ii) Legal Principles
It is not in dispute that the causation test is subjective. In Rosenberg v Percival McHugh J in the High Court explained the causation question:16
Under the Australian common law, in determining whether a patient would have undertaken surgery, if warned of a risk of harm involved in that surgery, a court asks whether this patient would have undertaken the surgery. The test is a subjective test. It is not decisive that a reasonable person would or would not have undertaken the surgery. What a reasonable person would or would not have done in the patient’s circumstances will almost always be the most important factor in determining whether the court will accept or reject the patient’s evidence as to the course that the patient would have taken. But what a reasonable person would have done is not conclusive. If the tribunal of fact, be it judge or jury, accepts the evidence of the patient as to what he or she would have done, then, subject to appellate review as to the correctness of that finding, that is the end of the matter. Unlike other common law jurisdictions, in this field Australia has rejected the objective test of causation in favour of a subjective test.
It follows from the test being subjective that the tribunal of fact must always make a finding as to what this patient would have done if warned of the risk. In some cases where there is no direct evidence as to what the patient would have done, the judge may infer from the objective facts that the patient would not have undergone the procedure. In exceptional cases, the judge may even reject the patient’s testimony as not credible and then infer from the objective facts that the patient would not have proceeded.
(References to footnotes have been omitted)
16 (2001) 205 CLR 434 at 443 [24 – 25]

Whilst these observations are directed to a case where there has not been any warning of risk, they are equally apposite where, as in this case, the breach of duty of care arises because the Defendant failed to adequately inform the First Plaintiff of the risk.
In Gover v The State of South Australia and Perriam Cox J explained the necessity of proving causation in these terms:17
So far as basic principle is concerned, I should have thought that the patient who pursues his claim in negligence – and that is the way this plaintiff’s claim was presented – cannot succeed unless he satisfies the court that he would not have submitted to the operation or other medical treatment in question had the defendant doctor done what he should have done … If the patient fails on this point of fact, he would have failed to prove that the negligent treatment or advice of the doctor caused the damage or hurt of which he now complains. In short, the case would break down at the elementary level of causation. Breach of duty without damage is not actionable.
17 (1985) 39 SASR 543 at 564
Cox J went on to discuss the practical problems which arise in applying the subjective test. His Honour said:18
It must be acknowledged that there are practical difficulties in applying the subjective test in cases of this sort. The court has to reach a decision about a topic to which the patient, in most cases, will not have addressed his mind at the time that matters most. His evidence as to what he would have done is therefore hypothetical and is very likely to be affected, no matter how honest he is, by his own particular experience. The application in this field of the ordinary rule governing liability in negligence is also criticized as raising a considerable practical barrier for would-be plaintiffs. It will often be very difficult to prove affirmatively that a plaintiff would not have taken a risk, say, that the evidence shows that many other people freely take. I am not sure that the application of the subjective test will always be disadvantageous to a plaintiff, rather than the other way round. At any rate the basic causation principle governing actions in negligence plainly supports, in my opinion, the subjective test…
I make one final observation. Although I have held that the onus of proving causation in a case such as this rests on the patient, and his hypothetical evidence on the subject will not necessarily be decisive, where he has in fact shown that the doctor was in breach of his duty to warn or to inform, and that he himself has been injured by reason of the treatment carried out by the doctor, the court must not be excessively slow in reaching a conclusion on the matter of causation that is favourable to the plaintiff. It will always be a matter, however, of making the decision that the evidence requires.
18 Ibid at 566-567
In Rosenberg v Percival Gummow J made reference to the question of proving causation and adopted some of the observations of Cox J in Gover v South Australia and Perriam on that subject. His Honour stated:19
The question is whether the particular patient would not have had the treatment had a warning been given. This subjective criterion, it has been recognised, involves practical questions of proof. The court must deal with hypothetical considerations as to what the patient in question would have done had a warning been given. In Gover v South Australia and Perriam, Cox J said:
The court has to reach a decision about a topic to which the patient, in most cases, will not have addressed his mind at the time that matters most. His evidence as to what he would have done is therefore hypothetical and is very likely to be affected, no matter how honest he is, by his own particular experience.
19 (2001) 205 CLR 434 at 462 [87]
His Honour added:
It will often be very difficult to prove affirmatively that a plaintiff would not have taken a risk, say, that the evidence shows that many other people freely take. I am not sure that the application of the subjective test will always be disadvantageous to a plaintiff, rather than the other way round”.
(References to footnotes have been omitted)
Similar observations regarding the subjective test of causation and the hypothetical nature of the evidence of a patient relating to the issue of causation were expressed by Kirby J in Rosenberg:20
The practical problems presented by adopting a subjective criterion must, however, be recognised. They have been noted in many earlier decisions. When Chappel was before the New South Wales Court of Appeal, Mahoney P commented on the element of “unreality” that was involved in considering an injured person’s ex post assertion of what he or she would have done if given a warning judged later to have been necessary. Allowing that the patient concerned is sufficiently disappointed with the outcome of some healthcare procedure that he or she has ventured upon expensive, time-consuming and stressful litigation to obtain redress, it is scarcely conceivable that such a patient would destroy the case by equivocating in evidence over such a matter.
It is the inherent unreliability of such self-serving testimony that has persuaded courts in most parts of the United States and the majority of the Supreme Court of Canada to adhere to some form of modified objective standard.
(Reference to footnotes have been omitted)
(See also the comments of Gleeson J in Rosenberg v Percival).21
20 Ibid at 485 [155-156] See also: Chappel v Hart (1998) 195 CLR 232 per Kirby J at 272-273
21 (2001) 205 CLR 434 at 441-442 [16]
Again, whilst all these observations were directed to a case where there had been a failure to warn (as were Cox J’s comments in Gover), they are equally apposite to the circumstances here, where there has not been a failure to warn, but the breach of duty arises from a failure to provide an adequate warning of risk.
(iii) The Evidence of the First Plaintiff
The First Plaintiff said that she thought the risk of falling pregnant following the surgery of 2000 to 1 as “…pretty good odds … I thought that I would be safe.” [T.61.21]. The First Plaintiff said that if the odds were a lower figure she would have asked for another expert opinion or asked if there was another way, such as an hysterectomy, or if she needed to take other precautions after the operation [T.62.13]. The First Plaintiff said that if the odds were 1 in 1000 or 1 in 500, she would not have had the operation as there was too much of a risk [T.63.13;63.32]. On reflection that evidence does not appear particularly helpful. The evidence stands alone. In other words the answers regarding those ratios do not indicate, the source of those ratios. The reference to 1 in 500 or 1 in 1000 can only be references to what Dr McEvoy refers to as the “generic figures”, but the questions from which those answers were given did not indicate any source.
In any event, that evidence taken in its bare form, needs to be viewed against the background of the circumstances which existed at the time of the consultation with the Defendant on 12 December 2001.
I earlier mentioned that after the birth of her fourth child, the First Plaintiff had decided that she did not wish to have any more children. The First Plaintiff’s medical notes of the clinic, where her General Practitioner practices, record that during a consultation on 25 April 2001, the First Plaintiff raised the subject of a tubal ligation examination. This would appear to have been during her pregnancy with her fourth child. The First Plaintiff denied that she had spoken to a doctor regarding tubal ligation at the time. I have earlier expressed the view that her memory of events was limited. I prefer to rely on the medical notes. As a result, I find that the subject of tubal ligation was raised by her at the time.
In any event, what is not in dispute, is that she made a definite decision to have her “tubes tied” following the birth of her fourth child. She discussed the matter with her partner, the Second Plaintiff, and they reached an agreement that she would have the procedure. She was aware that her mother had undergone a sterilisation procedure, which involved the fallopian tubes being cauterised. Cauterisation of the fallopian tubes was the accepted method of sterilization at the time. She also knew that the Second Plaintiff’s mother had also undergone tubal ligation surgery.
The First Plaintiff had undertaken contraception for the previous fifteen to sixteen years by taking the Pill. She had been taking Microgynon 20. The First Plaintiff knew there was a risk that she could become pregnant whilst taking the Pill. She understood the risk to be small or very small. The First Plaintiff did not know or seek to find out what was the degree of risk expressed as a percentage. She said she had not fallen pregnant whilst using the Pill so she thought it was safe.
As I mentioned, the First Plaintiff did not wish to have any more children. She consulted with her General Practitioner, on 3 October 2001 for the purpose of having her tubes tied. Whilst she did not say so in evidence, it is clear that she did not wish to continue with contraception by taking the Pill, otherwise there would be no point in seeking to have the surgery. She was seeking a permanent form of contraception. Her General Practitioner referred her to the Defendant. He wrote to the Defendant on 5 October 2001, informing him that the First Plaintiff wanted her tubes tied.
At the time of the First Plaintiff’s consultation with the Defendant on 12 December 2001, as I have stated previously, she had already made the decision to have the surgery. As the Defendant’s notes recorded, the First Plaintiff said “enough is enough”. She did not attend seeking information regarding the risk of falling pregnant following the surgery. She was not “inquisitive” regarding the risk or the surgery.
The First Plaintiff said she understood from the consultation with the Defendant that there was a small risk or a very small risk that she could become pregnant following the surgery. I have found that the Defendant advised her that the risk was present even if the surgery was performed properly. I mentioned earlier in these Reasons that the First Plaintiff’s evidence regarding the numerical risk figure was confused. In her evidence-in-chief she said she was told by the Defendant that there was a 2000 to 1 percentage that she could fall pregnant [T.32.32]. She used the expression “2001 to 1 percentage” on other occasions. During cross-examination later she recanted and said she was not sure the Defendant used the word “percentage”. She said that all she could recall were the figures 2000 to 1.
Having given evidence that she was told the risk of falling pregnant was 2000 to 1, she gave some rather strange evidence. She said she thought this was a better percentage regarding her falling pregnant than staying on the Pill [T.32.32]. This evidence of comparison cannot be accepted in my opinion. It is a product of unconscious reproduction. Her evidence was that all she could remember were the figures 2000 to 1. Even if she mistakenly thought that was a reference to a percentage she could not have made the comparison as she did not have the necessary information to undertake any comparison. The First Plaintiff gave evidence that she was not aware of the risk of falling pregnant in percentage terms or numerical terms whilst on the Pill. She said that all she knew was that the risk was small or very small.
As it turns out, the conclusion she says she reached on the comparison is factually correct. The Defendant said, that the percentage risk of falling pregnant whilst taking the Pill is one percent. Dr McEvoy said that “from the literature again, taking the combined oral contraceptive pill has a failure rate approximately two to three times greater than tubal sterilisation” (Report 17 March 2008 – page 4). If the College figures of risk of 1 in 500 in their pamphlet (Exhibit P8) is accepted then the risk of falling pregnant after tubal ligation surgery expressed as a percentage is 0.5 percent. The risk, if the Defendant’s experience is considered alone, is even lower. Whilst she did not have the information to make a comparison, she said that she believed that the risk of falling pregnant was less if she had the surgery than if she remained on the Pill [T.183.30]. The First Plaintiff said that what was important to her was the relative risk between being on the Pill and having the surgery [T.183.32].
I mentioned that the First Plaintiff was aware that there was a small risk or very small risk of falling pregnant following the surgery. Mr Harris QC, Counsel for the Defendant, submitted that was the important factor for the First Plaintiff. In my opinion, the evidence supports his submission. It is also likely that she gained comfort from the knowledge that her mother and the Second Plaintiff’s mother each had fallopian tube sterilisation procedure and had not fallen pregnant.
In my opinion, all of the evidence militates strongly against acceptance of her evidence that if she had been told the risk ratio was 1 in 1000 or 1 in 500, she would not have proceeded with the surgery. Against the background I have outlined, her evidence is unconvincing. I do not suggest she was being untruthful when she gave that evidence. It is the product of the hypothetical exercise referred to in the authorities of looking back, whilst armed with material which was not before her at the time of the consultation.
It is clear, sadly, that whilst the First Plaintiff said she recognised that there was a small or very small risk of becoming pregnant following the surgery, in her mind she ignored that risk. She said that in her head she did not think she would become pregnant [T.179.34]. The First Plaintiff said that she did not think it would happen to her [T.180.35]. She had converted the risk in her own mind to no risk. In a sense, this is a natural human response to think that the risk might come to pass with someone else, but it would not eventuate in your case.
In my view all of the evidence indicates that if the First Plaintiff had been told that the risk factor was 1 in 500 or 1 in 1000, she would have proceeded with the surgery. If she had been told that the ratio was 1 in 500, or 1 or 2 in 1000, across the entire spectrum of gynaecologists she would have still proceeded with the surgery. If the Defendant had made it clear that the failure rate of 1 in 2000 was his failure rate then this would have been likely to have given her even more assurance. She attended at the consultation with the decision already made to have the surgery. Arising from the consultation she understood that there was a small risk or very small risk. In my opinion, the evidence supports the conclusion that she was prepared to accept a small risk of becoming pregnant. It was a small risk on any view of the numerical figures both in the literature, in the College pamphlet and on the Defendant’s experience. Indeed the college pamphlet described the risk as “extremely small”. It was a risk she was prepared to take.
There is no evidence to suggest that the First Plaintiff was interested in numerical ratios or numerical figures in describing the risk. Her confusion regarding whether the Defendant said “… a 2000 to 1 percentage…” to some degree demonstrates her lack of understanding of the figures. The expression 2000 to 1 percentage bears no relationship to a risk ratio of 1 in 2000.
For all these reasons I do not accept the First Plaintiff’s evidence that she would not have proceeded with the surgery, if she was told that the risk was 1 in 500 or 1 in 1000. Furthermore, I do not accept her evidence that if she was told that the risk was less than 1 in 2000 she would have asked for another expert opinion or that she would have asked the Defendant if there was another way such as a hysterectomy or if she needed to take other precautions after surgery [T.62.13].
The evidence of the First Plaintiff relating to the issue of causation is a product of reconstruction. As I have already mentioned, the very nature of this type of evidence needs to be by way of reconstruction because it was not necessary for the First Plaintiff to consider this question at the time of consultation. It is as the Cases acknowledge a hypothetical exercise. That is the reason why it is necessary to carefully examine and evaluate the factors present at the time of the consultation to determine whether the evidence of a person in the position of the First Plaintiff can be relied upon. In my opinion, those factors overwhelmingly demonstrate that the First Plaintiff would have proceeded with the surgery even if she had received the additional information I have referred to above. The small risk was the important factor for her. As I have stated, sadly, she convinced herself that the risk would not come home to touch her. Because she had been so convinced, the news that she was pregnant devastated her.
The First Plaintiff, (and it follows the Second Plaintiff), have not proved on the balance of probabilities that the Defendant’s breach of duty has caused loss and damage to either of them. I am therefore not satisfied that the Defendant’s breach of duty of care caused the loss and damage claimed by both of them. Accordingly, neither the First Plaintiff’s claim nor the Second Plaintiff’s claim can succeed.
As a result of my decision on liability, it is unnecessary to proceed to assess damages.
There will be Judgment for the Defendant. I will hear the parties on the question of costs.