G, P a & C, P v Down - [2009] SASC 217

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
G, P A & C, P v DOWN
[2009] SASC 217
Judgment of The Full Court
(The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice Kourakis)
28 July 2009
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - LIABILITY IN TORT - DUTY TO WARN OF RISKS
Appeal from a judge of the District Court - respondent performed tubal ligation surgery on the first appellant for the purpose of permanent contraception - first appellant became pregnant shortly after the surgery - trial judge held that respondent breached his duty of care to the first appellant by failing to adequately warn her of the risk that the surgery might fail - trial judge found that respondent's breach of duty did not cause appellants' loss - appellants appealed to Full Court - whether respondent's breach of duty caused first appellant's loss - whether first appellant would have proceeded with surgery if respondent had provided her with complete information as to the risks of pregnancy.
Held: First appellant would have proceeded with surgery even if respondent had provided her with complete information as to the risks of pregnancy - respondent's breach of duty not causative of appellants' loss - appeal dismissed.
Rosenberg v Percival (2001) 205 CLR 434`; Rogers v Whitaker (1992) 175 CLR 47, applied.
Gover v State of South Australia & Perriam (1985) 39 SASR 543, discussed.
Ellis v Wallsend District Hospital (1989) 17 NSWLR 533; F v R (1984) 33 SASR 18, considered.

G, P A & C, P v DOWN
[2009] SASC 217
Full Court: Anderson, White and Kourakis JJ
ANDERSON J.
Introduction

This is an appeal from a decision of a District Court judge. The first appellant in this action (“G”) made a decision after the birth of her fourth child to have her “tubes tied” to provide her with a form of permanent contraception. She underwent tubal ligation surgery in December 2001, whereby clips were placed on her fallopian tubes in order to close them off and permanently sterilise her.
A few months later, she discovered she was pregnant. G and her long time de facto partner, the second appellant (“C”), sued the respondent, who was an experienced specialist obstetrician and gynaecologist. They sued for damages arising from his alleged negligence in performing the surgery and in negligently failing to adequately warn G of the risk that she could still become pregnant after the procedure. Towards the end of the trial, both appellants abandoned their claim that the respondent was negligent in failing to properly sterilise G. The only relevant allegation remaining was the failure to warn.
The trial judge found that the respondent failed to adequately warn G of the risk that the surgery might not be successful. However, the judge then found that this negligence was not causative of any loss or damage. He was of the view that G would have proceeded to have the surgery, even if she had been provided with full information about the risk associated with the surgery.
The main issue in this appeal is whether the trial judge erred in finding that the respondent’s breach of duty of care to G was not causative of any loss or damage. His Honour specifically found that G would have proceeded with the surgery because G only regarded the risk of the surgery failing as small.
The causation test in these circumstances is a subjective one, as it was explained in the reasons of the High Court in Rosenberg v Percival (2001) 205 CLR 434. The appellant had to establish on the balance of probabilities that had she been provided with additional information as to the risk, she would not have proceeded with the operation. I will expand on this later in these reasons.
The respondent filed a notice of contention. The contention is that the judge should also have found that the respondent did not breach his duty of care in the pre-operative advice about the risk of pregnancy.
Background
The appellants had lived in a de facto relationship for approximately 10 or 11 years prior to the surgery. G had two children, who were born in 1992 and 1994, from her previous marriage. In December 1999 a son was born to the appellants. In early 2000, having moved from the city to a country town, the appellants decided to have another child to keep their son company, and in June 2001 G had her fourth child.
In between the births of the last two children, G had been taking the birth control pill Microgynon 20. She had also taken a mini-pill during her periods of breast-feeding. In total, G had been on some form of contraceptive pill for approximately 15 or 16 years prior to 2001. The birth of the last child was difficult, involving some injury to G’s back. The period following the birth was also hard for her, as she suffered vaginal bleeding and was depressed. The appellants were struggling financially. They then decided that they did not want to have any more children. G subsequently decided to have her “tubes tied.” The mothers of both the appellants had previously undergone tubal ligation surgery, and G thought that this would be the best way to ensure she would not become pregnant.
G first consulted her general practitioner in October 2001 to enquire about undergoing tubal ligation surgery. He then referred G to the respondent. The respondent is a specialist obstetrician and gynaecologist. G then had a consultation with the respondent on 12 December 2001 at the Wallaroo Hospital. The respondent discussed tubal ligation surgery with G. It is this consultation that is crucial to the trial judge’s finding that the respondent breached his duty of care to G by failing to adequately warn her of the risk that she could become pregnant after the tubal ligation surgery.
It is not disputed that in relation to the consultation between G and the respondent, G said something like “enough’s enough,” in relation to her having more children, and that she wanted to have her “tubes tied”. At the time of the consultation G did not have any knowledge of current tubal ligation procedures. Specifically she did not know that the fallopian tubes were no longer cauterised and that Hulka clips were applied instead to close them off. The respondent informed G of the methodology of the surgery by reference both to a formal diagram of the female reproductive system and to his hand-drawn diagrams. According to the respondent’s surgical notes, he conducted an internal physical examination of G, something that she had no memory about. The respondent also informed G of the surgical plan to be undertaken, and that she would also have a curette to remedy her vaginal bleeding.
Again it is not disputed that the respondent warned G of the risk that the procedure could fail. He told G that the risk G would become pregnant was 1 in 2000. The risk of 1 in 2000 in fact was based on the respondent’s personal experience with the procedure. The judge found that the respondent did not make this clear to G. The judge also found that the respondent failed to inform G of the general failure rate of the procedure as contained in the published medical literature of the time. That was something in the range of 1 in 500 to 1 in 1000. The judge did however find that the respondent described in words the degree of risk that the procedure could fail as small or very small and that G understood this.
The respondent did not give G any published literature about the procedure such as a pamphlet published by the Royal Australian College of Obstetricians and Gynaecologists.
The judge considered that the respondent had breached his duty of care in the advice given to G by telling her that the risk of failure was 1 in 2000 without adding the qualification that the ratio was based on his own personal experience, and by failing to tell her that the level of risk as published in the literature was between 1 in 500 and 1 in 1000.
The respondent gave evidence that based on his experience the risk of G becoming pregnant whilst taking the contraceptive pill was about 1 in 100. The judge appears to have accepted this evidence. This is important in the final analysis.
The tubal ligation surgery was performed on 6 February 2009. Later, G resumed sexual relations with C, and did not use any form of contraception. In approximately May or June 2002, when her fourth child was about one year old, G started feeling nauseous in the mornings. Testing by her general practitioner revealed that she was pregnant. G said that she was devastated by the news, and she telephoned the respondent shortly after. The respondent apologised to G, and told her that this had never happened to him before. G did not have any further contact with the respondent after that time.
The relationship between the appellants deteriorated, and they struggled financially. Both appellants suffered bouts of depression, and C subsequently lost his job because of his depression. C was apparently at one stage in favour of an abortion, but ultimately they decided against this. On 30 March 2003, the appellants’ third child together was born. The appellants issued proceedings in the District Court in March 2006.
The appellant G’s evidence
The appellant G was educated to year 10 in High School and following that she was employed in various manual occupations, including working in a factory and working as a check-out operator.
As I have indicated, G had two children from a marriage which dissolved before she cohabited with the appellant C. She then had two further children with C before she decided on a sterilisation.
She said that she wanted some better form of contraception to avoid the risk of having any more children. She said that she decided to have her “tubes tied”. She went to her general practitioner who sent her to the respondent, Dr Down. G said that she told him that she did not want any more children and that she wanted her “tubes tied”. He explained to her that he did not perform that exact procedure but that he used clips, and he explained the procedure. She said that he told her it was a 2000 to 1 “percentage” that she could become pregnant after having the surgery. She decided in her own mind that that seemed a lot better than the pill.
During her examination in chief she was asked by the trial judge “What did you think of the odds 1 in 2000”. She answered, “I thought it was pretty good odds, I thought I would be safe”. She was asked what she would have done had she known that the odds were different. She said, “I would have asked for some other expert opinion, maybe asked him if there was another way I could may be have a hysterectomy or if I had to have other precautions after the operations. I didn’t want any more children. Four was enough for me”. She said in answer to a question by her counsel that she would have felt less comfortable with the odds if she had been told that they were 1 in 1000 as distinct from 1 in 2000.
His Honour then asked some further questions. I set out below the questions and answers:
Q.What would you have done if you had received advice that the odds were 1 in 1000?
A.I wouldn’t have taken this operation at all.
Q.You what?
A.I wouldn’t have had this operation at all.
Q.Why not, why would you not have not?
A.Because it was too much of a risk. I would have seeken other advice or asked if there were other precautions I needed.
His Honour then asked a further question:
Q.You said, “One in a thousand”, you thought you would have sought other advice, what did you mean by that?
G answered:
A.I would have asked him if there’s any other procedure or asked him if I had to protect myself in any other way.
Her counsel then asked:
Q.What if he discussed with you a failure rate or success rate of 1 in 500, what would your view have been?
and she answered:
A.I wouldn’t have taken the steps of having the operation at all.
When she was cross-examined it is apparent that G became quite confused in relation to the line of questioning. The line of cross-examination was that she really did not fully appreciate the concepts of percentages, ratios and the odds. She was asked many questions in cross-examination about the risks. She was asked in particular whether she was aware of what the risks were of becoming pregnant whilst taking the pill. She said she knew there was a risk, but she had not become pregnant and therefore she knew she was safe. She agreed that it was not 100 per cent guaranteed that she could not become pregnant whilst taking the pill.
When asked specifically about her understanding of the risk of becoming pregnant whilst taking the pill, she said she could not remember. She then said that she did not have any knowledge or belief of what the actual risk was in becoming pregnant whilst taking the pill. This was an important factor in the reasoning employed by the judge. I will deal with this point later in these reasons.
G agreed that the risk of becoming pregnant whilst taking the pill had never been in her mind as a proportion or a percentage. She agreed that it was enough for her to know that the risk was small, and on that basis she was prepared to take the pill. She agreed specifically that she did not consider the risk in terms of numbers in relation to the pill. She was content to know that it was a small risk. Again this is an important factor in the reasoning of the judge.
She was asked what she would have done if she had known that the risk of becoming pregnant whilst taking the pill was 3 in 1000 or even 1 in 1000. She answered that she would have taken other precautions besides the pill.
She initially did not agree that the risk of 1 in 1000 was small but said later that she accepted that a risk of 1 in 2000 was a very small risk.
She was asked by the cross-examiner:
Q.Whatever the proportion was, whether it was 1 in 2000 or 1 in 1000 or 1 in 500, if the risk was less by having a tubal ligation than being on the pill, you would have had the tubal ligation?
A.No, I wouldn’t have. You see, you keep confusing me.
She was further asked by the cross-examiner:
Q.My point is this, if you had been told “forget about the numbers”, if you had been told that having the tubal ligation involved less risk of being pregnant than being on the pill, which is what you were on at the time, you would have had the procedure whatever the number was.
A.Most probably would have, yes.
She repeated that she was concerned to have a method of contraception which was less risky than taking the pill.
The cross-examiner then put directly to G:
Q.I suggest to you that that is not true and that you would have had the operation if you had been advised that the odds were one in a thousand.
A.I don’t think I would have, no.
G then went on to say:
I wanted something that was there to stop me from having kids so I think that I would have, if it was lower than the pill, and I was safer on the pill I wouldn’t have had the operation.
She was then asked, “If you were safer having the operation than being on the pill you would have had the operation?” and she agreed. G was finally asked:
Q.I suggest irrespective of what actually was the proportionate risk because as long as it was safer to have the procedure you would have the procedure.?
A.That’s correct.
As I have indicated, those passages of evidence illustrate that G’s evidence is somewhat confused. It seems to me, however, that there is a central theme which runs through her evidence and it is simply that, if the operation proposed by the respondent posed an increased risk of becoming pregnant compared with taking the pill, she would not have had the operation. Further, it seems that she did not turn her mind to any comparison between the odds of 2000 to 1 suggested by the respondent as the failure rate of the operation, and the odds relating to the chance of becoming pregnant whilst on the pill. She simply had not turned her mind to the numbers, be they expressed as a ratio or a percentage. As I indicated earlier, when the respondent told her the failure rate was 1 in 2000 she thought it was “pretty good odds”.
The judge’s findings
In his findings the judge, in my view, takes a highly analytical approach to G’s evidence in relation to ratios and percentages. His Honour tends to analyse the evidence very literally. That may be because of the tenor of the cross-examination, which was, as I have already said, somewhat confusing for G.
It appears that His Honour was particularly concerned with matching up G’s evidence with what His Honour referred to as the source of information regarding the probability of pregnancy.
It is my view that His Honour has overcomplicated G’s very simple and basic evidence. At [155] His Honour says that her evidence is not particularly helpful. He also says at [162] that her evidence regarding the numerical risk figure was confused. That much is clear, but in my view that is a product of the questions she was asked and her rather simple and basic approach to the whole topic.
His Honour also says at [163] that the appellant gave “some rather strange evidence” relating to the risk of becoming pregnant of 2000 to 1 being a better percentage than staying on the pill. His Honour rejected her comparison, describing it as a product of “unconscious reproduction”. His Honour found again at [163] “She could not have made the comparison as she did not have the necessary information to undertake any comparison”.
His Honour then correctly observed at [164] that G said “that what was important to her was the relative risk between being on the pill and having the surgery”.
From that analysis of G’s evidence, His Honour goes on to make findings as follows at [166]:
[166]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.
Again His Honour makes findings at [168]:
[168]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.
His Honour further reasons at [169]:
[169]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.

It is my view that His Honour has unnecessarily placed a burden on G to demonstrate some form of understanding of the relevant figures. She was being asked to do this exercise on a hypothetical basis, having not been provided with the information at the time of her consultation. Her thought process, as I have indicated, was simple and basic. She wanted to know whether this operation would reduce the risks of her becoming pregnant but she did not specifically turn her mind to a comparison of ratios or percentages or odds as between contraception via the pill and contraception by means of the operation. She simply wanted something better. She assumed, reasonably, that the fact that the operation was being considered and discussed by the respondent indicated that it would improve her odds.
His Honour’s conclusion is expressed at [171]:
… 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.
It is that conclusion which is challenged by the appellant.
Appellant’s argument
Mr Manetta, counsel for the appellant, argued two main points in his submissions. First, he submitted that whilst the judge correctly directed himself as to the subjective test for causation, he nevertheless misapplied it to the facts by allowing objective considerations to dominate his reasoning. The judge correctly referred to the relevant test at [147] where he set out the passage below in Rosenberg v Percival, where McHugh J summarised the law on causation at [24]:
[24]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.
Mr Manetta referred to this decision as well as Gover v State of South Australia and Perriam (1985) 39 SASR 543, and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.
Cox J in Gover said at 566, 567:
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.
The trial judge referred to each of these decisions and applied the relevant test.
Mr Manetta identified what he called six salient features which distinguished this matter from the decisions referred to above. He submitted that the distinguishing features of this matter as compared with Rosenberg and the other decisions are as follows:
1.G was healthy when she went for the medical advice and was not driven by the need for surgery to remedy a painful condition.
2.G was not so affected by the failure of the operation as to cause her to tailor her evidence retrospectively. She did not suffer any permanent disability.
3.There were other options available to G. Unlike the other cases where there was no other treatment available, she did not have to take risks.
4.The positive misrepresentation by the respondent foreclosed any further inquiry by G.
5.The judge accepted G as a witness of truth, as distinct from the plaintiff for instance in Rosenberg.
6.Once G made out a prima facie causal connection, the respondent had an onus to prove that there was no causal link between the breach by the respondent and the loss or harm suffered by G.
There is some substance in each of those points. However, they really serve to illustrate how each of the decisions referred to and this matter are really based on their own facts. There are, as Mr Manetta points out, the various distinguishing features he referred to. The question is whether the judge in this matter has erred in applying the law to the facts as he found them to be.
The authorities relied on by Mr Manetta and discussed earlier, make it clear that the evidence of a plaintiff in G’s position must be tested against the objective probabilities suggested by all of the circumstances. The authorities enforce the proposition set out earlier by McHugh J in Rosenberg at [24]. The court looks to what a reasonable person would or would not have done in the patient’s circumstances. That consideration 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”.
I have already considered the judge’s finding of facts. It is my view that the most important factual finding is that which His Honour makes at [168] as I have set out earlier in these reasons. The fact is that G was reducing the risk of becoming pregnant by undergoing the procedure as compared with staying on the pill. The odds improved markedly in her favour if she underwent the procedure. Although she did not make a comparison in that manner, it is the basis for the judge’s decision to reject her evidence that had she been given the correct information she would not have undergone the surgery. Very simply, if the respondent had informed G of the less favourable risk ratios in the published literature she would still have undertaken the procedure because even those ratios were much better than those offered by the contraceptive pill.
On the whole of the evidence, it cannot be demonstrated that the judge has made any error. Looked at from the point of view of a reasonable person in G’s position, to test the reliability of G’s evidence, her case on the balance of probabilities is not made out.
It is my view, as I have said, that the reasoning of the judge was over-analytical. It was not necessary to attempt to rationalise G’s evidence in terms of numbers, ratios or percentages. The judge was, in my view, correct in finding that G would have proceeded with the operation had she been given the correct information. If she had been given the correct information, she would have reasoned that the risks were small or very small. Moreover, had she directed her mind to the comparison of the risks of becoming pregnant whilst remaining on the pill as compared with the risks following the operative procedure, she would no doubt have been heartened by the considerably better odds if a tubal ligation were performed.
That reasoning by the trial judge is clearly supported by the evidence. The judge did not accept G’s evidence that had she been given that additional information she would not have proceeded with the operation. In this respect it has not been shown that the judge erred.
The second main point relied on by Mr Manetta has already been touched on earlier in these reasons. It relates to the finding of the judge relating to the causal connection between the misrepresentation by the respondent and the assessment of the risk by G. Mr Manetta submitted that the judge erred in finding that, because G was prepared to accept a small or very small risk of failure, and because the risk was in fact small or very small, the misrepresentation by the respondent did not influence G or was not material to G’s decision to go ahead with the procedure.
Mr Manetta argued that in this respect the judge again allowed objective considerations to replace the subjective standards required. He emphasised that there were three matters in the findings of the judge relating to his reasoning on the hypothetical question posed for G.
The judge found that G was determined to have the procedure when she went for the consultation with the respondent. His Honour also found that G could not have rationally compared the odds of becoming pregnant whilst taking the pill as distinct from having the procedure carried out.
Finally, His Honour found that G was prepared to accept small or very small odds of becoming pregnant. He reasons that, objectively speaking, the actual odds of 1 in 100 or 1 in 500 were small, and the misrepresentation could not have been material to her decision to proceed with the surgery.
I would accept that G was concerned with more than a verbal assurance that the risk was small. To describe the risk of pregnancy in absolute terms as small is after all not very helpful. G’s concern was that the procedure provide better protection than the contraceptive pill. Her evidence that she so understood the advice she was given should be accepted. In my view the trial Judge erred in finding that G would have undergone the procedure for no other reason that she was assured the risk was small. However for the reasons I have given the Judge correctly found that G would have undertaken the procedure because on all of the available literature her risk of falling pregnant was materially lower if she had the procedure than if she remained on the contraceptive pill.
Whilst it was not necessary to attempt to rationalise G’s evidence in terms of numbers, ratios or percentages, the judge was, in my view, correct in finding that G would have proceeded with the operation had she been given the correct information. If she had been given the correct information, she would have reasoned that the risks were small or very small. Moreover, had she directed her mind to the comparison of the risks of becoming pregnant whilst remaining on the pill as compared with the risks following the operative procedure, she would no doubt have been heartened by the considerably better odds relating to the operation.
For the reasons I have set out I would dismiss the appeal.
The notice of contention
Given my conclusion that the appeal should be dismissed, it is unnecessary to deal with the notice of contention. However, in case the matter goes further, I will set out my reasons for also dismissing the alternative contention of the respondent.
The respondent’s arguments on whether there was a breach of duty focus to some extent on G’s lack of appreciation of the numerical ratios or figures relating to the risk. I have already indicated that I think the judge focused too much on this aspect and my same comment applies to the respondent’s argument on the notice of contention.
It was argued that it was unnecessary to inform G of the risks of pregnancy revealed by the medical literature because she was not inquisitive and did not seek further information from the respondent. In this respect it was argued that regard must be had to the individual circumstances of a patient in determining the extent of advice or warning given by the medical practitioner. The individual circumstances include the ability of the patient to comprehend the information: see Rogers v Whitaker (1992) 175 CLR 479 at 490. The majority of the High Court in Rogers approved the statement of King CJ in F v R (1984) 33 SASR 189 at 192 where His Honour included in the relevant circumstances the desire of the patient for further information.
The respondent argues that G would not have attached significance to the further information which the judge found should have been conveyed to G. I reject that submission. It is the relative risk of pregnancy between the contraception currently used and tubal ligation that is critical to women contemplating the latter procedure and which was important to G. It is the duty of a surgeon who gives advice on the issue to disclose all material information bearing on that relative risk.
The judge found that the respondent failed to make it clear to G that the discussion of a risk of 1 in 2000 related only to his personal experience. In that respect the judge found that the respondent failed to meet the requisite standard of care. His Honour also found that the failure to refer to other information available at the time, including published literature, meant that G did not have a full explanation of the risks. I agree with the judge in both respects. The judge’s finding was clearly open on the evidence. He had the advantage of assessing G in the witness box and forming an opinion of her and her ability to understand and interpret the advice of the respondent. The judge’s conclusions have not been shown to be wrong. I would therefore dismiss the notice of contention.
Conclusion
As I have said, there was evidence from the respondent that the risk of becoming pregnant whilst on the pill was about 1 in 100. Clearly, G’s evidence, had she known that risk, had to be interpreted on the basis that she would have proceeded to have the operation because, assuming she had been given the correct information, the worst odds for the operative procedure, based on the literature available, were 1 in 500. In other words, it was at least five times better, on the odds, to have the operation than to stay on the pill. As I have said, there was no evidence of any other viable options which were appropriate in the circumstances. In particular, it was not G’s case that she would have both undergone the operation and continued to take the contraceptive pill.
It is for that reason that I agree with His Honour’s conclusion that G would have proceeded to have the operation had she been given the correct information about the risks of the operation and that therefore the negligence of the respondent in not providing her with sufficient information to appraise her of the risks was not causative of the end result.
I would dismiss the appeal and the notice of contention.
WHITE J. I agree that both the appeal and the notice of contention should be dismissed. I agree with the reasons of Anderson J.
KOURAKIS J. I too agree that the appeal should be dismissed for the reasons given by Anderson J.