Garling v Patiniotis
[2024] TASSC 29
•17 June 2024
[2024] TASSC 29
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Garling v Patiniotis [2024] TASSC 29 |
| PARTIES: | GARLING, Ann Marise |
| v | |
| PATINIOTIS, Tony | |
| FILE NO: | 748/2019 |
| DELIVERED ON: | 17 June 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 5, 6, 7, 8, 9 September 2022, 1, 4 November 2022 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Negligence – Generally – Procedure and evidence – Evidence – Circumstantial evidence – Defendant performed hemorrhoidectomy on plaintiff – Plaintiff alleged procedure was performed negligently – Claimed impact of negligence is permanent and productive of severe disability - Whether court can draw inference from location of staple line that defendant negligently performed procedure – Defendant breached duty of care in performance of procedure.
Aust Dig Torts [1365]
Damages – Particular awards of general damages – Tasmania – Surgeon negligently performed hemorrhoidectomy procedure – Breach of duty of care.
Aust Dig Damages [1173]
Cases:
Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4
Circular Head Fencing Pty Ltd v Motor Accidents Insurance Board [2017] TASFC 6
French v NSW [1999] NSWCA 175
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18
Malec v JC Hutton Pty Ltd [1990] HCA 20, 1991 69 CLR 638
Rogers v Whitaker [1992] HCA, (1992) 175 CLR 479.
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3
Legislation:
Civil Liability Act 2002, s22, s13(1)
Evidence Act 2000, s 69(2).
Supreme Court Civil Procedure Act 1932, s35A
REPRESENTATION:
Counsel:
Plaintiff: B McTaggart SC/ R O'Keefe SC Defendant: K Read SC/ A Darcey
Solicitors:
Plaintiff: LHD Lawyers Defendant: HWL Ebsworth
| Judgment Number: | [2024] TASSC 29 |
| Number of paragraphs: | 162 |
Serial No 29/2024 File No 748/2019
ANN MARISE GARLING v TONY PATINIOTIS
| REASONS FOR JUDGMENT | BRETT J 17 June 2024 |
1 In 2013, the plaintiff, who was then aged 58 years, sought medical advice in relation to some episodes of anal bleeding. She was referred to the defendant who then and still does practice as a general surgeon. His practice at that time included colorectal surgery. After conducting some investigations, the defendant determined that the bleeding was caused by internal haemorrhoids, and recommended a surgical procedure known as a stapled haemorrhoidectomy. He conducted that procedure with the plaintiff's consent at Hobart Private Hospital on 24 September 2013.
2 No issue is taken with the defendant's recommendation of the stapled haemorrhoidectomy as the appropriate procedure to deal with the plaintiff's haemorrhoids. However, the plaintiff claims that the defendant negligently performed the procedure, and as a result she has been left with permanent and disabling injury, with ongoing symptoms causing pain and affecting the operation of her bowels and gastrointestinal system. She has required a further operative procedure to deal with the impact of her bowel function, namely a loop ileostomy, and this has had its own impact on her life. It is alleged that there has also been a severe aggravation of pre-existing psychological illness. In short, the plaintiff alleges that the impact of the defendant's negligence is permanent and productive of severe disability.
3 The defendant denies negligence in his performance of the procedure. Further, and in any event, he denies that the procedure has caused the plaintiff's ongoing difficulties. There is no real dispute concerning her ongoing physical and psychological condition, but the defendant denies that it has been caused by this procedure, irrespective of any negligence in its performance. The defendant's argument is that the evidence does not support a causal link between any proved negligence in the performance of the procedure and the subsequent deterioration of the plaintiff's health. It is argued that problems since the operation can be explained by the natural progression of her pre-existing conditions, and further or alternatively, are consistent with the expected consequences of a competently performed stapled haemorrhoidectomy.
Stapled Haemorrhoidectomy
4 The procedure in question is one of several available for the surgical treatment of haemorrhoids. It is specifically designed to deal with internal haemorrhoids and can be distinguished from other fixative and excisional techniques. It is also known by the title "PPH" (procedure for prolapse and haemorrhoids). I will use the term stapled haemorrhoidectomy and PPH interchangeably in these reasons.
5 My understanding of this procedure is informed by published articles provided to me, expert evidence and the evidence of the defendant. A manual referred to by the defendant in his evidence, was also provided to me.
6 The procedure uses a circular stapling device to fix the haemorrhoids to the wall of the anal canal with a circle of metal staples. It is performed under general anaesthetic. In a very general overview, the operative technique involves inserting the specially designed stapler into the anal canal for an appropriate distance, and then firing the staples into the wall of the anal canal. Upon firing the staples, the device excises a circumferential strip of redundant tissue just above the haemorrhoids. The purpose of the stapling is to return and fix the haemorrhoid into its correct anatomic position high in the anal
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canal. The expectation is that eventually fibrotic tissue will grow over the staples ensuring the
permanent fixation of the haemorrhoid.7 Prior to firing the stapler, the surgeon inserts a circumferential purse-string suture just above the apex of the haemorrhoid. The suture draws up redundant mucosa, which is then excised by the firing of the stapler. Because of the manner in which the stapler operates, the placement of the suture is directly related to the final location of the line of inserted staples (the staple line). As will become apparent, the correct placement of the staple line, and the consequences of failure to achieve that placement, are matters central to the resolution of this case.
8 In order to understand the context of the issues relevant to the placement of the staple line, it is necessary to touch upon some of the relevant anatomical features. A feature of importance to this case is known as the "dentate line". The dentate line and its anatomical context is described by Professor Anthony Eyers, a colorectal surgeon, who was called by the plaintiff as an expert witness, as follows:
"The anal canal is defined by its relation to the anal sphincter complex, extending from the upper limit of the sphincters (the 'anorectal ring') to their lower limit (the 'anal verge'). The perianal skin (a squamous epithelium) extends into the canal (as the 'anoderm') for about 2cm, where its nature changes at a visible junction, the 'dentate line'. Immediately above the dentate line there is a further 1-2 cm zone of transitional epithelium (which is not clearly distinguishable visually), above which the lining is a columnar mucous epithelium of the type found throughout the remainder of the large bowel. The anoderm has a rich nerve supply, and cutaneous sensation extends above it into the transitional zone for a variable extent, but not into the upper anal canal or rectum".
9 It is a common theme in the expert evidence, that the correct placement of the staple line is important to the successful outcome of the procedure. This is best described in a joint memorandum prepared by Professor Eyers, and the colorectal expert engaged by the defendant, Associate Professor Margaret Schnitzler, as a result of a court mandated conference of experts conducted on 27 July 2022:
"With PPH there is an optimal level for the placement of the staple line; too high and the procedure loses its efficacy in anchoring the haemorrhoids below, and too low it could impinge on the area of the anal canal with somatic sensation."
10 The plaintiff's allegation of negligence in this case is that the defendant performed the procedure such that the staple line was placed too low in the anal canal. The plaintiff's case is that as a result of that placement of the staple line in that location, the staples compromised or caused damage to nerves in the transitional epithelium (that is the innervated tissue which extends for 1-2cm above the dentate line) or at or below the dentate line in the highly innervated anoderm. It is alleged that this damage is the cause of the deterioration in the plaintiff's physical and mental health since the operation.
The procedure
11 The plaintiff moved from New South Wales, where she had lived all of her life, to Tasmania in February 2013. In August 2013, the plaintiff experienced a serious episode of rectal bleeding and was referred to the defendant. A report from the defendant dated 22 August 2013 noted that the plaintiff "has had now five or six episodes of fairly dramatic bleeding over the last couple of years". After looking at medical records of treatment administered when the plaintiff lived in New South Wales, the defendant decided to perform a further gastroscopy and colonoscopy. These were conducted on 3 September 2013. After reviewing the results of those tests, he identified "some moderate internal haemorrhoids" and recommended the stapled haemorrhoidectomy. The plaintiff accepted that recommendation.
12 As already noted, the stapled haemorrhoidectomy was performed by the defendant at Hobart Private Hospital on 24 September 2013.
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13 The defendant said in his evidence that he had no independent recollection of the procedure. He gave evidence based on his usual practice at that time and notes and correspondence prepared contemporaneously by him. His evidence was that he was familiar with the procedure and prior to 2016 had performed between 30 and 50 of them. He was not able to say in cross-examination how many had been performed prior to 2013. However, he had received training, and had chosen a device which he considered was appropriate for the operation. In fact, the version of the device used in this procedure was one selected by him as a replacement for an earlier device because he believed it was "superior" to its predecessor. It required the same technique, but provided improved visibility of the internal tissue during the procedure.
14 The defendant described the procedure in detail. The effect of the defendant's evidence, confirmed by other evidence, is that the critical step in respect of the positioning of the staple line, is the insertion of the circumferential purse-string suture. This is critical because it is this which will determine the final location of the staples. At the point of insertion of this suture, there is visibility of relevant anatomical features including the haemorrhoids and the dentate line. This is also the point at which a check is done to ensure that the stitch has picked up the appropriate size of the cuff of tissue which will eventually be excised by the stapling process. The next step is to insert and advance the stapler housing. The defendant said that as this was progressing, he was able to see through clear plastic, "the anal tissues that I am passing, including, I can see the dentate line, I can see the scalloping and I can actually get it, what I feel is, comfortably very high up in the anal canal to the region of the anorectal junction".
15 The defendant said that the procedure is conducted in steps, and although each step is reversible, at least up to the point of the stapler being fired, it is impossible to progress from one step to the other without having completed the preceding step. He made the point that if he considers that the device has not been correctly inserted, he would reverse the relevant steps, and start again. He would not fire the device until he was confident that he had correctly inserted the device and that the staple line will be "high above the dentate line".
16 In terms of the position of the purse-string suture and the staple line, the defendant responded in his evidence to a proposition that was put to him that the suture placement "should be high enough to produce a staple line two centimetres above the dentate line" with the answer "or more". He also agreed that he would have been careful to achieve this based on his usual practice, but was not able to confirm the position of either the suture line or the staple line in this procedure from his memory or his operating notes and records.
17 The defendant explained that when fired, the stapler inserts 32 staples, which guillotine "the tissue that is caught in the stapler housing". After removing the device, the procedure is to inspect the staple line "to make sure it is intact, make sure it has not broken down and to look for bleeding". In this case, the defendant noted in his operation report that "careful staple-line inspection (revealed a) bleed at 1 o'clock". He said in evidence that this was miswritten, and it should be read as "10 o'clock". To the extent that it makes any difference to the outcome of this case, I accept his evidence about this. He dealt with the bleeding with a suture.
18 My impression of the defendant's evidence is that, in the normal course, he has good visibility of the internal anatomic structures and their relationship to the device, throughout the processes of insertion of the purse-string suture and the insertion and advancing of the stapler housing. However, it is also clear that visibility is lost at the point of the final positioning of the stapler. Hence, at the time of firing, the surgeon is unable to see the internal tissue, and hence the precise location of the insertion of the staples. The defendant made it clear that at that point, it is necessary to rely on feel, and markings on the device which indicate insertion of the stapler head to an adequate distance. This is consistent with other evidence. For example, the authors of a journal article provided to me and relied upon by the
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plaintiff, "Stapled Haemorrhoidopexy: The Argument for Usage", explain the visibility available to the
surgeon at this point of the procedure:"The purse-string suture essentially drives the remainder of the operation. The stapling itself is done blindly because the surgeon cannot see inside the anal canal as the stapler draws tissue into the head. Only correct placement of the suture can guarantee that the proper depth of tissue is drawn into the head, thereby preventing a full-thickness anastomosis, and also the proper position above the dentate line."
19 While the plaintiff does not accept that the defendant's performance of the procedure in respect of the plaintiff was correctly performed in accordance with the description provided by him, there is no dispute about his description of the correct process. The plaintiff's argument is that the defendant has not adequately or competently followed this process, thereby resulting in a staple line placed too low in the anal canal.
Negligence
20 The principles applicable to a claim of negligence made against a medical practitioner are not in doubt and not in issue in this case. It is not contentious that a medical practitioner has a duty to exercise reasonable care and skill in the provision of medical treatment. The standard of care and skill is that of "the ordinary skilled person exercising and professing to have that special skill": Rogers v Whitaker [1992] HCA, (1992) 175 CLR 479.
21 In this case, the plaintiff does not attack the defendant's choice of procedure nor is she able to identify any specific aspect of the procedure performed by him which she says amounted to negligence. The plaintiff's argument is in fact a circumstantial one, that is that the staple line was positioned too low in the anal canal, and that this could only have come about as a result of the negligent performance of one or more of the required steps of the procedure. In other words, it is argued that proof of the location of the staple line will enable the Court to draw an inference that the procedure was performed negligently.
22 The defendant does not take issue with this general approach. The defendant's evidence made it abundantly clear that he was well aware of the need to exercise care in respect of the performance of the procedure so as to ensure the correct placement of the staple line. Further, as will be seen, the expert evidence of other colorectal surgeons confirms that the placement of the staple line is the determinative factor in assessing the competence of the performance of the procedure. However, there is a significant issue as to the precise location of the staple line which will justify an inference of negligence.
23 The plaintiff's pleaded case, which was maintained at the trial, is that the placement of the staple line within 2 cm of the dentate line will establish negligence. In other words, such placement means that the staples have been inserted into the transitional epithelium, and this means that the surgeon did not take sufficient care to avoid that zone. The defendant concedes that such placement is not ideal in terms of outcome of the operation, but disputes that this necessarily establishes a lack of requisite care in the performance of the procedure. However, the defendant does concede that if the staple line has been positioned so low that it crosses or is below the dentate line, then that would be sufficient to support an inference of negligence.
24 In Rogers v Whitaker, the High Court made clear that it is the Court that must ultimately determine the standard of reasonable care required of a medical practitioner by law, and whether that standard has been breached in a particular case. Of course, the Court will usually be assisted by expert opinion, but is not bound by it. The legislative response to that case, in particular s 22 of the Civil Liability Act 2002, which provides for the conclusivity of widely accepted peer professional opinion, affects but does not overturn that fundamental principle. In this case, s 22 has little, if any, role to play. The only evidence of accepted medical practice relates to matters not in issue, such as the choice of
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procedure and the appropriate technique. Section 22 is not relevant to the critical question as to the point at which the location of the staple line permits an inference of negligence. In respect of this question, although the ultimate decision is for me, it is clear that I will need to consider the expert evidence. Obviously, I have no other way of assessing, as matter of common experience, the degree of care needed to ensure the proper location of the purse string suture and other parts of the process so as to achieve the desired outcome.
25 The plaintiff called Professor Eyers to give evidence. However, Associate Professor Schnitzler was not called by either party. The joint memorandum prepared by these experts as a result of their court-ordered conclave was placed in evidence.
26 Professor Eyers' evidence included three reports, all of which were written well before the conclave with Associate Professor Schnitzler. In his first report dated 19 April 2018, Professor Eyers expressed this opinion:
"Should such documentation demonstrate that the PPH staple line is low enough in the anal canal to involve the transitional zone that extends 1-2cm above the dentate line, it would, in my opinion, be indicative of the sub-optimal performance of the PPH procedure performed on 24 September 2013."
27 He also expressed the opinion that although he believed that the staple line "may have been fashioned too low in the anal canal", he did not believe "that the staple line was below the dentate line".
28 Professor Eyers' second report is dated 14 January 2019. It responded to his review of test results provided to him, which included a CT scan and an MRI scan of the pelvis. In response to a question as to whether the defendant failed to adhere to competent professional practice in the performance of the procedure, Professor Eyers said this:
"The images indicate that the staple-line lies entirely below the anorectal ring, and is
located in the mid canal.Competence in the performance of a PPH procedure requires the preservation, below the staple line, of a two-centimetre segment of the anal canal above the dentate line – the anatomical landmark (evident in the Figure) of the muco-cutaneous junction.
From the CT scan, the red dotted lines on the above figure are one centimetre apart. So, all of the staples I could see on the CT scan are within the "zone" that should be avoided.
Thus, in my opinion, the staple line is too low, and lies in a zone which should have been preserved."
29 In their joint memorandum, Professor Eyers and Associate Professor Schnitzler expressed the
following opinion:
"The optimal level for placement of the staple line is in the low rectum, not in
the anal canal.Were it the case that the Plaintiff's PPH staple line had been positioned so that it either crossed, or lay distil to, the dentate line, it would be indicative of a procedure performed below the expected standard of a competent practitioner.
While the placement of a PPH staple line in such a way that some of it has come to lie within the upper anal canal is not ideal, it is not, per se, indicative of a procedure performed below the expected standard of a competent practitioner."
30 Professor Eyers was not asked in evidence about the apparent discrepancy between the opinion expressed by him in his reports and the joint memorandum. The critical difference is whether a finding
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that the staple line lies within 2cm proximate to the dentate line, that is within the transitional epithelium, but does not cross or lie distal to the dentate line, indicates performance of the procedure which is below the requisite level of competence. It may well be that he was not asked about this because it was clear that his views had evolved as a result of the conclave and were finally expressed in the joint memorandum. Although I am not bound by that memorandum, I think that is a reasonable conclusion, and I intend to proceed on that basis.
31 The plaintiff pointed to other evidence relevant to this question. In the article quoted above, the authors discuss the need to achieve a minimum distance from the dentate line of 2cm:
"Placing the suture and resultant staple line too low, that is, near the dentate line, gives a much improved cosmetic result with excellent retraction of the haemorrhoids into the anal canal; however, this puts the patient at significant risk for severe postoperative pain. Therefore, our recommendation is that the suture line is placed 2cm above (proximal) to the apex of the haemorrhoids. This yields a staple line approximately 2 to 4cm proximal to the dentate line, once the mucosectomy and stapled anastomosis are performed."
32 Further, there is the evidence of the defendant himself. As I have noted, he agreed with the need to achieve that minimum distance. However, it was not expressly put to him that a failure to do so would indicate lack of competence in the performance of the procedure.
33 Having regard to all of this evidence, I accept, on the balance of probabilities, that the opinion of the joint experts as expressed in the joint memorandum correctly states the requisite standard of competence. Accordingly, if all the evidence shows is that the staple line was positioned low in the anal canal, even within 2cm of the dentate line, but remained proximate to that line, then that would not establish a breach by the defendant of his duty to exercise reasonable care and skill. However, if the staple line crosses or lies distal to the dentate line, then negligence has been established. I reiterate that the latter proposition was conceded by senior counsel for the defendant, Mr Read SC.
The location of the staple line
34 I will now examine the evidence affecting the question of the final position of the staple line, and its relationship with the dentate line. I start with the opinion expressed by Professor Eyers in his report of 14 January 2019, which I have quoted above. In summary, he expressed the opinion based on a CT scan that the staple line was "entirely below the anorectal ring, and is located in the mid canal." Hence, it was within the 2cm transitional epithelium zone, which he believed "should have been avoided". He did not express the view that the staple line had crossed or lay distal to the dentate line, and it is not possible to discern from his report whether he was expressing an opinion about the relationship between the location of the staple line and the dentate line.
35 However, this question, was the subject of agreement between he and Associate Professor Schnitzler, as a result of their conclave. The joint memorandum says this:
"In the plaintiff's case, the staple line appears to lie, at least in part, in the upper anal canal. This opinion is based on reviews of CT scans taken of the site following the procedure.
CT scanning is not an ideal way of establishing the level of a PPH staple line. Because the staple line is always to some extent oblique to axial plane, and CT scan 'slices' lie in the axial plane, a complete ring of staples is rarely seen, and was not seen on the plaintiff's CT scans that we have reviewed.
The true location of the Plaintiff's PPH staple line would best be determined by a combined digital rectal and proctoscopic examination. The results of such an examination have not been available to us.
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We do not believe that the staple line was positioned distal to the dentate line. This is based on the reports of other practitioners who have examined the plaintiff and our review of the CT scan images."
36 I note at this point that neither party presented the Court with "the combined digital rectal and proctoscopy examination" referred to by the experts. As I will discuss shortly, there is evidence of a similar type of examination, but the experts did not comment on this. It is also worth noting that neither of the joint experts has physically examined the plaintiff. As indicated in the joint memorandum, their opinion about the location of the staple line is based on their review of CT scans and the reports of other doctors.
37 The plaintiff claims to have suffered significant symptoms after the procedure. She has consulted a large number of medical professionals, particularly between the operation and 2016. Some of those professionals have examined the anal canal and made observations concerning the position of the staple line.
38 In 2014, the plaintiff was referred to and examined by Dr Mignanelli, a colorectal specialist. His notes indicate that the plaintiff complained of being "unable to sit down because of discomfort for at least a couple of months following" the stapled haemorrhoidectomy procedure and, further problems with "emptying her bowels after the operation". He reported that a "digital rectal examination showed a very low staple line, probably just at or slightly below the anorectal ring." This was, as stated, a manual examination, and there is no reference to the use of an instrument to assist internal visibility. He did not make any other observation concerning the staple line, and in particular, there is no suggestion that he attributed the plaintiff's symptoms to the location of the staple line. After a number of investigations, he suggested "a picture of slow transit constipation". This diagnosis was also the opinion of other specialists who consulted with the plaintiff subsequently.
39 In early 2016, the plaintiff consulted with Dr Carey Gall, a colorectal surgeon. Dr Gall was clearly aware of the plaintiff's concern that "there may have been injury to the anorectum during the stapled haemorrhoidectomy". She wanted anal imagining and, accordingly, he obtained an endo-anal ultrasound. The ultrasound report reveals that "there is no evidence of injury as the result of the stapled haemorrhoidectomy". There is no other reference to the location of the staple line.
40 In August 2016, the plaintiff was examined by another colorectal surgeon, Associate Professor Craig Lynch. It is clear that Professor Lynch conducted a PR (rectal) examination. I infer that this was also a manual examination without the assistance of an instrument. His report indicates that the examination demonstrated "a good anal tone with a palpable staple line from the previous staple haemorrhoidectomy. I could not identify a defect…."
41 None of these three doctors were called by either party to give evidence.
42 On 20 September 2016, the plaintiff saw Dr Paul Sitzler, who is also a specialist colorectal surgeon. Dr Sitzler was called by the plaintiff to give evidence at the trial.
43 It is clear from Dr Sitzler's report of his examination that day, which he confirmed in evidence, that he conducted a manual perianal inspection, and then followed this up with further examination with the use of an instrument known as a sigmoidoscope. In respect of the PR examination, he commented "the staple line certainly is low in the anal canal." In respect of the sigmoidoscopy, he reported that:
"The rectum looks normal with good volume, no mucosal abnormality and the staple
line is certainly a new dentate line, so it is lower than it possibly should be."
44 In evidence, he was asked to explain his comment concerning the dentate line:
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"'The staple line is a new dentate line' What did you mean by that?... Well, …with this particular technique – operation of stapled haemorrhoidectomy, you would aim to … put a stitch in at the top of the anal canal or low rectum in order to pull the haemorrhoid – the upper part of the haemorrhoid into the staple line. In some cases, you will pull too much of the lower anal canal into the staple line and if that's the case, you'll cut the dentate line off with… the haemorrhoids and you'll create a new dentate line.
So on your examination with the sigmoidoscope, you were unable to identify the natural dentate line?......Yes.
And in its place was a staple line?...... Yes."
45 There is nothing in Dr Sitzler's records or evidence which indicates that he considered the staple line to be a relevant factor in the plaintiff's ongoing problems. His treatment focused on her complaint of slow transit constipation and the problems associated with that. Ultimately, he recommended, and with the plaintiff's consent performed, a loop ileostomy. The only evidence from Dr Sitzler concerning his opinion as to a relationship between the stapled haemorrhoidectomy and the plaintiff's ongoing problems came in cross-examination. He agreed with defence counsel's proposition that "if a patient presents with significant perianal pain following a stapled haemorrhoidectomy and your diagnosis was one of at least a suspicion that the staples were the cause of the pain," he would employ a particular treatment algorithm that included prescription of analgesia, removal of any staple that appeared to be causing a problem, and the possibility of further investigations by ultrasound. He commented that "there is a group of patients that get a longer period of pain after a stapled haemorrhoidectomy than most and usually, it is just … dealt with symptomatic relief and … resolves in time". In relation to an offending staple, he said he would remove it if "there is a particular staple that was worrying them, yes, but… usually that's not the issue". Finally, he was asked whether with his comment that the staple line was lower than it possibly should be, he was expressing "any definite opinion about that". His answer was as follows:
"No I mean… I've done many of these operations, and sometimes you're disappointed
about the height of the staple line".
46 Mr Read also put to Dr Sitzler the opinion of the joint experts that the true location of the staple line "would best be determined by a combined digital rectal and proctoscopic examination". The witness agreed but also expressed the view that the sigmoidoscope used by him was as good as a proctoscope for this purpose. As I have noted, neither party has presented any evidence of the type of examination referred to by the joint experts. However, the plaintiff would argue that Dr Sitzler's combined perianal rectal examination together with further examination with the use of the sigmoidoscope is equivalent to it. This seems to be the effect of Dr Sitzler's evidence. This opinion was challenged but not undermined by cross-examination. It was not the subject of contrary evidence. I accept Dr Sitzler's opinion about this question.
47 I turn now to the defendant's evidence. As already discussed, the operation record prepared and signed by the defendant on the day of the procedure recorded that before concluding the procedure, he conducted a "careful inspection" of the staple line. There is nothing in the record that suggests any concern about the location of the staples.
48 The defendant's records reveal that he saw the plaintiff for a postoperative consultation on 9 October 2013. In evidence, he recalled the plaintiff complaining of "a pressure higher in the anal canal". He performed an internal examination and observed swelling around the area where he had noticed bleeding in the staple line. He diagnosed a "infected haematoma", and relieved this by breaking it down during the consultation. He conducted an inspection of the anal canal with a proctoscope, which permitted a view of the anal canal "up to and just beyond the anorectal junction". He described this as an excellent view. Again, there was no suggestion in his records or evidence that he observed any
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difficulty with respect to the placement of the staple line. It should be noted that this examination, both
manual and protoscopic, is also of the type referred to by the joint experts.49 In cross-examination, the defendant agreed that there is potential for error in placing the purse- string suture, and in firing the stapler when it is too low in the anal canal. Dr Sitzler's point about the possibility of drawing tissue into the stapler for excision when low in the anal canal which includes some or all of the dentate line, was also put to him. The defendant rejected this, saying that it was "false". However, it was not put to him that on his subsequent examinations, he observed a staple line that crossed or lay below the dentate line. In particular, the observation of Dr Sitzler that the staple line had become a new dentate line was not put to the defendant by either counsel.
Circumstantial evidence
50 Senior counsel for the plaintiff, Mr McTaggart SC, argues that I should accept Dr Sitzler's evidence and, on that basis, find that the defendant has during the procedure excised tissue which includes the dentate line, thereby replacing it with the staple line. It is argued that Dr Sitzler was the only medical practitioner who conducted the type of examination recommended by the colorectal experts in their joint memorandum, notwithstanding that they did not seem to expressly acknowledge it as such. He was unequivocal about his observation and, it is argued, there is simply no room for error in respect of this observation. Dr Sitzler's observation is supported by the manual examination conducted by Dr Mignanelli, and the opinions expressed by Professor Eyers, particularly in his 2019 report.
51 Mr Read conceded that if I find that Dr Sitzler's observation was accurate, and that the staple line has been inserted over the dentate line, and has thereby obliterated it, then the plaintiff will have established breach of the defendant's duty. This concession is clearly appropriate. Looking at the matter objectively, it would seem to fall within the category that the joint experts found would be indicative of a procedure performed below the expected standard of a competent medical practitioner, that is it will have been established that the staple line has crossed or lies distal to the dentate line. If there was any doubt about this, it was resolved by Professor Eyers in his evidence. In evidence-in-chief, he was asked directly about the significance of Dr Sitzler's observation and gave unequivocal evidence that that "actually means that the staple line lies distal to the original dentate line".
52 However, Mr Read argues that despite the apparent certainty of Dr Sitzler's observation, I should not be satisfied on the balance of probabilities that the observation is accurate, and hence I should not be satisfied that the plaintiff has established negligence against the defendant. He relies on contrary expert evidence, and a body of circumstantial evidence, which he says tips the balance of probabilities against a finding in accordance with the observation. I shall now examine this evidence.
53 The first limb of the circumstantial argument is the absence of any suggestion in the defendant's contemporaneous records that the staple line is in a problematic location, notwithstanding his careful examination of it immediately after the operation, including with the use of a proctoscope. Mr Read argues that this is convincing because at that time, there was no suggestion of litigation or even complaint. Further, it is clear that the defendant conducted a detailed examination of the staples because it was by that examination that he identified and sutured the bleeding area in the staple line.
54 Secondly, Mr Read submits that the location of the staple line in the position described by Dr Sitzler is inconsistent with hospital and medical records relating to the plaintiff's time in hospital and treatment afterwards. It is submitted that I should conclude that the placement of the staple line over the dentate line would have caused acute and relatively intense pain, including while the plaintiff was in hospital, but that the contemporaneous records do not reveal complaint about such symptoms.
55 Mr Read relies on the following evidence to support the proposition that such symptoms ought
to have been apparent:
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•
In the joint memorandum, the experts agree that if the staple line is placed so low that it impinges "on the area of the anal canal with somatic sensation… acute pain is likely to be experienced and defecation deleteriously affected".
•
In the journal article referred to, and already quoted by me, the authors observe that placing the staple line "too low…puts the patient at risk of severe postoperative pain".
• In cross examination, Dr Sitzler provided this evidence: "Now, following a stapled haemorrhoidectomy:
If one or more staples caused interference with a nerve or the sphincter, there would likely be pain all the time, not just on defecation.
That's the case, isn't it?......I believe so, yes.
If:One or more staples caused interference with a nerve or the sphincter, you would expect the patient to report that as the anaesthesia wore off following the operation, that she became aware of severe perianal pain.
.....Yes.
And that is, you would expect acute – that's what's called acute pain?......Yes.
And you'd expect that in the hospital setting?......Yes."
56 The plaintiff's evidence is that immediately before the procedure, she had no relevant symptoms, including perianal pain, nausea, belching, vomiting or problems with defecation. However, when she woke up after the procedure, she felt ill and started vomiting. This continued after she got home the next morning. She describes the pain as "rectal pain". She also had immediate changes in her bowel habit, in particular problems with defecation and lots of pressure and pain in the anal canal. These symptoms have continued to the present time. This evidence, if accepted, is consistent with the expectation of symptoms resulting from low placement of the staple line.
57 However, as noted, Mr Read submits that this description by the plaintiff of immediate and ongoing perianal pain is inconsistent with hospital notes relating to the procedure and other medical records, including notes of the general practitioners that she consulted in the months after leaving hospital. He cross-examined the plaintiff at length about the asserted inconsistencies between the contents of these records and her evidence. It was, of course, proper and fair for Mr Read to put these matters to the plaintiff, but I must say that to the extent that there are inconsistencies, a matter I will deal with shortly, I was not able to draw any conclusions one way or the other from the plaintiff's responses. She clearly has little reliable recollection of what she might have told doctors and other medical professionals then. Technically, the documents are business records, and hence the hearsay rule will not apply to representations made by the plaintiff and recorded as such by the relevant medical professionals. Evidence Act 2001, s 69(2). It is well established that the ambit of this provision extends the hearsay exception to second hand hearsay. The evidence is therefore admissible, but the real question is the reliability, and hence weight, to be attributed to these representations. It must be remembered that the plaintiff was not directly involved in the preparation of any of these records, and none of the authors of the relevant documents were called to give evidence.
58 Mr Read's argument, however, is that the lack of a record of contemporaneous complaint affects the probability of the existence of the disputed fact, that is the existence of perianal pain and other relevant symptoms immediately after the procedure. I accept that the records can be used for this purpose, although considerable care needs to be taken in drawing inferences against the plaintiff for the
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reasons already discussed. Further, there is a limit to which notes and records made by busy doctors and nurses in a hospital or clinical setting, for the purpose of diagnosis and treatment, and not for forensic purposes, can assist in establishing the existence or otherwise of symptoms so long ago.
59 The particular records include hospital charts filled out by nurses over the period that the plaintiff was in hospital. She was in hospital overnight, leaving the day after the procedure. One chart shows a continuous pain score of between zero and three out of 10. However, another shows pain scores varying between two, five and seven, with the word "mild" written on two occasions. Another record indicates that the plaintiff was being given oral analgesics during this period. A note concerning discharge suggests that the defendant was "happy for discharge if patient asymptomatic". The note also reveals that the plaintiff left hospital without seeing staff and without obtaining a follow up appointment. Presumably, therefore, there was no assessment of her symptomology at the time that she left hospital.
60 The records of the plaintiff's general practitioner at that time, Dr Christian, reveal that she attended on him on 27 September 2013, two days after leaving hospital. The only complaint noted in respect of that consultation is "not eating much, feels flat and still a bit nauseous after GA". There is no prescription of analgesic medication or complaint of perianal pain.
61 The plaintiff next attended Dr Christian on 8 October 2013. She reported "some vaginal discomfort after standing for longer periods". There is also a note that her bowels were opening normally and there was "no significant abdo pain". Again, there is no record of any prescription for pain medication.
62 On 9 October 2013, the plaintiff attended at the defendant's rooms for a postoperative consultation. His record is that the plaintiff "has been very pleased with the fact that she's got more control of the bowels and is getting a reliable warning sign". It was noted that she had "been troubled by a pressure high up in the posterior wall of the vagina" made worse with standing and a full rectum. The defendant noted that he treated the infected haematoma in the staple line by using "a finger to the anal canal (to express) from the anterior aspect of the staple line", and that he used a proctoscope in this process. He prescribed an antibiotic, presumably to deal with the infection, and commented that "it will settle without any issues for her and I think we will end up with a good result".
63 On 15 October 2013, the plaintiff attended again on Dr Christian. He noted complaints of "vaginal discomfort since haemorrhoid operation, worse on coughing" and a "deep aching sensation, worse on standing".
64 It is apparent from records that on the same day, the plaintiff also attended the emergency department of the Royal Hobart Hospital complaining of perianal pain. This is described on presentation as "uncomfortable dragging sensation inside her vagina" with nil other symptoms. There was a note of "normal bowel motion, nil pain in perianal area". The notes indicate that the plaintiff was given paracetamol, presumably in response to the complaint about pain.
65 The plaintiff saw Dr Christian again on 17 October 2013. There is a note "still has this dragging sensation in rectovaginal area".
66 On 22 October 2013, Dr Christian noted a complaint of "left sided vaginal pain ongoing, worse on standing". He also noted that the plaintiff "has been taking extra Valium and Seroquel due to pain".
67 Over the next couple of months, the plaintiff continued to see her general practitioner and make visits to the hospital on regular occasions. She continued to complain of vaginal pain, but there was an increase in symptoms which included belching, retching and abdominal pain. There were also complaints relevant to problems with bowel function, including constipation.
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68 By 2014, the plaintiff was regularly seeing her general practitioner complaining of bowel problems and vaginal and perianal pain. Her general practitioner referred her to Dr Mignanelli. She has, as already noted, thereafter seen a significant number of doctors, including specialists.
69 In considering the significance of the history of the plaintiff's pain symptomology, I should also take into account the evidence of Associate Professor Tillman Boesel. Associate Professor Boesel is a consultant anaesthetist and pain medicine physician. He claims extensive experience in neuropathic pain conditions and interventional pain management. There is no challenge to his expertise in this area.
70 Associate Professor Boesel examined the plaintiff on 30 March 2021. The examination included an external sensory examination of the perineum and perianal region. However, he did not perform an internal examination. In his report of that examination, he diagnosed a chronic pain disorder, consisting of:
• Perianal nerve injury, which has led to perianal neuralgia with secondary sensitisation "affecting other territories innovated by the pudendal nerve including the perineum and vagina. There is secondary sensitisation of her bladder". • A chronic disruption of gait, and the development of pain in the hip and thigh. 71 Associate Professor Boesel expressed the opinion that there is a causal relationship between the haemorrhoidectomy and the neuropathic pain syndrome. He diagnosed perianal nerve injury which he opined was "likely sustained during haemorrhoidectomy". He found the nerve injury to have led to a pain disorder which he described as "a neuropathic pelvic floor pain syndrome". He went on to say:
"This was not present prior to her surgical management. This consequently suggests a
causal relationship."
72 Associate Professor Boesel qualified his opinion on the basis that he is "not a trained colorectal surgeon". He concedes that this makes it difficult for him to comment on the relationship between a sub optimally placed suture line, and presumably, the relevant nerve damage. At trial, defence counsel objected to his evidence concerning the causal link between the stapled haemorrhoidectomy and the nerve damage on the basis of a lack of relevant expertise. I permitted the evidence but observed that matters such as the absence of internal examination and a lack of expertise in respect of the relevant procedure, would affect the weight to be placed on this opinion.
73 Associate Professor Boesel was cross-examined about his opinion as to a causal link between the hemorrhoidectomy and the pain syndrome. In particular, Mr Read asked Associate Professor Boesel whether, if a nerve had been injured in the operation, he would expect "that as the person came out of anaesthetic they would suffer greater pain than the operation would ordinarily impose on them". Associate Professor Boesel's answer was:
"It is difficult to quantify …. There are patients who present with numbness in the first instance after nerve injury and then the pain symptoms gradually evolve over time. So it depends on the extent to which the nerve is injured and it depends on other factors, for example, the way the pain was treated in the postoperative setting with analgesic medications and it can also reflect changes in the nervous system that occur cumulatively over time."
74 There was other cross-examination concerning subsequent procedures, and whether they might account for the plaintiff's ongoing reports of pain. The effect of Associate Professor Boesel's response, in my view, was a concession that they could but he relied heavily on the temporal history of the pain, that is an absence of similar pain prior to the stapled haemorrhoidectomy, and its development after it.
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75 I accept Associate Professor Boesel's opinion as expressed in this evidence. There is no question that his expertise is not in the procedures related to treating haemorrhoids with stapled haemorrhoidectomy. However, he has considerable expertise in identifying and diagnosing nerve damage and the symptomology associated with it. This must include the pace of development and the experience of that symptomology by the patient. There is no question that the colorectal experts are well-placed to identify the correct procedure and the relationship of the procedure to the anatomy within the anal canal and associated structures. They can undoubtedly speak from experience as to symptoms associated with aspects of that procedure, including the misplacement of staples. However, in my view, Associate Professor Boesel's expertise in respect of nerve damage and associated pain is superior to that of the colorectal experts.
| Dr Jones | |
| 76 | The defence presented expert evidence from Dr Michael Jones, who is a specialist radiologist, concerning his review of the CT scan of the plaintiff's pelvis conducted on 27 June 2018. This scan was initiated by the plaintiff's general practitioner for clinical purposes. The radiologist who prepared the original imagining report identified the staples and concluded that there was "no complication identified". In the findings, the report states in respect of the staples, "On the left side and posteriorly they extend above the level of the dentate line". It is the same scan that Professor Eyers reviewed and made comment upon in his report of 14 January 2019, as already discussed. |
| 77 | Dr Jones was asked to review the scan for the purpose of identifying the location of the staples. His evidence was that it is possible from this scan to accurately identify the position of the staples. He considered that a CT scan was more likely to produce an accurate result, than manual examination, the results of which he believes can be affected by the subjectivity of the examiner. Dr Jones was specifically asked to identify the position of the staples in respect of the dentate line. His ultimate conclusion was expressed as follows: |
"The lower surgical staple is 7mm above the dentate line, and all of the surgical staples
are grouped around the anorectal line, well above the dentate line."
78 In cross-examination, he clarified that a CT scan does not enable him to view the dentate line, but he was able to accurately determine its location by reference to identifiable anatomical markers. Because he was not able to see the dentate line, he was not able to exclude a hypothesis based on Dr Sitzler's evidence, that the dentate line had been pulled into the stapler and excised during the procedure. He did comment that as a matter of anatomical reality, because the stapling is positioned above the base of the haemorrhoid, stapling the haemorrhoid to the anorectal wall, it would not be possible for a staple to be below the level of the dentate line.
79 Mr Read emphasises two aspects of Dr Jones' evidence in particular; the fact that the CT scan shows the lowest staple at 7 mm above the assumed anatomical position of the dentate line and secondly his expectation that the proper fixation of the haemorrhoids would mean that the staples would be above the dentate line. Mr Read submits that I can infer from the fact that the evidence establishes that the haemorrhoids were no longer a problem, that they were fixed properly. In re-examination, Dr Jones commented that the endo-anal ultrasound performed on 17 February 2016 which found that the internal and external sphincter complexes were circumferentially intact and that there was no evidence of injury as a result of the stapled haemorrhoidectomy was inconsistent with the staples being lower than the sphincters. According to Dr Jones, this supports the proposition that the staples are comfortably higher than the location of the dentate line.
80 Mr McTaggart argues that this evidence involves assumptions and inferences on the part of Dr Jones because he could not actually see and identify the dentate line on the CT scan. He argues that this evidence can be contrasted with Dr Sitzler's evidence which is a direct observation. He argues that the matters raised by Dr Jones were not put to Dr Sitzler. On the other hand, Mr Read argues that Dr Jones'
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observations were not challenged in cross-examination. Both are correct, but in my view, little can be drawn from the absence of such cross-examination. At the most, it is a consideration that affects the weight to be placed on the evidence.
Finding in respect of negligence
81 Having regard to all of the evidence, I am satisfied on the balance of the probabilities that the defendant inserted the staples in a position which was across or below the anatomical position of the dentate line. In particular, I accept the accuracy of Dr Sitzler's observation, that is that the staple line has been placed over and therefore has obliterated the dentate line. It may well be that this occurred when the mucosa was drawn up by the purse string suture into the stapler head, and that this included the dentate line. This may explain why the staples appear to be higher in the anal canal than the normal anatomical position of the dentate line. In any event, Dr Sitzler's evidence was unequivocal and he was well-placed to make the observation, both in terms of his experience and the thoroughness of the examination. I note again that he conducted both a rectal examination and an internal examination with a sigmoidoscope, an instrument which he equated as equivalent to the proctoscope recommended by the joint experts, in respect of its capacity to permit a view of the relevant internal structures.
82 I do not consider the circumstantial evidence relied upon by Mr Read and discussed above is sufficient to displace the accuracy of Dr Sitzler's direct observation, on the balance of probabilities. I am not persuaded that the failure of other doctors who conducted internal examinations to notice any difficulty with the staple line is significant. These examinations were manual only. In any event, the observations were not consistent. Dr Mignanelli observed that the staple line was low in the anal canal. I accept the opinion of the joint experts that the most appropriate examination is a combination of a manual examination and one conducted with an instrument that provides visibility. I reiterate that as far as I am aware on the evidence, Dr Sitzler and the defendant are the only doctors to have conducted such an examination. However, I do not consider the failure of the defendant to notice the problem with placement of the staple line during his post-operative examination as particularly significant. He had just finished an operation which as far as he was concerned had gone well. Both immediately after the operation and during the consultation and examination conducted on 9 October 2013, he was concerned about dealing with the bleeding in the staple line and the infected haematoma. He had no particular reason to be examining the placement of the staple line and certainly did not give evidence that he had done so, or that this issue was even on his mind at that time.
83 Finally, I do not think that the hospital and medical records assist the defendant to the extent submitted by Mr Read. The hospital records are equivocal in my view, and it is clear from Dr Christian's notes that the plaintiff was consulting him regularly and complaining about pain, vaginal and then perianal, from relatively soon after leaving hospital. The plaintiff presented with a complaint of perianal pain to the Royal Hobart Hospital approximately three weeks after the procedure. When regard is had to Associate Professor Boesel's evidence, which I accept, the significance of the timing of onset of any particular symptom is reduced even further.
84 Ultimately, this question is to be determined according to the probabilities. Weighing both sides of the argument, I accept that, more probably than not, Dr Sitzler's observation that "the staple line is certainly a new dentate line" accurately depicts the result of the procedure. As already explained, this conclusion leads inevitably to a finding that the defendant has breached his duty of care and skill in the performance of the stapled haemorrhoidectomy .
Causation
85 It is trite law that the cause of action in negligence is not complete unless the plaintiff establishes not only breach, but that the breach has caused harm. Section 13(1) of the Civil Liability Act 2002 sets out the prerequisites "for a decision that a breach of duty caused particular harm". They are "factual
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causation" and "scope of liability". In this case, it is conceded by the defendant that there is no issue in respect of the scope of liability. However, there is a significant dispute in respect of factual causation.
86 Section 13(1)(a) describes factual causation as proof that "the breach of duty was a necessary element of the occurrence of the harm". It is well-established that this incorporates the common law "but for" test: Circular Head Fencing Pty Ltd v Motor Accidents Insurance Board [2017] TASFC 6 at 77.
87 The plaintiff's case is that she has suffered permanent and severe disability as a result of the defendant's negligence. It is argued that the placement of the staples on or over the dentate line has caused the plaintiff's diverse symptoms arising since the operation, including ongoing pain, problems with defecation, the aggravation of pre-existing psychological injury and impacts on her functionality. It is argued that the pain and constipation difficulties led to the ileostomy, which although it has provided relief from the problems to do with constipation, has severely impacted her amenity of life in other ways. She described in evidence ongoing problems with nausea, vomiting and belching, social isolation because of embarrassment and actual problems experienced in respect of the stoma including the effect of smell, and accidents with the stoma bag. She described the need to use incontinence pads and enemas to evacuate her lower bowel. This has all had an effect on her capacity to make and form relationships and has prevented her from working. She has also suffered psychological problems as a result of the ongoing symptoms and the social isolation resulting from it.
88 Mr Read expressly conceded that the defendant does not claim that the plaintiff is malingering and does not contest the severity of the symptoms which she describes as affecting her life since the operation and in the present. The defendant's argument is that the plaintiff has not proved that her subsequent and current problems are attributable to the placement of the staple line. In particular, Mr Read submits that the plaintiff had "huge pre-existing problems" and that much of what has occurred subsequent to the stapled haemorrhoidectomy has not been proved to be a consequence of it. He submits that the evidence demonstrates that these conditions would have developed in any event, having regard both to the natural progression of her pre-existing conditions and because some pain and impact on bowel function are a common consequence of all surgical procedures used to treat haemorrhoids, including stapled haemorrhoidectomy.
89 In order to assess this question, I will first consider evidence dealing with the plaintiff before and after the procedure. I will then consider the expert and scientific evidence relating to the question of causation.
The plaintiff prior to the procedure
90 The plaintiff was born in New South Wales on 5 July 1955. She lived in that State until she moved to Tasmania in May 2013. She married in 1974 and had two children, born in 1981 and 1983 respectively. She has undergone a number of stressors and traumatic events in her life, which have affected her physical and mental health. She suffered sexual abuse as a child and family violence in her marriage. She separated permanently from her husband in 1989. She raised her sons as a single mother for approximately three years before they went to live with their father. She has a history of mental health problems, which she attributes to a diagnosis of post-traumatic stress disorder. She said in evidence that she has had a "lot of therapy". She also experienced depression after the birth of each of her children. She was injured in a motor vehicle accident in 2002, suffering an injury to her hip. In 2007, her psychiatrist acted inappropriately towards her during therapy. He was subsequently disciplined by the appropriate regulatory body. In 2010, she suffered a head injury in an accident. She also has a relatively lengthy history of symptoms and treatment relating to musculoskeletal issues.
91 The plaintiff has a significant history of prior problems with constipation, rectal bleeding and symptoms relating to gastrointestinal motility. Medical records demonstrate that she was seeking
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treatment for abdominal pain, rectal bleeding, haemorrhoids and constipation as early as 2002. A note by Dr Andrew Pratt in Hamilton, New South Wales dated 22 October 2003 confirms that the plaintiff had consulted him for "an episode of painful rectal bleeding about a month ago. She has had haemorrhoids for some time that may have been aggravated by constipation". The notes indicate that she consulted Dr Pratt in 2008 for problems "during defecation" and pain in the abdomen. Dr Pratt referred the plaintiff to Professor McCaughan, a gastroenterologist. In the letter of referral, Dr Pratt noted that the plaintiff "has had mild epigastric pain for years with vomiting after fatty meals". Professor McCaughan recorded that she had had "persistent epigastric discomfort at times of nausea and possibly some chills and fevers". He concluded that she probably had "non-alcoholic fatty liver disease". These records also refer to the presence of an inguinal hernia.
92 In 2011, she consulted Dr John Wenham, a consultant physician in gastroenterology and internal medicine, in respect of ongoing rectal bleeding and "a tendency towards increase in constipation". A colonoscopy identified the presence of haemorrhoids, which, in December 2011, were treated with banding.
93 Between this and the plaintiff's arrival in Tasmania in May 2013, there is no record of further consultation or treatment relating to problems of this nature. The rectal bleeding in respect of which she was referred to the defendant occurred in early August 2013. The defendant accepts that apart from this bleeding, the plaintiff was not experiencing problems with perianal pain, constipation or other bowel or epigastric issues immediately prior to the stapled haemorrhoidectomy.
After the procedure
94 I have already discussed the evidence concerning the plaintiff's experience of symptoms in the immediate aftermath of the procedure. The plaintiff's evidence is that symptoms of significant rectal and perianal pain, vomiting and difficulties with bowel function have continued since the operation. Prominent ongoing problems with bowel function have included constipation, proctalgia (anal pain) and tenesmus (a sensation to defecate, but an inability to do so). She says that these symptoms have had a major impact on her life.
95 The evidence establishes that since the operation and prior to trial, the plaintiff has consulted many doctors, including many specialists, in an attempt to find relief. These have included many colorectal surgeons and gastroenterologists. She has invariably attributed the commencement of her problems to the stapled haemorrhoidectomy. The records of these doctors indicate that her complaints were multifaceted but a consistent problem noted in the records has been both proctalgia and constipation. A number of the doctors have diagnosed slow transit constipation. A test performed in early 2015 confirmed that problem.
96 As already noted, in 2016, Dr Sitzler recommended a loop ileostomy to deal with the slow transit constipation. The plaintiff agreed to this procedure in order to relieve "the agony of…pain trying to defecate, sitting there on the floor in a basin of hot water and with the ambos knocking on the door". She had been taking laxatives on a regular basis in an attempt to deal with the constipation. The defence did not put anything to Dr Sitzler which would challenge the appropriateness of the procedure, and I did not understand this to be submitted by Mr Read in his closing argument. The loop ileostomy has relieved some symptoms, but has caused a number of other ongoing impacts on the plaintiff's life. These relate mainly to the physical reality of having her bowel discharge into an external bag. The plaintiff's evidence is that she has experienced problems with the bag leaking or falling off and has to empty it multiple times each day. She requires regular nursing review. The leaking causes offensive odours. All of this means that she is apprehensive and embarrassed about leaving the house and particularly engaging in social activity or looking for work. Further, she continues to experience ongoing pain in the perianal region. She experiences persistent nausea, vomiting, and sleep interruption. She has difficulty lifting things, even to perform housework. Her psychological state has been significantly affected and
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impaired, and she described in evidence how she is mentally and physically exhausted from the pain and tends to neglect domestic chores. As a result, her home is not kept in a neat and tidy state and this also affects her social interaction. She has made one attempt at commencing an intimate relationship but intimacy was not consistent with or encouraged by the presence of the stoma bag.
97 In August 2018, Dr Sitzler diagnosed a parastomal hernia. This was a complication of the stoma. The plaintiff's evidence and the records would indicate that she has had ongoing pain and discomfort as a result of the hernia. Dr Sitzler believes that this will require surgical intervention in the near future. Further, there is an ongoing problem concerning mucous plugging in the rectum, which is also an incident of the stoma. Dr Sitzler has treated this by manual disimpaction at least once but opines that it will re-occur on an ongoing basis.
98 I accept the plaintiff's evidence as summarised above. I have no doubt that she has truthfully described her perception of her symptoms and the general impact on her life. I reiterate that the defendant does not assert that she is malingering, and much of her description of symptoms is consistent with complaints recorded in contemporaneous medical records. Further, I must say that listening to the plaintiff's evidence, my impression was that the stoma has had a very significant impact on her amenity of life. It can be reversed but she has no intention of doing this at the present time because of the even worse pre-existing problems with constipation. Her decision not to reverse the ileostomy is consistent with medical advice, including that of Dr Sitzler, at least according to a letter he wrote in 2018. It was not suggested to the contrary by anyone in this trial.
99 I will now consider expert evidence affecting the question of causation.
Expert evidence as to causation
100 Mr Read's point that pain and other symptoms including effects on bowel function are associated with all forms of surgical treatment of haemorrhoids is supported by scientific literature provided to me. Professor Eyers also made this point in his first report when he said "PPH is a similar risk profile to other forms of excisional haemorrhoidectomy, but is known to be associated with an appreciable incidence of severe pain, and tenesmus." He refers to a particular study which found "a sensation of painful, incomplete or difficult evacuation was… commonly reported following stapled haemorrhoidectomy. Tenesmus was more commonly reported in stapled haemorrhoidectomy than other methods of haemorrhoidectomy".
101 In reviewing the plaintiff's post-operative symptoms, and review by other experts, Professor Eyers concluded that the plaintiff "had slow transit constipation….. on a balance of probabilities, was latent or subclinical at the time of the PPH." With respect to a causal link between the position of the staple line and the plaintiff's ongoing problems, he said in his first report:
"On the basis of the reported literature, both Ms Garling's anal pain and a change in her pattern of defaecation can be attributed to the PPH. There is a body of opinion that both can result from the staple line being too low, although I could find no high-level evidence to support the view.
While it is likely that Ms Garling had latent slow-transit constipation before the haemorrhoid operation, the PPH's effect on her pattern of defaecation was temporally associated with its inexorable worsening, and is, on a balance of probabilities, causally associated with it worsening."
102 In a further report dated 11 August 2020, Professor Eyers responded to a question dealing specifically with the causal connection, either directly or indirectly, between the placement of the staple line in the lower anal canal during the haemorrhoidectomy and some of the conditions diagnosed or complained of by the plaintiff since the procedure. In summary, his opinion was that there is a direct causal connection between the stapled haemorrhoidectomy and chronic proctalgia, and indirect causal
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connections between the procedure and the aggravation of pre-existing slow transit constipation, the ileostomy and the parastomal hernia. The indirect path is that the latter two resulted from the constipation and the aggravation of the latent and pre-existing constipation resulted from the requirement for the plaintiff to take analgesics to deal with the pain.
103 In cross-examination, Mr Read put to Professor Eyers that an article discussing a study which examined the symptomology following a stapled haemorrhoidectomy had "found no correlation between the degree of pain and the location of the stapling". Professor Eyers responded that he understood that to be the case from the literature and accepted that statement. Mr Read relies on the article and Professor Eyers' response to support a submission that the placement of the staples low in the anal canal is not causative of the plaintiff's ongoing pain. However, having read the full article, my view is that neither it nor Professor Eyers' response supports this conclusion. The study was actually not concerned with the question in issue in this case but rather its purpose was to compare the symptomology associated with stapled haemorrhoidectomy with that associated with another excisional procedure, the Milligan-Morgan technique, which includes surgical incision across the dentate line. The comparison was made in respect of two groups, containing 63 patients each, over a period of two years after the procedure. The comment put to Professor Eyers was an observation made in respect of those in the stapled haemorrhoidectomy group who had needed prolonged analgesic relief, which was only approximately 10% of the 63 patients in the group. The actual statement was "we did not find any correlation in the SH group between the intensity of pain (total analgesic dose administered and frequency of administration) and the height of the staple line". However, the context is that in all cases in the stapled haemorrhoidectomy group, the staple line was above the dentate line with a variation of between 1.5 and 4cm. Dr Jones' evidence establishes that the staple line achieved by the defendant was well below 1.5cm, that is the lowest staple is only 7mm above the assumed anatomical position of the staple line. The comment referred to by Mr Read would, therefore, not seem to be relevant to the issue in this case. It follows that Professor Eyers' acceptance of this published statement is also of no significance to the circumstances of this case.
104 In their joint memorandum, the colorectal experts discuss the question of causation:
"Pain is a feature of all forms of operative haemorrhoidectomy. Acute pain, which is very common, has been shown to be less common and/or severe following PPH than with the other techniques. Chronic pain, although uncommon, has been shown to occur with equal frequency following all of the operative haemorrhoidectomy techniques.
There is causal relationship between the Plaintiff's haemorrhoidectomy and the exacerbation of her pre-existing chronic constipation. The precise mechanism by which this might have occurred is not possible to specify.
While many of the Plaintiff's persisting symptoms can be attributed to an exacerbation of her pre-existing chronic constipation following the PPH, there are additional elements that are, in our opinion, more readily explained on the basis of psychosocial factors and a more global form of gastrointestinal dysfunction. To opine further in either regard would be beyond our expertise as colorectal surgeons."
105 The only other expert who provided evidence informing the question of causation, is Associate Professor Boesel. I have already discussed his evidence. In particular, he opined that there is a causal link between the procedure and the nerve damage, which, in his opinion, is the basis of the ongoing pain syndrome. Dr Sitzler was not asked during his testimony to express an opinion about this question. However, there is nothing in contemporaneous notes and correspondence prepared by him in respect of treatment which suggests that he considered there to be a causal link between the position of the staple line and the plaintiff's condition with which he was primarily concerned, the slow transit constipation, which ultimately led to his recommendation of the loop ileostomy. The causal link between the deterioration of the plaintiff's pre-existing constipation and the loop ileostomy and the consequent para- stomal hernia is a matter of agreement between the joint colorectal experts.
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Findings in respect of causation
106 It is a reasonable assessment of the evidence in this case that there is no direct proof of the requisite causal link. In particular, there is no direct evidence which establishes what damage has been caused by the low placement of the staple line in the anal canal, or the excision of tissue which included the dentate line. However, the plaintiff relies on circumstantial reasoning. The relevant circumstances include the absence of symptoms apart from rectal bleeding prior to the procedure, but their presence immediately after the procedure and thereafter, combined with expert evidence concerning the possible association between such symptoms and the placement of the staple line low in the anal canal.
107 It is well established that circumstantial reasoning is available in civil cases, including in respect of factual causation. In Circular Head Fencing Pty Ltd v Motor Accidents Insurance Board [2017] TASFC 6, the Full Court said at [84]:
"In this regard, it is accepted that it is not necessary for a plaintiff to establish the mechanism of the cause of loss with precision. The factual causation of loss by the breach of duty of a defendant is to be assessed on the balance of probabilities, including in circumstances in which alternative causes are possible: Strong v Woolworths Ltd (above); Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6 , 24 Tas R 18."
108 In Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6, 24 Tas R 18, Porter J considered the principles applicable to circumstantial reasoning in respect of factual causation in civil cases. His Honour's analysis of this question was summarised by Blow CJ (with whom Pearce J agreed) in Brocklands Pty Ltd v Tasmanian Networks Pty Ltd [2020] TASFC 4 as follows:
"Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found". 'A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.' Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J (with whom McColl and Bell JJA agreed) at [55].
All that is necessary is that according to the course of common experience the more probable inference from the circumstances ... should be that the injury arose from the defendant's negligence. By more probable is meant no more than upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6.
Evidence of possibility is capable of supporting a probative inference, and expert evidence of possibility may, as circumstantial evidence, alone or in combination with other evidence, establish causation": Langmaid, per Porter J at [124], citing Seltsam Pty Ltd v McGuiness [2000] NSWCA 29, 49 NSWLR 262 per Spigelman CJ at [89]; McDonald v Girkaid Pty Ltd [2004] NSWCA 297, Aust Torts Reports 81-768, per McColl JA (with whom Beazley JA and Young CJ in Eq agreed) at [104]."
109 Having regard to the whole of the evidence, and applying the principles set out above, I am satisfied on the balance of probabilities that the breach, that is the placement of the staple line over the dentate line, which necessarily involved staples placed low in the anal canal, and the excision of material from that area which included the dentate line, is the cause of the nerve damage diagnosed by Associate Professor Boesel, and the harm experienced by the plaintiff as a result of this damage. This includes the ongoing pain syndrome diagnosed by Associate Professor Boesel, and a significant aggravation of the plaintiff's pre-existing problems with bowel function, in particular the slow transit constipation, which was ultimately treated by Dr Sitzler. I am satisfied that it was this aggravation of the plaintiff's pre- existing problems with bowel function that led to the loop ileostomy, and the consequences thereof. This includes the parastomal hernia and the problems that the plaintiff has continued to experience with
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respect to her amenity of life and her psychological health and function. I am not satisfied, however, that the defendant's negligence has caused other problems afflicting the plaintiff, such as those affecting her gastroinstestinal motility and musculoskeletal issues.
110 In arriving at this conclusion, I have taken into account Mr Read's argument based on statements from the joint memorandum of the colorectal experts and published literature, that ongoing perianal pain and problems with defecation are known complications of a stapled haemorrhoidectomy, and that it is therefore possible that the placement of the staple line was not a necessary element of the occurrence of the harm, because it may well have happened in any event. This is an alternative possibility that requires consideration as part of the circumstantial reasoning process discussed above. However, there is ample evidence from experts and the published literature, that the probability of such harm is significantly increased when the staple line is placed lower in the anal canal than it should be. This, it seems to me, is the basis for the joint experts' opinion that placement of the staple line over or below the dentate line falls below the standard expected of a competent practitioner. If placement of the staples in that position made no difference to the anticipated outcome, then it is difficult to understand why such placement would be regarded as a breach of the accepted standard of competency.
111 I also accept the opinion of Associate Professor Boesel. He conceded that he is not able to identify the mechanism by which damage has been caused and in particular, is not in a position, having regard to the extent of his expertise, to relate the nerve damage to the placement of the staple line. However, he was able to identify the existence of nerve damage, and with his expert understanding of the symptoms associated with such damage, was able to infer the existence of a causal link by virtue of the temporal coincidence between the operation and such symptoms, in particular pain. This is consistent with the view of the colorectal experts, who also were not able or prepared to identify the mechanism of injury and causation of consequence with precision, but accept the probability of the causal link.
112 Of course, in assessing the quantum of compensation for such damage, it will be necessary to take into account the reality of the plaintiff's pre-existing conditions and the chance that she would have developed the same or similar conditions to those now experienced by her in any event. The correct approach to this circumstance is well-established. The defendant must take the plaintiff as he finds her, and if his negligence has caused damage, including by the aggravation of pre-existing conditions, then he will be liable for that damage. Provided that the "but for" test is properly applied, the fact that the damage occurred in circumstances in which the plaintiff was predisposed and vulnerable to such damage because of pre-existing conditions, will not relieve the defendant of liability. Mr Read has not argued to the contrary. However, the chance that the damage caused by the breach of duty may have occurred in any event it is a contingency that is relevant to the assessment of compensation. As the High Court made clear in Malec v JC Hutton Pty Ltd [1990] HCA 20, (1991) 69 CLR 638, the damages otherwise recoverable for the loss must be reduced to take account of the chance that the defendant would have experienced such consequences in any event. The appropriate adjustment is to be assessed according to "the degree of probability that an event would have occurred, or might occur" per Deane, Gaudron and McHugh JJ.
Psychological injury
113 Before leaving the question of causation, I will also consider the evidence affecting the plaintiff's claim that the defendant's negligence has caused psychological injury. Both parties presented expert evidence from a psychiatrist. Dr Glenn Smith examined the plaintiff on 23 July 2019 and his report of the same day was placed in evidence. Dr Smith gave oral testimony and submitted to cross- examination. Dr David Kutlaca examined the plaintiff on 16 June 2021. His report dated 25 June 2021 was placed in evidence but he was not called to give oral evidence. I also have a joint report from these experts prepared as a result of a court ordered conclave between them conducted on 11 August 2022.
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114 The psychiatrists are agreed that the plaintiff had a long history of anxiety and depressive symptoms and had been diagnosed with psychological illness on a number of occasions prior to the stapled haemorrhoidectomy. The conditions so diagnosed include post-traumatic stress disorder (PTSD), anxiety and depression. There had been a number of events in her life which had contributed to these conditions, including a history of sexual abuse in childhood, domestic violence during her marriage and the inappropriate behaviour towards her by a psychiatrist perpetrated during psychiatric therapy. However, the psychiatrists also agreed that she reported that immediately prior to the procedure in 2013, "she had been happy and hopeful and not pervasively depressed, with positive thoughts and that she was fully independent in activities and daily living".
115 A significant difference between the experts was their report of the plaintiff's condition observed at the time of each respective consultation. Dr Smith reported on the basis of his examination conducted in 2019, that the plaintiff "presented with symptoms consistent with the diagnosis of post- traumatic stress disorder, persistent depressive disorder, with persistent major depressive episode". He concluded that her depressive symptoms "have been markedly aggravated by the difficulties related to the surgery in September 2013" and that there was a causal connection between this aggravation and what he described as "the gastrointestinal disturbance related to the medical misadventure". He opined that the plaintiff would require future psychiatric treatment, on a weekly basis in the long term.
116 On the other hand, Dr Kutlaca's opinion was that when he saw the plaintiff on 16 June 2021, she was presenting with limited psychological symptoms, and he was unable to diagnose a "psychiatric disorder secondary to the procedure from September 2013" and the plaintiff's "subsequent treatment". He considered that she did not require psychiatric or psychological intervention consequent upon the relevant procedure. However, in the joint memorandum, Dr Kutlaca agreed with Dr Smith that after the surgery in 2013 "there was a significant aggravation of her pre-existing anxiety and depressive symptoms that lasted until at least the time of Dr Smith's assessment in July 2019". It was agreed that this aggravation had developed "in the context of persistent pain, gastrointestinal symptoms and anxiety in social situations specifically regarding the risk of urinary and faecal incontinence". Dr Kutlaca agreed that the plaintiff would have presented to Dr Smith with the symptoms but noted that by the time of his assessment in 2021, the plaintiff "presented with a clearly improved mental state" that he attributed to the improvements in functioning and pain after she had a procedure in November 2019. He did not consider that her symptoms fulfilled the criteria for a diagnosis of a major depressive episode at that time. Although Verity Coulter, an occupational therapist engaged by the defendant had conducted an assessment based on self-reporting by the plaintiff that was consistent with "severe levels of depression, anxiety and moderate levels of stress at the time of the assessment" which was 25 May 2021, the psychiatrists agreed that the mental state examination performed by Dr Kutlaca was a more accurate and reliable method of assessment of anxiety and depressive symptoms.
117 The joint memorandum went on to note agreement between the psychiatrists that "it is probable that (the plaintiff's) psychiatric symptoms had improved to a significant degree between the time of Dr Smith's assessment in July 2019 and Dr Kutlaca's assessment in July 2021 but that there were likely ongoing less severe organic and psychiatric symptoms as noted in Ms Coulter's report". It was agreed therefore that the diagnosis in 2021 would most appropriately be "considered to be that of a persistent depressive disorder, with intermittent major depressive episodes, without current major depressive episode. The diagnosis of PTSD was longstanding and likely persistent if with variable morbidity".
118 The psychiatrists differ with respect to the need for ongoing psychiatric treatment. Dr Smith is of the opinion that this will be required and is due to the "ongoing aggravation of her longstanding anxiety and depressive symptoms". On a long term basis, the psychotherapy "is primarily due to (the plaintiff's) longstanding history of PTSD". However Dr Kutlaca does not agree that the plaintiff needs any further treatment for aggravation related to the stapled haemorrhoidectomy, although he does agree that she would need ongoing treatment because of her "longstanding history of anxiety and depressive symptoms".
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119 Both psychiatrists agree that because of the plaintiff's longstanding psychiatric problems, she needs ongoing domestic assistance. However Dr Kutlaca considered that none of this was attributable to the stapled haemorrhoidectomy, but Dr Smith thought that it was although he "agreed that it was probable that (the plaintiff's) assistance requirements by June 2021 had significantly reduced on account of her improvements in mental state".
120 I accept Dr Smith's opinion, insofar as it differs from that of Dr Kutlaca. In practical terms, the difference is relatively modest. However, I had the benefit of observing the plaintiff in the witness box and being cross-examined. My own impression was the plaintiff has suffered considerable psychological disturbance, which seems to me to be logically connected to her current condition and difficulties arising from the negligent performance of the stapled haemorrhoidectomy, including those arising from the ileostomy.
121 Having said this, I accept all the matters agreed by the psychiatrists. In particular, I accept that there has been a significant improvement in the plaintiff's psychiatric state between 2019 and 2021. I accept that she does require ongoing treatment, and that this is attributable to some extent to the aggravation of her pre-existing psychological condition, caused by the defendant's negligence. The damages assessed by me should include a sum for cost of future psychiatric therapy, but this should be discounted to take account of the contingency that it may have been needed in any event due to the ongoing impact of her pre-existing condition. In this regard, there is no question that there is a longstanding history of post-traumatic stress disorder and other psychiatric conditions, and the appropriate discount to take account of that reality will result in a significant discount for that contingency.
Assessment of damages
Pain suffering and loss of enjoyment of life
122 In my view, the negligent performance by the defendant of this procedure has had a significant impact on the plaintiff. I have already discussed the details of this, but in general overview, it was accepted by the defendant that the plaintiff is genuinely reporting her current level of pain and suffering. I formed the view from her evidence that the plaintiff is experiencing a high level of suffering at the present time. It seems to me that the collective impact of various aspects of her suffering was far greater than the sum of the individual parts. Her capacity to enjoy her life and the activities which would normally be a part of it is very impaired. I thought that there was a degree of hopelessness in her own subjective assessment of her current circumstances. Her evidence that she had "given up" resonated, and I can understand how she would have developed that attitude.
123 The evidence supports a finding that the consequences of the breach will continue well into the future and are probably permanent. This was Associate Professor Boesel's opinion. He expressed the view that the pain disorder is established and that she will likely suffer pain for the remainder of her life. He thinks that ongoing pain management will assist her to deal with this condition but "the underlying pathology will continue for the remainder of her life".
124 Of course, when assessing damages, it is necessary to take into account the quality of the plaintiff's pre-injury life and the contingencies already discussed. In particular, much of the misery currently being experienced by the plaintiff is due to the ileostomy and the stoma. This was specifically to deal with the constipation. While I have found a causal link between the placement of the staple line and the constipation, I think there is a high probability that this would have been required at some time in any event. This is the effect of Professor Eyers' evidence, who opined that the procedure had aggravated pre-existing and latent slow transit constipation. Accordingly, I should apply a significant discount when making the relevant assessment.
125 For pain, suffering and loss of amenities of life, I award the sum of $75000.
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Loss of earning capacity
126 The plaintiff claims damages for loss of earning capacity both in the past and the future. There is an associated claim for loss of past and future superannuation benefits. The claim in respect of loss of earning capacity is particularised as follows:
• In respect of past loss, it is asserted that after her arrival in Tasmania, the plaintiff investigated self- employment opportunities, including as a manager of the Open Garden's website, importing retail goods from overseas and as a distributor of classical movies. It is asserted that if these were unsuccessful, she would have sought and obtained full-time employment in office and business administration, and would have earned an average of "not less than $750 per week after taxation plus statutory superannuation". • In respect of future loss, it is asserted that this employment would have continued into the future to retirement upon reaching the age of 70 years. I note that the plaintiff at trial was aged 67 years. The claim for future loss asserts an earning capacity of not less than $900 per week after taxation plus statutory superannuation. It is accepted that "a deduction for vicissitudes of life of 20% would be appropriate". 127 The evidence presented by the plaintiff to support these claims can be summarised as follows. The plaintiff provided some details in evidence of her history of paid employment. She completed high school to sixth form, when she was 18 and then completed a course in business administration, which she described as business college or TAFE. The course lasted for one year. She was employed on a full- time basis in "small business management" prior to the birth of her first child. She described a variety of employment after that, including working at a golf club and then a hotel "doing the books", working at a dress shop and in a resort. She described this as a mixture of full-time and part-time work. This pattern of employment continued after the end of her marriage. She described employment for a period of time with a cinema, where because of her employer's regular absence, she "managed all the staff". She worked for the Newcastle City Council for about nine months in a relief position, four days a week. From what I could tell from her evidence, this was her last paid employment before moving to Tasmania. She was asked by her counsel to specify when she had last worked before coming to Tasmania, but her answer was not responsive to this question.
128 My perception of her evidence was that the move to Tasmania was intended to be a fresh start. Her plan was to obtain employment and she claims to have made a number of inquiries in an attempt to do so. This included an attempt to work for a film distributor and to obtain some form of contract with the Open Garden scheme in Australia. However, her evidence was that she had done this but these efforts were unsuccessful. She also said she attempted to commence an importing business but I was given no detail or information about this and it does not seem to have resulted in any remuneration. Overall, she provided little in the way of detail, and my impression was that while she wanted to work, and had some ideas, she had not successfully pursued any realistic business or remunerative opportunities since arriving in Tasmania. There was certainly no evidence that she had made any effort to obtain employment in office or business administration.
129 In cross-examination, it became clear that she had been in receipt of a disability benefit since at least 1996. She said that on a disability pension, she is allowed to work and wants to work but that she would not be able to work full-time.
130 An occupational therapist, Erika Skibby, assessed the plaintiff on two occasions, in 2020 and 2022, and has provided reports in evidence. Ms Skibby addressed among other things the plaintiff's earning capacity, before and after the procedure. Ms Skibby's first report dated 18 February 2020 contained information in relation to the plaintiff's work history. Between 1990 and 2010, the plaintiff worked in a variety of occupations including as a florist, a cinema manager and in secretarial, accounting
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and office manager roles. There were also periods spent as a retail sales assistant. Between 2004 and 2010, the plaintiff's occupation is shown as "wine sales (telemarketing); selling wine part-time". The plaintiff alluded in evidence to selling wine, but again provided no useful detail about this.
131 The information provided by Ms Skibby in that report is relatively detailed at least in terms of specifying each employer and seems reliable. Her opinion is that, having regard to the plaintiff's work history, she had demonstrated "broad skills and training in accounting related software, bookkeeping, word processing and general administration skills as well as basic business and marketing".
132 The final evidence relating to this question were copies of tax returns lodged between 2006 and 2009. They show that in 2006, the plaintiff earned a gross salary is $21,037, which I accept as being consistent with part-time employment. I infer that this was largely attributable to her employment by the Newcastle City Council. In 2007, she received salary and wages of $8,242, which I will assume, having regard to her evidence, was from telemarketing, as well as a further $5,819 from Australian Government allowances or benefits. Again, relying on her evidence, I infer that this was from the disability benefit. In 2008, she declared salary and wages, again I assume from telemarketing, of $11,559, with only $208 from the disability benefit. In 2009, the plaintiff declared a gross salary of $2,529. This return includes an occupation description, which is consistent with telemarketing.
133 This was the extent of the evidence adduced by the plaintiff relating to her pre-existing earning capacity. In particular, there was no further taxation or employment information relating to the period between 30 June 2009 and the procedure in 2013, and no explanation for its absence.
134 On the basis of the evidence presented, I accept that the plaintiff had worked in a number of largely office related roles until 2006 and thereafter worked on a part-time basis from home as a telemarketer. However, I conclude that she last earned remunerative income from this enterprise in 2009, and has not engaged in remunerative employment thereafter. I note in particular that despite her claim to an interest in business opportunities and employment after arriving in Tasmania, she had not actually performed any such work. I take into account also that she has obviously been in receipt of a disability pension, as she conceded, since 1996. The plaintiff certainly gave evidence that she had a desire to work, but no attempt was made to explain the lack of employment after 2009.
135 It is well-established that in respect of economic loss, the "compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss": per Heydon JA (as he was then) in State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, referring to Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. Hence, the failure of the plaintiff to earn income prior to injury is not conclusive of the lack of an earning capacity. In such a case, the Court will still need to assess whether there was, prior to injury, a capacity to earn income, the extent to which that capacity has been impacted by the compensable injury, and the chance that, but for the injury, the plaintiff may well have exercised the undiminished capacity subsequent to it. See French v NSW [1999] NSWCA 175. As Heydon JA explained in State of NSW v Moss, such an assessment involves the type of hypothetical enquiry discussed in Malec v Hutton:
"Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities."
136 In this case and having regard to all of the evidence, I think it is very unlikely that the plaintiff possessed any significant capacity to earn income immediately prior to the stapled haemorrhoidectomy. Further to the extent that she did possess some capacity in this regard, I think it is very unlikely that, irrespective of the defendant's negligence, she would have exercised same after 2013. I think it is far
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more likely that, although she may have wanted to work, she was prevented by both her physical and psychological health from pursuing remunerative employment after 2009. I am not satisfied that this would have improved to any considerable extent after 2013 irrespective of the defendant's negligence. Further, even if she did have some pre-existing earning capacity, I think it is unlikely that this would have continued to any significant extent as time went on. In this regard, I take into account both the plaintiff's lengthy history of pre-existing health problems and her age.
137 Having said this, it is not possible to exclude absolutely the existence of a pre-existing earning capacity, that has been damaged to some extent by the defendant's negligence. I think it is reasonable to assess that there may have been some small chance that the plaintiff would have, but for the defendant's negligence, successfully attempted some form of work after 2013. In making this assessment, I assume that telemarketing from home does not require significant personal or logistical resources, and hence, the chance of doing some of this work, and earning some remuneration from it, must be accepted as real, albeit of low probability. I think the appropriate method by which to assess compensation in that regard is to adopt a broad brush approach, and allow a relatively modest lump- sum on account of lost earning capacity, including superannuation benefits, past and future. In this regard, I award the plaintiff the sum of $50,000.
Past out-of-pocket expenses
138 The plaintiff claims past medical and pharmaceutical expenses. The claim so framed is as
follows:
• Medicare notice of past benefits – $29,209.45 • HCF statement – $52,565.05 • Estimate of medication costs – 460 weeks x $40 = $18,720 139 It must be said that the evidence supporting this claim was vague and unsatisfactory. In total, two documents were tendered and relied upon by the plaintiff, a Medicare notice of past benefits and a private health insurance statement. These seem to me to simply list all of the medical care provided to the plaintiff between the date of each procedure and trial. The plaintiff said in evidence that she had ticked on the Medicare document the items she believed were linked to the stapled haemorrhoidectomy. It was unclear to me as to whether the health insurance document was confined to medical care provided on a similar basis or was simply a collective of all medical care provided to her. The plaintiff said it was all related to the consequences of the stapled haemorrhoidectomy, and I can see that some of it clearly was, because of what I know about her related treatment. However, there was no other evidence adduced, or assistance provided to me, to link those items to the defendant's negligence, nor was any evidence adduced at all to support the plaintiff's claim for past medication costs.
140 There is no question that the pain and disability suffered by the plaintiff after the stapled haemorrhoidectomy has required a significant amount of medical care. However, not all of what is claimed has been caused by the defendant's negligence. Further, to the extent that there is such a causal link, there would need to be a discount for the contingency that treatment would have been required in any event. Finally, in relation to the medication claim, although no evidence was provided to support it, it is clear enough that some pain relief and other medication would have been required to deal with the consequences of placement of the staple line low in the anal canal during the procedure.
141 Because of the state of the evidence, I think I am limited to a broad brush approach. Doing the best I can in the circumstances, I assess damages for past medical and pharmaceutical expenses at approximately 50% of the sum claimed. Accordingly, I allow damages under this head in the sum of $50,000.
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Future outgoings
142 The first matter claimed for future outgoings is the cost of medical care. There are three categories of treatment relevant to an assessment of future medical costs. They are the treatment in respect of the chronic pain disorder, the cost of future psychiatric care and the cost associated with care of and treatment related to the stoma. There are also costs relevant to other professional consultations, nursing care and the cost of equipment and consumables. Consistent with earlier discussion, a different approach needs to be adopted in respect of each category, particularly when assessing allowance for relevant contingencies.
Pain disorder
143 As I have already found, there is a direct causal link between the defendant's negligence and the chronic pain disorder diagnosed by Associate Professor Boesel.
144 Associate Professor Boesel recommends the following treatment:
•
Medical pain management estimated at six consultations in the first twelve months and then three monthly consultations thereafter for two years. He considers the cost to be in the order of $2,500.
•
A course of pain focussed psychology, in the order of 12 to 24 sessions. He estimates the cost between $2,400 and $5,000.
• Physiotherapy, again 12 to 24 sessions with a cost between $1,500 and $3,000. •
Interventional pain management, which will include placement of a sacral nerve pain stimulator. This placement involves a hospital procedure and he estimates medical fees in the sum of $10,000 and hardware costs in the vicinity of $32,000. Thereafter, there will be ongoing maintenance at a cost of approximately $375 every six months. He also anticipates the need to replace the battery at least once in the plaintiff's lifetime, at a cost of $22,000 for hardware and $7,000 for hospitalisation and medical treatment. I calculate this cost as follows:
• Attendance at a pain management group program. The cost he estimates at $8,000 to $12,000. • Ongoing medication likely to cost in the vicinity of $1,000 to $1,500 per annum. I calculate this over the plaintiff's lifetime at $24.03 per week x 685.6 = $16474.96.
145 Some of the costs will be incurred in the very near future, some over a limited period and some for the rest of the plaintiff's life. A reasonable calculation of the aggregate, allowing the median where he has given an estimated range, and assessing ongoing costs over the stated period or over the plaintiff's estimated life expectancy where appropriate, is $125,000. A discount is necessary to reflect various contingencies including the normal vicissitudes of life and the possibility that some of this may be have been required in any event. However, when assessing that discount in respect of this aspect of the plaintiff’s loss, I must take into account my finding as to the direct causal link between the defendant's negligence and the pain syndrome. I will reduce the aggregate sum by 20%, and, accordingly, assess damages under this subheading in the sum of $100,000.
Psychiatric care
146 As I have already indicated, I accept Dr Smith's opinion. There is a need for future psychiatric care, but there should be a significant discount to take into account the significant history of pre-existing psychiatric conditions. I consider a discount in the order of 40% to be appropriate.
147 The amounts claimed in the plaintiff's particulars are in accordance with Dr Smith's evidence.
They are as follows:
•
Monthly consultations with a psychiatrist at a cost of $325 per consultation ongoing for the life expectancy of the plaintiff $75 per week x 685.6 = $51,420
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• Consultations with a psychologist at a cost of $300 per consultation. Dr Smith suggested that this would be required on a weekly basis in the long term. The plaintiff claims a "buffer" in the sum of $30,000, which I think is a reasonable assessment. 148 The total is $81,420. Applying a 40% discount, and rounding off, I allow $49,000.
Other medical costs
149 There is little if any evidence to support any assessment by me of the future cost of medical care, apart from that already discussed in relation to the pain syndrome and psychiatric care. However, there is clear evidence that the plaintiff will at the very least require repair of the parastomal hernia. Clearly, she will require other medical care in the future as well. However, in relation to the latter, there is a high probability that such costs would have been incurred by her in any event.
150 The repair of the hernia is in a different category. There is a causal link between the need for this surgery and the defendant's negligence. However, the only evidence addressing the cost of such surgery is contained in reports of another expert, Dr Greenberg, which although on the Court book were not ultimately relied upon or tendered by the plaintiff. Of course, a lack of such evidence does not relieve me of the responsibility to assess compensation.
151 Doing the best I can on the evidence provided to me, and using past cost as some guide, and including an appropriate discount for contingencies, I allow the sum of $15,000 for other medical treatment.
Professional consultations, nursing care and future equipment needs
152 This final category is evidenced in the memorandum of the agreed position between the occupational therapists. Because of the agreement between them, and lack of challenge from the defendant, including the evidence of Ms Skibby by cross-examination, I will assess those requirements as claimed, but again apply a discount for contingencies. Given that these assessments have been made over the balance of the plaintiff's life, and their nature makes it clear that some, if not most, of this will have been required by her at some time in any event because of pre-existing conditions. I think that the appropriate discount should be significant. I assess that discount at 40%.
153 The relevant calculations are as follows:
• Equipment and consumables (continence pads, sick bags walker and lightweight wheelchair) $48.31 per week x 685.6 = $33,121.33 • Ongoing consultations with dietician, physiotherapist, social worker, recreational officer and monthly nursing care $128.80 per week x 0.952 x 685.6 = $84,066.62 plus $9,158 = $93,224.62 154 The total of these sums is $126,345.95. Applying the relevant discount produces with rounding,
a result of $76,000.
Summary of claim for future outgoings
155 The aggregate of the amounts assessed by me under this head is $240,000. I allow this sum.
Past domestic assistance
156 The plaintiff claims a contribution of approximately $5 per week made by her to subsidise cleaning assistance provided by Anglicare. The particulars calculate this sum over 295 weeks at $1475. I assess damages under this head in that sum.
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Future domestic assistance
157 The final head of damages is in respect of future domestic care and assistance. This is the subject of agreement between the occupational therapists. They agree that the plaintiff will require future domestic assistance for 12 hours per week for the rest of her life. They have agreed on an average hourly cost of $65.17. They also agree that with this care the plaintiff should be able to continue living independently in the community for the near future. The plaintiff's claim is based on this agreement, and although Ms Skibby was cross-examined, there was no challenge concerning the agreed position in this regard. The real issue is the question of causation. I again use the same methodology as with other types of future cost, which essentially is to apply a significant discount to accommodate contingencies, including the effect of pre-existing conditions. Once again, because of the length of assessment of this claim and its broad nature, I think it appropriate to apply a discount of 40%.
158 The appropriate calculation is $782.04 x 685.6 = $536,166.62.
159 After application of the relevant discount, with rounding, the amount allowed under this head
is $320,000.
Interest
160 In accordance with the methodology and reasoning explained by me in Steen v Trustees of the Diocese of Tasmania [2024] TASSC 3, I intend to allow interest pursuant to s 35A of the Supreme Court Civil Procedure Act 1932, assessed at the rate of 4% on the full noneconomic loss component of the damages and one half of the loss of earning capacity assessment. This is an aggregate sum of $100,000. I will assess this sum from the date of commencement of the section, which is 9 September 2019. The appropriate period is therefore 4.75 years. The appropriate calculation is as follows:
$100,000 x 4% x 4.75 = $19,000.
Conclusion
161 I calculate damages, including interest is as follows:
Pain, suffering and loss of enjoyment of life $ 75,000 Loss of earning capacity $ 50,000 Past out of pocket expenses $50,000 Future outgoings $240,000
Past domestic assistance $1,475
Future domestic assistance $320,000 Interest $19,000 Total $755,475
162 I order that judgment be entered for the plaintiff against the defendant for the sum of $755,475.
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