Hammond v Heath - [2008] WADC 138

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HAMMOND -v- HEATH & ANOR [2008] WADC 138

CORAM: COMMISSIONER LEY

HEARD: 25-28 SEPTEMBER 2006, 6 SEPTEMBER 2007

DELIVERED : 18 SEPTEMBER 2008

FILE NO/S: CIV 2837 of 2004

BETWEEN: MICHAEL STEVEN HAMMOND
Plaintiff
AND
DOUGAL HEATH
First Defendant
THE MINISTER FOR HEALTH
Second Defendant

Catchwords:

Medical negligence - Abdominal surgery to clear bowel obstructions - Repair of incisional hernia - Insertion of Marlex mesh - Further abdominal surgery - Development of infection and abdominal fistula - Standard of care - Whether breach of duty of care by failing to warn of risks of maintaining Marlex mesh in situ and failing to remove Marlex mesh - Causation - Assessment of damages

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant              :     Mr D R Clyne
Second Defendant         :     Mr D R Clyne

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
First Defendant              :     Jarman McKenna
Second Defendant         :     Jarman McKenna

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

Amaca Pty Ltd v Hannell (2007) 34 WAR 102
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
City of Stirling v Tremeer (2006) 32 WAR 155
Hall v Petros [2004] WADC 87
Rogers v Whitaker (1992) 175 CLR 479
Strempel v Wood [2005] WASCA 163
Wall v Cooper [2008] WASCA 53

COMMISSIONER LEY: The plaintiff, Michael Steven Hammond, claims damages for negligence by the first defendant, Dougal (actually spelt Dugal) Ian Heath, a general surgeon, in performing abdominal surgery on the plaintiff at Sir Charles Gairdner Hospital in Nedlands ("SCGH") during 2001, and for failing to give the plaintiff certain advice. The plaintiff also claims damages from the second defendant who, at the material time, had the responsibility, management and control of SCGH, and employed all medical practitioners at SCGH, including the first defendant. On that basis, the plaintiff alleges that the second defendant is vicariously liable for the negligence of the first defendant. The defendants deny that the first defendant was negligent. However the second defendant accepts that, if the first defendant is found to be negligent, he (the second defendant) will be vicariously liable to the plaintiff for his (the first defendant's) negligence.

Facts

The plaintiff is 54 years of age. He has been on a disability pension since 1983, but I was not told how he came to be on a disability pension in the first place. Prior to 1983, he served in the Australian Army Reserve and worked for a time as a spray–painter. Since going onto the pension, the only work he has done has been the delivery of pamphlets for a company called Salmat, which does letterbox deliveries of advertising material. The plaintiff did that work two or three days per week between 7 November 1995 and 18 August 2000 (exhibit 1).
From about 1997, the plaintiff began to suffer from bouts of severe abdominal pain associated with vomiting and distension and tenderness of the abdomen. Those signs and symptoms were diagnosed as being indicative of obstruction of the small bowel. In 1997, he underwent a laparotomy (abdominal surgery) in which he was found to have significant adhesions of the small bowel, which were causing the obstructions. The adhesions were divided and the obstructions cleared.
The plaintiff began to suffer consistently from obstruction of the small bowel from about April 2000. On 7 April 2000, when displaying all the usual signs and symptoms, he was admitted to the Joondalup Health Campus ("JHC"), under the care of Mr G Bose, a general surgeon. Mr Bose treated the plaintiff conservatively with intravenous infusion ("IVI") and naso‑gastric tube drainage ("NGT"). That caused his condition to settle and he was discharged home. However, he was re‑admitted a few days later with a recurrence of his symptoms, and Mr Bose performed a laparotomy on 20 April 2000. At operation, Mr Bose found that the omentum was plastered over the small bowel and that the loops of small bowel had adhered together and to the transverse colon. He divided and separated the adhesions. After that, the plaintiff was admitted to the Intensive Care Unit ("ICU") of JHC for a few days, and then remained in hospital before discharging himself, against medical advice, on 22 May 2000.
After that time, the plaintiff continued to suffer sub‑acute small bowel obstruction on a fairly regular basis and was admitted to JHC from time to time and was treated conservatively. On each occasion, his condition settled and he was discharged.
On 5 May 2001, the plaintiff was again admitted to JHC, suffering from severe abdominal pain and vomiting, and came, for the first time, under the care of the first defendant. As well as being employed as a consultant surgeon at SCGH, the first defendant was employed as a consultant surgeon at JHC.
The first defendant diagnosed the plaintiff to be suffering from sub‑acute small bowel obstruction and treated the condition conservatively with IVI and NGT. The plaintiff remained at JHC until 8 May 2001, when he pulled out his IVI tube and the first defendant authorised the removal of his NGT. The plaintiff was then discharged from hospital on the basis that he would return to see the first defendant in six weeks time. However, he quickly suffered a recurrence of his abdominal pain and other symptoms and was re‑admitted to JHC under the care of the first defendant on 9 May 2001.
At first, the first defendant treated the plaintiff's condition conservatively. However, on 10 May 2001, the plaintiff complained that his abdominal pain was considerably worse, notwithstanding his treatment. Accordingly, the first defendant decided to perform a laparotomy in an attempt to clear the plaintiff's small bowel obstructions. The first defendant performed the laparotomy later that day and found that there were multiple adhesions of the small bowel and that the proximal small bowel was slightly distended and had collapsed distally. The first defendant took down all the adhesions but found that, because of the previous surgery which the plaintiff had undergone, part of a loop of the small bowel had protruded or herniated through the lining of the peritoneum where the incision had been made in the previous surgery. The first defendant repaired that defect by inserting a section of Marlex mesh between the peritoneal lining and the muscle immediately outside the peritoneum. Marlex mesh is a form of polypropylene surgical mesh commonly used by surgeons to repair incisional herniae which often occur as a result of abdominal surgery. That surgery took a little over two hours.
The plaintiff's progress following the surgery was satisfactory. However, he did develop a paralytic ileus (a functional obstruction of the intestines resulting from an inhibition of bowel mobility), which took some time to resolve. Accordingly, the plaintiff remained in JHC and was again placed on IVI and NGT. The first defendant reviewed him on 13 May 2001 and, because of his progress, authorised the NGT to be removed. However, by that afternoon, the plaintiff's abdomen had again become distended and he was suffering severe abdominal pain. Those symptoms persisted until 15 May 2001, when the first defendant decided to start the plaintiff on Total Parental Nutrition ("TPN"), allowing the plaintiff to be fed intravenously.
By 17 May 2001, the plaintiff's abdominal pain was still severe and, in addition, he had become very agitated and aggressive. At that time, the first defendant was on leave from JHC and it was his surgical registrar, Dr M Kuan, who was caring for the plaintiff. The plaintiff told Dr Kuan that he was dissatisfied with the standard of care he was receiving at JHC, and wanted to be discharged. Dr Kuan told him that that would be dangerous, because of his condition. The plaintiff was not prepared to accept that advice and became even more aggressive. In the absence of the first defendant, Dr Kuan enlisted the assistance of a general and colorectal surgeon, Robert James Aitken, who spoke to the plaintiff. However, the plaintiff became more agitated and then became violent. He attempted to tear out his venous catheter. When he made that attempt, he was restrained physically by Mr Aitken and Dr Kuan, who injected him with Diazepam to sedate him.
However, both Mr Aitken and Dr Kuan could see that, if the plaintiff remained at JHC, his dissatisfaction with the standard of care would continue, to the possible detriment of his state of health. Accordingly, arrangements were made to transfer him the following day, from JHC to SCGH, under the care of the first defendant, who had by then returned from leave.
On 19 May 2001, the first defendant reviewed the plaintiff at SCGH and instituted further conservative therapy. On 20 May 2001, the first defendant again reviewed the plaintiff and caused him to undergo an abdominal x‑ray. That showed moderate distension of the small bowel loop with fluid levels. By then, the plaintiff's abdomen had become very distended. The plaintiff told the nurses attending him that he felt like he was "going to explode".
On 21 May 2001, the plaintiff continued to complain of increasing abdominal pain and it was noted that he was "rolling around in agony". That pain continued through until 25 May 2001 when, in addition to his abdominal pain, the plaintiff complained of chest pain and hypertension. In view of the plaintiff's previous history of angina, the SCGH Medical Emergency Response Team was called.
On the same day, the plaintiff was reviewed by the first defendant. In the light of his increasing abdominal pain, the development of guarding and tenderness of the abdomen, a temperature of 39ºC and a pulse that had risen to 110 beats per minute, the first defendant was concerned that there was some intra‑abdominal problem. He therefore arranged to perform a laparotomy on the plaintiff.
At operation, the first defendant found that the plaintiff's small bowel had herniated through a defect in the peritoneum and was stuck to the Marlex mesh. He found that the small bowel was oedematous (there were large amounts of fluid in the intercellular tissue spaces) but was viable, i.e. the tissue was still alive. He removed part of the small bowel, restored bowel continuity by creating an end‑to‑end anastomosis (the joining together of two divided ends of the small bowel), and established a double barrelled transverse colostomy in the upper part of the vertical abdominal incision.
The hospital records indicate that this was a very difficult procedure and that there were multiple adhesions of the small bowel. There was also oozing and bleeding, making it necessary for the plaintiff to be given three units of packed red blood cells intra‑operatively.
In the course of the surgery, the first defendant made a number of enterotomies (perforations) in the small bowel which, at the end of the procedure, he repaired by suturing. In all, the surgery took approximately six hours (exhibit 6B at 288; T396).
At the conclusion of the surgery, the first defendant closed the upper end of the plaintiff's abdominal wound but packed the lower end and left it open, to allow regular cleaning and dressing. In his evidence, the first defendant said that he did that because he intended to undertake a further laparotomy and peritoneal lavage between 24 and 48 hours later. He said that he did that with all patients who had gross peritoneal contamination, to see whether there were any collections of fluid or pus within the peritoneal cavity and wash them out (T 401).
When the surgery was complete, and the wound was partially closed and packed, the plaintiff was taken from theatre to the ICU. He was then ventilated, administered broad spectrum antibiotics and given ionotropic support (to assist his heart function). He was in a serious condition and was thought to have a poor prognosis.
In accordance with his plan, the first defendant took the plaintiff back to surgery on 27 May 2001. That was for the purpose of a further laparotomy and peritoneal lavage. In the course of that procedure, the first defendant found a small hole in the upper duodenum, which he had apparently made during the surgery on 25 May 2001. Accordingly, he closed that hole with suture material. After that was complete, the plaintiff was once again returned to the ICU, where he was again ventilated, administered antibiotics and given ionotropic support.
At some stage, the plaintiff developed an abdominal fistula. An abdominal fistula is an abnormal passage leading from one of the hollow abdominal viscera (the large internal organs of the abdomen) to the surface of the abdomen. An abdominal fistula can be enterocutaneous or colocutaneous. An enterocutaneous fistula allows communication between the intestine and the skin of the abdomen. A colocutaneous fistula allows communication between the colon and the skin of the abdomen.
By 31 May 2001, the plaintiff began to wake up slowly in the ICU and the process weaning him off the ventilator was commenced. He was finally extubated on 2 June 2001 and discharged from ICU on 3 June 2001. He was then considered stable, although his colostomy at the top end of the mid line of his abdominal wound was draining large quantities of bile stained fluid, which could not be controlled by conservative measures. That was thought to be evidence of the fistula.
In addition to the fistula, the plaintiff was febrile and had a rapid pulse rate. A CT scan of his abdomen performed on 13 June 2001 revealed extensive chronic abdominal/intraperitoneal phlegmon (a solid, inflamed mass of tissue), with some abdominal wound dehiscence (splitting of the wound), but no drainable fluid collection was identified.
The plaintiff remained in hospital from 3 June to 24 August 2001 (apart from a brief period on 22 August 2001, when he absconded from hospital but was persuaded to return). Throughout that time, he was kept on TPN, to facilitate further surgery, if it became necessary.
On 25 August 2001, the first defendant again caused the plaintiff to be taken to theatre and, with the assistance of Mr Aitken, performed another laparotomy. On that occasion, multiple small bowel adhesions were again found and, in the course of the surgery, further perforations were made in the small bowel. They were duly closed with sutures. The surgery was again difficult and occupied approximately five hours (T 355). At the conclusion of the surgery, the plaintiff was again returned to the ICU.
Following the procedure on 25 August 2001, large volumes of intestinal‑type fluid continued to discharge from the wound and, by 28 August 2001, the plaintiff was suffering severe abdominal pain and was pyrexial i.e. feverish. On that day, the first defendant again caused the plaintiff to be taken to theatre, where he performed another laparotomy. On that occasion, he located a small enterotomy in the small bowel and closed that with sutures.
By 31 August 2001, the plaintiff's wound was leaking bile stained fluid. His hospital notes recorded "moderate bile drainage from left Yates drain". The report on a gastrografin swallow taken earlier in the day indicated a small bowel leak. However, the first defendant, on this occasion, decided to treat the plaintiff conservatively. Also at that time, the plaintiff had developed a paralytic ileus. That made it necessary for him to receive naso‑gastric suction and TPN.
By mid‑September 2001, the plaintiff's paralytic ileus had begun to resolve and the function of his gastrointestinal tract was returning slowly to normal. He still continued to suffer abdominal pain and was administered Tramadol intravenously to treat his pain. By 26 September 2001, the plaintiff's abdominal pain had stabilised and was well controlled by oral medications. By then he was able to tolerate nourishing fluids and, on 28 September 2001, a light diet was commenced, and he was weaned off his TPN. He was finally discharged from SCGH on 5 October 2001 with a discharging but partially healed abdominal wound and a Hickman's catheter in situ.
On 6 October 2001, the plaintiff presented at the Emergency Department of SCGH complaining of abdominal pain. An abdominal x‑ray revealed no free air fluid levels and he was diagnosed to be suffering from a sub‑acute small bowel obstruction. He was admitted to hospital and placed again on NGT.
On 7 October 2001, the plaintiff removed his NGT himself and discharged himself against medical advice. However, he was readmitted later in the day with further abdominal pain and a CT scan suggested that there was a small bowel obstruction in the region of the jejunum (the portion of the small bowel between the duodenum and the ileum). This appeared to be related to an inflammatory mass in the lower abdomen to which multiple loops of small bowel were tethered.
On 10 October 2001, the plaintiff was started on Prednisolone and Azathioprine to reduce the inflammation which appeared to be the principal cause of his small bowel obstruction. That again meant that the plaintiff was required to be fed by NGT, but he objected to that, and the NGT could not be inserted.
On 11 October 2001, a further attempt was made to insert a naso‑jejunal tube for feeding, but that failed. Nevertheless, by 13 October 2001, his abdomen had settled and he was started on fluids. He still had some oozing from his abdominal wound but was generally better. He continued to suffer from a small bowel obstruction which caused him to vomit and, on 26 October 2001, the naso‑jejunal tube was finally inserted. Initially, feeding commenced with no difficulty but, by 27 October 2001, the plaintiff complained of excruciating pain. He was treated with Buscopan which provided some relief. On 29 October 2001, he was discharged with the naso‑jejunal tube in position.
On 3 November 2001, the plaintiff was readmitted to SCGH complaining of abdominal pain and was treated conservatively. He was discharged on 6 November 2001.
On 7 November 2001, the plaintiff re‑attended the Emergency Department at SCGH complaining of abdominal pain with vomiting. Abdominal x‑rays showed a few loops of dilated small bowel. He was treated conservatively and discharged on 10 November 2001.
On 14 November 2001, the plaintiff attended at the Emergency Department of JHC. He said that he had been unwell and displayed the signs and symptoms of systemic sepsis. He was admitted to the JHC medical ward on 15 November 2001 under the care of Dr S Richards, a physician. It was thought that his sepsis was coming from his Hickman line, which was removed. He remained in the JHC medical ward until 18 November 2001, by which time his symptoms had resolved. He was then discharged.
The plaintiff attended again at JHC on 25 November 2001, with symptoms which were indicative of a sub‑acute small bowel obstruction. He remained in JHC until 27 November 2001, when he discharged himself against medical advice. However, he then attended the Emergency Department of JHC later that day and was treated conservatively. He remained there until 1 December 2001, when he was discharged.
On 14 December 2001, the plaintiff was admitted to the surgical ward of JHC. He was seen there the following day by Mr Aitken, who found that some Marlex mesh was protruding from the lower portion of his wound. He also found that the wound was infected with staphylococcus aureus and caused him to be administered the appropriate antibiotics.
On 5 February 2002, the plaintiff re‑attended the Emergency Department of JHC. On that occasion, he had some colicky abdominal pain associated with vomiting and the nature of the discharge from his abdominal wound had changed. He was admitted to the ward but discharged himself on 6 February 2002.

On 14 February 2002, Mr Aitken wrote to a Dr Lim, who was then the plaintiff's general practitioner, advising that some of the Marlex mesh was protruding from the plaintiff's abdominal wound, which still required daily dressings. Mr Aitken advised Dr Lim that it would not be technically possible or indeed wise to remove the mesh in its entirety, but that the mesh ought to be removed piece by piece as it floated to the surface.
On 25 April 2002, the plaintiff attended at the Emergency Department of JHC, complaining of abdominal pain. On that occasion, he was not admitted.
On 1 May 2002, the plaintiff's then general practitioner, a Dr Rehman, referred the plaintiff to George John Kubacz, a consultant colorectal surgeon. When Mr Kubacz examined the plaintiff's abdominal wound, he found that, in the upper aspect of the lower part of the wound, there was a discharging sinus (an abnormal passage between the surface of the abdomen and some underlying foreign material) and, in the lower aspect of the lower part of the wound, approximately 3 centimetres of Marlex mesh was protruding. Mr Kubacz removed the protruding mesh by cutting it off. The plaintiff consulted Mr Kubacz again on 29 May 2002.
On 8 June 2002, the plaintiff again attended the Emergency Department of JHC. On that occasion, his wound seemed to be smaller and was discharging only through a small fistula in the middle to lower part of the wound. There was an associated hernia in the right iliac fossa. He was treated over the following two days and was discharged on 10 June 2002. He consulted Mr Kubacz on 26 June and 24 July 2002.
On 3 August 2002, the plaintiff attended the Emergency Department of JHC. Little was found on examination and investigation, and he was discharged home a short while later.
The plaintiff consulted Mr Kubacz again on 7 August 2002. At that time, the plaintiff's wound was still discharging and required daily dressings. Mr Kubacz arranged for the plaintiff to undergo a sinogram, which showed the presence of a tract beneath the central portion of the abdominal wall which communicated with the transverse colon. Mr Kubacz concluded, therefore, that the discharging sinus was a colocutaneous fistula. The plaintiff consulted Mr Kubacz again on 21 August 2002.
On 28 August 2002, the plaintiff was admitted to JHC under the care of another surgeon, Mr R Goldman, complaining of abdominal pain and suffering from diarrhoea and vomiting. The Surgical Registrar, Dr E Grainger, noted that, when not disturbed, the plaintiff did not appear to have pain, but, once under observation, his pain could only be managed with the use of morphine. The plaintiff remained in JHC until 30 August 2002, when he was discharged and arrangements were made for him to be reviewed by Mr Kubacz.
On 4 September 2002, the plaintiff once again attended the Emergency Department of JHC. His symptoms were the same as on previous occasions. There was some concern that he might have a small bowel obstruction and he was therefore treated with NGT and IVI. He settled with conservative treatment and was discharged on 9 September 2002. He consulted Mr Kubacz on 18 September and 2 October 2002.
On 10 October 2002, the plaintiff attended once again at the Emergency Department of JHC. He complained of severe abdominal pain following some tests at JHC the previous day. Abdominal x‑ray showed some fluid levels. He was treated with NGT and IVI and his symptoms resolved. He was discharged home on 13 October 2002. He consulted Mr Kubacz on 16 October 2002.
Mr Kubacz saw the plaintiff for the last time on 22 January 2003, when he told him that he intended to retire from surgical practice and referred him for further management to another colorectal surgeon, Graham Richard Hool. Mr Kubacz retired from clinical practice at the end of July 2003.
It seems that the plaintiff did not consult Mr Hool, but was admitted under his care to the Emergency Department of Royal Perth Hospital ("RPH") on 7 February 2003. At that time, the plaintiff was complaining of generalised but increasing abdominal pain and generalised abdominal tenderness. Shortly after he was admitted to RPH, Mr Hool arranged for him to undergo an abdomino–pelvic CT scan. That confirmed the presence of the Marlex mesh in the pre-peritoneal position, with the presence of gas extending from the bowel, through the mesh, into the sub-cutaneous fat. The CT scan also revealed a marked inflammatory reaction around the ileocolic anastomosis at that level, but no small bowel obstruction. Mr Hool decided to observe the plaintiff initially and arranged for him to be reviewed by a pain specialist. After this review, and when the plaintiff's pain did not settle, Mr Hool offered him surgery with the intention that he would remove the Marlex mesh, which he believed had become involved with the colocutaneous fistula.
On 14 February 2003, Mr Hool performed a laparotomy on the plaintiff and divided adhesions in his small bowel. However, he found no clear level of obstruction to the small bowel. He found that there was a fistula present at the ileocolic anastomosis through the Marlex mesh which did not become incorporated into the plaintiff's tissues and then extended to the skin. Mr Hool performed an extensive division of adhesions, and resected the ileocolic anastomosis and performed a redo anastomosis. He also removed such of the mesh as was not incorporated into the fistula. He then placed some Sepra film into the plaintiff's peritoneal cavity to minimise the chance of further adhesions. In the course of that procedure, Mr Hool made multiple enterotomies in the small bowel, which he repaired by suturing.
On 17 February 2003, Mr Hool performed a further laparotomy on the plaintiff. On that occasion, he found that the plaintiff had an enterotomy in his proximal ileum (the ileum is the portion of the small bowel between the jejunum and the large bowel), which he repaired. Mr Hool considered that he had made the enterotomy during the surgery on 14 February 2003, but had not identified it at that time. On 10 March 2003, the plaintiff was discharged home.
After that time, the plaintiff did not have any major problems until January 2005, when he suffered five days of cramping, sharp abdominal pain, which required his admission to RPH, again under the care of Mr Hool, on 14 January 2005. The plaintiff's abdominal pain was also associated with diarrhoea and abdominal bloating. Abdominal examination revealed normal pulse rate and blood pressure and a distended and generally tender abdomen. Plain abdominal x‑rays were unremarkable. On 15 January 2005, Mr Hool arranged for the plaintiff to undergo an abdominal CT scan, which showed multiple adherent small bowel loops in the left lower quadrant, with subtle stranding of the mesenteric fat in that region. Mr Hool treated the Plaintiff conservatively and his symptoms resolved.
Mr Hool was next asked to see the plaintiff on 14 November 2005, in his outpatient clinic at RPH. On that occasion, the plaintiff told Mr Hool that he:
had blood in his urine, associated with a burning sensation on urination; and
was having dark red to black bowel motions.
Mr Hool arranged for the plaintiff to have a urological review, and a subsequent upper gastrointestinal endoscopy and colonoscopy. The upper gastrointestinal endoscopy showed mild anterial erosions and a hiatus hernia, but the colonoscopy was normal. Mr Hool treated those conditions conservatively.
The plaintiff adduced no evidence of any further hospital attendances or admissions between January 2005 and the first part of the trial in September 2006.

Pleadings

When the trial began, the plaintiff's allegations against the defendants, as they appeared in his amended statement of claim filed on 2 May 2006, were that:
(a)on 25 May 2001, the first defendant had performed a laparotomy on the plaintiff "for resection of the distal small bowel";
(b)during that operation, the first defendant had:
(i)created a perforation in the bowel which was not recognised and sutured; and
(ii)omitted to remove the Marlex mesh which he had inserted during previous surgery on 10 May 2001;
(c)the first defendant had been negligent in that he had:
(i)perforated the bowel during surgery (presumably, the laparotomy performed on 25 May 2001);
(ii)failed to recognise the perforation;
(iii)failed to "take cognisance of the pooling of the contents of the bowel as a result of the perforation";
(iv)failed to "adequately run through the bowel" to detect any perforations prior to concluding the surgery;
(v)failed to suture the perforation prior to concluding the surgery;
(vi)failed to remove the Marlex mesh;
(vii)failed to warn the plaintiff of the risks of the insertion and/or maintenance of the Marlex mesh in situ;
(viii)failed to advise the plaintiff to have the Marlex mesh removed in or after May 2001;
(ix)failed to engage the assistance of a specialist colorectal surgeon in relation to the operation (presumably, the laparotomy performed on 25 May 2001).
However, counsel for the plaintiff told me during his opening that the plaintiff would not press his allegation that the first defendant had been negligent by perforating the plaintiff's bowel during the surgery on 25 May 2001. He also told me that the plaintiff would not press the allegation that the first defendant had been negligent by failing to engage the assistance of a specialist colorectal surgeon for the surgery on 25 May 2001.
In addition, counsel for the plaintiff sought leave to amend the statement of claim to delete the allegation that the first defendant had been negligent in failing to warn the plaintiff of the risks of the insertion of the Marlex mesh (while retaining the allegation that he had been negligent by failing to warn of the risks of maintaining the Marlex mesh in situ). The defendants did not oppose that application, and I granted leave.
After those amendments, the pleading was a little ambiguous. However, it appeared that the plaintiff was alleging that the first defendant had been negligent because inter alia he had not removed the Marlex mesh during the operation on 25 May 2001. However, in the course of his opening remarks, counsel for the plaintiff indicated that the plaintiff would be alleging that the first defendant had been negligent not only by failing to remove the mesh on 25 May 2001 but also by failing to remove it between May and August 2001. Counsel for the defendants took the point, quite properly, that the statement of claim did not contain any allegation of negligence by failing to remove the mesh at any time later than 25 May 2001. Accordingly, the plaintiff sought leave to further amend the statement of claim to allege that the negligence of the first defendant in failing to remove the mesh extended from 25 May to 28 August 2001 (the date of the last operation performed by the first defendant), and the defendants indicated that they would not oppose the grant of leave to make such an amendment. Accordingly, I granted leave and the plaintiff agreed to file and serve a further amended statement of claim.
The further amended statement of claim was filed on 19 December 2006. As a result of the amendments made, the plaintiff's allegations became that the first defendant had been negligent in that he had:
(a)failed to recognise the perforation in the plaintiff's bowel on 25 May 2001;
(b)failed to take cognisance of the pooling of the contents of the bowel as a result of the perforation on 25 May 2001;
(c)failed to adequately run through the bowel to detect any perforations prior to concluding the surgery on 25 May 2001;
(d)failed to suture the perforation prior to concluding the surgery on 25 May 2001;
(e)failed to remove the Marlex mesh between 25 May and 28 August 2001;
(f)failed to warn the plaintiff of the risks of the maintenance of the mesh in situ; and
(g)failed to advise the plaintiff to have the mesh removed in or after May 2001.

Expert evidence

It can be seen from the allegations of negligence, as amended, that the case essentially falls to be determined by the resolution of technical issues in relation to abdominal surgery. Accordingly, the expert surgical evidence called on both sides assumes paramount importance.
However, that is not to say that if one expert expresses, or a number of experts express, the opinion that a particular practice adopted by the first defendant is accepted as proper by a responsible body of medical opinion, it cannot be found that the first defendant was negligent in adopting that practice. There was once such a principle, which was known as the principle in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. However, in Rogers v Whitaker (1992) 175 CLR 479, the High Court held that the Bolamprinciple should not be applied in Australia in cases of alleged negligence in providing information and advice relevant to medical treatment. At 487, Mason CJ, Brennan, Dawson and McHugh JJ said:
"In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or confidence is that of the ordinary skilled person exercising a profession to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the Courts have adopted that the principle that, while evidence of acceptable medical practice is a useful guide for the Courts, it is for the Courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life."
That principle has been applied consistently in this State, and in the other States of Australia, ever since Rogers v Whitakerwas decided. In Strempel v Wood[2005] WASCA 163 McLure JA said at [28]:
"A medical practitioner owes his or her patient a duty to exercise reasonable care and skill in the provision of professional advice and treatment: Rogers …at 483 and 489. However, the test for medical negligence is not what other doctors conclude, or say they would or would not have done in the same or similar circumstances …"
In support of his allegations against the defendants, the plaintiff called as experts, Messrs Kubacz and Hool, the two colorectal surgeons who treated him from time to time between May 2002 and January 2005. The defendants, on the other hand, adduced expert evidence from Professor Kingsley Walton Faulkner, a general surgeon, and Mr Aitken, the general and colorectal surgeon who had assisted the first defendant when he performed the laparotomy on the plaintiff on 25 August 2001.

Mr Kubacz

Mr Kubacz attended and treated the plaintiff between 1 May 2002 and 22 January 2003. When he gave his evidence–in–chief, the plaintiff's counsel tendered through him four reports which he had issued in response to requests from the plaintiff's solicitors. Those reports were dated 27 June 2005 (exhibit 10), 6 February 2006 (exhibit 11), 24 July 2006 (exhibit 12) and 25 September 2006 (exhibit 13).
Mr Kubacz wrote his report dated 27 June 2005 in response to a letter from the plaintiff's solicitors dated 10 June 2005, in which they sought comment from Mr Kubacz concerning a report from Mr David Steinberg, another colorectal surgeon, dated 26 April 2005. I was provided with a copy of Mr Steinberg's report, but he was not called as a witness, and his report was not admitted into evidence. I received it simply to enable me to understand some of the comments made by Mr Kubacz in his report. In his report, Mr Steinberg expressed the view that it would have been totally inappropriate for the first defendant to have removed the Marlex mesh during the laparotomy on 25 May 2001. Mr Steinberg also said that it could not be categorically stated that the enterocutaneous fistula, which he said was essentially the reason for the laparotomy on 25 August 2001, was necessarily related to the mesh. He said that, if he had been in the first defendant's position, he would not have removed the mesh during the operation on 25 August 2001, unless he was absolutely sure that there were no other causes for the fistula. In response, Mr Kubacz said that, in his opinion, the mesh should have been removed during one of the laparotomies performed by the first defendant on 25 and 27 May 2001. However, he also said:
"During the laparotomies of 25 and 27 May 2001, the mesh was not removed. It would have been impossible to close the peritoneum which would have been densely adherent to the mesh and thus impossible to dissect off the mesh."
That sounded rather like an argument against removing the mesh. Mr Kubacz was asked, during his evidence‑in‑chief, how he reconciled that statement with his view that the mesh should have been removed during either of those operations. However, he did not, at least to my mind, say how he did. Instead, he simply reiterated the view that to remove the mesh from the abdominal wall during the laparotomy on 25 May 2001 would have been "quite a simple matter" and "not a big problem" (T 133).
In his report dated 6 February 2006, Mr Kubacz responded to a letter from the plaintiff's solicitors dated 24 January 2006, in which they posed various specific questions.
In that report, Mr Kubacz said that the Marlex mesh could have been removed during one of the laparotomies at SCGH (on 25 and 27 May 2001) "depending on the clinical situation at the time". Then, in speaking of the laparotomy performed on 25 May 2001, he said:
"This procedure together with suture repair of further perforations of the small and large bowel and the establishment of a transverse colostomy took approx. 6 hours and to further extend the operating time to remove the mesh was not warranted. The mesh could always have been removed during a subsequent procedure."
However, he said that the laparotomy on 27 May 2001 "presented the perfect opportunity to remove the mesh and I would have therefore removed the mesh". Under cross–examination at the trial, on the other hand, he accepted that whether or not the mesh was removed during the surgery on 27 May 2001 was a matter of clinical judgment depending upon the condition of the patient at that time (T 180).
Also in his report dated 6 February 2006, Mr Kubacz said that he would have advised the removal of the mesh "at some stage". When he was asked about that in cross‑examination, he said that if the wound had been left open initially but had been finally closed with the mesh intact, but the mesh had led to severe complications, that would have been the time to remove the mesh. It was then put to him that he had seen the patient for nearly nine months (from May 2002 to January 2003) but had taken no steps to remove the mesh during that time. He agreed with that but said that, during the time he had seen the plaintiff, the mesh was extruding itself spontaneously. He said that he had anticipated that the mesh would fully extrude itself spontaneously through the abdominal wall without leading to any further complications. He also said that, during the time he had seen the plaintiff, it would have required a very major and difficult operation to remove the mesh, and that was why he did not do it. He said that collagen, or fibrous tissue, would have formed around the mesh after it had been inserted, and that would have made it very difficult for him to have performed an operation to remove the mesh between May 2002 and January 2003. He agreed that the formation of collagen between May and August 2001 would also have made the removal of the mesh difficult in the August operations performed by the first defendant and Mr Aitken (25 August), and by the first defendant alone (28 August). However, he said that the August operations were necessary for other reasons (to deal with the fistula) and that, once the incision had been made and the mesh had been divided, during either of those operations, the mesh could have been removed.

On p 3 of his report, Mr Kubacz said:
"I have removed Marlex mesh prothesis (sic) from the abdominal wall only on very rare occasions and then only if the mesh led to complications through recurrent infective episodes, persistent sinuses or indeed because of fistulation. However in an emergency setting when operating in an infected abdomen due to a general peritonitis especially in the presence of a perforated small or large bowel and gross contamination in the peritoneal cavity, I would remove the mesh. In that scenario, I would not close the abdominal wall, leaving it open to be closed during the subsequent procedure once the infective process has been fully eradicated and the patient's general condition has been fully stabilised.
Under normal circumstances, Marlex mesh is very resistant to infection and doest (sic) not need to be removed however (sic), in the situation as outlined above removal of the mesh is essential to prevent ongoing morbidity. The defendants are quite right in stating that it is not an accepted practice to remove Marlex mesh prothesis (sic) under normal circumstances however (sic) in Mr Hammond's case the circumstances were anything but normal."
On pp 3 and 4 of the report, Mr Kubacz said:
"Following the laparotomies of 25 and 27 May 2001, multiple enterocutaneous fistulas developed which led to a further laparotomy on 25 August 2001. In my opinion these fistulas resulted from an erosion of the mesh into the small bowel to which the mesh became adherent."
On pp 5 and 6 of his report, Mr Kubacz referred to a report dated 23 January 2006 provided by Professor Faulkner to the solicitors for the first defendant (exhibit 7B). On p 5 of that report, Professor Faulkner had said:
"I would agree that in the presence of peritonitis the mesh does invariably become involved and is likely to contribute to continuation of subsequent wound problems."
On p 5 of his report dated 6 February 2006, Mr Kubacz said:
"Mr Kingsley Faulkner agrees that as the result of peritonitis a mesh which is not removed is likely to contribute to subsequent wound problems and this is precisely the point which I have made. Adherence of the small bowel to the mesh in the circumstances described above could not possibly have been prevented and this is exactly what eventuated in this case not once but on three separate occasions following the original laparotomy at the Joondalup Health Campus on 10 May 2001 with predictable consequences as outlined in this report."
The next report written by Mr Kubacz was dated 24 July 2006. On p 2 of that report, Mr Kubacz summarised the views which he had previously expressed to the effect that removal of the mesh during the surgery on 25 May 2001 was not warranted, but that the mesh could have been removed during the further laparotomy on 27 May 2001 or, alternatively, the mesh could have been left intact at that stage, and the wound left open, and the mesh removed when the wound was finally closed. He concluded by saying:
"In summary in 2001 the general surgical consensus would have been in favour of removing the mesh in the presence of a grossly contaminated and infected abdominal cavity provided that the additional time taken would not further compromise and destabilise the patient.
If the mesh was not removed for the reasons stated above, then its removal could have been delayed until significant complications occurred because of the presence of the mesh …"
During August 2006, the defendants' solicitors served the plaintiff's solicitors with a substance of evidence to be given by Mr Aitken (exhibit 8A). In his substance of evidence, Mr Aitken said:
"17.It has been claimed that Mr Heath should have removed the Marlex mesh when he operated on Mr Hammond on either 25 or 27 May 2001. This mesh had been inserted on 10 May 2001 and removing it 15 days later would not have been easy. There would already have been significant ingrowth of surrounding tissue into the mesh and its removal might well have resulted in extensive damage to the abdominal wall. This ingrowth starts a couple of days after the mesh is inserted and over the next few weeks tissue grows and encompasses the mesh. The mesh can be repositioned or removed within 48 hours of its insertion. After that time it becomes increasingly difficult to remove it. To remove the mesh 10 days after it is inserted would be virtually impossible and the decision not to remove it on either 25 or 27 May 2001 was appropriate.
18.The operation record dated 25 May 2001 records that the small bowel had herniated through a defect in the peritoneum and was stuck to the mesh. Just because bowel attaches to the mesh does not mean it must be removed. I believe that Mr Heath was in a very difficult position with Mr Hammond. To remove the mesh would cause extensive damage to the abdominal wall and might mean that the abdominal wall could not be closed at all."
The plaintiff's solicitors provided Mr Kubacz with a copy of Mr Aitken's substance of evidence and asked him to comment. That led to Mr Kubacz producing his report dated 25 September 2006. On pp 1 and 2 of that report, Mr Kubacz responded to what Mr Aitken had said in pars 17 and 18 of his substance of evidence as follows:
"Under item 17 - The assertion that it would have been difficult to remove the mesh at either of the two operations (25 and 27 May 2001) because of ingrowth of surrounding tissues into the mesh is not correct. When a mesh is inserted into the abdominal wall it becomes surrounded and infiltrated by fibroblasts which are cells responsible for the formation of dense scar tissue. It takes however at least three months for this tissue to mature, to become dense and thus difficult to remove. Initially this tissue is very soft and easily dissected out and therefore the removal of a mesh which has been embedded in the abdominal wall for just over two weeks would not have represented any difficulty whatsoever.
Under item 18 - Under normal circumstances the assertion that 'just because bowel attaches to the mesh does not mean it must be removed' is correct. In this case the circumstances were anything but normal. The operation was carried out in a grossly contaminated and infected field – in addition a defunctioning colostomy was established on the abdominal wall out of which faecal effluent would discharge inevitably contaminating the surrounding tissues as well as the mesh resulting in ongoing sepsis of the abdominal wall. In addition, the histopathology on 26 May 2001 showed (inter alia) severe ischaemic necrosis of small bowel with multiple areas of perforation."
When Mr Kubacz was cross‑examined, it was revealed, for the first time, that, prior to writing the reports tendered by the plaintiff, he had written three earlier reports, at the request of the plaintiff's solicitors, commenting upon the first defendant's treatment of the plaintiff. Those reports were dated 3 September 2002, 19 June 2004 and 13 September 2004. They were tendered in evidence by the defendants and became exhibits 14, 15 and 16.
When counsel for the defendants began cross‑examining him about the earlier reports, Mr Kubacz objected. He said that he had not prepared himself to be cross‑examined on those reports. No objection, however, was taken by counsel for the plaintiff. I found the objection made by Mr Kubacz quite surprising. I would have expected an expert witness who had issued a number of reports in relation to a matter such as this to come to court prepared to discuss all and not just some of his reports. For that reason, I allowed counsel for the defendants to cross‑examine Mr Kubacz on his earlier reports. Throughout that part of the cross‑examination, Mr Kubacz was clearly uncomfortable and quite defensive. That was unfortunate, but, in the circumstances, unavoidable.
In his report dated 3 September 2002, Mr Kubacz provided a commentary on the plaintiff's history stretching from 1 July 1997 to 9 August 2002. He described inter alia all the surgery performed on the plaintiff by the first defendant on 10, 25 and 27 May 2001 and on 25 and 28 August 2001. However, the only adverse comments which he made about the first defendant's surgery in that report related to the laparotomy which he had performed on 10 May 2001.
He began by describing generally the surgical management of adhesive bowel obstruction. He said, on p 7 of his report:
"Surgery for adhesive obstruction may be very simple or extremely complex depending on the nature of the adhesions encountered. Most adhesions are limited to the small segment of the bowel and can easily be divided. However, there is a group of patients with very extensive adhesions, these (sic) adhesions are extremely dense and difficult to divide without damaging the bowel. Such adhesions are regarded as 'malignant adhesions' because of the factors mentioned above.
Normally such damage to the bowel is translated as musculo‑serosal tears with the bowel mucosa being exposed. Such tears must be meticulously repaired otherwise perforations through such tears may subsequently result. In addition, it may well be that a full thickness tear of the intestine may occur during division of adhesions which again has to be meticulously repaired. If multiple such full thickness tears occur a segment of bowel may be damaged beyond repair and have to be resected."
A little later in the report, Mr Kubacz referred to the paralytic ileus which the plaintiff developed after the operation on 10 May 2001. He said:
"This ileus proved to be prolonged and on 23 May 2001 signs of septic shock became apparent leading to a further laparotomy on 25 May 2001. On this occasion, approximately 45.5 cm of distal ileum had to be resected because of multiple perforations of that segment of the small bowel. I believe that these perforations occurred through the seromuscular tears mentioned above which were not recognised during the procedure at JHC on 10 May 2001 and thus were not repaired. With the onset on (sic) progressive distension of the small bowel during the ensuing paralytic ileus frank perforations of the exposed small bowel mucosa must have taken place."
That appeared to be a suggestion by Mr Kubacz that, during the operation on 10 May 2001, the first defendant had made sero–muscular tears in the plaintiff's small bowel, which he had failed to recognise or repair. As a result, those tears became full thickness perforations of the small bowel, which made it necessary for the first defendant to operate again on 25 May 2001, and resect 45.5 cm of the plaintiff's small bowel. That was, of course, quite different from the allegations being made in these proceedings, in which no complaint is made about the first defendant's performance of the surgery on 10 May 2001. Under cross‑examination, Mr Kubacz denied that he was suggesting by the comments in his report that the first defendant had been negligent in his performance of the surgery on 10 May 2001 (T 163). He agreed that the suggestions in his report that the first defendant had made tears or perforations in the plaintiff's small bowel during the surgery on 10 May 2001, that he had failed to recognise or repair them, and that that was the reason for the further laparotomy on 25 May 2001, were incorrect (T 160).
In his report dated 3 September 2002, Mr Kubacz made very few references to the Marlex mesh inserted by the first defendant during the surgery on 10 May 2001, or to the first defendant's failure to subsequently remove the mesh, which was the main focus of his reports dated 27 June 2005, 6 February 2006, 24 July 2006 and 25 September 2006, and the main focus of the trial.
In fact, Mr Kubacz was apparently so disinterested in the Marlex mesh when he wrote his report on 3 September 2002, he even got the date of its insertion wrong. He said that it had been inserted during the surgery on either 25 or 28 August 2001. The only other references which he made to the mesh in that report were its protrusion from the wound on 15 December 2001, Mr Aitken's advice to the plaintiff's general practitioner on 14 February 2002 that it would not then be technically possible or wise to remove the mesh in its entirety, but that the mesh ought to be removed piece by piece as it floated to the surface, and his own removal of protruding parts of mesh when the plaintiff consulted him on 1 May 2002 and on subsequent occasions.
The next of the reports put to Mr Kubacz in cross‑examination was dated 19 June 2004. When he wrote that report, Mr Kubacz was no longer treating the plaintiff and had retired from clinical practice. It would seem that the plaintiff's solicitors had asked Mr Kubacz to comment upon reports provided by Mr Aitken and a Mr Richard Naunton‑Morgan. I presume that the report of Mr Aitken upon which Mr Kubacz was asked to comment was his report dated 19 August 2003 (exhibit 24). No report from Mr Naunton‑Morgan was admitted into evidence.
In his report dated 19 June 2004, Mr Kubacz corrected his earlier error concerning the date of insertion of the Marlex mesh and said that it had been inserted by the first defendant during the surgery on 10 May 2001. However, the main focus of his report, consistently with his report dated 3 September 2002, was the likelihood that musculo‑serosal tears had been made by the first defendant in the plaintiff's small bowel during the operation on 10 May 2001, and that the first defendant had failed to repair them.
However, Mr Kubacz concluded his report by expressing the opinion that the first defendant should have removed the Marlex mesh during the surgery on 25 May 2001. He said that should have been done because:
(a)in the presence of peritonitis, the mesh would invariably become infected and cause subsequent problems with the wound; and
(b)the small bowel was liable to adhere to the under surface of the mesh which could lead to erosion of the bowel wall with the development of enterocutaneous fistulae.
Mr Kubacz said that, in his opinion, that was what had happened in the plaintiff's case, leading to the laparotomy performed by Messrs Heath and Aitken on 25 August 2001, during which several enterocutaneous fistulae were dealt with by extensive resection of the small bowel. Mr Kubacz said that the laparotomy on 25 August 2001 could have been avoided if the mesh had been removed during the surgery on 25 May 2001. He said that "inexplicably" the mesh was not removed during the surgery on 25 August 2001 either.
Under cross–examination, and as he had done when he was cross‑examined about his report dated 3 September 2002, Mr Kubacz denied that he had suggested in his report dated 19 June 2004 that the first defendant had made sero‑muscular tears in the plaintiff's small bowel during the surgery on 10 May 2001, that the first defendant had failed to recognise or repair those tears, and that that had led to bowel perforations and peritonitis, which made it necessary for him to operate again on 25 May 2001. He said it was important to repair sero‑muscular tears made during the course of surgery to the small bowel but denied that, in his report, he was criticising the first defendant for failing to do that or saying that it was the first defendant's failure to recognise or repair such sero‑muscular tears which had led to the further surgery on 25 May 2001. However, in my view, the report of Mr Kubacz cannot be read in any other way. He was clearly suggesting in the report, as he had suggested in his report dated 3 September 2002, that it was the first defendant's failure to recognise and repair the sero‑muscular tears in the small bowel which led to the further surgery on 25 May 2001.
Finally, Mr Kubacz was referred to his report dated 13 September 2004 (exhibit 16). That was also issued in response to letters from the plaintiff's solicitors, in which they apparently posed a number of specific questions to be answered by Mr Kubacz. In the report, and before answering those questions, Mr Kubacz reiterated his understanding of the plaintiff's history between 5 and 27 May 2001.
Although none of the letters from the plaintiff's solicitors to Mr Kubacz was admitted into evidence, I gathered from the report of Mr Kubacz that the first question asked by the solicitors was as to the reasons for the laparotomy on 25 May 2001. Contrary to the views which he expressed in his reports dated 3 September 2002 and 19 June 2004, in which he had said that the laparotomy on 25 May 2001 was necessary because of the failure by the first defendant to repair the sero‑muscular tears which he had made in the small bowel during the operation on 10 May 2001, which caused perforations and peritonitis, Mr Kubacz said, on this occasion, simply that the laparotomy on 25 May 2001 was necessary because of generalised peritonitis which had developed over the previous 24 to 48 hours. In response to what was apparently the second question, Mr Kubacz even conceded that there was no indication in the operative notes that there were any sero–mucosal tears present at the time of the surgery on 25 May 2001. However, he did not make any comment in that report concerning the failure by the first defendant to remove the Marlex mesh during the surgery on 25 May 2001, or at any other time.
Generally speaking, I did not find the evidence of Mr Kubacz to be particularly satisfactory. I have already mentioned the objection he made to being cross‑examined about his three earlier reports. I did not think that such an objection was warranted.
In his reports dated 3 September 2002 and 19 June 2004, Mr Kubacz expressed the clear view that, during the surgery which the first defendant performed on 10 May 2001, he made a number of sero‑muscular tears in the plaintiff's small bowel. He said that the first defendant had failed to recognise or repair those tears, which became full thickness perforations, and made it necessary for the first defendant to operate again on 25 May 2001. However, under cross‑examination, he denied that he had expressed those views in those reports and agreed that the first defendant had not damaged the plaintiff's small bowel during the surgery on 10 May 2001, and that the surgery on 25 May 2001 had not been necessitated by such damage.
In his report dated 3 September 2002, Mr Kubacz made very few references to the Marlex mesh and gave the wrong date for its insertion. In his report dated 19 June 2004, he referred more extensively to the mesh and expressed the view that the first defendant should have removed it during the surgery on 25 May 2001. However, his report was still largely focused on the damage which the first defendant had allegedly done to the plaintiff's small bowel during the operation on 10 May 2001. Under cross‑examination at the trial, he appeared to resile completely from the view that the first defendant should have removed the mesh during the surgery on 25 May 2001 (T 178).
In his report dated 13 September 2004, Mr Kubacz appeared to resile from the views in his two earlier reports that the first defendant had damaged the plaintiff's small bowel during the surgery on 10 May 2001, and that that had necessitated the operation on 25 May 2001. Nor did he make any mention of the first defendant's failure to remove the Marlex mesh during any of the four operations after the surgery on 10 May 2001. However, in his reports dated 27 June 2005, 6 February 2006, 24 July 2006 and 25 September 2006, he expressed the strong view that the first defendant should have removed the mesh during one of the last four operations. While he later conceded that removal would have been inappropriate on 25 May 2001, he continued to maintain that the mesh should have been removed on 27 May, 25 August or 28 August 2001.
However, the inconsistencies in his evidence which I have identified make it very difficult for me to rely on the evidence of Mr Kubacz when determining the issues in this case. Where his evidence conflicts with the evidence of the other experts who gave evidence in this case, I prefer their testimony to his.

If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff on the whole of the evidence to satisfy the tribunal of the fact that the injury was caused by the defendant's negligence: City of Stirling v Tremeer (2006) 32 WAR 155 at [80]; Amaca at [395]; Wall v Cooper [2008] WASCA 53 at [88].
It is of course the case that the plaintiff was extremely ill when he first came under the care of the first defendant. He had been suffering small bowel obstructions since 1997 and had previously undergone a laparotomy to divide and separate adhesions of the small bowel on 20 April 2000. He saw the first defendant for the first time on 5 May 2001 and was treated conservatively until his symptoms became worse on 10 May 2001, when the first defendant performed another laparotomy on him. For the bulk of the time the plaintiff was under the care of the first defendant, he was critically ill and was at times at risk of death. In addition to his bowel problems, the plaintiff suffered from heart disease and emphysema.
In his report dated 27 June 2005, Mr Kubacz expressed the view that because the first defendant had failed to remove the mesh during any of the laparotomies he performed, the plaintiff suffered from "prolonged morbidity as a result of bowel fistulation, ongoing wound infection and extrusion of segments of mesh through a non-healing wound".
However, Mr Kubacz did not suggest that the infection which the plaintiff developed was caused by the presence of the mesh in his abdomen. His suggestion was that the infection was maintained because of the presence of the mesh. However, his main point was that it was possible that, from an early stage, the small bowel was in contact with the mesh, leading to the erosion of the mesh into the bowel and the development of the fistula. It was the fistula, he believed, which rendered necessary the further operations on 25 and 28 August 2001, and continued to cause the plaintiff problems until the mesh was removed by Mr Hool in February 2003.
However, both the first defendant and Mr Aitken disputed that the mesh was ever in contact with the small bowel, except prior to 25 May 2001. The first defendant said that, when he inserted the mesh, on 10 May 2001, he inserted it outside the peritoneum and behind the muscles to prevent the small bowel sticking to the mesh. However, when he operated on 25 May 2001, he found that a small piece of the small bowel had herniated through a defect in the peritoneal layer and had attached itself to the mesh. He said that he pulled that piece of bowel out of the defect without difficulty.
Mr Aitken disputed that the mesh had eroded into the small bowel, as suggested by Mr Kubacz. Both the first defendant and Mr Aitken expressed the view that the fistula developed, not as a result of erosion of the mesh into the small bowel, but as a result of enterotomies (perforations) of the small bowel which had occurred during one of the laparotomies in May 2001. They found such defects in the small bowel during the surgery on 25 August 2001 and repaired them.
Neither the first defendant nor Mr Aitken gave a great deal of evidence about the effect of the maintenance of the mesh, if any, on the infection which the plaintiff suffered or the fistula. The first defendant seemed to accept that leaving the mesh in place could lead to infection and might prevent a fistula from closing. He agreed that he had operated on 25 August 2001, and had repaired defects in the small bowel, to enable the fistula to close, but had not removed the mesh, because of the plaintiff's precarious situation.
Mr Aitken conceded that if Marlex mesh became infected it usually caused problems. He also agreed that the plaintiff had been suffering from some kind of infective process between 10 and 25 May 2001.
Professor Faulkner said that the presence of mesh in the abdomen can contribute to the continuation of post‑operative sinus or fistula if one has developed. He also said that mesh invariably becomes involved in any infection which develops and is also likely to contribute to the continuation of subsequent wound problems.
Professor Faulkner also expressed the view that the decision to reoperate on 25 August 2001 was made because of the presence of the fistula. He agreed that the continuation of the plaintiff's wound problem would in part have been protracted by the continuing presence of infected mesh.
As to the possibilities that the mesh had been in contact with the small bowel, and that the mesh had eroded into the small bowel, Professor Faulkner said it was not clear whether the mesh was in contact with the small bowel or not. However, he said that, provided the mesh was inserted well away from the peritoneum, it should not have adhered to the small bowel and should not have caused any erosion of bowel wall or the development of fistulae. As I have already observed, the first defendant said that, when he inserted the mesh, on 10 May 2001, he inserted it outside the peritoneum and behind the muscles to prevent the plaintiff's small bowel sticking to the mesh.
The evidence of the first defendant, Mr Aitken and Professor Faulkner is sufficient to displace the plaintiff's prima facie case that, as a result of the first defendant's breach of duty in not removing the mesh, the small bowel came into contact with the mesh, and the mesh eroded into it, causing the fistula. I also prefer the evidence of the first defendant, Mr Aitken and Professor Faulkner to the evidence of Mr Kubacz on that aspect of the matter. For that reason, I am not satisfied that the fistula was caused by the erosion of the mesh into the plaintiff's small bowel.
On the other hand, I do not believe that there is sufficient evidence to displace the plaintiff's prima facie case that, because the mesh was not removed, the infection which the plaintiff suffered and the fistula which developed between the plaintiff's small bowel and his abdominal wound persisted from late May 2001 to February 2003, when the mesh was removed. If I had found that the failure to remove the mesh was a breach of the first defendant's duty of care, I would also have found that the breach caused the abdominal infection and the fistula to persist and rendered necessary the operations on 25 and 28 August 2001. I would also have found that the breach caused the plaintiff to endure the unpleasant experience of having pieces of infected mesh float to the surface of the wound, and needing medical attention to "trim" the mesh from time to time.

Damages

The problem I identified when dealing provisionally with causation, that when the first defendant first inserted the Marlex mesh in the plaintiff's abdomen, during the laparotomy on 10 May 2001, the plaintiff was already very ill from sub‑acute small bowel obstruction, which was not responding to conservative treatment, is also a problem when provisionally assessing his damages. I have found, also provisionally, that the failure by the first defendant to remove the Marlex mesh allowed the plaintiff's intra‑abdominal infection and his colocutaneous fistula to persist, and made necessary the further operations on 25 and 28 August 2001. However, the questions to be answered in assessing his damages are whether the persistence of those conditions from May 2001 to February 2003 caused the plaintiff to suffer any permanent disability, over and above those which he would have suffered in any event and caused him any specific loss such as a reduction in earning capacity or the obligation arising out of the provision of gratuitous services.
In his report dated 24 July 2006, Mr Kubacz said that the failure by the first defendant to remove the Marlex mesh from the plaintiff's abdomen caused the infection, which the plaintiff had developed, to persist, and led to the development of the colocutaneous fistula. Mr Kubacz went on to say in his report that those complications "led to a number of laparotomies between 25 May 2001 and 14 February 2003".
In view of my finding that the fistula did not develop until after the operation on 27 May 2001, I do not accept that the complications associated with the mesh made necessary the laparotomies on 25 and 27 May 2001. However, I accept and have already found that the persistence of the fistula was the reason for the operations on 25 and 28 August 2001.
Also in his report dated 24 July 2006, Mr Kubacz said that the complications suffered by the plaintiff as a result of the first defendant's failure to remove the mesh, the persistence of infection and the fistula, resulted in "a combined loss of 595 millimetres of small bowel and of 320 millimetres of the large bowel". By my understanding, Mr Kubacz was there referring to the total length of the bowel resected by the first defendant during the operations he performed on 25 May and 25 August 2001.
In his earlier report dated 19 June 2004, Mr Kubacz had said that the first defendant had resected 45.5 centimetres (455 millimetres) of the plaintiff's small bowel during the laparotomy performed on 25 May 2001, and 19.5 centimetres (195 millimetres) of the small bowel and 32 centimetres (320 millimetres of the large bowel, during the laparotomy performed on 25 August 2001. Those figures would tend to suggest that the first defendant resected a total of 650 millimetres (rather than 595 millimetres) of the small bowel and 320 millimetres of the large bowel. However, in light of my findings that the infection and fistulae did not develop until after the operation on 27 May 2001, I would have been prepared to find that only the resection of 195 millimetres of small bowel and 320 millimetres of large bowel during the laparotomy on 25 August 2001 was caused by the first defendant's failure to remove the mesh.
According to Mr Kubacz (in his report dated 24 July 2006) the loss of 320 millimetres of large bowel was of no clinical significance. However, he considered that the loss of "20 per cent" of distal small bowel (being 595 millimetres plus an allowance for shrinkage of the removed bowel after it had been placed in Formalin for pathological examination) "may lead to significant metabolic consequences".
Mr Kubacz then outlined in his report the various metabolic consequences which may have followed the removal of such a large part of the plaintiff's small bowel. However, the only condition from which he actually said he thought the plaintiff was suffering was steatorrheic diarrhoea. He said that would account for the looseness of stool, the lack of formed bowel actions and the frequent watery diarrhoea from which the plaintiff has suffered since 2001.
In relation to all the other conditions which he described in this respect, Mr Kubacz said only that they were possible consequences of the plaintiff's small bowel loss. He said:
"I am unable to ascertain which of these potential metabolic consequences [the plaintiff] is likely to have developed, as extensive and complex investigations would be necessary to detect such complications and these are best carried out by an experienced gastroenterologist with a special interest in this field."
There was no evidence that any such investigations were ever carried out. Accordingly, apart from the steatorrheic diarrhoea, it is not possible for me to conclude what other conditions, if any, the plaintiff developed as a result of the complications arising from the first defendant's failure to remove the mesh.
In those circumstances, I consider that the plaintiff would have been entitled to be awarded general damages to compensate him for the pain, embarrassment and inconvenience he suffered from May 2001, when the infection and the fistula first developed, to February 2003, when the mesh was removed. He would have also been entitled to damages for having to undergo the operations on 25 and 28 August 2001, and the increased morbidity of his condition until February 2003. I also believe that he would have been entitled to be compensated for his steatorrheic diarrhoea, although there was no evidence as to whether that was a permanent condition. I would have discounted any award of general damages to some extent to take account for the fact that even if the mesh had been removed, the plaintiff would have continued to suffer pain and would have continued to require treatment for his bowel condition.
I would not have included in my assessment of the plaintiff's general damages any allowance for his residual abdominal scarring. In my opinion, that resulted from the incision which was made, initially, on 10 May 2001, and subsequently reopened. That had nothing to do with the failure to the remove the mesh.
I would provisionally assess the plaintiff's general damages at $50,000.
The plaintiff also claims special damages. The first aspect of this claim was for past medical consultations, which the plaintiff sought to prove by tendering a Medicare Claims History Statement. However, the defendants objected to the tender and the document was not admitted into evidence. Accordingly, there is no evidence which would allow me to make any allowance for the cost of medical attendances.
The plaintiff said that, at the time of the trial, he continued to suffer stomach pain, for which he took the analgesic Tramal. He said that he consumed a box of Tramal every two months and that the medication cost between $4.80 and $7 per box. The claim for past and future use of the medication was $4,300. However, there was no medical evidence which linked the plaintiff's need for Tramal in particular to the exacerbation of his condition between May 2001 and February 2003, as opposed to his bowel condition generally. For that reason, I would make no allowance for the cost of medication.
The plaintiff has also claimed damages for loss of earning capacity, both past and future. However, he had been on a disability pension since 1983 and was too debilitated by his multiple health problems to attempt even casual work after August 2000. There was no medical evidence to the effect that the exacerbation of his condition between May 2001 and February 2003 had had any additional impact on his capacity to work. Accordingly, I would make no allowance for damages for loss of earning capacity.
Finally, there is a claim for gratuitous services. The only evidence about this was given by the plaintiff himself. He said that his dressings were originally changed by Silver Chain Nursing Association Inc. but that his wife was then taught how to change his dressings and did that herself from November 2001 to April 2003. Once again, there was no medical evidence which suggested that this was made necessary by the worsening of his condition between May 2001 and February 2003. Nevertheless, I consider that some allowance should be made. I would award a global amount of $10,000.
In summary, my provisional award of damages is $60,000 comprising:
General damages: $50,000.00
Gratuitous services: $10,000.00
Total:$60,000.00
However, on the basis of my findings on liability, the plaintiff's claim will be dismissed.