Harm v Sharad Chandra Nigam T/as S C Nigam and Co - [2009] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HARM -v- SHARAD CHANDRA NIGAM T/as S C NIGAM & CO [2009] WADC 117

CORAM: SCOTT DCJ

HEARD: 2 - 6 FEBRUARY 2009 & 13 FEBRUARY 2009

DELIVERED : 12 AUGUST 2009

FILE NO/S: CIV 820 of 2003

BETWEEN: YVONNE HARM
Plaintiff
AND
SHARAD CHANDRA NIGAM T/as S C NIGAM & CO
Defendant

Catchwords:

Negligence of solicitor - Medical negligence claim - Failure to pursue claim becoming statute barred - Loss of opportunity - Value of lost chance

Legislation:

Nil

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr G P Bourhill

Solicitors:

Plaintiff: Bradford & Co
Defendant: Lavan Legal

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

Carmody v Priestley [2005] WASC 120
Chappel v Hart (1998) 195 CLR 232
Elbourne v Gibbs [2006] NSWCA 127
Hammond Worthington v Da Silva [2006] WASCA 180
Hawkins v Clayton (1988) 164 CLR 539
Instant Nominees Pty Ltd v Redman [1987] WAR 218
Johnson v Perez (1988) 166 CLR 351
Kitchen v Royal Air Forces Association [1958] 1 WLR 563
Naxakis v Western General Hospital (1999) 197 CLR 269
Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 394
Phillips v Bisley, unreported; CA SCt of NSW; 18 March 1997
Purkess v Crittenden (1965) 114 CLR 164
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Shorey v PT Ltd [2003] HCA 27
Voli v Inglewood Shire Council (1963) 110 CLR 74
Watts v Rake (1960) 108 CLR 158

SCOTT DCJ:

General factual background

The plaintiff had for some time suffered from gynaecological problems which included being treated for cervical carcinoma in 1981/82, a curette in 1989 and intermittent stabbing pains in her right hand side for which she saw Dr Hastwell in 1990.
The stabbing pains in her right hand side became more frequent and she then consulted Dr Hastwell in early 1992. At that time Dr De Souza, an anaesthetist, was her general practitioner.
On 3 February 1992 Dr Hastwell diagnosed her pain to be gynaecological in origin and was due to a retroverted uterus. Dr Hastwell recommended that the plaintiff undergo surgery involving a diagnostic laparoscopy and a ventrosuspension of the uterus ("first surgery").
On 25 February 1992 the first surgery was undertaken by Dr Hastwell and Dr De Souza assisted as the anaesthetist.
The plaintiff alleged that she suffered considerable pain following the first surgery in respect of which on 3 April 1992 she consulted Dr Hastwell for advice and treatment.
On that day Dr Hastwell advised the plaintiff that her pain was due to appendicitis and a retroverted uterus the surgery for which (the first surgery) had apparently failed.
On 12 May 1992 Dr Hastwell performed an appendectomy on the plaintiff through an extended pfannanstiel incision ("pfannanstiel incision") ("second surgery") but did not perform a (further) ventrosuspension of the plaintiff's uterus.
After the second surgery the plaintiff alleged that she suffered significant pain and alleges that that pain has remained unabated.
In July 1992, with Legal Aid assistance, the plaintiff sought advice from Messrs Fordhams ("Fordhams") as to the pursuit of a claim for medical negligence against (inter alia) Dr Hastwell with respect to the pain alleged to have been suffered by her as a consequence of the first and/or second surgery.
In January 1993 Fordhams advised the plaintiff that given the limited grant of aid it would be more productive for the plaintiff to pursue only the cause of action in medical negligence against Dr Hastwell and not against Armadale/Kelmscott Hospital.
Between July 1992 and March 1994 Fordhams made enquiries of medical experts and gave advice to the plaintiff with respect to the pursuit of a claim against Dr Hastwell for damages for negligence.
By letter dated 25 March 1994 Fordhams advised the plaintiff that, in their view, on the basis of the medical reports provided to them, it was not possible to establish on the balance of probabilities that the first or second surgery performed by Dr Hastwell was causative of the pain with which she suffered and they recommended against her commencing proceedings against Dr Hastwell.
On 5 September 1997 the plaintiff consulted the defendant with respect to the ongoing pain with which she alleged she suffered. In October 1997 Ian Blatchford (" Mr Blatchford"), a solicitor employed by the defendant, took up the carriage of the plaintiff's instructions.
Until 21 December 1999 the defendant by Mr Blatchford acted for the plaintiff. By letter on that day the defendant advised the plaintiff that he would no longer be practising as a sole practitioner and that thereafter the plaintiff's matter would be handled by Mr Blatchford, who was in the new year joining the firm of Evangel Taylor and that he would take the plaintiff's file with him to that firm.
Between October 1997 and 21 December 1999 Mr Blatchford whilst in the employ of the defendant, gathered medical evidence of and relating to the plaintiff's treatment by Dr Hastwell to determine, initially, whether in his view the plaintiff had a reasonable cause of action against Dr Hastwell for damages for negligence.
During the course of undertaking that work Mr Blatchford advised the plaintiff that the cause of action to pursue Dr Hastwell for medical negligence would become statue barred, under the Limitation Act 1935, on 24 February 1998 being six years from the date of the first surgery.
By letter dated 22 January 1998, Mr Blatchford advised the plaintiff that because her claim would be statute barred after 24 February 1998 and because by that date he would not, on the basis of the medical evidence by then assembled, be able to properly advise the plaintiff as to the prospects of success of a claim by her for damages for negligence against Dr Hastwell, a writ of summons ought to be issued out of this Court but that service of the writ should not be effected so as to allow further time to assemble the relevant medical evidence. The plaintiff took that advice.
A writ of summons was issued out of this Court against Dr Hastwell (action 508/98) on 18 February 1998 ("writ"). The writ was not then served.
The defendant did not effect service of the writ nor was any application made to extend the validity of the writ before 18 February 1999.
No application was subsequently made to extend the validity of the writ by reason of which any claim which the plaintiff may have had against Dr Hastwell became and is statute barred.
The parties are in agreement that any action on the writ would have been likely to come to trial by about 2001.

Plaintiff's claim

The plaintiff's claim against the defendant in this action is for damages being the loss of the chance of successfully pursuing a claim against Dr Hastwell. To that end the relevant matters are:
(a)whether the defendant was negligent; and
(b)in the event that the defendant was negligent, whether by reason of that negligence, the plaintiff has suffered loss and damage being the loss of a chance to pursue a claim against Dr Hastwell; and
(c)the quantum of that loss.

Issues

From the evidence presented at trial, and the respective submissions from counsel for the parties, the issues which fall for determination are as follows:

A. Plaintiff's claim against Dr Hastwell

First surgery

The plaintiff alleges:
(a)Dr Hastwell had an obligation to warn the plaintiff of the risks of the first surgery and:
(i)he failed to properly do so; and
(ii)the plaintiff was likely to attach significance to the risks about which Dr Hastwell should have warned her and she would not have consented to the first surgery had she been so warned;
(b)the ventrosuspension in the first surgery was unnecessary;
(c)the plaintiff suffered from pain or increased pain as a consequence of the first surgery and
(d)that pain was caused or contributed to by a breach of duty and/or negligence of Dr Hastwell.
By his further amended defence the defendant does not admit these allegations.

Second surgery

The plaintiff alleged:
(a)Dr Hastwell ought to have warned the plaintiff about the risks of an appendectomy by pfannanstiel incision, and:
(i)he failed to properly do so; and
(ii)the plaintiff was likely to attach significance to the risks about which Dr Hastwell should have warned her and she would not have consented to the second surgery by pfannanstiel incision;
(b)the appendectomy was unnecessary;
(c)the plaintiff consented to the removal of her appendix but only by laparoscopy and not by pfannanstiel incision;
(d)the plaintiff suffered from pain or increased pain as a consequence of the second surgery and
(e)that pain was caused or contributed to by a breach of duty and/or negligence of Dr Hastwell.
By his further amended defence the defendant does not admit these allegations.

B. Plaintiff's claim against defendant

The plaintiff's claim against the defendant is founded in negligence. The issues which require determination are as follows.
The plaintiff alleges:
(a)the defendant had a duty to investigate the full particulars of pain and suffering alleged to have been suffered by the plaintiff resulting from the treatment by Dr Hastwell but failed to discharge that duty;
(b)the defendant had a duty to properly obtain sufficient expert medical opinion on the plaintiff's case against Dr Hastwell, including the alleged failure by Dr Hastwell to obtain the plaintiff's duly informed consent but failed to discharge that duty;
(c)the defendant had a duty to take appropriate positive steps in relation to any expert specialist medical opinion received in order to formulate the case for the plaintiff against Dr Hastwell but failed to discharge that duty;
(d)the defendant had a duty to accurately advise the plaintiff of the merits of her case against Dr Hastwell but failed to discharge that duty.
The defendant admitted in his further amended defence that these duties were owed but in each case denied their breach.
(e)the defendant ought to have served the writ against Dr Hastwell within 12 months of its issue or to have taken such other steps as were necessary to prevent the writ from becoming invalid thereby resulting in the plaintiff's claim against Dr Hastwell becoming statute barred.
The defendant in his further amended defence denies this allegation.
(f)the defendant owed specific duties of care to the plaintiff to obtain sufficient expert medical opinion on the case against Dr Hastwell as to whether:
(i)ventrosuspension surgery was appropriate in the plaintiff's case or at all;
(ii)an appendectomy was appropriate in the plaintiff's case and if so, whether the appendix should have been removed by laparoscope or through a pfannanstiel incision; and
(iii)any surgery at all was appropriate given the risk to the plaintiff developing a pain syndrome;
but breached those duties.
The defendant denied he owed each duty and said further that his duty was to obtain expert evidence generally as to the adequacy of the care provided by Dr Hastwell but not to canvas any particular aspect of the treatment in circumstances where there was no evidence at the time that the adequacy of a particular aspect of the treatment was in question.

Law

Medical negligence – causation

Before Dr Hastwell could be held responsible for any injury suffered by the plaintiff, the plaintiff would need to prove that Dr Hastwell's conduct materially contributed to her suffering that injury. A causal connection is material if it is shown not to be negligible. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the medical practitioner's conduct will have materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. To that end there may be an evidentiary burden on the practitioner to disentangle causes which are related to a non-negligent cause. Naxakis v Western General Hospital (1999) 197 CLR 269 at 312 per Callinan J citing with approval McHugh J in Chappel v Hart (1998) 195 CLR 232:
"Where it is asserted that the plaintiff would have ended up in the same condition either at the same time or at some later time in any event due to some other cause for which the medical practitioner is not responsible, then the defendant bears the evidentiary burden of disentangling the causes thereof demonstrating how and to what extent the damages are attributable to the non-negligent cause."
In Watts v Rake(1960) 108 CLR 158 Dixon CJ said at 160:
"… there is undoubtedly a presumttio hominis in the plaintiff's favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred".
In that case Menzies J (at 163) said:
"Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it… similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have lead to his post‑accident state of health."
In Purkess v Crittenden (1965) 114 CLR 164 the majority said at 168:
"It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre‑existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary, it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, will establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence".
In Chappel v Hart (supra) Kirby J said (at 273), with respect to the shift in the evidentiary onus:
"One means of alleviating the burden cast by law on a plaintiff to establish a causal relationship between the breach and the damage concerns the evidentiary onus. Australian law has not embraced the theory that the legal onus of proof shifts during a trial. Nevertheless, the realistic appreciation of the imprecision and uncertainty of causation in many cases ‑ including those involving alleged medical negligence ‑ has driven courts in this country, as in England, to accept that the evidentiary onus may shift during the hearing. Once a plaintiff demonstrates that a breach of duty has occurred which is closely followed by damage, a prima facie causal connection will have been established. It is then for the defendant to show, by evidence and argument, that the patient should not recover damages."
With respect to a failure on the part of a medical practitioner to warn a patient of material risks the case of Elbourne v Gibbs [2006] NSWCA 127 is in point. In that case the New South Wales Court of Appeal reviewed earlier decisions and said the following:
"….the 'duty to warn' might more aptly be described as a duty to inform or communicate information, so as to permit the patient to make an informed choice as to whether to undergo a particular treatment or not….Thus, a medical practitioner is required not only to identify the risks involved in a particular treatment or procedure, but also the need for the procedure and the possible risks attendant on a failure to undergo that which the practitioner is recommending. It is only with that knowledge, that the patient can sensibly address the relevance and magnitude of the particular risks."
The Court cited McHugh J in Rosenberg v Percival (2001) 205 CLR 434 at 449 where his Honour said:
"In terms of causation theory, the critical fact is whether the patient would have taken action – refusing to have the operation – that would have avoided the harm suffered. But that fact can only be determined by making an anterior finding as to what the patient would have decided to do, if given the relevant warning. It is not possible to find what the patient would have done without deciding, expressly or by necessary implication, what decision the patient would have made, if a proper warning had been given."
The Court cited the well established principle enunciated in Rogers v Whitaker at 490 in which the High Court in that case said:
"…A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it."
In referring to the judgment of McHugh J in Chappel v Hart the Court said that in regard to the requirement of an increased risk of injury:
"If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injuries suffered by the plaintiff."
Where there are multiple causes of damage the High Court in Shorey v PT Ltd [2003] HCA 27 held that it is a basic principle of the law governing the recovery of damages that a claimant does not have to prove that an impugned event was the cause, in the sense of the one and only cause. It is enough that the claimant shows that the event is a cause of the condition for which damages are claimed.
In the context of that case, the Court said:
"…the finding of the trial judge that the appellant genuinely experienced the extreme, and in some cases, bizarre symptoms of which she complained, and that she was not malingering, the question became whether the fall for which the respondent was responsible was a cause of the appellant's condition as it manifested itself at trial. That there were other factors which contributed to that condition was beyond doubt; but if it were correct to conclude that that fall was a cause of the condition, then the appellant was entitled to succeed."

Duty of care owed by Dr Hastwell to plaintiff

The duty imposed on a medical practitioner is to exercise reasonable care and skill in the provision of professional advice and treatment. That duty extends to the examination, diagnosis and treatment of the patient, and the provision of information in an appropriate case.
In respect to a specialist, the standard of reasonable care and skill required is that of the ordinary skilled practitioner within the relevant field of speciality (Rogers v Whitaker (1992) 175 CLR 479 at 483, 487).
As to the provision by the medical practitioner of advice and information, including the disclosure of risks associated or likely to be associated with surgery or treatment, the medical practitioner's duty requires him to give such advice and information to a patient that a reasonable person in the patient's position would require to make an informed decision about whether to undergo the treatment and which the practitioner ought to have known that the patient would want: CCH Australian Torts Reporter Vol 2 at 36 – 970; Rogers v Whitaker (supra) at 489 – 490.

Duty owed by defendant to plaintiff

In this case the plaintiff does not maintain a cause of action against the defendant based in contract. The plaintiff's claim is couched in terms of a breach, by the defendant, of his duty of care owed to the plaintiff.
It is common ground between the parties that as from the date upon which the defendant took instructions from the plaintiff (5 September 1997) the defendant owed a duty of care to the plaintiff.
That duty was to exercise due care, skill and diligence.
In Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84, Windeyer J, with reference to the duty owed by an architect to his client, said:
"He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainment. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person."
That passage was cited with approval by Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 575 as being equally applicable to the duty owed by a solicitor to his client.
In Carmody v Priestley [2005] WASC 120, His Honour Hasluck J said at [99]:
"No duty of care will be owed to the plaintiff unless injury or loss to the plaintiff is reasonably foreseeable. However in the context of professional negligence claims, injury or loss to a client or patient as a result of careless conduct by the professional is nearly always foreseeable to the person in the professional's position."

If defendant's negligence is established – quantification of loss

To this end the question to be determined is whether, if the defendant is negligent, the plaintiff has as a consequence, lost some right of value, some chose in action of reality and substance.
In this case, the plaintiff claims against the defendant that she lost the chance of successfully pursuing a claim against Dr Hastwell which, but for the negligence of the defendant, she would have pursued.
There are a number of bases upon which the plaintiff alleges the defendant to have been negligent and those bases have been referred to earlier. The cause of action asserted by the plaintiff against Dr Hastwell is alleged to have become irretrievably lost by the failure on the part of the defendant to serve the writ within 12 months of its issue or to take steps to extend the validity of the writ so as to keep the action on foot. The essence of the plaintiff's claim is that had the defendant properly investigated the issues referred to in pars 23 ‑ 27 and properly advised the plaintiff, the plaintiff's action against Dr Hastwell should have been retained on foot so as to be capable of being pursued by the plaintiff to settlement or trial.
If the defendant was negligent then, with respect to proof of damage, the plaintiff must prove on the balance of probabilities that she has sustained some loss or damage.
To that end, the plaintiff needs to prove on a balance of probabilities that:
(a)the negligence of the defendant caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities; and
(b)if offered the chance lost, (ie, to pursue the action begun by the writ) the plaintiff would have elected to take that chance.
In this case, the loss of the commercial opportunity is the loss of the cause of action (if any) to pursue a claim against Dr Hastwell.
This is not a case in which the plaintiff's claim became statute barred by the failure on the part of the defendant to issue a writ within the prescribed limitation period. The catalyst, however, for the inability of the plaintiff to pursue any cause of action which she might have had against Dr Hastwell was that the writ was not served or the validity of the writ was not extended, resulting in the cause of action becoming statute barred. To that end, the principles enunciated in cases in which solicitors have been held liable for failing to take a step resulting in their client's claim becoming statue barred are relevant in this case.
Those principles have been articulated in a number of authorities which were reviewed by the Court of Appeal in this State in Hammond Worthington v Da Silva [2006] WASCA 180. They can be summarised as follows:
1.In the event that the plaintiff has established negligence, what the court has to do in such a case is to determine what the plaintiff has lost by that negligence. The question is has the plaintiff lost some right of value, some chose in action of reality and substance Kitchen v Royal Air Forces Association [1958] 1 WLR 563 at 574 – 575.
2.In cases in which solicitors have been held liable in damages for a failure to take some step which has resulted in their client's claim becoming statute barred, the court does not conduct a trial within a trial so as to determine whether the barred claim if prosecuted would, on the balance of probabilities, succeed or not. The consistent approach has been to deal with such cases upon the basis that the client has lost a chance of succeeding and if such be the case the task of the trial court is to place a value on the chance so lost: Kitchen(supra).
3.The task of the Court is to focus on the plaintiff's situation when, by the action or inaction of the defendant, the plaintiff's claim could not thereafter be pursued. Damages are to be assessed by reference to the loss at that date of the right to claim damages. That loss is ordinarily quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved. These include the likely date when in the absence of the negligence of the solicitor the action (against Dr Hastwell) would have come to trial, the evidence that would or should have been available to the plaintiff at that time (i.e. when that action would have come to trial) and the relevant principles of law then governing the assessment of damages – in order to arrive at figure representing the loss suffered by the plaintiff by reason of the defendant's negligence. Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 394 at 404 citing Johnson v Perez (1988) 166 CLR 351.
4.The value of the plaintiff's lost opportunity to enforce the cause of action to enable the pursuit of proceedings to settlement and judgment is to be determined by reference to degrees of probabilities and possibilities: Hammond Worthington (supra) par 118 and the cases referred to therein.
5.The Court must proceed on the evidence (as to the likely claim against Dr Hastwell) which is before it. This involves considering the matters referred to in Nikolaou v Papasavas, Phillips & Co (supra), which include the evidence that would or should have been available to the plaintiff at the time that the notional action would have gone to trial. It also involves looking at the likely response of the other party or parties in those proceedings and requires the court to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant (in the notional case) faced with a claim, might have made a valuable settlement offer Phillips v Bisley, unreported; CA SCt of NSW; 18 March 1997 at 8 ‑ 9.
In Instant Nominees Pty Ltd v Redman [1987] WAR 218 at 231 his Honour Chief Justice Sir Francis Burt said:
"Having reached the conclusion that the appeal if it had been heard would have succeeded, what damages should be awarded? I must remind myself that I am not sitting on appeal from Wickham J. In this action I am assessing the value of the lost chance and to do that, as it seems to me, I must place myself in the position of counsel briefed to advise upon the likelihood of the appeal succeeding, which is not the same thing as asking counsel to give his opinion as to whether it should succeed or not. As to that opinions may well differ as between myself and the trial judge … I must recognise that I might be wrong."
Finally, in Phillips v Bisley (supra) the Court observed that:
" … what the trial judge cannot do, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action."
Generally I accept the evidence given by the plaintiff. She impressed as a person who was candid and truthful. In the main there was little contest between the evidence of the plaintiff and Mr Blatchford as to the instructions given by the plaintiff and the work undertaken by Mr Blatchford. Doctors Hastwell and De Souza did not give evidence. Correspondence from them were exhibits at trial.

Negligence alleged by the plaintiff against Dr Hastwell

First surgery

Failure to warn

The plaintiff gave evidence that:
(a)In 1990 she consulted Dr Hastwell about stabbing pains in her right side which were intermittent, approximately a month apart. At that time, she said that Dr Hastwell told her that a ventrosuspension might fix the pain however she said that she did not want to undergo that surgery because she did not consider that to be the problem.
(b)The pain continued. It started getting worse and was more frequent between 1990 and early 1992 when she saw Dr De Souza who was then her general practitioner and also an anaesthetist.
(c)She was not on any medication for the pain during that period. She consulted Dr De Souza to find out what was causing the pain. Dr De Souza referred her to Dr Hastwell and she saw him on 3 February 1992.
(d)She told Dr Hastwell that she had stabbing pains which came and went but they were very severe when she had them. Dr Hastwell said that he would perform a laparoscope and a ventrosuspension. She told him that she did not want a ventrosuspension but would agree to a laparoscope to find out what was causing the pain. Dr Hastwell promised her that he would not do the ventrosuspension unless it was necessary and he booked her in for a laparoscope and (possible) ventrosuspension on 25 February 1992 (Exhibit 2 p 13).
(e)After the first surgery she was in a great deal of pain and could hardly move. She said that her stomach was really, really sore. She said that she could not get up, could not lift her arms above her head, or try to brush her hair. She said walking was very difficult. She said that the pain before the operation was bad when it was there but it was only there for a few minutes, up to half an hour at the most, and then it was gone. The pain after the first surgery just kept "going and going, the same pain".
(f)She remained in hospital for four days, and was given pain killing medication by injection in the hospital.
(g)Dr Hastwell did not visit her when she was in hospital.
(h)Before the first surgery she understood from Dr Hastwell that he was going to do a laparoscope about which she had knowledge because she had had one performed before. She described it as "just putting an instrument in and have a look". She understood from Dr Hastwell that it would be an exploratory laparoscope.
(i)She understood from that, that Dr Hastwell was going to have a look inside her and find out what it was that was causing her stomach pain. She said that when Dr Hastwell recommended the first surgery to her he:
(1)did not mention any adverse outcomes that might be involved;
(2)did not mention any other conditions that might be causing her pain;
(3)did not say to her that her pain may get worse;
(4)did not say to her that the pain may not go away;
(5)did not suggest any other forms of treatment to her;
(6)did not prescribe any medication to deal with her condition;
(7)did not refer her to any other doctors to check what might be causing her pain;
(j)She was not a person who easily took risks;
(k)Dr De Souza assisted Dr Hastwell during the first surgery as the anaesthetist.
(l)After she was discharged from hospital, she went to see Dr De Souza who was not available on the first occasion when she went to his surgery and so she saw Dr Poli at that surgery. She wanted to know what had been done to her. Dr Poli had no idea and so she had to wait for Dr De Souza to return. She said that when she saw Dr Poli she could hardly move, could hardly walk because her stomach was so sore. The area of soreness was around the belly button and perhaps underneath.
(m)She made contact with Dr Hastwell and saw him on a Saturday. She said that she asked him what he'd done and Dr Hastwell said that he did not know because he didn't have his notes and made arrangements for her to see him the following Tuesday and in the meantime he prescribed digesics for the pain and Dulcene in order that she could sleep. She said that she could not lie down.
(n)She saw Dr Hastwell on 3 March 1992 and Dr Hastwell again told her that he did not have his notes available. Dr Hastwell was unable to explain to her what had occurred during the first surgery and said "oh well … I don't know why you're in so much pain. I hope it's not a pelvic reaction". He then told her that he would see her in six weeks.
(o)Her pain did not ease over the next few days after seeing Dr Hastwell and so she saw Dr De Souza on or about 11 March 1992. Dr De Souza told her that she had been suspended which she understood meant that her uterus had been stitched to her stomach.
(p)Dr De Souza said that the reason she had so much pain was because she had such a bad appendix. Dr De Souza told her that he considered her appendix was the worst he'd seen and said "you'll have to get those out real quick".
(q)Dr De Souza told her that he had seen her appendix during the first surgery and that they were bad but she would have to wait six weeks before the next operation otherwise it would be too soon.
(r)She again saw Dr De Souza on 3 April 1992 by which time her pain had not improved at all, and was in fact worse. She went to see Dr De Souza because the pain in her right side was very severe. Dr De Souza said that it had to be her appendix and he made an emergency appointment for her to see Dr Hastwell that night.
Dr Hastwell did not give evidence at this trial. Correspondence from him were exhibits at trial. In his letter to the present solicitors for the plaintiff dated 17 April 2003 (Exhibit 2 p 55) he confirmed that on 25 February 1992 at Armadale Kelmscott District Hospital the plaintiff underwent a diagnostic D & C with suspension of the retroverted uterus.
In the plaintiff's further amended statement of claim there are a number of matters about which it is alleged by the plaintiff that Dr Hastwell knew or ought to have had knowledge (par 7) and that he was in breach of the duty owed by him to the plaintiff by failing to inform her of those matters. From the plaintiff's closing submissions the identifiable risks with proceeding to ventrosuspension were alleged to be that:
(a)it may not relieve the plaintiff's pain;
(b)it may cause additional damage;
(c)it may cause nerve entrapment;
(d)the plaintiff's abdominal pain may be worsened (par 7.9);
The plaintiff alleges that:
(a)it would have been reasonable for Dr Hastwell to inform the plaintiff of these identifiable risks (par 7.10);
(b)Dr Hastwell was under a duty to inform the plaintiff of (inter alia) these identifiable risks (par 8);
(c)Dr Hastwell failed to inform the plaintiff of those identifiable risks before the first surgery (par 9.9); and
(d)the plaintiff would not have consented to the first surgery had Dr Hastwell informed the plaintiff of those identifiable risks with that surgery (par 10).
This is the plaintiff's claim against Dr Hastwell for his failure to warn. It is not a claim that the surgery itself was performed negligently. Rather, the assertion is that Dr Hastwell had an obligation to warn the plaintiff of (inter alia) the alleged identifiable risks, had he done so the plaintiff was likely to attach significance to them, the plaintiff would not have consented to the first surgery resulting in ventrosuspension and would then not have suffered from the increased pain relating thereto.
Dr Hastwell, on the plaintiff's evidence, told her that he would not do the ventrosuspension unless it was necessary, when he booked her in for the first surgery to be performed on 25 February 1992.
Counsel for the plaintiff in his closing submissions submitted that the failure of the ventrosuspension resulted in increased pain and in the absence of contrary indication the failure to warn the plaintiff caused the increase in pain (argument 1).
With respect to the specific identifiable risks upon which the plaintiff relies, there is no medical evidence that these risks potentially existed nor is there evidence that Dr Hastwell knew that the suspension of the plaintiff's uterus could not assist her. In addition there is no medical evidence that any particular warning ought to have been given to her by Dr Hastwell.
Further, from the plaintiff's evidence she was aware from what Dr Hastwell told her that he would perform a ventrosuspension if it was necessary. To that end, the plaintiff left that decision up to Dr Hastwell.
On the evidence before me at trial I do not consider that there is more than a negligible chance that, at a notional trial, Dr Hastwell would be found to have failed to give proper warning to the plaintiff.

Whether ventrosuspension in first surgery unnecessary

By this claim the plaintiff asserts that Dr Hastwell knew or ought to have known that the ventrosuspension undertaken by him during the first surgery could not help the plaintiff's pain and was thereby unnecessary (plaintiff's closing submission – argument 2).
In that regard, the plaintiff relies upon the report of Mr Andrew Korda dated 12 May 2007 ("Mr Korda's report") (Exhibit 3 at pp 8 – 22).
In that report, Mr Korda opines that:
"The surgery to correct retroversion is an unnecessary operation, and has been abandoned since the early 1970s. There is no current textbook of operative gynaecology, which describes the operation of ventrosuspension. It is an old fashioned operation, which has no place in modern gynaecological practice. This is the position now, and it was the position in 1992" (p 17).
One of the difficulties in this trial is that a good deal of the medical evidence was adduced by reports which were admitted by consent.
Where there is a dispute between medical practitioners as to a particular issue, in respect of which a witness has not given evidence which has been tested, it is difficult, and in some cases impossible, for me to form a view as to which opinion might be likely to be preferred at a notional trial.
The question as to whether a ventrosuspension was under the circumstances, necessary, is one of those issues.
Mr Michael Marsh ("Mr Marsh") (a general and laparoscopic surgeon) performed a diagnostic laparoscopy on the plaintiff on 31 May 1993 and attended on her on a number of occasions and submitted various reports and gave oral evidence during the course of this trial.
Although his opinion, from his consultations with the plaintiff, was that the ventrosuspension performed during the course of the first surgery did not alleviate the plaintiff's abdominal pain, he did not at any stage observe that a ventrosuspension was, in 1992, an unnecessary operation as was the opinion of Mr Korda in 2007.
Mr Bruce Warton ("Mr Warton"), a consultant obstetrician and gynaecologist, provided a written report dated 29 September 1998 (Exhibit 2 pp 64 – 70) which was admitted into evidence by consent.

Mr Warton did not, in that report, opine that ventrosuspension surgery, per se, was never called for, as was the opinion of Mr Korda. In his report Mr Warton said:
"Dr Hastwell recommended a ventrosuspension procedure to resolve the pain. I have no direct knowledge of his reason for this, but the hospital documentation indicated the complaints were dyspareunia and pelvic pain and that these were considered to be due to retroversion of the uterus and endometriosis. It is difficult for me to determine whether these findings were correct or incorrect, but they are certainly plausible … ."
He does say in this report that he did not consider that the ventrosuspension had really much to do with the plaintiff's pain.
Dr Hastwell plainly considered that ventrosuspension was appropriate surgery with a view to alleviating the plaintiff's pain.
On the evidence before me, I do not consider that, at a notional trial, there is more than a negligible chance that Dr Hastwell would be found to have been negligent in performing the ventrosuspension in the first surgery.

Pain or increased pain as a consequence of first surgery

The plaintiff gave evidence that she was in significant pain following the first surgery. Given my findings on the evidence concerning the alleged failure on the part of Dr Hastwell to warn and/or the necessity of the ventrosuspension, there is not, in my view, more than a negligible chance that Dr Hastwell would be found, at a notional trial, to have been negligent in the manner alleged by the plaintiff.

Second surgery

Failure to warn – nature of appendectomy surgery

It is common ground that Dr Hastwell did not carry out further ventrosuspension surgery on the plaintiff with the second surgery.
In the plaintiff's further amended statement of claim the plaintiff alleges:
(a)that Dr Hastwell failed to inform the plaintiff of the matters pleaded in par 25;
(b)that the plaintiff would not have consented to the second surgery had Dr Hastwell properly warned her of those matters;
(c)during the second surgery Dr Hastwell knew or ought to have known that:
(i)there was nothing wrong with the plaintiff's appendix; and
(ii)consent had been given by the plaintiff for her appendix to be removed laparoscopically and as a consequence he should not remove the appendix through a pfannanstiel incision,
by reason of which Dr Hastwell was under a duty:
(a)to inform the plaintiff that there was nothing wrong with her appendix;
(b)not to remove her appendix; and
(c)not to cause unnecessary scarring to the plaintiff
and that Dr Hastwell was in breach of those duties thereby causing the plaintiff to suffer pain and injury.
Counsel for the plaintiff in his closing submissions submitted:
(a)when the plaintiff consulted Dr Hastwell in April 1992 with increasing pain she understood, from what Dr De Souza told her, that it was her appendix which was causing that pain;
(b)Dr Hastwell did not conduct a thorough examination or take blood tests and could not have been certain of the cause of her pain and yet he recommended that the plaintiff's appendix be removed;
(c)Dr Hastwell ought to have warned the plaintiff that there could be multiple causes for her pain and that he could not be certain that it was her appendix and further that she may be left with worse pain;
(d)the appendix operation was followed by increased pain and subsequently nerve entrapment pain. That was caused by the failure by Dr Hastwell to warn the plaintiff (argument 3);
(e)there was no need for the appendix to be removed on the available evidence. The removal of the appendix was temporally connected with an increase in pain and subsequent nerve entrapment pain (argument 4);
(f)if Dr Hastwell was correct in his diagnosis (that the appendix ought to be removed) he did not inform the plaintiff of the extensive scar with which she would be left from the pfannanstiel incision and led the plaintiff to believe that the operation would be undertaken by laparoscopy. This method of surgery (by pfannanstiel incision) resulted in nerve entrapment.
The plaintiff alleges that no reasonable person in her position would have consented to the second surgery, alternatively consented to the second surgery other than by laparoscopy and she would not have undergone the second surgery had Dr Hastwell properly informed her of these matters.
Relevantly the plaintiff's evidence was as follows:
(1)After Dr Hastwell had performed the first surgery he told her that he did not think there was anything wrong with her appendix.
(2)She saw Dr De Souza on 11 March 1992 and he told her that her appendix were the worst ones he had seen. She again saw Dr De Souza on 3 April 1992 because the pain in her right hand side was very severe. When she saw him, Dr De Souza said that it had to be her appendix and said that he could feel the ridge where the appendix was swollen. An emergency appointment was made with Dr Hastwell that night.
(3)When she went to see Dr Hastwell on 3 April 1992 she had specific pain in the area of her appendix in her right iliac fossa area and she told Dr Hastwell that she wanted it sorted out (the pain).
(4)After he had performed the first surgery, Dr Hastwell had told her that he did not think that there was anything wrong with her appendix.
(5)Dr Hastwell told her that her appendix was fine when he operated on them. He then checked with his hand and told her that it could be her appendix. The pain was in the right spot.
(6)Dr Hastwell told her that he would book her in for an operation and that if the pain went then the operation could be cancelled. The operation was booked in for six weeks later.
(7)A few days before the operation the pain started easing off however she did not tell Dr Hastwell. She said she did not do so because she believed Dr De Souza when he told her that her appendix was bad.
(8)Dr Hastwell told her to keep on the antibiotics because her appendix would not burst if she was on antibiotics.
(9)As far as she knew, the appendectomy was to be performed by a keyhole laparoscopy. When pressed about how she came to that understanding, she said that Dr Hastwell really didn't discuss it with her. To that end, in Dr Hastwell's letter to the plaintiff's solicitors dated 17 April 2003 (Exhibit 2 at pp 55 – 57) he said:
"On the 3/4/92 she returned complaining of right iliac fossa pain, which she said was worse and on examination she was very tender over the right iliac fossa, over the caecun and at the sight of the appendix. A low grade appendicitis was queried. She wanted it sorted out so she was booked for a laparoscopic appendectomy…"
(10)She had had keyhole surgery from Dr Hastwell before and she assumed that that surgery was going to happen the same way. Dr Hastwell did not discuss any alternative way (to laparoscopic surgery) that it might be undertaken.
(11)The type of pain she was having on 3 April 1992 was totally different from the pain with which she was suffering prior to the first surgery. Prior to the first surgery she said that the pain was on the right hand side and was intermittent. It used to come and then it would go. It would only take a few minutes or half an hour.
(12)The pain with which she was suffering on 3 April 1992 was a horrible pain and it "just never went" and kept getting worse. She said she really believed that she had a bad appendix and thought that must have been what it was.
(13)She thought she needed her appendix out and that she thought her appendix was going to burst. The reason for that belief was that Dr De Souza had told her that her appendix were the worst ones he'd seen and that she had to get them out as soon as possible.
(14)She was booked in for surgery on 12 May 1992.
(15)Dr Hastwell did not discuss with her any complications that might arise from the surgery, nor did he try her on any different medication.
(16)Dr Hastwell did not warn her that she might end up worse off.
(17)Dr Hastwell did not discuss with her the type of scar with which she might be left after the appendix operation. She said that she thought that she'd "just have an appendix scar…".
(18)She signed an authority to have her appendix out and said that there was nothing else planned other than the appendectomy.
(19)When she awoke from surgery she was very sore. She said that the scar was very low down, just above her pubic hair, near her pubic bone. She had 15 staples and 3 stitches. She measured the scar and it was 7 ½ inches long.
(20)With respect to the scar, she said that as long as she did not have pain anymore she did not care (about the scar). The length of the scar was a shock but she really didn't care about it. She just wanted to be well again.
(21)She saw Dr Hastwell after the second surgery and he told her that she would feel much better with the appendix out because "they were bad".
(22)She remained in hospital for about five days and at the end of that five day period she was in pain from the scar. She received pethidine injections.
(23)She did not get any more stabbing pain (which was the pain she had before the appendectomy) after the appendectomy was performed.
(24)She left hospital on a Sunday and by the following Wednesday the pain was too bad and she went and saw Dr De Souza and he prescribed Endone.
(25)The pain in the area of the scar felt like razor blades inside her stomach so that every step she took was like it was cutting her open. That was how it felt.
(26)When she was asked in cross-examination about what had happened to the pain with which she suffered before the second surgery, she said that she did not know. She said it could still have been there but the scar pain was very bad and it seemed like the other pain wasn't even an issue anymore.
(27)When she inquired of Dr De Souza about the cause of the pain after the second surgery Dr De Souza told her that it was caused by adhesions, that she had lots of adhesions and that was why she was in so much pain.
(28)The pain with which she suffered after the appendectomy has never left her. She has remained on medication.
(29)At trial she said that she was on morphine and on Oxycontin at 800 mg a day.
(30)She was paying $5 per script every three weeks on the PPS Scheme. She gets a new script every three weeks.
(31)She saw Dr Hastwell on 31 August 1992 and taped the conversation. A transcription of that conversation is Exhibit 1 pp 182 ‑ 189. In that conversation, Dr Hastwell told her that the end result of a pfannanstiel incision was that it was more cosmetic. He told her that if it is a normal appendix, one could get it "through a pin hole" but that it was not good surgery. He said that one can do an appendix through a laparoscope if one had the right equipment which he did not have.
(32)Dr Hastwell told her that she had enlarged ovaries which was the primary cause for her pain in addition to which she had irritable bowel syndrome and endometriosis.
(33)Dr Hastwell told her that she did not have many adhesions and he did not consider the existence of the adhesions to be relevant to her pain.
(34)Dr Hastwell recommended to her that when she finished having her family she ought to have a hysterectomy. On 31 August 1992 Dr Hastwell wrote to Dr De Souza and advised him that the plaintiff's pain was possibly related to an irritable bowel, her large ovaries and retroversion and he advised that he had given her Provera to minimise the congestion, endometriosis and pre‑menstrual syndrome.
(35)The plaintiff first consulted Mr Marsh on 8 April 1993. Mr Marsh's report of 15 September 1993 to Fordhams refers (Exhibit 3 pp 23 – 24). She underwent a diagnostic laparoscopy and Mr Marsh reported that the laparoscopic findings revealed a solitary band and adhesion between the right ovary and tubal remnant to the anterior abdominal wall which was divided. Mr Marsh reported that there was no evidence of any other adhesions, endometriosis or inflammatory changes.
(36)In or about November 1992, she attended at the pain clinic at Gosnells Family Hospital and there consulted with a Dr Ravastava and his colleague Phillip Williams and was told on 4 December 1992 that the pains she suffered were from the pfannanstiel scar.
The plaintiff asserts that Dr De Souza told her that her appendix was bad. Dr Hastwell initially said that his observation of her appendix during the first surgery was that it was not bad but when he felt the area in which she was suffering pain, he told her that it might be that she was suffering from appendix pain. He prescribed antibiotics, booked her for an appendectomy for six weeks ahead (12 May 1992). This was the extent of his examination. He did not, for example, take any blood tests.
Mr Marsh gave evidence that he did not use a pfannanstiel incision for the removal of an appendix.
He said that if that incision was to be used in an operation in 1992 he would first tell the patient that they would have some initial wound pain and some swelling. He said that he would inform the patient that there were potential complications that any wound is exposed to, like infection or bleeding and in some cases there may be pain which lasted for a longer period of time. He would tell the patient that if the incision was made too lateral, there was increased risk of neuralgia (nerve pain) which depended on the circumstances at the time.
In his report of 12 May 2007, Mr Korda said that:
(a)Performing a pfannanstiel incision to remove an appendix was not an unreasonable approach.
(b)It was well known, and was well known in 1992, that when a pfannanstiel incision is extended laterally beyond the edge of the rectus muscle and into the substance of the external and internal oblique muscles, injury to the iliohypogastric or ilioinguinal nerves can occur, resulting in neuroma formation. In addition, closure of this extended fascial incision can entrap these nerves in suture or surrounding scar tissues.
(c)For an elective appendectomy, he would have used a pfannanstiel incision in 1992.
In my view there is evidence upon which a court (at a notional trial) could find that Dr Hastwell made it known to the plaintiff that the appendectomy would be performed by laparoscopy and that without her knowledge he performed that surgery by pfannanstiel incision.
There was also evidence from Mr Marsh that was capable of being accepted by a court at a notional trial that if the appendectomy was to be performed by pfannanstiel incision Dr Hastwell ought to have warned the plaintiff that apart from pain and discomfort which would usually follow invasive surgery, there was a possibility with this type of incision, for nerve entrapment which could occasion the plaintiff to suffer additional pain.
The evidence of the plaintiff is that had she been properly warned by Dr Hastwell she would not have undergone the second surgery otherwise than laparoscopically. Against that evidence is her evidence that as long as she did not have pain anymore she did not care about the scar. The length of the scar was a shock but she did not really care about it – she just wanted to be well again.
Nonetheless there is evidence upon which a court at a notional trial could find that if she was properly warned in the manner about which Mr Marsh gave evidence, she would have insisted upon laparoscopic surgery.
The question which then arises is whether, having regard to the nature of the appendectomy, laparoscopic surgery was in any event appropriate in the circumstances. There was no evidence at this trial with respect to that issue. It is a matter with which I will later deal.

Whether appendectomy was unnecessary

The plaintiff gave evidence that Dr De Souza told her after the first surgery that her appendix was bad. Dr Hastwell initially told her that his observation of her appendix during the first surgery was that it was not bad but when he felt the area in which she was suffering pain, he told her that it might be that she was suffering from appendix pain. He prescribed antibiotics, booked her for an appendectomy for six weeks ahead (12 May 1992). This was the extent of his examination. He did not, for example, take any blood tests.
During his evidence at trial Mr Marsh said that there would be a variety of tests which he considered ought to be undertaken by a surgeon when making a diagnosis of appendicitis. The range of the tests which, in his view, were advisable depended upon the patient's history and physical examination but would include blood tests to confirm infection and sometimes checking the urine.
He said that the principal test was a blood test to ascertain whether the white cell count was raised. The white cell count became raised where there was an infection. He said that if one is considering a diagnosis of appendicitis it is important to undertake a white cell count.
Mr Marsh was referred to the reports from State Health Laboratory Services. In the pathology report dated 27 February 1992, the finding was "no evidence of active endometritis has been found" (Exhibit 2 p 62).
In the pathology report dated 14 May 1992, with respect to the appendix, there was the following finding: "...examination of the appendix shows no acute inflammation, ulceration, or necrosis. There are no atypical features and no parasites are seen. There is no evidence of fibrosis or other features indicative of past acute appendicitis". Under the heading "conclusion" the report stated: "The appendix shows no significant morphological abnormality".
Mr Marsh gave evidence that:
(a)With acute appendicitis there would be quite marked local tenderness and involuntary muscle guarding and rebound tenderness which he said occurred when one suddenly removed the hand from the abdomen, it gave a knife like exacerbation to the pain. He said that they were the three physical examination points which doctors used in diagnosing acute appendicitis.
(b)Diagnosing chronic low grade appendicitis is one of those grey areas where a person has pain and the practitioner is not too certain exactly what it is.
(c)Having regard to the histopathology results (Exhibit 2 p 63) the appendix would have had a normal appearance when the second surgery was undertaken on 12 May 1992 and ought not to have been removed in his view, in any event, for any pathological process. He then said that surgical treatments have been modified over the past 20 or 30 years. In the 1960s and perhaps early 1970s it was surgically quite acceptable to remove an appendix at the time of any intra abdominal surgery, particularly gynaecological surgery, because in those days it was considered that the person was at risk of some stage in their life to appendicitis. He said that that course fell into disrepute from the 1970s onwards which was, essentially, against any unnecessary surgery.
(d)If on 25 February 1992 the plaintiff's appendix appeared grossly inflamed, he would not have expected it to be normal six weeks later with these pathology results. He said that after six weeks, one would still see some changes in the appendix when examined under the microscope.
(e)However if it was a mild appendicitis (on 25 February 1992) one may see a normal appendix at ten weeks – being at or about the date of the histopathology report. (In this regard I note that the description of the plaintiff's appendix by Dr De Souza would not appear consistent with mild appenditis as Mr Marsh describes it.)
In cross-examination, Mr Marsh was referred to his report of 3 February 1994 (Exhibit 2 p 25) in which he confirmed that he was not in a position to give an opinion as to whether the procedure (the second surgery) was appropriate or not, as that would reflect directly on the severity of the plaintiff's condition and the procedure that the gynaecologist elected to do. He said that only another gynaecologist, present at the operation, would be in a satisfactory position to give such a medico-legal opinion.

He said (T165):
"…you've got to be there at the time. And that's the problem I had in answering those letters. I wasn't there at the time and I didn't know exactly which technique he employed… ."
At T168 when asked about any aspect of the plaintiff's treatment by Dr Hastwell Mr Marsh said that he did not consider himself in a position to say whether or not Dr Hastwell had done anything inappropriate.
At T170, there was the following exchange:
"Q:If the findings on examination were right side abdominal pain which had been intermittent for a long time, she had rebound tenderness and clinical signs on the right side, would a diagnosis of low grade appendicitis have been reasonable?
A:Yes, it could – you could make that diagnosis with those features.
Q: If a patient said to you as a surgeon "I want this sorted out", would a reasonable response have been to continue an existing prescription of antibiotics and arrange for a booking for an operation in 6 weeks time with advice that if the pain went away, to cancel the operation?
A:If a diagnosis of appendiceal infection, chronic or sub‑acute or acute appendicitis was made and treated with antibiotics, then the correct procedure, at least in my training, is to remove the appendix at some interval date in the future, 6 to 10 weeks, something like that…I shouldn't say that – 6 – I have to be careful – 3 months."
In his report of 12 May 2007, Mr Korda said that:
(a)Appendicitis was not an appropriate diagnosis in April 1992, as the clinical signs and symptoms were inconsistent with appendicitis and in any event, the operative findings did not subsequently confirm it was appendicitis. Additionally, the histopathology report confirmed that the appendix was normal.
(b)The most likely diagnosis would have been either endometriosis or chronic pain syndrome. (However, I note that the pathology report dated 27 February 1992 recorded there to have been no evidence of active endometriosis.)
In his report to Fordhams of 19 April 1993 (Exhibit 2 p 72) Dr De Souza stated that the plaintiff had diagnosed appendicitis. He reported that:
"The clinical features that made Dr Hastwell consider appendicitis was that at the time the diagnosis was made and the operation performed, she had specifically right sided abdominal pain which had been intermittent for a long time. She also had rebound tenderness and clinical signs on the right side. Pathology findings in the appendix are very commonly normal. This does not exclude inflammation necessarily. She was operated on and a possible cause of her pain being appendicitis…"
Dr De Souza reported that on 3 April 1992 the plaintiff presented with a severe exacerbation of right sided abdominal pain. She was referred to Dr Hastwell on an emergency basis and eventually had an operation at the Armadale/Kelmscott District Hospital.
In his report of 3 April 1992 to Dr De Souza (Exhibit 2 p 52) Dr Hastwell stated:
"Examination revealed tenderness over the suspension wound and tenderness of the right iliac fossae.
She appears to have appendicitis. I have asked her to continue on the antibiotics and have given her a prescription for Vibramycin.
I have booked her for an appendectomy on 12 May."
In his report of 12 May 1992 to Dr De Souza (Exhibit 2 p 54) Dr Hastwell said that:
"At laparotomy, an injected (sic) appendix was removed. She had enlarged ovaries, the uterus descended down to the introitus and was retroverted. However, the round ligaments were rather tenuous and not really suitable for a ventrosuspension. I suggested to Yvonne that she should complete her family and then, perhaps, have a vaginal hysterectomy and repair".
In his report dated 17 April 2003 to Bradford & Co, the plaintiff's solicitors (Exhibit 2 p 55) Dr Hastwell stated:
"On the 3/4/92 she returned complaining of right iliac fossae pain, which she said was worse, and on examination she was very tender over the right iliac fossae, over the caecun and at the site of the appendix. A low grade appendicitis was queried. She wanted it sorted out so she was booked for a laparoscopic appendectomy as well as the planned laparoscopic uterine suspension…"
There is a significant conflict in the medical reports and evidence concerning the necessity for the removal of the plaintiff's appendix. On the one hand Dr De Souza observed that the plaintiff's appendix was observed by him during the course of the first surgery to be one of the "worst he had seen" but that observation was contradicted by Dr Hastwell who, the plaintiff alleges, told her that he did not think that there was anything wrong with her appendix and that her appendix was fine. Dr Hastwell did not conduct any tests, particularly any blood tests. There is the evidence of Mr Marsh and the pathology report of 14 May 1992 confirming that there was no abnormality with respect to the plaintiff's appendix. Having regard to the evidence presented at this trial and which was available or could reasonably have been available at a notional trial, there is in my view more than a negligible chance of the plaintiff successfully making out a claim that the second surgery, namely the appendectomy, was unnecessary.

Failure to inform plaintiff of extensive scar upon appendectomy

There is evidence upon which a court at a notional trial could find, as I have previously said, that Dr Hastwell was to perform the appendectomy by laparoscopy and if that finding was made, then the plaintiff would not have been left with a 7½ inch scar. The plaintiff gave evidence that she was not concerned about the scar provided she was not in pain. Be that as it may the scarring is a consequence of the surgery by pfannanstiel incision, in respect to which I have found that the court at a notional trial could find that the plaintiff would have refused the second surgery by that incision and that the second surgery was unnecessary.

Likely cause of pain after appendectomy

The plaintiff gave evidence that:
(a)Dr Hastwell told her that she had enlarged ovaries which were the primary cause for her pain in addition to which she had irritable bowel syndrome and endometriosis.
(b)Dr Hastwell told her that she did not have many adhesions and he did not consider the existence of the adhesions to be relevant to her pain.
(c)Dr Hastwell recommended to her that when she finished having her family, she ought to have a hysterectomy.
On 31 August 1992, Dr Hastwell wrote to Dr De Souza and advised him that the plaintiff's pain was possibly related to an irritable bowel, her large ovaries and retroversion and he advised that he had given her Provera to minimise the congestion, endometriosis and pre-menstrual syndrome.
The plaintiff first consulted Mr Marsh on 8 April 1993. Mr Marsh's report of 15 September 1993 to Ms Judith Fordham refers (Exhibit 3 pp 23 ‑ 24). She underwent a diagnostic laparoscopy and Mr Marsh reported that the laparoscopic findings revealed a solitary band adhesion between the right ovary and tubal remnant to the anterior abdominal wall which was divided. Mr Marsh reported that there was no evidence of any other adhesions, endometriosis or inflammatory changes.
The plaintiff gave evidence that in about November 1992, she attended at the pain clinic at Gosnells Family Hospital and there consulted with a Dr Ravastava and his colleague Phillip Williams and was told by them on 4 December 1992 that the pains from which she suffered were from the pfannanstiel scar.
Dr John Salmon ("Dr Salmon") in his report of 9 March 1999 said that his initial impression was that the plaintiff's long standing low abdominal pain problem was likely related to a missed appendicitis (which, in his oral evidence, he conceded was incorrect given that the appendectomy was performed) and nerve entrapment scarring exacerbated by surgery. He said that he had suggested to the plaintiff that over time her pain had become more central nervous system in origin and was likely interacting with psychological disturbance to produce her chronic pain syndrome. (T132).
He told the plaintiff that it was most unlikely that any procedure available then or in the medium term at least would result in a dramatic or sustained reduction in her symptoms. Instead he suggested to her that she was likely to see a considerable improvement in her pain control and reduction in medication requirements and increase in function with a cognitive behavioural and exercise based treatment program. He said in this report, that the plaintiff had agreed to a referral to Sir Charles Gairdner Hospital Pain Clinic for assessment and possible cognitive behavioural program treatment if deemed appropriate. To that end, he was to send a referral to Dr Goucke at that clinic.
Dr Salmon also gave evidence at the trial. During the course of that evidence there was the following exchange:
"Q:Now, can I put it to you that you found modest tenderness around the scar? That was somewhat at odds with her description of the pain she was suffering from?
A:No, not really. I mean, most chronic abdominal pain is now thought to relate to central nervous system mechanisms rather than local tissue pathology and therefore the local signs of nerve pain or sensitivity can become less over time, but the pain the patient complains of in the abdomen as a whole can become more severe over time. So the relationship between physical signs and symptoms becomes more tenuous over time …
Q:Now, would you distinguish between adhesions and nerve entrapment?
A:Not really. I mean, the relationship between chronic pain and adhesions and nerve entrapment is often quite tenuous. You can have severe adhesions and nerve entrapment, if you like, scar tissue, and no pain at all." (T130)
With respect to any conclusion which he could draw from the presentation by the plaintiff, as to the pain with which she suffered before 1992, Dr Salmon said in his evidence:
"Well, the overall pattern is that she developed the pain in '91. This is my history from her. And then this pain became more severe and continuous after a series of events including multiple surgeries, and this is a common pattern in patients who develop chronic pain. There is a succession of events and after each one the pain becomes more severe and disabling. And often the relationship to physical pathology from each of the events is often quite tenuous, and what we believe is probably happening is that these patients have probably in part, a genetic oversensitivity of the nervous system, if you like, and when they have a series of injuries or incidents that wouldn't provoke symptoms in other people, they develop an escalating level of nervous system pain."
"….in an individual case…in this situation if someone has an escalation of pain after a given procedure, that doesn't mean that there is anything spectacular about the pathology or that some mistake has necessarily occurred. It could be just the intervention, the surgical intervention which inevitably stimulates the nervous system, provokes an escalation in symptoms"
With respect to the manner in which nerve entrapment scarring arises, Dr Salmon said the following:
"Well, its always been a speculative diagnosis the relationship between chronic pain and nerve entrapment because scarring is inevitable after any surgery or inflammatory process. Only a proportion of people get persistent pain in relation to that scarring. You can have severe scarring including nerve entrapment and no pain. And the converse is true. So there isn't a one on one relationship between the extent of scarring and the extent of nerve entrapment and the extent of pain. I think everyone would agree on that. But certainly it is the case that nerve entrapment can cause pain and if it's severe nerve entrapment it can cause more severe pain. Its just that in a range of patients there's not a consistent – a predicable relationship".
Mr Marsh, in his referral to the specialist pain clinic at Sir Charles Gairdner Hospital dated 29 May 1997, said that the plaintiff's pain was in the lateral aspects of both iliac fossae in the region of the rather extended pfannanstiel wound and that it was possible that she had neuralgia from an involvement of both peripheral branches of the sub-costal nerves that supply the supra pubic area. The other possibility was that she had pain due to narcotic dependency. He observed that the plaintiff was aware that one doctor had diagnosed her pain as that of drug dependency and although that may be the case, the wide pfannanstiel wound was notorious for peripheral nerve entrapment and that it would need to be properly assessed.
In his report of 5 August 1999 to the defendant Mr Marsh said that nerve entrapment in the plaintiff's lower abdominal pfannanstiel wound could not be entirely excluded and as a consequence the opinion of Dr Goucke at Sir Charles Gairdner Pain Clinic ought to be sought before any plans for her management be contemplated.
In his oral evidence at trial, Mr Marsh said that usually the type of wounds (which the plaintiff had by reason of the pfannanstiel incision) do not extend to the sides of the body so much as her wound did. He opined that there was always a worry that if one extends it (the pfannanstiel incision) too laterally one will entrap nerves which cause pain.
He said that where there is nerve entrapment in circumstances where the nerve is trapped in scar tissue or is caught by a suture, one can either free the nerve or actually remove it and observed that it was better to have numbness than pain.
Mr Marsh said that when he consulted with the plaintiff she was suffering pain to both left and right iliac fossae when, prior to the second surgery, she reported to him that she suffered only from the stabbing pain in the right iliac fossae.
In the defendant's closing submissions counsel referred to the following evidence which he asserted militated against any finding that the plaintiff experienced ongoing pain as a consequence of the treatment administered by Dr Hastwell in 1992:
(a)The plaintiff had complained to her general practitioner of abdominal pain as early as 3 November 1986 (Exhibit 2.1).
(b)The plaintiff complained of sacral and pelvic ache when she saw Dr Hastwell on 8 May 1990 (Exhibit 2 p 55).
(c)When the plaintiff saw Dr Albrecht Hellmuth, an obstetrician and gynaecologist on 29 April 1992 (prior to the second surgery) she complained of pelvic pain. Dr Hellmuth came to the conclusion that most of the plaintiff's problems would be resolved by removing her uterus. He came to that conclusion because the plaintiff had a history of abnormal cervix, had contact bleeding from the cervix – which he said was often related to scarring following current biopsy treatment. She had pelvic pain which once again, could relate to scarring of the cervix and also a prolapse of the uterus.
(d)The plaintiff was examined by Dr Mark McKenna of the University Department on 1 May 1995 (Exhibit 1 pp 1, 2 and 3) who made a diagnosis of chronic abdominal pain due to adhesions.
On the evidence there is in my view more than a negligible chance of the plaintiff proving at a notional trial that a cause of the pain with which she suffered after the second surgery was by reason of nerve entrapment, the temporal catalyst for which was the pfannanstiel incision and that even if her ongoing pain was more central nervous system in origin, as Dr Salmon suggests, the nerve entrapment was a cause of the pain with which she still suffers (Shorey v PT (supra)).

Summary of possible findings of negligence against Dr Hastwell

I consider there to have been more than a negligible chance of the plaintiff, at a notional trial, proving that Dr Hastwell was in breach of his duty of care to her in the following manner namely:
(a)The second surgery, namely the appendectomy, was unnecessary.
(b)Alternatively, the second surgery ought to have been undertaken by laparoscopy and not by pfannanstiel incision; and
(c)He failed to properly warn the plaintiff as to the risks of performing the second surgery by pfannanstiel incision;
as a consequence of which there is more than a negligible chance that the plaintiff at a notional trial count prove that a cause of her ongoing pain whether it be central nervous system in origin or otherwise was nerve entrapment caused by the pfannanstiel incision.

Negligence alleged against defendant

Exhibit 1 contains an agreed book of the defendant's running file documents and includes relevant documents extracted from the Fordhams' file. In the main the evidence referred to below comprises documents on that file.

Fordhams

The plaintiff engaged Judith Fordham from Fordhams in mid‑1992 on a grant of legal aid.
Whilst acting for the plaintiff Fordhams:
(a)wrote to Dr Hastwell on 25 March 1993 putting him on notice that the plaintiff alleged that he was negligent in her medical management;
(b)wrote to Dr De Souza on 25 March 1993 seeking information from him in respect to which Dr De Souza provided a written response dated 19 April 1993;
(c)wrote to Dr A E Hellmuth on 25 March 1993 seeking advice from him as to the cause of the plaintiff's abdominal pain in respect to which Dr Hellmuth responded in writing dated 29 March 1993. He said that he had been asked to see the plaintiff on 29 April 1992 in the context of her various gynaecological problems and that his impression was that she would eventually require a hysterectomy. He said that he was not aware that the plaintiff was dissatisfied with Dr Hastwell's treatment and his feeling was that Dr Hastwell had obviously done what he could do in a fairly conservative manner to allow her to continue her hope of having further children.
(d)wrote to Mr Marsh on 8 September 1993 and 14 January 1994. Mr Marsh had by then performed a laparoscopy on the plaintiff in 1992. By those letters Fordhams sought his advice as to his findings and his opinion as to the appropriateness of the plaintiff's medical treatment by Dr Hastwell. Mr Marsh provided reports dated 15 September 1993 and 3 February 1994, in respect to which reference is made earlier in this judgment.
(e)by letter to the plaintiff dated 25 March 1994 summarised the medical evidence which by then had been collated referrable to the plaintiff's claim and advised the plaintiff that in their view it was not possible on the basis of the medical reports provided to them, to establish a claim in negligence against Dr Hastwell that the ventrosuspension of the plaintiff's uterus or the complications, namely adhesions, or the appendectomy he performed on the plaintiff either caused or significantly worsened her existing pain and as a consequence causation could not be established. Fordhams advised the plaintiff that they could not recommend commencing proceedings against Dr Hastwell.

Defendant

The plaintiff saw the defendant on 5 September 1997 and was referred to Mr Blatchford, a solicitor employed by the defendant, who she saw on 21 October 1997. At that meeting she provided Mr Blatchford with a handwritten statement which she had prepared.
Mr Blatchford gave evidence that he prepared a file note of that attendance (Exhibit 1 p 41) which recorded that:
(a)he explained to the plaintiff that the cause of action against Dr Hastwell arose on 25 February 1992 which meant that any proceedings had to be commenced within six years of that date;
(b)he told the plaintiff that in order to commence proceedings the defendant would need some fairly clear medical evidence which indicated that the care given to the plaintiff fell below standard and that would require the supporting opinion of an appropriately qualified medical expert;
(c)he and the plaintiff agreed that Mr Blatchford would send a brief to Mr Marsh and if his opinion was not helpful then the defendant could look elsewhere;
(d)he would prepare a draft proof of evidence based upon the plaintiff's written statement and send it to her for her approval so that she could make any necessary amendments and she could then sign a final copy. He said that this was the statement which would be included in the brief to Mr Marsh;
(e)the plaintiff gave him the contents of Fordhams' file including the original reports received from Mr Marsh and the letter from Fordhams giving their opinion on the merits of the plaintiff's claim.

Mr Blatchford was in the employ of the defendant and the defendant is vicariously liable for any act or omission on the part of Mr Blatchford during the course of him handling the plaintiff's matter about which instructions were given to him as and from 21 October 1997.
In discharging that duty the defendant needed to consider and give advice to the plaintiff as to the bases (if any) upon which, as he was instructed by the plaintiff from time to time, Dr Hastwell may arguably have been in breach of any duty owed to the plaintiff by reason of which the plaintiff suffered damage.
This required the defendant to take comprehensive instructions from the plaintiff, give consideration to potential causes of action which may be available to her against Dr Hastwell, collate all relevant information including expert opinion and to then provide her with his opinion as to the prospects of success of any claim. In doing so he ought to have made her aware of the risks inherent in litigation, and in particular the consequences of any claim being unsuccessful, namely in costs. It would then have been for the plaintiff, properly advised, to provide the defendant with her instructions concerning the pursuit, or otherwise, of any claim against Dr Hastwell.

First surgery

Case against Dr Hastwell based on failure to warn

I have found that, with respect to the first surgery there was not more than a negligible chance that, at a notional trial, Dr Hastwell would have been found to have breached any duty of care alleged to have been owed by him to the plaintiff to properly warn the plaintiff.
Whilst it is the case that the defendant did not give consideration to a claim based upon Dr Hastwell's failure to provide advice and information to the plaintiff which would be reasonably required for her to make an informed decision as to whether she ought to undergo the ventrosuspension or not, in view of my finding that not more than a negligible chance existed that Dr Hastwell would be found at a notional trial to have been negligent in this manner results in the conclusion that the defendant was not thereby negligent.

Whether ventrosuspension during first surgery was unnecessary

I have found that there was not more than a negligible chance of a claim that the ventrosuspension was unnecessary, succeeding. As a consequence no claim can be made out by the plaintiff against the defendant.
Even if I am wrong in my finding that the plaintiff's claim against Dr Hastwell had no more than a negligible chance of success, I do not consider that there was any breach by the defendant of the duty owed by him to the plaintiff in this regard.
Although Dr Korda opined in 2007 that ventrosuspension would not have been a necessary operation in 1992, that was not information which was then available to the defendant nor on the face of it reasonably available to the defendant between October 1997 and December 1999. No other medical practitioner from whom reports were obtained ventured the view that ventrosuspension was patently unnecessary or unreasonable. In Mr Marsh's report of 3 February 1994 he declined to comment on the technique of ventrosuspension and in his report of 29 September 1998, Mr Warton considered that to have been a reasonable line and he did not consider that the ventrosuspension had really much to do with the plaintiff's pain at all. In addition Dr Hastwell, as the specialist who performed that surgery, plainly considered it to have been necessary. There was, on the evidence before me, no material available or reasonably available to the defendant which would cause him to hold the view that this head of claim was reasonably arguable.

Second surgery

Whether appendectomy was unnecessary

On the information and opinion available to the defendant, there was evidence to the effect that the appendectomy was a procedure which was unnecessary. To that end, Dr De Souza, initially, and then Dr Hastwell considered that the plaintiff's appendix ought to be removed. Dr De Souza told the plaintiff after the first surgery that her appendix was one of the worst he had seen. I accept the plaintiff's evidence that after performing the first surgery, Dr Hastwell told her that he did not think that there was anything wrong with her appendix and that it was fine when he operated. It was when she told Dr Hastwell of Dr De Souza's observation that Dr Hastwell gave her an external examination and told her that it could be her appendix which was causing the pain and that he would book her in for an operation and that if the pain went away, then the operation could be cancelled.
Support for the view then held by Dr Hastwell and Dr De Souza may have come from the plaintiff's evidence that the right sided intermittent pain with which she suffered prior to the appendectomy was not evident after it, although she was in so much pain from the scar that just felt as though it was better. (T52)
On the other hand, the histopathology report of 14 May 1992 indicated a normal appendix. This fact ought to have alerted Mr Blatchford to consider the accuracy of the diagnoses by Dr Hastwell and Dr De Souza. Further enquiry was necessary. Mr Marsh gave evidence at trial that before conducting an appendectomy it would have been appropriate practice for Dr Hastwell to conduct at least a blood test to ascertain whether the appendix was infected. He proffered the view that having regard to the pathology report he did not consider appendicitis to be an appropriate diagnosis even though he qualified that observation, by saying that if acute appendicitis was not evident when Dr De Souza saw the appendix, then any abnormality may not show in pathology reports 10 weeks later. The fact that Dr De Souza said that the plaintiff's appendix was one of the worst he had seen should have raised alarm bells to Mr Blatchford as to whether the appendix, in that condition, would be likely to show no abnormality in this subsequent report.
There was, therefore, an issue which I consider ought to have been further explored by the defendant to ascertain the extent to which the plaintiff could mount a reasonable claim that the appendectomy was unnecessary. Mr Blatchford did not have all the information which in my view would have been reasonably available (as it transpired to be) on further inquiry of at least Mr Marsh. Dr Korda's opinion was that an appendectomy was not called for in 1992. Whilst that opinion was obtained well after the plaintiff's claim was statute barred, it may nevertheless have been indicative of an opinion which was available before a notional trial if sought by the defendant.
Because Dr Hastwell and Dr De Souza did not give evidence at this trial, I do not know what they may have said at a notional trial about these apparent inconsistencies. In the event I find that the defendant was negligent in not undertaking further enquiries with a view to ascertaining the strength of the plaintiff's claim in this regard and had he done so it would have been evident that there was an arguable cause of action available to the plaintiff. I am satisfied from the plaintiff's evidence that she would have been likely to pursue that cause of action and has lost the chance to do so.

Appendectomy to be performed laparoscopically

The plaintiff's evidence was that she understood that the appendectomy would be undertaken laparoscopically. To that end, the information before the defendant included the transcript of the consultation between the plaintiff and Dr Hastwell on 31 August 1992 (Exhibit 1 pp 182 ‑ 189).
In addition, in Dr Hastwell's letter to the plaintiff's solicitors dated 17 April 2003 to which reference is made earlier in this judgment Dr Hastwell said that "… she was booked for a laparoscopic appendectomy".
The surgery was undertaken by pfannanstiel incision rather than laparoscopically, resulting in far more prominent scarring and, arguably, nerve entrapment resulting in ongoing pain and being a cause of chronic pain syndrome. Upon a consideration of the evidence then available to the defendant there was, at the very least, an arguable cause of action against Dr Hastwell on the basis that the appendectomy ought to have been performed laparoscopically. I am satisfied on balance of probabilities that the plaintiff would have pursued an action on this basis and has lost the chance to pursue that cause of action against Dr Hastwell by reason of the negligence of the defendant.

Failure to warn – pfannanstiel incision

In his evidence, Mr Marsh said that if a pfannanstiel incision was to be used in an operation in 1992 he would first tell the patient that they would have some initial wound pain and some swelling, there were potential complications that any wound was exposed to infection or bleeding, and in some cases there may be pain which lasted for a longer period of time. He would also tell the patient that if the incision made was too lateral, there was an increased risk of neuralgia which depended on the circumstances at the time. Had Mr Blatchford given consideration to a claim based upon the failure on the part of Dr Hastwell to properly warn the plaintiff, this opinion and evidence at a notional trial would be likely to have been available from at least Mr Marsh. It was arguable, on the plaintiff's evidence, that had she been properly warned, she would not have consented to that procedure. Mr Blatchford's failure to properly consider this claim or the evidence which was available to him, was in my view negligent resulting in a loss of a chance to the plaintiff to pursue a claim under this head.

Whether pfannanstiel incision was appropriate for appendectomy

I do not consider that the defendant was negligent in his dealing with this issue. On the information before Mr Blatchford and as it transpired at this trial, there was a divergence of opinion as to whether an appendectomy could appropriately be undertaken by pfannanstiel incision. Mr Marsh, in his evidence, did not say that this procedure was inappropriate. Dr Korda expressed the view that in 1992 that would be an appropriate procedure. Whilst his report was not available to Mr Blatchford, it does indicate what information may have been available to him before a notional trial. There was no evidence before him or adduced at this trial to the effect that this would be an inappropriate procedure.

Cause of pain after second surgery

There was a good deal of information and opinion available to the defendant which indicated nerve entrapment as the, or at least a, likely cause of the pain experienced by the plaintiff after the second surgery. To that end the opinions of Mr Marsh and Dr Salmon refer. Whilst there was no certainty expressed by them, on a reading of their reports it is evident that they both considered that to have been the, or a likely cause.
In addition there was further enquiry which should have been made which may have impacted on the negative view which Mr Blatchford held as to the prospects of a successful claim, namely:
(a)the plaintiff had made known to Mr Blatchford the substance of the opinion from Dr Ravastava at Gosnells Pain Clinic to the effect that her pain was likely caused by nerve entrapment, however Mr Blatchford did not seek an opinion from that doctor;
(b)although the plaintiff had been referred to Dr Goucke at Sir Charles Gairdner Hospital Specialist Pain Clinic, and she had apparently consulted with him on 15 November 1999, Mr Blatchford did not seek a report from him.
(c)Although Mr Warton's report was sought and relied on, he was not provided with Mr Marsh's referral to Sir Charles Gairdner Hospital in which Mr Marsh made it known that nerve entrapment was an option.
In my view, there was sufficient evidence available to the defendant indicating nerve entrapment as being a material cause of the plaintiff's pain following the second surgery. Further investigation ought to have been undertaken by Mr Blatchford in that regard. Even without that further investigation the views expressed by Mr Marsh and Dr Salmon gave rise to an arguable claim that nerve entrapment following the second surgery was a cause of the plaintiff's pain.
As I have said, there were in my view arguable causes of action against Dr Hastwell on the bases that:
(a)the appendectomy may have been unnecessary; and/or
(b)even if the appendectomy was a necessary procedure:
(i)it should have been undertaken laparoscopically; and/or
(ii)Dr Hastwell ought to have warned the plaintiff of the risks associated with the procedure by pfannanstiel incision which may have resulted in the plaintiff requiring that procedure to have been undertaken by laparoscopy as Dr Hastwell initially contemplated, or further investigation, being undertaken
thereby resulting in any pain which may have been caused by nerve entrapment being avoided and reducing the likelihood, at the very least, of chronic pain syndrome being manifested.

Expiry of writ

It was open to the defendant to take steps to keep the proceedings instituted by the writ on foot pending the collation and consideration of the evidence which was reasonably available so as to properly advise the plaintiff as to the prospects of success of her claim against Dr Hastwell.
To that end, as Mr Blatchford in his evidence conceded, he could have served the writ within the 12 month period of its issue or any extended period and then sought a stay; or he could have made application for an extension before 21 December 1999.
Given my finding that on the information before Mr Blatchford there were arguable bases upon which the plaintiff had a potential claim against Dr Hastwell and that there was further enquiry which the defendant ought to have made, it was negligent for Mr Blatchford not to take such steps as were necessary to keep the potential causes of action against Dr Hastwell alive, pending the assembly of all relevant evidence to which I have referred and then give the plaintiff appropriate advice as to her prospects of success in the action and the costs risks with respect thereto, in order that the plaintiff could then make an informed decision as to whether she wished to pursue the proceedings against Dr Hastwell.
I am satisfied that, on a balance of probabilities:
(a)the defendant by Mr Blatchford was negligent in the manner found by me; and
(b)if offered the chance lost, that is to pursue an action against Dr Hastwell, the plaintiff would have elected to have taken that chance which has been lost to her.

Calculation of loss or damage consequent upon loss of chance

The matter now arising is to determine the value of the lost chance, ie, the loss of the commercial opportunity.
The value of the lost chance to enforce the cause of action to enable the pursuit of proceedings to settlement and/or judgement is to be determined by reference to degrees of probabilities and possibilities. That loss is to be quantified by taking a broad brush approach to the relevant matters in the notional case against Dr Hastwell that may require to be resolved and involves a consideration of the evidence that would or should reasonably have been available to the plaintiff at the time that the notional action would have come to trial ie, in 2001.
It also involves looking at the likely response of Dr Hastwell and those advising him, in those proceedings and to take into account and make allowance for the prospects of a settlement offer that might be made by a less than well informed or overly cautious lawyer for Dr Hastwell.
In this case, that task is a difficult one. Although Mr Marsh and Dr Salmon gave oral evidence at this trial, the evidence of Mr Korda, Dr Hastwell, Dr De Souza and Mr Warton was admitted, by consent, in the form of written reports. Where there is any inconsistency between the opinions expressed by the medical practitioners those inconsistencies have not been tested. Be that as it may, my task is to make the best assessment I can based upon the evidence before me at this trial and evidence which may have been likely to have been available before the notional trial and taking into account the stance likely to have been taken by Dr Hastwell.
As to the claim asserted against Dr Hastwell by the plaintiff in respect to which I have found that the plaintiff had more than a negligible chance of success, there are in my view the following matters which fall for consideration by me in looking at the probabilities and possibilities which would be likely to arise.

Second surgery

Necessity for appendectomy

I have during the course of this judgment reviewed the evidence referrable to this issue. There is a conflict in the medical evidence before me at this trial as to whether the appendectomy was necessary. In addition, it is inherently likely that Dr Hastwell's position at a notional trial would have been that the appendectomy was both necessary and appropriate. That position was likely to have been supported by Dr De Souza. It is the case that both doctors were present and saw the state of the plaintiff's appendix and, as Mr Marsh conceded, it was not possible for him to venture an opinion with certainty given that he was not present at the relevant time and that the gynaecologist conducting the surgery was in the best position to make that assessment.
On the other hand the plaintiff would have relied on the evidence of Mr Marsh and Dr Korda, whose evidence was likely to have been available on proper inquiry and the pathology report of 14 May 1992.
This evidence was likely to have cast doubt on the position taken by Dr Hastwell and Dr De Souza. In the event it is very difficult to predict what might be the outcome of the determination of this issue at a notional trial. Suffice it to say that that outcome is very uncertain.

Surgery by laparoscopy/Failure to warn of surgery by pfannanstiel incision

On the evidence before me it is in my view likely that the plaintiff will be able to persuade the court at the notional trial that Dr Hastwell did not warn her of risks associated with this procedure and in particular nerve entrapment because he led the plaintiff to believe that the surgery would be undertaken by laparoscopy.
The issue then is whether, had she been so warned, the plaintiff would have insisted upon a laparoscopy and in my view, there is a likelihood that her evidence may have been accepted in that regard. On the other hand it may be that there would be evidence at a notional trial to the effect that laparoscopic surgery was not appropriate in the circumstances. Dr Hastwell made some oblique references to that possibility in his consultation with the plaintiff on 31 August 1992. But there was no evidence at this trial as to whether the plaintiff's appendix could have been removed laparoscopically. If, at a notional trial, that issue was ventilated then it may have been the case that irrespective of the plaintiff's wishes surgery by pfannanstiel invasion may have been inevitable.

Pain following appendectomy

The weight of the evidence before me is that nerve entrapment consequent upon the procedure by pfannanstiel incision was a likely cause of pain after the second surgery. There is also the evidence of Dr Salmon in his report of 9 March 1999 (Exhibit 3 p 5) that over time her pain has become more central nervous system in origin and is likely interacting with psychological disturbance to produce her chronic pain syndrome.
Given her long and rather complex gynaecological history, I anticipate that Dr Hastwell may have asserted at a notional trial that the pain with which the plaintiff alleges she has suffered since the second surgery would have resulted in any event even if it manifested itself as chronic pain syndrome. In those circumstances it might be that Dr Hastwell will bear the evidentiary burden of disentangling the causes of that pain, if it is proved to exist, and demonstrating how and to what extent the damages are attributable to any non‑negligent cause (Chappel v Hart (supra)). It might also be asserted by Dr Hastwell that any symptoms from nerve entrapment might have been alleviated by further surgery to which Mr Marsh referred in his oral evidence at trial (T149) in which he said that:
"One then explores the old wound and finds that the nerve is trapped in scar tissue or it might unfortunately be caught by a suture. In a situation like that, you either free the nerve or you actually remove it. Its better to have numbness than pain ... . "

An issue of failure to mitigate may therefore have arisen. Whilst I am of the view that the plaintiff's claim that the pain with which she alleges she suffers was arguably materially caused by nerve entrapment, there is on the evidence significant uncertainty as to the outcome at a notional trial.
There would inevitably have had to be further medical evidence advanced by both the plaintiff and, I would expect, Dr Hastwell at a notional trial for the court to make a determination with respect to that issue.

Quantum of plaintiff's claim against Dr Hastwell

In the plaintiff's closing submissions, the plaintiff set out in par 132 ‑ 153 the damages which he asserts that the plaintiff would recover at a notional trial in 2001.
There were no submissions made by the defendant with respect to the plaintiff's qualification of the loss and damage to which the plaintiff claimed she would have been entitled had she pursued her claim against Dr Hastwell.

GENERAL DAMAGES

As to the claim for general damages, the evidence of the plaintiff (which I accept) was accurately reflected in the plaintiff's submissions in par 133 – 137, namely:
(a)the plaintiff had had a complex gynaecological history and suffered from intermittent pain before the first surgery. She was not however taking regular medication;
(b)after the first and second surgeries she commenced and continued to take heavy dosages of morphine or other opiate based medication and has been in receipt of the invalid pension since 1992;
(c)prior to first and second surgery she enjoyed an active social life, was in a de facto relationship and looked after young children with whom she was able to interact;
(d)since the first and second surgeries she no longer played pool which she formerly enjoyed and the children were not able to be hugged by her because of her tender stomach. She was in pain all of the time and she was unable to undertake the normal household tasks which she could previously perform;
(e)she had two further pregnancies but she did not improve and she required continual assistance with the care of those children;
(f)her de facto relationship broke up in 2002. She found sex difficult;
(g)she was born on 1 June 1960 and would have been, in 2001, 41 years of age.
In my view, in 2001, if she was successful in her claim against Dr Hastwell for damages in respect to the heads of claim in which I have found there to have been more than a negligible chance of success, a reasonable award for general damages for pain and suffering and loss of amenity of life would be $75,000.

Loss of services

I was told by counsel that the parties had agreed the rate for gratuitous services at $15 per hour.
The plaintiff, in respect to the number of hours per day her daughter spent helping her with the housework, cooking, cleaning, etc said that "I think we all added it up to be 4 or 5 hours a day".
In my view, in a household of four people, the extent of services for the plaintiff's benefit alone would be reasonably assessed at one hour per day or seven hours per week and I consider the plaintiff's claim as to this item is excessive. In my view, past loss of services, would amount to the following:
•7 hours x $15 by 52 weeks by 9 (years) - $49,140
•Interest at 3 per cent for 9 years - $13,262.50
•Total: $62,407.50 rounded off to $62,000.
As to future loss of services, the undiscounted sum would be $86,782.50 which sum, after taking into account contingencies, results in my view in a reasonable sum for future loss of services in the sum of $50,000.

Loss of earning capacity

Whilst the plaintiff gave evidence that she intended to set up a business with her girlfriend in relation to clothes from Singapore, there was no evidence upon which I could make any estimate referable to loss associated with that business and the plaintiff, quite properly in my view, makes a claim referrable to loss of earning capacity based upon a net minimum wage of approximately $350 per week about which there appears to be no issue taken by the defendant.
I consider the figure of $140,000 calculated by reference to this head to be reasonable.

Medical expenses

I consider the sum of $10,000 sought by the plaintiff to be reasonable.

Summary

On that basis, the damages to which the plaintiff would in my best estimation be entitled at a notional trial in the event that her claim against Dr Hastwell was successful would total a sum in the vicinity of $337,000. With interest at 6 per cent the sum is approximately $500,000.

Value of a lost chance

There are as I have said in this judgment a significant number of uncertainties relating to the matters relevant to the prospects of a successful claim being made out against Dr Hastwell.
Doing the best I can on the evidence before me at this trial, I consider that the value of the loss of chance is 40 per cent of the sum to which the plaintiff may be entitled upon a claim being made out against Dr Hastwell.
As a consequence, the plaintiff is entitled to judgment in the sum of $200,000.