Kelly v Blackstock

[2023] NSWDC 48

District Court

New South Wales

Medium Neutral Citation:

Kelly v Blackstock [2023] NSWDC 48

Hearing dates:

21 February, 1 & 8 March 2023

Date of orders:

10 March 2023

Decision date:

10 March 2023

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the amount of $435,000;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Pursuant to s 98 and s 99 of the Civil Procedure Act 2005 (NSW), at the time the plaintiff’s solicitor renders his bill of costs to the plaintiff he is required to file a certificate with the Court file evidencing the fact that he has not charged the plaintiff any professional fees for the wasted listing of the matter on 21 February 2023;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – professional negligence – medical – cosmetic surgery – damages claim against medical practitioner concerning adverse results from breast augmentation and labioplasty surgery; DAMAGES – assessment of heads of damage claimed by plaintiff

Legislation Cited:

Civil Liability Act 2002 (NSW), s 16

Civil Procedure Act 2005 (NSW), s 98, s 99

Category:

Principal judgment

Parties:

Emma Kelly (Plaintiff)
Leslie Blackstock (Defendant)

Representation:

Counsel:
Mr A Campbell (Plaintiff)
No appearance by the defendant

Solicitors:
Gerard Malouf & Partners (Plaintiff)
No appearance by the defendant

File Number(s):

2018/135513

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Procedural context and issues	[2]
Evidence overview	[3]
Facts	[4] – [29]
Plaintiff’s background circumstances	[5] – [7]
Consultation with Dr Blackstock	[8]
Operation by Dr Blackstock on 23 December 2014	[9]
Post-operative events	[10] – [11]
Awareness of problems; post-operative consultations	[12] – [16]
Medical treatment	[17]
Review by Dr Howard de Torres, consultant plastic surgeon	[18] – [19]
Review by Dr Peter Conrad, consultant surgeon	[20]
Review by Dr Bruce Westmore, consultant psychiatrist	[21]
Review by Dr Robert Kaplan, consultant psychiatrist	[22] – [24]
Review by Ms Anup Mangipudi, occupational therapist	[25] – [27]
Disabilities that remain	[28] – [29]
Assessment of damages	[30] – [36]
Disposition & costs	[37]
Orders	[38]

Nature of case

1. The plaintiff, Ms Emma Kelly, claims damages for professional negligence against Mr Leslie Blackstock, a former medical practitioner, in respect of breast augmentation and labioplasty surgery he performed on her whilst still a registered medical practitioner. He performed that operation on Tuesday 23 December 2014, at his consulting rooms at a house in Woodriff Street, Penrith, NSW.

Procedural context and issues

2. In the absence of any appearance by the defendant, or any other litigation activity on his part, a default judgment has been entered in favour of the plaintiff, leaving the remaining question of damages to be assessed. The proceedings were listed for hearing on 21 February 2023. The matter could not proceed on that day due to procedural failures on the part of the plaintiff’s solicitor which necessitated an adjournment. Following a further interlocutory listing on 1 March 2023, those procedural failures were remedied so that the assessment could proceed. That hearing proceeded on 8 March 2023. The proceedings are governed by the Civil Liability Act 2002 (NSW) (“CL Act”). At the hearing it was made clear to the plaintiff’s legal representatives that the plaintiff was not to have those wasted costs visited upon her because her solicitor had been at fault.

Evidence overview

3. The plaintiff tendered a Court Book which was marked Exhibit “A”. It contained relevant reports from five medico-legal assessors, relevant photographs and details of out-of-pocket expenses. A supplementary bundle was also tendered: Exhibit “B”. The Court Book included a statement from the plaintiff dated 20 February 2021. That statement was supplemented with oral evidence from the plaintiff. I found the plaintiff’s evidence, including the accounts summarised in the medical reports, to be entirely credible and compelling.

Facts

4. The factual circumstances relevant to the assessment of the plaintiff’s damages are as follows.

Plaintiff’s background circumstances

5. The plaintiff is presently aged 39 years. She has degrees in nursing and in business studies. She has an 18 month old child. She has been a registered nurse since 2015. She is now a single mother as she and her partner separated 2 years ago.

6. The plaintiff presently works in a healthcare clinic where she is the head of training and education. Years earlier she was involved in a motor vehicle accident in which she injured her neck and her back, but those injuries resolved and did not interfere with her work. Prior to undergoing surgical treatment by Dr Blackstock, she had an unrestricted earning capacity as a nurse. She enjoyed relatively good health but was interested in cosmetic procedures, particularly applying cosmetic injectables.

7. In 2010, the plaintiff had an augmentation procedure on her breasts in Thailand. The procedure employed an areolar approach. She subsequently decided she wanted to further increase her breast size from 425cc to 550cc. She became aware of Dr Blackstock as a provider of the surgical procedure she was contemplating.

Consultation with Dr Blackstock

8. In about October 2014 she consulted Dr Blackstock and indicated her wishes to him. She wanted larger breast implants that were proportionate to her frame. She wanted him to use an areolar approach to the proposed breast surgery. Dr Blackstock indicated to her that he was confident he could achieve what she wanted. She could not recall any discussion by him about possible complications. A booking was made for the surgery.

Operation by Dr Blackstock on 23 December 2014

9. On 23 December 2014, the plaintiff attended Dr Blackstock’s premises and she was medicated for the operation. She was sedated to the point of drowsiness. She recalled receiving a Betadine wash whilst in the operating room with Dr Blackstock. Two nurses were present. He used a sub-mammary technique instead of using an areolar approach. This has left the plaintiff with vertical sub-mammary scars. The reason for him doing so remains unexplained.

Post-operative events

10. The plaintiff recalled that after regaining consciousness she became aware of a discussion between Dr Blackstock and the nurses about one of her breasts in relation to one of her previous implants. She recalls that at the time she experienced a warm pressure sensation in one of her breasts, but not pain. She became apprehensive and nervous.

11. The plaintiff requested that Dr Blackstock provide her with the previous breast implants he had removed. He responded by giving her only one implant, without explanation as to why he had not given her the other one. It appears that the other one had ruptured. She was sent home later that day.

Plaintiff’s awareness of problems and post-operative consultations

12. The plaintiff experienced post-operative pain immediately after becoming conscious. The appearance of one of her breasts had become raised to a higher position on her chest wall. It felt firmer than the other breast. She subsequently discussed this problem with Dr Blackstock. He advised her that the issue over which she was concerned would settle over time.

13. The plaintiff saw Dr Blackstock at a number of post-operative reviews over the ensuing 12 months. She expressed her dissatisfaction to Dr Blackstock. He advised her to consult a plastic surgeon if she continued to feel disgruntled.

14. The plaintiff ended up with out-sized mal-positioned 550cc breasts which caused her dissatisfaction with her appearance. Her breasts had been increased in size to a G-cup and she could not wear ordinary bras. The plaintiff ended up experiencing neck and back pain due to the extra weight of her breasts. This inhibited her in participating in yoga and Pilates exercises.

15. Her post-operative problems include pain in her breasts, with arm radiation of pain, an inability to place any pressure on her breasts, and she experienced discomfort when laying down. She experienced discomfort with tighter fitting clothes. She began to experience back pain and developed a hunched posture due to the extra weight on her chest. She came to realise that her breasts were too large for her usual size 8 clothing.

16. The emotional ill-effects of Dr Blackstock’s surgery on the plaintiff have been significant. She began to feel a lack of wellbeing, she was unable to continue with yoga, she felt her breasts looked “ridiculous”, her self-image became negative. She is also dissatisfied with what has been described as an incomplete labioplasty. As a result, intimacy became difficult for her due to pain and discomfort, and this placed a strain on her relationship. As a result, that relationship has now ended.

Medical treatment

17. The plaintiff needed regular physiotherapy, almost weekly, for several years. This now continues every 1 to 2 weeks. She remained under the care of her general practitioner. She was prescribed Endone and Lyrica for her pain. She was eventually referred to a plastic surgeon in 2018 to remove her breast implants. This was carried out at Macquarie Hospital. Her treatment expenses have been identified in the total amount of $14,040.54. In addition, she has paid several thousand dollars out of her own pocket.

Review by Dr Howard de Torres, consultant plastic surgeon

18. On 29 November 2017, at the request of her solicitor, the plaintiff was examined by Dr Howard de Torres, a consultant plastic and reconstructive surgeon. He noted the plaintiff’s post-surgical abnormalities to include an obvious disproportion between the implant size of 16cms against her small stature and natural breast width of 13cms, with the implants located high on the chest, leaving loose tissues below the breasts. He assessed the plaintiff’s labioplasty as having been left incomplete.

19. Dr de Torres noted Dr Blackstock was not qualified to carry out the surgery he performed on the plaintiff. He described the surgery as having been carried out in an unsterile area in what he described as appalling conditions without appropriate pre-operative counselling. He said Dr Blackstock had left the plaintiff’s breasts in an inappropriate size for her body type due to the size of the implants that had been used. He described the result as gross and uncosmetic. He confirmed that surgery was required to remove the implants used by Dr Blackstock.

Review by Dr Peter Conrad, consultant surgeon

20. On 24 July 2018, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. He confirmed that the plaintiff’s implant removal and capsulotomy was necessitated by Dr Blackstock’s surgery. He recorded her history of breast and right arm discomfort, with the latter problem affecting her work. He felt she would be unable to do any heavy repetitive work using her right arm. He said she would be restricted to doing sedentary work. He noted that her psychological problems would cause her difficulty working in the cosmetic industry, and may face an earlier than usual retirement from the workforce.

Review by Dr Bruce Westmore, consultant psychiatrist

21. On 24 April 2018, at the request of her solicitor, the plaintiff was assessed by Dr Bruce Westmore, a forensic psychiatrist. He identified her problems as including embarrassment, social withdrawal, mood disturbance, sleeping difficulties, rumination over her problems, and an Adjustment Disorder.

Review by Dr Robert Kaplan, consultant psychiatrist

22. On 4 February 2021, at the request of her solicitor, the plaintiff was assessed by Dr Robert Kaplan, a forensic psychiatrist.

23. Dr Kaplan noted the plaintiff’s ongoing psychological problems to be anxiety and fear of surgical treatment, self-consciousness about her scars, upset and embarrassment over the changed shape of her breasts, some paraesthesia over the breasts, pain in the area of her scarring, neck and back pain, and anger over those matters.

24. Dr Kaplan identified a resolved Adjustment Disorder but noted the plaintiff had persisting self-consciousness and embarrassment over the appearance of her breasts.

Review by Ms Anup Mangipudi, occupational therapist

25. On 22 August 2018, at the request of her solicitor, the plaintiff was assessed by Ms Anup Mangipudi, an occupational therapist and hand therapist.

26. Ms Mangipudi noted the plaintiff’s complaints of right breast pain radiating to the right shoulder, neck and lower back, with frequent headaches. She also noted the plaintiff’s depression, loss of confidence and anxiety which followed from the results of Dr Blackstock’s surgery.

27. Ms Mangipudi noted the plaintiff would benefit from some grooming aids in view of her symptoms. She also noted the plaintiff struggled with common domestic tasks and needed the assistance of her partner in that regard. She also noted the plaintiff’s difficulties with lifting and carrying weights, including shopping. That evidence justified a claim for domestic assistance.

Disabilities that remain

28. The plaintiff’s disabilities are adequately described in the summaries within the medical reports that have been tendered and reviewed in the preceding paragraphs. The plaintiff continues to have incessant pain in her breasts, especially when reaching for or lifting objects. Such activities are restricted for her. The cosmetic disfigurement upsets and embarrasses her. She fears she might tear the underlying tissues under tension. She experiences a pulling sensation in her chest scars. She has grade 2 to 3 capsule formation. She still experiences pressure discomfort in her breasts, but now to a lesser degree than before. She has back pain, right arm pain, neck pain and restriction of movement of her right upper limb. Her ability to carry out work and domestic tasks has become limited. She experiences significant anxiety and headaches. She cannot bear to be touched. She is embarrassed about her appearance. She takes Nurofen to manage her pain and her discomfort.

29. In her oral evidence the plaintiff described, with considerable restraint on her emotions, that on a daily basis she feels scarred. Subsequent surgical procedures such as an ear operation, corrective breast surgery, and her caesarean delivery, have caused her considerable distress as those events have served to bring to mind her distressing experiences at the hands of Dr Blackstock.

Assessment of damages

30. A damages schedule was produced: MFI “1”. At the conclusion of the evidence I indicated to counsel for the plaintiff that the assessment set out within that schedule was inadequate in all respects. My assessment of the plaintiff’s damages now follows.

Non-economic loss

31. The plaintiff has been left with disfiguring scars to her chest. The appearance of her breasts has become unsatisfactory to her. Her labioplasty has been left incomplete. Those matters have created intimacy issues for her. She has impaired self-esteem and has body image issues which affect her choices of clothing. She has been left with significant physical restrictions that interfere with her work tasks. She remains physically and emotionally scarred in a way that on a daily basis adversely impacts upon her and mars her ability to lead and enjoy a normal life. I assess her damages for non-economic loss pursuant to s 16 of the CL Act at 40 per cent of a most extreme case. This equates to the rounded sum of $282,000.

Economic loss

32. The plaintiff’s work has been adversely affected by her remaining disabilities. She is restricted in her work with patients with regard to leaning over them and injecting them. She can only do this one day per week due to her physical restrictions. This is a significant loss of capacity to earn. Although she has remained in constant employment, the medical evidence supports a claim for loss of earning capacity as she is likely to suffer financial loss even though she is at present employed, but not to the full extent of the unrestricted capacity she had before the surgical interventions of Dr Blackstock. I consider the appropriate method of assessment is to award a buffer sum in the amount of $70,000.

Future out-of-pocket expenses

33. The plaintiff’s claim for future treatment expenses was modestly expressed. She has ongoing physiotherapy treatment needs. She needs occasional medication and medical consultations. Taking those matters into account I allow that claim in the buffer amount of $5000.

Domestic assistance

34. The plaintiff’s ability to carry out a full range of domestic tasks is diminished. Since Dr Blackstock’s surgery the plaintiff has been unable to do heavy housework. In the past, her ex-partner did all the heavy work involving lifting, bending and carrying for about 2 hours per week on a gratuitous basis. For the last 2 years, her brother and her mother have taken over those tasks. There is no claim for the past. However, the medical and allied evidence supports a claim for the provision of future domestic assistance. It will not be provided on a gratuitous basis indefinitely. It will have to be the subject of payment. I consider the appropriate method of assessment is to award a buffer sum in the amount of $60,000.

Past out-of-pocket expenses

35. The plaintiff’s claim for out-of-pocket expenses is conservatively estimated in the form of the amounts set out in a Medicare schedule. In light of her oral evidence as to additional past expenditure, I assess the plaintiff’s past out-of-pocket expenses in the rounded sum of $18,000.

Summary of damages assessment

36. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non-economic loss	$282,000
(b) Economic loss	$70,000
(c) Future out-of-pocket expenses	$5,000
(d) Domestic assistance	$60,000
(e) Past out-of-pocket expenses	$18,000
Total	$435,000

Disposition and costs

37. The plaintiff is entitled to a judgment for a damages award of $435,000 and she should have a verdict and judgment in her favour for that amount. As the plaintiff has succeeded in obtaining a judgment in her favour, she should also have an order that the defendant should pay her costs of the proceedings on the ordinary basis.

Orders

38. I make the following orders:

1. Verdict and judgment for the plaintiff in the amount of $435,000;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered

3. The exhibits may be returned;

4. Pursuant to s 98 and s 99 of the Civil Procedure Act 2005 (NSW), at the time the plaintiff’s solicitor renders his bill of costs to the plaintiff he is required to file a certificate with the Court file evidencing the fact that he has not charged the plaintiff any professional fees for the wasted listing of the matter on 21 February 2023;

5. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 10 March 2023