Lee (a pseudonym) v Dhupar

[2020] NSWDC 717

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lee (a pseudonym) v Dhupar [2020] NSWDC 717

Hearing dates:

16, 17, 18, 26 April; 3, 4, 27, 28 June; 1 July and 30 August 2019, 14 August and 17 November 2020

Date of orders:

19 November 2020

Decision date:

19 November 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $408,700;

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

3. The exhibits may be returned;

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

Catchwords:

TORTS – professional negligence – gynaecological surgery for elective sterilisation – failed Filshie clip tubal ligation leading to unwanted pregnancy – rejection of defence of inherent risk pursuant to s 5I of the Civil Liability Act 2002 – rejection of defence of peer professional practice pursuant to s 5O of the Civil Liability Act 2002 – findings of negligence and causation of harm; DAMAGES – assessment of claimed heads of damage – whether plaintiff’s claimed economic loss was incurred as a result of psychiatric illness due to conception, pregnancy and birth or whether economic loss was due to the plaintiff rearing or maintaining her child – construction of s 71(1)(b) of the Civil Liability Act 2002

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5I, s 5O, s 12(1), s 17A, s 27, s 70, s 71, Pt 11

Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 and s 8(1)(a), (c), (e)

Evidence Act 1995 (NSW), s 60, s 136, s 140(1)

UCPR r 31.27(1)(c), Sch 7, cl 3(e), r 31.20(2)(j)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48

Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1

Amaca Pty Ltd v Ellis [2010] HCA 5

Amadio Pty Ltd v Henderson (1998) FCR 1490; [1998] FAC 823

Angel v Hawkesbury Council [2008] NSWCA 130

Blacktown City Council v Hocking [2008] NSWCA 144

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29

Browne v Dunn (1893) 6 R 67

Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38

CGU Insurance Ltd v Porthouse (2008) 235 CLR 103, [2008] HCA 30

Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1, [1981] HCA 40

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

Dobler v Halvorsen (2007) 70 NSWLR 151; [2007] NSWCA 335

Elayoubi v Zipser [2008] NSWCA 335

Fox v Percy [2003] HCA 22; 214 CLR 118

Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159

Goode v Angland [2017] NSWCA 311

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

HG v The Queen (1999) 197 CLR 414; [1999] HCA 2

Inside Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137

Kocis v SE Dickens Pty Ltd [1998] 3 VR 408

Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 50; [1991] HCA 12

Mason v Demasi [2009] NSWCA 227

McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; [1979] HCA 19

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60

Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22

Neal v Ambulance Service of NSW [2008] NSWCA 346

Neville v Lam (No 3) [2014] NSWSC 607

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58

Paul v Cooke (2013) 85 NSWLR 167, [2013] NSWCA 311

Penrith City Council v Parks [2004] NSWCA 201

Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18

Schultz v McCormack [2015] NSWCA 330

Sibley v Kais (1967) 118 CLR 424, [1967] HCA 43

South Western Sydney Local Health District v Gould [2018] NSWCA 69

Sparks v Hobson; Gray v Hobson [2018] NSWCA 29

SRA v Earthline Constructions Pty Ltd (in liquidation) [1999] HCA 3

State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Strinic v Singh [2009] NSWCA 15

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12

The Nominal Defendant v Buck Cooper [2017] NSWCA 280

Teubner v Humble (1963) 108 CLR 491; [1963] HCA 11

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62

Varga v Galea [2011] NSWCA 76

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Walter v James [2015] NSWCA 232

Warren v Gittoes [2009] NSWCA 24

Waverley Council v Ferreira [2005] NSWCA 418

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Texts Cited:

Leeming M, The Statutory Foundations of Negligence (2019, The Federation Press)

Penfield AJ, “The Filshie clip for female sterilization : a review of world experience”, AMJ Obstet Gynecol 2000; 183(3): 485-489

Peterson HB et al, “The risk of pregnancy after tubal sterilisation : Findings from the US Collaborative Review of Sterilization” (April 1996), American Journal of Obstetrics and Gynecology, pp 1161-1170

Varma R, Gupta JK “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, pp 1322-1332

Varma, R & Anor, “Precluding negligence in female sterilization failure : analysis of 131 cases”; Human Reproduction; 22(a); 2437-2443

Hansard, Second Reading Speech, Parliamentary Debates, New South Wales Legislative Assembly, 13 November 2003

Hansard, Second Reading Speech, Parliamentary Debates, New South Wales Legislative Assembly, 4 December 2003

Category:

Principal judgment

Parties:

Jodie Lee (a pseudonym) (Plaintiff)
Nita Dhupar (Defendant)

Representation:

Counsel:
Mr R O’Keefe (Plaintiff)
Mr Cummings (Solicitor - 14 August 2020) (Plaintiff)
Ms E Elbourne (16, 17, 18, 26 April 2019) (Defendant)
Mr S Kalfas SC with Ms E Elbourne (from 3 June 2019) (Defendant)

Solicitors:
Slater & Gordon (Plaintiff)
Avant Law (Defendant)

File Number(s):

2017/284433

Publication restriction:

Order prohibiting the publication or other disclosure of any information tending to reveal the identity of the child named in the evidence in this case, the child’s mother, other family members of that child and the plaintiff’s employer.

Judgment

Table of Contents

Non-publication order and litigation pseudonyms	[1]
Nature of case and structure of reasons	[2] – [6]
PART A - INTRODUCTION
Factual background	[8] – [16]
Claim and defences	[17] – [21]
Submissions of the parties	[22] – [32]
Filshie clips – mechanism, application and intended effect	[33] – [55]
PART B – ISSUES AND EVIDENCE OVERVIEW
Substantive issues for determination	[56] – [69]
Summary of findings on credit and reliability of factual testimony	[70] – [79]
Plaintiff’s evidence	[74]
Mother-in-law’s evidence	[75]
Former employer’s evidence	[76]
Dr Jeri’s evidence	[77]
Dr Dhupar’s evidence	[78]
Ms Dassayanake’s evidence – Dr Dhupar’s solicitor	[79]
Summary of conclusions as to reliability of expert evidence	[80] – [84]
Dr Jones’ evidence	[81]
Professor O’Connor’s evidence	[82]
Associate Professor Cooper’s evidence	[83] – [13]
PART C – MEDICAL RECORDS AND DOCUMENTS
(1) Filshie Tubal Ligation System product brochure	[87] – [88]
(2) Exhibit “J” – Health Care Records – Documentation	[89] – [93]
(3) Dr Jeri’s patient history records	[94] – [96]
(4) Dr Dhupar’s consultation notes dated 9 May 2014	[97] – [111]
(5) RANZCOG patient information pamphlet	[112] – [123]
(6) RANZCOG statement on Filshie clip tubal occlusion	[124] – [130]
(7) Riverina Day Surgery Centre – The tubal ligation procedure	[131] – [145]
(8) Intra-operative images taken on 26 August 2014	[146] – [147]
(9) Wagga Wagga Referral Hospital	[148] – [156]
(10) Dr Jeri’s correspondence to plaintiff’s solicitor	[157] – [158]
(11) Anatomical and histological examination of fallopian tubes	[159] – [160]
(12) Hysterosalpingogram on 20 August 2018	[161] – [164]
(13) Medico-legal article on ramifications of failed sterilisation	[165] – [169]
PART D – CREDIBILITY AND RELIABILITY OF EVIDENCE
Evidence of the plaintiff’s mother-in-law	[173]
Evidence of the plaintiff’s former employer	[174]
Evidence of the plaintiff	[175] – [226]
(1) Challenges concerning plaintiff’s previous health history	[178] – [190]
(2) Ill-founded attack on plaintiff’s credit as to health history	[191] – [195]
(3) Asserted need for corroboration of plaintiff’s evidence	[196] – [199]
(4) Challenges asserting conflicts within medical histories	[200] – [202]
(5) Challenges concerning pre-operative discussions	[203] – [216]
(6) Challenges to content of plaintiff’s job application form	[217] – [225]
(7) Conclusions on credit challenges to the plaintiff	[226]
Evidence of Dr Arturo Jeri	[227] – [300]
(1) Dr Jeri’s qualifications and experience	[236] – [249]
(2) Dr Jeri’s explanation of anatomical structures	[250]
(3) Dr Jeri’s referral of the plaintiff to Dr Dhupar	[151] – [256]
(4) Diagnosis of pregnancy and antenatal care	[257] – [265]
(5) Unexpected labour and emergency caesarean section	[266] – [278]
(6) Bilateral salpingectomies	[279] – [281]
(7) Hysterosalpingogram investigation of left Filshie clip	[282] – [286]
(8) Dr Jeri’s evidence on the plaintiff’s history of anxiety	[287] – [290]
(9) Submissions critical of Dr Jeri’s modified operation report	[291] – [296]
(10) Assertion that Dr Jeri was partisan	[297] – [299]
(11) Conclusions on reliability of Dr Jeri’s evidence	[300]
Evidence of Dr Dhupar, the defendant	[301] – [375]
Summary of plaintiff’s submissions as to non-reliability	[303] – [312]
Particular topics within Dr Dhupar’s evidence	[314] – [374]
Conclusions on reliability of Dr Dhupar’s evidence	[375]
Evidence of Ms Dassayanake	[376] – [378]
PART E – REVIEW OF EXPERT OPINIONS
Evidence of Dr Michael Jones, radiologist	[380] – [394]
Primary opinions of Professor Michael O’Connor	[395] – [408]
First report of Professor O’Connor – 20 July 2017	[396] – [400]
Second report of Professor O’Connor – 10 May 2018	[401] – [402]
Third report of Professor O’Connor – 6 August 2018	[403] – [405]
Fourth report of Professor O’Connor – 27 September 2018	[406] – [407]
Fifth report of Professor O’Connor – 2 October 2018	[408]
Primary opinions of A/Professor Michael Cooper	[410] – [424]
First report of A/Professor Cooper – 17 November 2017	[410] – [418]
Second report of A/Professor Cooper – 13 June 2018	[419] – [423]
Third report of A/Professor Cooper – 29 January 2019	[424]
Two joint expert reports	[425] – [439]
First joint expert report – 13 August 2018	[428] – [431]
Second joint expert report – 28 March 2019	[432] – [439]
Concurrent expert gynaecological evidence	[440] – [443]
Oral evidence of Professor O’Connor	[441]
Oral evidence of A/Professor Cooper	[442] – [443]
PART F – RELIABILITY OF EXPERT MEDICAL OPINIONS
Assessment of reliability of Dr Jeri’s factual evidence	[451] – [468]
Reliability of the evidence of Dr Jones	[469] – [493]
Assessment of reliability of Professor O’Connor’s evidence	[494]
Assessment of reliability of A/Professor Cooper’s evidence	[495] – [561]
Factual misapprehension over tube transection	[497] – [499]
Speculative criticisms of Dr Jeri’s observations	[500] – [505]
Criticism asserting an unbalanced analysis	[506] – [509]
Reluctant concessions	[510] – [514]
Obfuscatory answers to questions	[515] – [518]
Explanations invoking dismissive hyperbole	[519] – [522]
Evidence shift: clip closed; clip locked; clip “sort of closed”	[523] – [548]
Reiteration of untenable views	[549] – [554]
Reference to literature of “low-ish” epidemiological level	[555] – [560]
Conclusion on reliability of evidence of A/Professor Cooper	[561]
PART G – FINDINGS ON ISSUES CALLING FOR DECISION
Issue 1 – Findings on factual matters	[563] – [859]
(1) Plaintiff’s personal and family history	[564]
(2) Plaintiff’s work history	[565] – [570]
(3) Plaintiff’s previous health	[571] – [575]
(4) Plaintiff’s family planning intentions	[576]
(5) Referral of plaintiff to Dr Dhupar	[577]
(6) Plaintiff’s prior knowledge of risk of possible pregnancy	[578] – [579]
(7) Pre-operative consultation with Dr Dhupar on 9 May 2014	[580] – [589]
(8) Bilateral tubal ligation surgery on 26 August 2014	[590] – [686]
(9) Unwellness and gradual awareness of further pregnancy	[687] – [688]
(10) Dr Dhupar’s claimed unawareness of the pregnancy	[689] – [692]
(11) The most probable cause of the plaintiff’s pregnancy	[692] – [768]
(12) Plaintiff’s initial reaction to pregnancy with fourth child	[769] – [770]
(13) Plaintiff’s negative feelings to the pregnancy	[771] – [784]
(14) Onset of labour and travel to Wagga Wagga	[785] – [789]
(15) Caesarean section delivery of fourth child	[790] – [792]
(16) Intra-operative observations and communications	[793] – [801]
(17) Discharge from hospital following birth of fourth child	[802] – [803]
(18) Events between birth of fourth child and the trial	[804] – [819]
(19) Expert medical assessments relating to damages	[820] – [839]
(20) Effects of the events on the plaintiff’s work	[840] – [847]
(21) Relevant observations of plaintiff’s mother-in-law	[848] – [859]
Issue 2 – Relevant risk of harm	[860] – [870]
Issue 3 – Duty of care, scope and content	[871] – [877]
Issue 4 – Inherent risk : s 5I of the CL Act	[878] – [896]
Issue 5 – Defence of peer opinion: s 5O of CL Act	[897] – [923]
Issue 6 – Breach of duty of care and negligence	[924] – [984]
Identification of standard of care	[925] – [931]
Incorrect location	[932]
Extraneous tissue incorporated	[933] – [935]
Clip not fully closed and locked	[936]
Incomplete check for correct closure and locking	[937]
Absence of unusual features	[938] – [940]
Late application to amend particulars of negligence	[941] – [945]
Particulars of negligence relied upon by plaintiff	[946] – [948]
Dr Dhupar’s initial response to negligence allegations	[949] – [955]
Factual inter-relationship of particulars of negligence and the standard of care	[956] – [960]
Applicable legislation	[961] – [963]
General consideration of the claim of negligence	[964] – [965]
Consideration of s 5B(1) of the CL Act	[966] – [971]
Consideration of s 5B(2) of the CL Act	[972] – [976]
Consideration of s 5C of the CL Act	[977] – [984]
Conclusion on breach of duty of care and negligence	[985]
Issue 7 – Causation of harm	[986] – [1002]
Legislation	[987]
Approach to causation analysis	[988] – [989]
Precise identification of the harm incurred	[990] – [995]
Factual causation – s 5D(1)(a) of CL Act	[996] – [998]
Scope of liability – s 5D(1)(b) of CLWA	[999] – [1001]
Conclusion on causation	[1002]
Issue 8 – Assessment of damages	[1003] – [1040]
Non-economic loss	[1005] – [1024]
Past economic loss	[1025] – [1067]
Future loss of earning capacity	[1068] – [1079]
Future treatment expenses	[1080] – [1082]
Past out-of-pocket expenses	[1083]
Summary of damages assessment	[1084]
PART H – DISPOSITION, COSTS, ORDERS
Disposition	[1085]
Costs	[1086]
Orders	[1087]

Non-publication order and litigation pseudonyms

1. Pursuant to s 7 and s 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), an order has been made prohibiting the publication or other disclosure of any information tending to reveal the identity of the child named in the evidence in this case, the child’s mother, other family members of that child and the plaintiff’s employers. Accordingly, in these reasons, the child is referred as the child, the plaintiff is referred to by the litigation pseudonym Jodie Lee, and the plaintiff’s mother-in-law and the plaintiff’s employers are respectively referred to by their described status.

Nature of the case and structure of reasons

2. The plaintiff, Mrs Jodie Lee (a pseudonym), brings these proceedings against the defendant, Dr Nita Dhupar, an obstetrician and gynaecologist, claiming damages for alleged professional negligence in relation to failed tubal ligation surgery Dr Dhupar performed on 26 August 2014.

3. The plaintiff claims she suffered avoidable harm from conception, pregnancy and childbirth, which she alleges was due to a negligent breach of the duty of care that Dr Dhupar owed to her when Dr Dhupar performed an elective tubal ligation procedure on her, where the aim of that procedure was to achieve permanent occlusion of her fallopian tubes because she wanted to prevent future pregnancy. Following that procedure, within twelve months, the plaintiff unexpectedly conceived her fourth child.

4. Although this type of claim has been characterised in some jurisdictions, and in some medico-legal literature cited by an expert qualified by the defendant as a wrongful birth claim [1] , such shorthand terminology tends to confuse the issues concerning the true cause of action. Therefore, that nomenclature has not found favour in this jurisdiction: Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38, at [4], [9], [188]-[193], [300]. These proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”).

   1. Varma, R; Gupta JK, “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, at 1322-1332: Exhibit “1”, Tab 3, p 28ff.

5. A glossary of relevant terms and anatomical structures appears in the Appendix. The parties are familiar with those terms. These reasons assume an understanding of, and familiarity with, those terms.

6. These reasons for decision are structured as follows:

PART A   Introduction, comprising a brief summary of the factual background, a brief description of the basis of the claim and the defences, identification of the submissions of the parties, and an explanation and description of the purpose and the manner of application of Filshie clips: Paragraphs [8] to [55]

PART B   Evidence overview, the identification of the factual and legal issues requiring determination in the proceedings, and a summary of the conclusions reached on the credibility and reliability of the oral evidence given in the proceedings on factual matters and on matters of expert evidence: Paragraphs [56] to [84]

PART C   Review of 13 identified categories of documents comprising documentation in medical records, patient and hospital records relating to the plaintiff, relevant pathological and other investigatory test results, and relevant RANZCOG and other literature: Paragraphs [85] to [169]

PART D   Findings on credibility and reliability of evidence on factual matters raised in the evidence of the plaintiff, and the lay witnesses who gave evidence in her case, the factual evidence of her treating general practitioner obstetrician, and the factual evidence given by Dr Dhupar: Paragraphs [170] to [375]

PART E   Review of expert opinion evidence from the respective consultant obstetricians and gynaecologists and a radiologist who gave evidence on the liability and causation issues in the proceedings: Paragraphs [379] to [443]

PART F   Findings and conclusions reached concerning the reliability of expert medical opinions following review of the opinions of the expert obstetricians and gynaecologists and the expert radiologist: Paragraphs [444] to [561]

PART G   Findings on the issues calling for decision, namely on relevant matters of fact, identification of the relevant risk of harm, whether there was a materialisation of an inherent risk within the meaning of s 5I of the CL Act, the scope and content of the duty of care owed, whether a defence has been made good pursuant to s 5O of the CL Act, whether a breach of duty of care occurred, whether causation of harm has been established, and the assessment of the plaintiff’s damages: Paragraphs [562] to [1084]

PART H   Disposition, costs considerations and orders: Paragraphs [1085] to [1087]

PART A – INTRODUCTION

7. The factual background to the proceedings is as follows.

Factual background

8. At trial, the plaintiff was aged 39 years. She is the mother of four healthy children. On 1 March 2016, her fourth child, who is the subject of these proceedings, was born by means of an uncomplicated emergency caesarean section delivery at the Wagga Wagga Referral Hospital, a public hospital in New South Wales.

9. Beforehand, on 22 April 2014, when the plaintiff was aged 33 years, Dr Arturo Jeri, the plaintiff’s family doctor who was also her longstanding treating general practitioner obstetrician, referred her to Dr Dhupar in Wagga Wagga for an elective tubal ligation procedure to occlude her fallopian tubes with the aim of preventing further pregnancies.

10. The plaintiff had initially requested of Dr Jeri that he perform the tubal ligation procedure at the local regional hospital near her home. Although he was qualified to do so, it was not possible for him to do so laparoscopically at the local hospital because that hospital was not sufficiently equipped for that purpose. Furthermore, he considered that an alternative procedure, a tubal ligation performed by way of a mini-laparotomy as distinct from laparoscopically, if it was to be performed at the local hospital, was out of the question for the plaintiff. This was due to the presence of scar tissue from the plaintiff’s previous three caesarean sections which Dr Jeri had performed.

11. Consequently, on 9 May 2014, pursuant to Dr Jeri’s referral, the plaintiff consulted Dr Dhupar, who obtained the plaintiff’s consent for the laparoscopic tubal ligation. Dr Dhupar then made arrangements for that procedure to be performed at Wagga Wagga on 26 August 2014.

12. The objective of that procedure was for clips using the Filshie Tubal Ligation System (“Filshie clips”), a trademarked product, intended to be applied bilaterally to each of the plaintiff’s fallopian tubes. The aim was to occlude the lumen of each of those tubes by force of mechanical pressure to induce ischaemia, consequential avascular necrosis over a 4mm length of the fallopian tube, fallopian tube atrophy, and resultant transection. The intended outcome of that procedure was that the resultant scar tissue would create a seal of each of the transected ends of the fallopian tubes. The intention was to block and prevent the future passage of oocytes and spermatozoa along the lumen of those structures to prevent fertilisation and pregnancy.

13. Subsequently, on 21 July 2015, after the plaintiff experienced upsetting symptoms of nausea, vomiting, and sensitivity to food smells, she was tested and found to have conceived her fourth child. Her fourth child was later delivered by Dr Jeri on 1 March 2016. This was an emergency caesarean section delivery in circumstances that were very stressful for the plaintiff. A natural vaginal delivery was contraindicated in the plaintiff’s circumstances.

14. Although there is no doubt that the plaintiff’s fourth child is loved and cherished by the plaintiff, her husband and her family, the pregnancy and the subsequent birth of that child has had significant adverse effects on the plaintiff’s life, on the amenity of her life, on her emotional wellbeing, and on her capacity to work.

15. Following the events complained of, the plaintiff not only developed mixed feelings about the birth of the fourth child, but she also developed a major depressive disorder on learning of and then experiencing the progress of her pregnancy, and all that this entailed for her.

16. That psychological disorder continues to affect all aspects of the plaintiff’s life. She has also experienced the unnecessary trauma of emergency surgery, following which she developed an unfortunate post-operative wound infection. She also experienced untoward personal and parenting difficulties as a consequence of the birth of her fourth child, which was very much contrary to her plans.

Claim and defences

17. The first version of the plaintiff’s statement of claim was filed on 19 September 2017. In essence, it was claimed that Dr Dhupar had failed to properly engage a calibrating instrument to ensure the Filshie clips were properly applied so as to properly occlude the plaintiff’s left fallopian tube. The basis of that particular claim ultimately proved to be an inaccurate formulation after it was disclosed that a calibrating instrument was not included as part of the equipment Dr Dhupar had used in the procedure.

18. In the plaintiff’s amended statement of claim filed on 24 August 2018, the claim as originally pleaded was expanded upon so as to include an allegation that Dr Dhupar applied the left Filshie clip incorrectly, that is, that she had applied it to an area other than to the tissue comprising the isthmus of the left fallopian tube, along with further alleged failures to undertake proper intra-operative inspection, which if performed properly, would have revealed a potential for a failure of occlusion of that tube. The plaintiff also relied upon an alleged failure to inform her of a significant aspect of the procedure and a failure to undertake a subsequent test for determining whether fallopian tube occlusion had been successfully achieved.

19. The plaintiff claims that if Dr Dhupar had duly exercised reasonable care in carrying out tubal ligation surgery on her, the subject pregnancy would have been avoided. She therefore seeks damages in respect of non-economic loss, past economic loss, future loss of earning capacity, future treatment expenses, and past out-of-pocket expenses.

20. Dr Dhupar disputes all of the plaintiff’s allegations of negligence. In her defence, she claims that the plaintiff’s pregnancy was the result of the materialisation of an inherent risk of failure associated with tubal ligation utilising Filshie clips: s 5I of the CL Act. Dr Dhupar further claims the plaintiff had been appropriately informed beforehand that there was a chance the procedure may not prevent pregnancy. On Dr Dhupar’s behalf, it was submitted that the plaintiff’s claim does not rise above an attempt to draw an inference of a breach of duty of care based upon the proposition that pregnancy had simply followed the application of Filshie clips.

21. Dr Dhupar also claims the benefit of the sheltering effect of a defence articulated pursuant to s 5O of the CL Act, by which she claims that in carrying out the tubal ligation procedure on the plaintiff, she had acted in a manner that was widely accepted by peers in Australia as competent professional practice, which if accepted, should operate as a complete answer to the plaintiff’s claim against her.

Submissions of the parties

22. The parties provided extensive primary written submissions followed by extensive responsive written submissions in reply. The plaintiff’s written submissions were marked MFI “18”, paragraphs 1 – 331. The defendant’s written submissions were marked MFI “19”, paragraphs 1 – 163. The plaintiff’s written submissions in reply were marked MFI “20”, paragraphs 1 – 130. The defendant’s submissions in reply were marked MFI “21”, paragraphs 1 – 60. The written submissions of the parties were of considerable density and compressed content. The parties made additional oral submissions on the tenth day of the hearing (T524 – T548), following which several further listings occurred to deal with incidental matters including the making of a non-publication order and transcript errata.

23. Many matters of fact remained in contest in these proceedings. At paragraph 18 of the defendant’s primary written submissions, some 54 points of factual narrative were identified, including sub-points. In the plaintiff’s primary written submissions, between paragraphs 22 and 133, some 134 points of factual narrative were identified, including sub-points. Many points were in outright contention and some aspects of contention were of a more subtle nature.

24. The principal issue of contention in the proceedings concerned what aggregation of factors had caused the plaintiff to conceive her fourth child. The determination of the pivotal points in contention by reasoned factual findings requires a detailed consideration in the context of the evidence as a whole, rather than cherry-picking particular points for consideration in isolation. That process, along with the detailed bulk of the evidence, has necessarily resulted in lengthy reasons for decision.

25. The essential elements of the respective submissions will be evaluated in conjunction with the consideration of the issues to which they relate. Having regard to the extent of the respective submissions, in making findings on matters in dispute, I will confine my reasons to the essentially significant and consequential matters: Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159, at [101]; Amadio Pty Ltd v Henderson (1998) FCR 1490, at [4]; [1998] FCA 1069.

26. The plaintiff submitted that she has made good her circumstantial case against Dr Dhupar both in respect of a claimed breach of duty of care and in respect of claimed causation of harm. She also submitted that the content of Dr Dhupar’s evidence warranted close examination in terms of its reliability. It was submitted that Dr Dhupar’s evidence should be rejected where it was not corroborated by other reliable evidence.

27. The submissions made on behalf of Dr Dhupar raised criticisms of the reliability of the plaintiff’s evidence on factual matters, including as to the extent of her pre-operative understanding as to whether there was a risk she could become pregnant notwithstanding tubal ligation surgery. Those submissions also made criticisms of the plaintiff’s evidence concerning her previous health and medical history, and in respect of particular elements of her claim for damages.

28. Apart from a defence claimed pursuant to s 5O of the CL Act asserting that Dr Dhupar had acted in conformity with what peer professional opinion in Australia considered to be competent practice, a focal point of the defendant’s submissions was that the plaintiff’s claim should be seen as not rising above an attempt to draw an unwarranted inference of negligence from the fact of her pregnancy simply because that pregnancy had followed the tubal ligation procedure.

29. The defendant’s submissions were also to the effect that the plaintiff has failed to establish that the pregnancy in question was anything other than an instance comprising the materialisation of pregnancy arising from an inherent risk of a failure of tubal ligation: s 5I of the CL Act.

30. The defendant’s submissions included criticisms concerning the reliability and applicability of the expert evidence that was adduced in support of the plaintiff’s case. Similarly, the submissions on behalf of the plaintiff argued that there were critical flaws in both the factual and the expert evidence relied upon for the defence case.

31. In final submissions (at T534.35 – T535.3), counsel for the defendant took particular care to draw attention to a journal article that analysed historical studies of failed tubal ligation. That article was attached to the report of the defendant’s liability expert, Associate Professor Michael Cooper: Exhibit “1”, Tab 3, pp 28 – 38. Having analysed that article, and for reasons that will be made plain, I consider that the article in question does not assist the defendant’s case.

32. The respective submissions of the parties will be considered in appropriate detail in the course of the consideration that is required for the determination of the multiple matters of dispute raised in these proceedings.

Filshie clips – mechanism, application and intended effect

33. It is convenient at this point to identify the mechanism, application and intended effect of Filshie clips.

34. Filshie clips are patented medical devices designed for the mechanical prevention of conception. A sample clip was tendered as Exhibit “2”. The following extracted photographic representation of a pair of Filshie clips appears in the manufacturer’s Filshie Tubal Ligation System product brochure.

[Exhibit “C”, Vol 2, Tab 6.5, p 594]

35. A Filshie clip, in its open state, has two articulated component jaws or arms that are connected at the base by means of a concealed riveted hinge. The upper jaw has a slightly convex curve which, at a point a few millimetres from the end, turns into an upturned open concave curled lip. Once closed, the dimensions of a Filshie clip are about 14mms in length and about 3.5mms in width.

36. The lower jaw of the clip, which comprises the base, is straight, but it incorporates a half return lip or locking latch, that is about 2mms in height, which is designed to receive the upturned or convex curled lip of the upper jaw during the locking process after achieving initial apposition and closure. Before closure, the open portion of that latch faces towards the internal hinged portion. Both jaws have a thick clear flexible silastic lining which is designed to squeeze and place pressure on and around a fallopian tube when the clip is closed and left in the locked position.

37. In this case, the laparoscopic application of an open Filshie clip to a fallopian tube involved a touch-free process, that is, hands-free. That process commences with the clip being loaded into a pistol-like Sterishot applicator device in readiness for placement onto a fallopian tube. Increasing mechanical pressure is then progressively applied to a trigger located on the applicator handle in order to transmit pressure onto the concave curve of the upper jaw, which then progressively straightens as more pressure is applied through the operation of the applicator device.

38. The curve of the upper jaw of the clip then proceeds to progressively flatten. It then becomes locked into place as further and continued mechanical pressure is applied so as to push and advance the curled metal lip at the end of the upper jaw further forward and into final locked engagement with the return lip or latch of the lower jaw.

39. In that process, the upper and lower silastic linings are then brought together in closer apposition under pressure so that the fallopian tube is squeezed flat between those linings. For good reason, the recommended location for the application of Filshie clips is for a clip to be placed over the muscular isthmic portion of a fallopian tube at a point located 1cm to 2cm from the cornu of the uterus, and then finally locked after closure.

40. In the context of this case, the undisputed evidence is that the mechanical action of the applicator of the type used by Dr Dhupar in the plaintiff’s procedure for locking a Filshie clip, is an inaudible process that does not produce any sound of a click. This has been identified as a relevant consideration for the assessment of the reliability of an aspect of Dr Dhupar’s evidence.

41. As will be explained in more detail in the context of findings on the credibility and reliability of testimony, the undisputed inaudibility of that action takes on some significance because in her statement, Dr Dhupar claimed that she had heard such a click when closing the Filshie clip on the plaintiff’s left fallopian tube and had relied upon that sound as an indication of clip closure.

42. The Filshie clip manufacturer’s product description includes the following statement:

“The Filshie Clip is manufactured from titanium and is lined on the inner

surface with silicone rubber (both materials are implantable grade). At

one end there is a hinge and at the other a latch. The Filshie Clip is applied

across the entire diameter of the isthmic segment of the Fallopian tube.

When the Clip is fully closed by the Sterishot II applicator, the upper jaw is

flattened and is securely latched under the front end of the lower jaw. This

acts as a clasp, securing the upper jaw of the Clip. The silicone rubber is in

direct contact with the tissues and both are compressed under the force applied by the titanium. When avascular necrosis of the Fallopian tube occurs, the compressed silicone expands to maintain complete occlusion of the lumen. This prevents re-canalization and destroys approximately 4mm of the Fallopian tube.”

[Exhibit “C”, Vol 1, Tab 3.7, pp 157 – 158]

43. The following extract from the defendant’s expert evidence that draws upon the above description and describes the operative mechanism for achieving Filshie clip sterilisation as follows:

“Filshie clips are titanium with a silastic insert. The devices have been designed so that constant pressure from the expanding silastic is placed over the muscular portion of the fallopian tube and with time the silastic areas join together resulting in complete transection of the tube. This process takes some time to occur and following this there is usually a defect between the proximal and distal ends of the fallopian tube as has been described in this particular case. The filshie (sic) clip may then migrate to virtually any area within the abdominal cavity. Despite appropriate placement of clips with transection of the tubes, it is reasonably well accepted that the proximal and distal ends may ultimately recanalise allowing transmission of oocytes and sperm and thus pregnancy.”

[Exhibit “1”, Tab 2, p 8]

There is an apparent tension between the manufacturer’s product description that the process prevents recanalisation and the possibility of an ultimate recanalisation of a fallopian tube.

44. The process which describes the possibility of a migration of a Filshie clip from its intended placement location, is enabled once the adjoining edge or edges of the clipped parts of the flattened or compressed fallopian tube undergo ischaemic atrophy and transection over an area of 4mm of damage or interruption to its patency, following which the lumen of the tube no longer remains continuous, and no longer remains attached to adjacent tube tissue.

45. As a result, a gap of about 4mm is created by the operational presence of the Filshie clip, thereby permitting the clip to fall away from where it was initially placed. This allows the clip to then move around within the pelvic cavity. At that stage, it becomes redundant, having achieved its objective of occluding the transected fallopian tube with ischaemic scar tissue. An emergent and significantly determinative factual issue in this case is whether the plaintiff’s left fallopian tube was transected as a result of the procedure performed by Dr Dhupar.

46. The following uncontroversial extract from the evidence shows in diagrammatic form, the two-stepped sequential process of locating and applying a Filshie clip to a fallopian tube:

[Exhibit “C”, Vol 1, Tab 3.3, p 111]

47. The individual steps in the application of a Filshie clip from the time of its removal from the supplied packet to closure into the locked position on the fallopian tube are represented in the following series of five diagrams contained in the manufacturer’s product information material:

[Exhibit “C”, Vol 1, Tab 3.7, p 158]

48. The product information sheet sets out the manufacturer’s instructions for applying a Filshie clip once the required instrumentation has been positioned in the patient’s abdomen, as follows:

“It is possible to manipulate the Fallopian tube for identification purposes gently using the loaded applicator as a pair of soft forceps being careful not to take the trigger past the 'half closed' position. Only use the applicator as a manipulator in the 'half closed' position to avoid the possibility of dislodging the Filshie Clip from the applicator jaw. Heavy handed manipulation must be avoided as this could result in the Clip being dislodged from the applicator. The use of a uterine manipulator may be helpful in exposing the tube, particularly in the case of retroverted uteri. To identify the Fallopian tube, pick the tube up with the applicator and track along towards the fimbria at the distal end. Once the fimbria is visualized, track back towards the cornu to locate the application site of the Filshie Clip at the isthmus, 1-2cm from the cornu.

Important: The Filshie Clip is not designed to be removed once it is in place. The physician should be certain of the exact placement prior to closing the Filshie Clip.

Note: Digital, photography and video recording of the closure process are encouraged to support the patient record case file.

•   Identify and inspect the fallopian tube thoroughly.

•   Ensure that the Filshie Clip can accommodate the whole diameter of the Fallopian tube.

•   Locate the Filshie Clip over the isthmic portion of the Fallopian tube, 1-2cm from the cornu.

•   Having established the best location for the Filshie Clip, the applicator should be re-opened and advanced a few millimeters to move the Fallopian tube gently to the back of the Filshie Clip, close to the hinge.

•   Close the Filshie Clip into position by applying firm, but gentle pressure on the trigger in a smooth action until the trigger reaches its mechanical stop.

•   When the Filshie Clip is secured in position, gently release the trigger and the Filshie Clip will automatically free itself from the applicator.

•   Do not use an abrupt action or the tube may be transected. Should this occur, apply a second Filshie Clip on the proximal (uterine) side of the transection.

•   If there is any doubt about the placement or performance of the Filshie Clip, it is strongly recommended that a second Filshie Clip is applied correctly, immediately adjacent to the first on the uterine side.

ALWAYS CHECK THAT THE FILSHIE CLIP HAS BEEN PLACED ON THE RIGHT STRUCTURE AND IN THE CORRECT POSITION.

Important: It is quite noticeable, but quite normal, for the muscle of the tube to 'give' during Filshie Clip application.

Important: For your convenience, enclosed within each box of Filshie Clips is a Patient LOT Label to be incorporated in the patient's records as required for traceability purposes.

…

Warning: In the unlikely event of the tube being too large for the Filshie Clip, use an alternative method of tubal occlusion.

Warning: When placing the Filshie Clip on a larger tube, this should be done very slowly to allow oedema to be milked away. Once the Filshie Clip has been closed, check to ensure the whole Fallopian tube has been encapsulated. If the surgeon is unsure, a second Filshie Clip should be placed.”

49. The Filshie clip product information sheet also sets out the manufacturer’s instructions for intra-operative inspection of a closed clip, as follows:

“7.4.2 Inspection of a Closed Clip

Inspect the secured Filshie Clip both front and back to confirm that:

•   The entire Fallopian tube has been captured (upper image, right).

•   The upper jaw has keen compressed and is securely latched under the nose of the lower jaw:

•   The Filshie Clip is in the correct position on the Fallopian tube (isthmic portion, 1-2cm from the cornu) (lower image, right).

•   The Fallopian tube has not been partially or fully transected.

Once the first clip is placed correctly in position withdraw the applicator, load a second Filshie Clip and repeat the procedure on the other Fallopian tube. Once both clips have been applied, ALWAYS check that they have both been placed on the isthmic portion (1-2cm from the cornu) of each Fallopian tube and not on either the round or ovarian ligaments, or a fold in the mesosalpinx.”

[The associated photographic images, which describe the above process have been too poorly photocopied in producing the Exhibit, and they have not been reproduced here]

50. In diagrammatic form, by the juxtaposition of respective tick and cross symbols, the Filshie clip product information sheet identifies both the correct and the correct compression and secure latching and also the incorrect compression and latching of the upper jaw or arm, as follows:

[Exhibit “C”, Vol 1, Tab 3.7, p 157]

51. The following annotated diagrams, as extracted from the manufacturer’s product information guide for the use of Filshie clips uncontroversially and differentially describes both the correct method of Filshie clip closure, this being shown in the diagram on the left, and what is considered and described as being an incorrect method of under-closure of a Filshie clip due to operator fault, this being shown in the diagram on the right.

[Exhibit “1”, Tab 3, p 32]

52. When a Filshie clip is placed into the locked position, it becomes permanently closed and it cannot be opened. However, whilst the clip remains in a half-closed or under-closed state, the grip of the clip on the fallopian tube remains temporary. In that state, it may be re-opened if such a course is required. If a Filshie clip is left in a half-closed or under-closed state, it might move from the position from where it was originally placed onto other structures, such as onto the broad ligament, thereby possibly leaving that particular fallopian tube either wholly or partly unoccluded, so as to permit fertilisation to occur: Exhibit “C”, Vol 1, Tab 3.7, pp 157 – 158.

53. The copy of the manufacturer’s product information brochure that was tendered in evidence appears to be dated March 2017. Although that document on its face it appears to be anomalous to this case as it post-dates the events in question by three years, no point was raised by the parties or in the expert evidence to that effect. Therefore, it can be assumed that the parties were aware of the apparent anomaly as to the date but are content that the descriptions nevertheless apply to the procedure Dr Dhupar carried out on the plaintiff.

54. The manufacturer’s product information brochure sets out some figures concerning failure rates. Those figures do not ascribe specific causes of failure, whether these be inherent, or otherwise identifiable. The content of that document refers to a range of reported adverse events associated with Filshie clips, including the following:

1. Uterine pregnancy (0.46%);

2. Ectopic pregnancy (0.16%);

3. Clip migration or expulsion (0.13%);

4. Misapplication of clips to other tissues, namely ovarian ligaments, broad ligaments, omentum, bowel, tubal serosa, and cornual or broad ligaments (0.05%).

55. The cited percentage incidences of Filshie clip failure as referred to in the manufacturer’s product information brochure do not appear to identify the sample sizes from which those percentages have been drawn. The sources of the data for those cited failure rates were not specifically stated, but they appear to originate from material identified in general terms as: a series of six identified protocols; a data file kept by the manufacturer, Femcare – Nikomed Ltd; and an article on contraceptive efficacy published in 2011: Exhibit “C”, Vol 2, Tab 6.2, p 582. Those source materials were not the subject of detailed analysis in the expert evidence.

PART B – EVIDENCE OVERVIEW AND IDENTIFICATION OF ISSUES

56. The parties relied upon voluminous documentary materials and medical records which will be referred to in these reasons where it becomes relevant to do so. Amongst those records, the reliability of aspects of Dr Dhupar’s notes and the undated statement proposed by her solicitor on her instructions, and the interpretation of those documents in conjunction with her oral evidence, take on a central importance to the task of assessing the reliability of her evidence.

57. The plaintiff’s documentary evidence was largely contained in three multi-tabbed volumes comprising a Court Book: Exhibit “C”, Volumes 1, 2 and 3, pp 1 – 726. The defendant’s documentary evidence also comprised a multi-tabbed volume: Exhibit “1”, pp 1 – 212.

58. The oral evidence called in the case for the plaintiff comprised evidence from the plaintiff, her mother-in-law, her former employer, Dr Arturo Jeri who is her family doctor and treating general practitioner obstetrician, and Professor Michael O’Connor, an expert obstetrician and gynaecologist who was retained by the solicitor for the plaintiff.

59. In the defendant’s case, oral evidence was given by the defendant Dr Dhupar, Dr Michael Jones, a consultant radiologist, and Associate Professor Michael Cooper, a consultant gynaecologist and endoscopic surgeon. Those experts were retained by the solicitor for the defendant.

60. The content and the detail of the expert gynaecological opinions evolved into a series of reports over the period between the time when the respective experts provided their initial reports and when they gave their oral evidence concurrently at the hearing.

61. Professor O’Connor provided five sequential reports to the plaintiff’s solicitor, respectively dated 20 June 2017, 10 May 2018, 6 August 2018, 27 September 2018 and 2 October 2018: Exhibit “C”, Tabs 3.1 to 3.5, pp 24 – 118.

62. Associate Professor Cooper issued a series of three reports to the solicitor for the defendant, respectively dated 17 November 2017, 13 June 2018 and 29 January 2019: Exhibit “1”, Tab 2, pp 7 – 52.

63. Professor O’Connor and Associate Professor Cooper met in a conclave and produced two joint reports which were respectively dated 13 August 2018 and 28 March 2019. The second of those reports was in the form of a transcript setting out the matters upon which they respectively agreed and disagreed in their consideration of the liability issues: Exhibit “C”, pp 136 – 190.

64. In my opinion, if the length and complexity of those reports had been drawn to the attention of the Court at the case management stage of the proceedings, when matters such as the complexity of the proceedings and the estimate of time needed for the hearing were being canvassed, an order would most probably have been made for the respective experts who prepared successive reports to each reduce their consecutive and cumulative opinions into two single condensed reports: UCPR r 31.20(2)(j).

65. The failure of the parties to draw the nature and the extent of those evolved reports and opinions to the attention of the Judicial Registrar at the case management stage of the proceedings has resulted in the need for a more burdensome analysis, which is reflected in the length of these reasons.

66. At the hearing both Professor O’Connor and Associate Professor Cooper gave concurrent explanatory oral evidence on matters of dispute within their respective opinions: T454 – T506.

67. The resolution of this case requires the determination of a series of inter-related factual and legal issues.

68. The submissions of the parties contended that differing factual narratives should be found to prevail. The evaluation of those narratives and the related issues will be necessarily influenced by findings to be made concerning the credibility and reliability of crucial aspects of the factual testimony. That evaluation will also be guided in part by the aspects of the expert evidence that are considered to be reliable.

69. Following my review of the pleadings, the evidence as a whole, and the submissions made by the parties, I consider that the central issues to be determined in this case can be fairly distilled into the respective factual and legal categories, as follows.

Substantive issues for determination

70. Apart from matters concerning the credibility and reliability of testimony, including the reliability of aspects of the disputed expert evidence, the substantive issues calling for decision in this case, and the appropriate order in which that consideration should proceed, may be conveniently identified as follows:

1. Findings on relevant factual matters are required as such findings will be influential on the assessment of aspects of the expert evidence. My findings on this issue, including findings as to the probable cause of the tubal ligation surgery and the resultant pregnancy, appear in paragraphs [562] to [859] of these reasons;

2. Identification of the relevant risk of harm pursuant to s 5B of the Civil Liability Act 2002 (NSW) (“CL Act”). My findings on this issue appear in paragraphs [860] to [870] of these reasons;

3. The definition of the scope and content of the duty of care owed by Dr Dhupar. My findings on this issue appear in paragraphs [871] to [877] of these reasons;

4. Whether, within the meaning of s 5I of the CL Act, the subject pregnancy was due to the non-negligent materialisation of an inherent risk of failed sterilisation associated with the application of Filshie clips. My findings on this issue appear in paragraphs [878] to [896] of these reasons;

5. Whether Dr Dhupar had acted in a manner that was at the time consistent with widely accepted peer professional opinion in Australia as competent professional practice within the meaning of s 5O of the CL Act. My findings on this issue appear in paragraphs [897] to [923] of these reasons;

6. Whether, according to the analysis required by s 5B and s 5C of the CL Act, Dr Dhupar was relevantly in breach of the duty of care she owed to the plaintiff, and if so, whether such breach justified a finding of negligence on her part. My findings on this issue appear in paragraphs [924] to [985] of these reasons;

7. Whether, in terms of s 5D of the CL Act, any found breach of the duty of care owed by Dr Dhupar had relevantly caused the plaintiff to suffer the harm claimed. My findings on this issue appear in paragraphs [986] to [1002] of these reasons;

8. The assessment of the plaintiff’s claim for damages. That assessment involves the construction of s 71(1)(b) of the CL Act in relation to the plaintiff’s claims for economic loss. My findings on this issue and those matters appear in paragraphs [1003] to [1084] of these reasons.

71. As earlier stated, there were many matters in factual dispute. These centred around the issues of pre-operative information provided to the plaintiff by Dr Dhupar as to the risk of a failed tubal ligation, the reliability and chronological integrity of aspects of Dr Dhupar’s patient records, the reliability of Dr Dhupar’s operation records and her evidence which described her intra-operative actions, the operative findings and observations made by Dr Jeri at the caesarean section and salpingectomy procedures that he performed, the significance of the results of a subsequent hysterosalpingogram test, the conclusions to be drawn as to Dr Dhupar’s chosen location for placement of the left Filshie clip, and the most probable explanation for the fact that the plaintiff conceived her fourth child following the tubal ligation procedure.

72. In the course of final submissions, for the purpose of focussing those submissions, I indicated to the parties that the pivotal points upon which the determination of these proceedings was dependant seemed to be the assessment of the credibility and the reliability of the factual observations made by Dr Jeri at the time he carried out a bilateral salpingectomy procedure on the plaintiff’s fallopian tubes on 1 March 2016, at which time he described the plaintiff’s left fallopian tube as having been intact and undamaged along its entire length, which was inconsistent with the (proper) application of a Filshie clip: T525.9 – T529.22. It is relevant to observe at this point that the plaintiff argued that such a finding was inconsistent with a transection of that fallopian tube having occurred as a result of an application of a Filshie clip by Dr Dhupar.

Summary as to credit and reliability of oral testimony on factual matters

73. As identified in the preceding paragraph, the issues calling for determination in this case necessarily require a consideration of the factual evidence as a whole for the purpose of assessing the credibility and reliability of testimony. In the paragraphs that follow I set out a series of short summaries identifying the conclusions I have reached on the reliability of the testimony of the respective witnesses who gave evidence on factual matters. The detailed reasons that underpin those summaries will appear in the appropriate context.

Plaintiff’s evidence

74. Contrary to the submissions made on behalf of Dr Dhupar, I have found the plaintiff to be a credible and reliable witness on all material matters of fact in dispute. Her evidence was capable of acceptance. My reasons for that conclusion appear in paragraphs [175] to [226] below.

Mother-in-law’s evidence

75. I have found the plaintiff’s mother-in-law to be a credible and reliable witness on all of the topics that were canvassed in her evidence. Her evidence was capable of acceptance. My reasons for that conclusion appear at paragraph [173] below.

Former employer’s evidence

76. I have found the plaintiff’s former employer to be a credible and reliable witness on all of the topics that were canvassed in his evidence. His evidence was capable of acceptance. My reasons for that conclusion appear at paragraph [174] below.

Dr Jeri’s evidence

77. Contrary to the submissions made on Dr Dhupar’s behalf, I have found Dr Jeri to be a credible and reliable witness on material matters of disputed fact. I have found that the defendant’s attack raised in submissions concerning his professional standing, his expertise, and concerning the reliability of his evidence, and alleged partisanship on his part, has failed. I have concluded that his evidence was capable of acceptance. My reasons for that conclusion appear in paragraphs [451] to [468] below.

Dr Dhupar’s evidence

78. Contrary to the submissions made on Dr Dhupar’s behalf, I have found that she gave what should be seen as being unreliable evidence on a number of significant and material factual matters in dispute. I found myself unable to accept aspects of Dr Dhupar’s evidence on a number of identified key factual matters in dispute. My reasons for that conclusion appear in paragraphs [301] to [375] below.

Ms Dassayanake’s evidence

79. The defendant’s solicitor, Ms Hishani Dassayanake, gave affidavit and oral evidence on procedural matters including concerning the manner in which Dr Dhupar’s records and intra-operative photographs relating to the plaintiff’s operation had been accessed and obtained. That evidence does not require further consideration: T310 – T315. Other aspects of the evidence of Ms Dassayanake will be referred to in connection with the consideration of the evidence of Dr Dhupar on particular matters. No credibility or reliability of testimony issues arose from the evidence of Ms Dassayanake. My review of her evidence on those matters will appear in these reasons at paragraphs [376] to [378] below.

Summary of conclusions as to reliability of expert evidence

80. The approach to the analysis of the reliability of the expert opinions on liability and causation issues must be guided by the degree to which those opinions are compliant with the requirement that such opinions should be appropriately reasoned: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [60], [82], [85]; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, at [41]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, at [93].

Dr Jones’ evidence

81. I have found Dr Jones’ evidence to be of limited reliability and assistance on a number of key matters in dispute concerning the conclusions he drew from the result of a hysterosalpingogram study the plaintiff underwent on 20 August 2018. My reasons for that conclusion appear in paragraphs [380] to [394] below.

1039. In respect of the ensuing newborn period up until the time of the trial, the evidence does not permit precise calculations of economic loss. The evidence indicates that there appears to have been a relatively small time delay before the plaintiff’s mother-in-law took over assisting with the care of the fourth child. The evidence was that she had retired from her own work and was therefore available to look after the child every week: T71. However, that said, there must obviously have been some minor tasks undertaken by the plaintiff that concerned the maintenance of the child. This topic was not explored in detail in the evidence. Consequently, in my view, those matters may be adequately addressed and reflected by applying a discount to the submitted calculations in the same manner as buffer amounts are assessed.

1040. In s 71(1)(b) the phrase “any loss of earnings” must be taken to mean a wide range of potential earnings. The word “any” could have no other or restricted meaning in the statutory context in which it appears. It must therefore relate to all forms of past and future earnings. The limiting phrase within that provision which qualifies claimable loss of earnings specifically relates to the period “while the claimant rears or maintains the child”.

1041. The activities described as rearing or maintaining a child involve the multi-faceted and all-encompassing obligations of a parent. Those activities should not be seen to be restricted to just the hours during which a person would exercise an otherwise available earning capacity.

1042. On considering the moral and policy considerations in the Second Reading Speeches as cited above, in my view, it does not seem to have been the intention of the legislature to seek to impose an all-encompassing or blanket limitation on the hours during which a person could exercise or claim in respect of an impaired earning capacity. Nor was there an expressed intention to limit which person or persons in particular should be responsible for rearing and maintaining a child during ordinary or available working hours.

1043. When regard is had to the legislative limit on “costs” that a “claimant has incurred or will incur in the future”: s 71(1)(a) of the CL Act, that description is plainly intended to cover the eventualities of past and future costs. On a comparative reading of s 71(1)(b) of the CL Act, the absence of any similar words clearly indicating a prohibition on an award for any loss of earnings for an injury to a claimant is instructive. There is no question that the legislation is aimed at limiting claims of economic loss involving the birth of a child where parental rearing and maintenance is involved.

1044. However, that does not mean a claim for economic loss involving physical or psychiatric injury to the mother is precluded by that legislative provision. I do not construe the words “proceedings involving a claim for the birth of a child” to include and capture and exclude from damages a claim of physical and psychiatric injury to the mother caused by the negligence of a medical practitioner.

1045. In my view, in the present case, that is an important point of distinction. Here, the plaintiff’s loss of earnings is founded upon her inability to work due to her psychological and psychiatric problems that were caused by the negligence of Dr Dhupar. Those psychiatric problems commenced at the time she became aware that she had conceived and they continue until the present time. It is that disease or adverse condition of health of the plaintiff which has caused the plaintiff to suffer loss of earnings, and not the parental obligation to rear or maintain the child.

1046. Several consequential points arise. Rearing and maintaining a child, where the child has two parents, involves a dual responsibility. The duality of that responsibility is not anchored only in the hours during which remunerative employment ordinarily takes place.

1047. In this case, the plaintiff’s mother-in-law has been available for child rearing and maintaining the child during those hours. Parents with child rearing responsibilities commonly arrange their working hours around such responsibilities. Income earning activity on the part of parents is not limited to particular hours of the 24 hour clock.

1048. For quantification of the final element of her claim for past economic loss as identified at paragraph [1026] above, the plaintiff ultimately relied upon a differential comparison of her probable net earnings and her actual or mitigatory net earnings to identify her claimed loss at $67,279 including loss of employer funded superannuation entitlements.

1049. In my assessment, the general approach submitted by the plaintiff is correct, however, it must be subject to a discount because of the impact of an array of imponderable factors that influence the assessment of her past economic loss. Those imponderables include the possibility she may not have achieved or maintained the higher hourly rate of remuneration identified by her former employer, and, to adopt the words of the Statute, the formulated approach was contingent upon the continued ability of her mother-in-law to carry out the tasks of rearing and maintaining the child, and the possibility that some of the child’s needs relating to rearing and maintenance were carried out by the plaintiff to some, albeit lesser degree.

1050. In my view, the operation of those imponderable factors requires a buffer discount on the submitted calculation for the plaintiff’s past economic loss. In conformity with that view, I therefore assess the plaintiff’s damages for past economic loss including allowances for employer funded superannuation, in the net discounted amount of $45,000.

Future loss of earning capacity

1068. The plaintiff claims damages for future loss of earning capacity in the buffer amount of $100,000. The defendant’s submissions were to the effect that no such allowance could be justified in this case based on an acceptance of the defendant’s submissions as to the construction of s 71 of the CL Act.

1069. My reasons for construing the meaning, effect and application of s 71 of the CL Act in relation to the plaintiff’s claim for past economic loss also form the basis for my assessment of the plaintiff’s claim for future loss of earning capacity. That assessment now follows.

1070. Although the plaintiff has demonstrated a difference between what would have most likely been her potential earnings if uninjured and her actual earnings after injury, this is not a case where the evidence permits the mathematical projection of a precise or finite amount of recurring net weekly loss of earning capacity so as to require findings as to what would have been the plaintiff’s most likely circumstances but for the birth of her fourth child, as may otherwise have been required by s 13 of the CL Act.

1071. Instead, I consider that the plaintiff’s circumstances are such that a buffer approach to this head of damage is the most appropriate method of assessment: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72].

1072. The plaintiff’s submissions make the well-understood and conventionally applied distinction between past economic loss and the deprivation or impairment of earning capacity in relation to injury, which is reflected in s 12(1)(a) and (b) of the CL Act. In conformity with that distinction, and where the plaintiff’s claim for future economic loss or loss of earning capacity relates to the injury sustained by her, I accept the submissions made on her behalf that s 71 of the CL Act should be construed according to its terms, which does not preclude an award of loss of future earning capacity where the loss is incurred due to the plaintiff’s psychiatric illness as distinct from a claim for the birth of a child or a claim that is precluded because of child rearing or maintenance.

1073. The evidence of the plaintiff and that of her former employer persuades me that, but for the unwanted advent of her fourth child, which occurred due to Dr Dhupar’s negligence, her autonomous economic plan was to fully pursue her earning capacity and her economic opportunities. The unchallenged evidence of her former employer persuades me that she had very good prospects for pursuing and achieving that goal.

1074. The combination of the plaintiff’s evidence and the opinion of Dr Roberts persuades me that the diagnosis of the plaintiff’s major depressive disorder requiring treatment in the presence of the ever-present stressor of her fourth child has caused a substantial but difficult to measure loss of her future earning capacity where that loss will continue to have an adverse impact upon her for some considerable years to come.

1075. The principles governing the assessment of a claim for loss of earning capacity are well settled. An unimpaired future earning capacity should be seen to be an intangible asset. If that asset has become impaired to the point of being productive of a probable financial loss, this mandates an assessment due to injury: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48. In my view, the plaintiff’s circumstances satisfactorily meet those criteria.

1076. In this case, if the plaintiff had not been affected by her psychiatric illness, most probably, she would have ordinarily expected to have been able to exercise her earning capacity for at least a further 20 years, if not more, without restriction. With three children, she had a good economic incentive to do so. That capacity has now been substantially impaired because of her psychiatric illness. She is unable to face an array of people in the workplace. She has found it necessary to seek lesser paid part time work due to her depressive state. She experiences recognisable psychological and psychiatric difficulties because she has had an additional child which was contrary to her autonomous plans for her future. She now feels she is no longer in control of her life and this has had a significantly deleterious impact on her earning capacity which would otherwise have been unrestricted.

1077. The plaintiff’s ability to work has been adversely affected to a significant degree since the birth of her fourth child because of her psychiatric illness. Those matters are the subject of findings at paragraphs [804] to [819] above.

1078. In summary, she suffers from a form of disabling anxiety of a kind that she did not have beforehand. She finds that she must take prescribed antidepressant medication. Her concentration is reduced. She has become withdrawn and is easily upset in random situations. She experiences random and overwhelming panic attacks of varied duration and intensity, she has lost self-esteem to a considerable degree. She can only manage part-time work of a limited nature that does not expose her to many people. Her future earning capacity is significantly impaired as a consequence of those matters.

1079. The impact of those factors is incapable of precise monetary estimation in terms of a recurring weekly loss for projection on the 5 per cent actuarial tables. In my assessment, the appropriate lump sum buffer amount which incorporates all the required discounts for vicissitudes and imponderable contingencies (including the potential for her recent seizures to have an impact on her earning capacity) and which is both fair to the plaintiff and at the same time not unfair to the defendant, is the sum of $80,000. I therefore assess the plaintiff’s future loss of earning capacity in the buffer amount of $80,000.

Future treatment expenses

1080. The plaintiff made a claim for future out-of-pocket expenses for treatment in the amount of $17,804. That claim was based on the opinions expressed by Dr Roberts, to the effect the plaintiff requires treatment from a psychologist and a psychiatrist according to a plan or recommendation he made, along with the need for anti-depressant medication. I accept Dr Roberts’ formulation as being a reasonable therapeutic response to the plaintiff’s situation. In addition, as the plaintiff is taking antidepressant medication, and given her rural location, she will also need to have continued regular contact with her treating general practitioner.

1081. Dr Roberts proposed future treatment comprising weekly sessions with a psychologist for 3 months, followed by fortnightly sessions for a further 3 months at a cost of $242 per consultation. This reveals an identified short-term cost of $13,068 [($242 x 12 + $242 x 6) = $13,068]. Dr Roberts also proposed face to face specialist psychiatric consultations in the event that the option of telemedicine proves to be an inadequate mode of treatment. He proposed two-weekly attendances for 6 months at $355 per session ($3,645). In addition, the plaintiff claims the cost of anti-depressant medication for 5 years at $2.75 per week, which, when projected on the 5 per cent tables (x 231.5) yields the sum of $636.36. The likely cost of future general practitioner consultations is not known.

1082. The above elements of likely cost relating to the plaintiff’s adverse condition of health, none of which are associated with either rearing or maintaining her fourth child, are all reasonable and are indicated by the circumstances of the plaintiff’s psychiatric diagnosis. The total of those known elements amounts to $17,349. In my view, considering imponderable factors and vicissitudes, that sum should be discounted to $15,000 to reflect uncertain variability and possible scope for further remission of symptoms in the event that the plaintiff might manage to further adjust to her adverse circumstances. I therefore assess the plaintiff’s future treatment expenses in the discounted amount of $15,000.

Past out-of-pocket expenses

1083. The plaintiff claims past out-of-pocket expenses in the amount of $7,700. Following a further listing of the matter on 17 November 2020, the parties indicated their agreement that out-of-pocket expenses were in the rounded down amount of $7,700. I therefore assess the plaintiff’s past out-of-pocket expenses in the amount of $7,700.

Summary of damages assessment

1084. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$261,000
(b) Past economic loss	$45,000
(c) Future loss of earning capacity	$80,000
(d) Future treatment expenses	$15,000
(e) Past out-of-pocket expenses	$7,700
Total	$408,700

PART H – DISPOSITION, COSTS, ORDERS

Disposition

1085. The plaintiff has established her entitlement to an award of damages in the amount of $408,700. She should therefore have judgment entered in her favour for that amount.

Costs

1086. As the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which I will grant liberty to apply.

Orders

1087. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $408,700;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless a party is able to show the basis for some other costs order;

3. Liberty to apply for further or other orders if required.

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APPENDIX

Glossary

Term

Definition

ampulla

A saccular dilation of a canal or duct, in this case, an expanded section of a fallopian tube.

avascular necrosis

Pathologic death of a portion of tissue resulting from irreversible damage resulting from deficient blood supply.

broad ligament

The wide peritoneal fold passing from the lateral margin of the uterus to the wall of the pelvis on either side of the uterus, consisting of tissues known as the mesometrium, mesosalpinx and mesovarium.

cornu

The horn at each side of the extremity of the fundus of the uterus which marks the entry or connection point of the fallopian tube into the uterine cavity.

diathermy

Therapeutic use of high-frequency electric current to induce heat in tissue, used in surgery to cauterise blood vessels.

fallopian tube

Also known as salpinges (singular salpinx). These are bilateral muscular tubes leading from near each ovary to the proximal tubal opening of the uterus, which transport the ova after release from an ovary to the uterus. Its components consist (from ovary to the uterus) of infundibulum, fimbriae, ampulla and isthmus.

Fimbria

(plural fimbriae)

Fingerlike fringe of tissue surrounding the distal tube opening (ostium) of the fallopian tube proximal to the ovary and forming the end of the infundibulum.

hydatid of Morgagni

In the female, a variant of a paratubal cyst: a benign epithelium-lined fluid-filled cyst below the fallopian tube near the fimbriae.

hysterosalpingectomy

Operation for the removal of the uterus and one or both fallopian tubes.

ischaemia

Inadequate blood supply to tissue due to blockage of blood vessels leading to that area, causing a shortage of oxygen required for cellular metabolism to keep tissue viable.

isthmus

A section of the fallopian tube, about two centimetres long, distal to the fimbria, ampulla and infundibulum, contiguous with the cornu, which connects the ampulla of the fallopian tube to the uterine cavity.

laparoscopy

Also known as diagnostic laparoscopy. A keyhole surgical diagnostic procedure used to examine the abdominal organs, using a laparoscope.

laparotomy

 A surgical incision into the abdominal cavity.

lumen

A patent space in the interior of a tubular structure.

mesosalpinx

Part of the broad ligament that encloses or surrounds the fallopian tubes.

ovarian ligament

Fibrous band of ligamentous tissue within the broad ligament which connects the ovary to the fundus of the uterus.

Pfannensteil incision

An abdominal surgical incision made transversely, and through the external sheath of the recti muscles, about an inch above the pubes, the muscles being separated at the midline in the direction of their fibres which permits access to the abdominal cavity. The most common method for performing Caesarean section delivery.

placenta accreta

Abnormal adherence of part or all of the placenta to the uterine wall risking severe blood loss after delivery.

round ligament

Bilateral fibromuscular bands of connective tissue that are attached to the cornu of the uterus on either side in front of and below the opening of the uterine or fallopian tubes; they cross the pelvis and pass through the inguinal canal to the labia majora.

salpingectomy

Removal of the fallopian tube.

transection

Creation of a transverse cut or complete division.

tubal ligation

Interruption of the continuity of the fallopian tubes by either cutting and cauterising, clamping or tying; or leaving whole but applying a plastic or metal clip, band or ring, intended to prevent future conception.

tubo-ovarian pedicle

Elongated stalk-like structure of the mesosalpinx at the junction of a fallopian tube and an ovary

Endnote

Amendments

24 November 2020 - Paragraphs [6] - Part C; [225] and [932] : typographical

Appendix - Glossary : addition "placenta accreta"

Decision last updated: 24 November 2020