Lentzner v Baumwol - [2009] WADC 168

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LENTZNER -v- BAUMWOL [2009] WADC 168

CORAM: DAVIS DCJ

HEARD: 9-13 MARCH & 2 APRIL 2009

DELIVERED : 6 NOVEMBER 2009

FILE NO/S: CIV 1186 of 2006

BETWEEN: AVRIL LOUISE LENTZNER
Plaintiff
AND
MAX BAUMWOL
Defendant

Catchwords:

Negligence - Medical negligence - Hernia surgery - Whether breach of duty - Causation - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's action dismissed

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos SC
Defendant: Mr J R B Ley

Solicitors:

Plaintiff: Bradley Bayly Legal
Defendant: Clayton Utz

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

Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 225 FLR 1
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Burns v Pearce [2009] WADC 150
Chappel v Hart (1998) 195 CLR 232
City of Stirling v Tremeer (2006) 32 WAR 155
Dorsett v Janeska [2005] WASCA 215
Grainger v Williams [2009] WASCA 60
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
J-Corp Pty Ltd v Coastal Hire Pty Ltd [2009] WASCA 36
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192
Juengling v Wells [2009] WASCA 125
Kerr v Minister for Health [2009] WASCA 32
Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148
Kschammer v RW Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Nepi v Northern Territory of Australia, unreported; SCt of NT; BC9701834; 2 May 1997
New South Wales v Fahy (2007) 232 CLR 486
Payne v Parker (1976) 1 NSWLR 191
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Purkess v Crittenden (1965) 114 CLR 164
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Strempel v Wood [2005] WASCA 163
Ta v Lucky Import and Export Co Pty Ltd (2000) WADC 283

DAVIS DCJ: In mid‑2003 Mrs Lentzner discovered that she had three hernias. One was a rare type of hernia in her abdomen known as a Spigelian hernia. She also had bilaterial inguinal hernias.
Mrs Lentzner saw Mr Baumwol, a surgeon, about these hernias on 10 June 2003. On 7 July 2003, Mr Baumwol performed surgery to repair the hernias. Mrs Lentzner claims that Mr Baumwol was negligent in performing that surgery by failing to properly repair the Spigelian hernia, failing to use mesh in the repair of all three hernias, and failing to advise her about the risk of recurrences and that the use of mesh could have reduced that risk. She claims that Mr Baumwol so negligently performed the surgery that the Spigelian hernia and the right inguinal hernia recurred. She claims she should have been, but was not, provided with patient controlled anaesthesia or PCA following her surgery. She claims that in 2003 she also had a lump or attenuation in her right abdominal area which Mr Baumwol should have advised her to have repaired with mesh at the same time as her hernias. Mrs Lentzner claims that since the surgery she has experienced continual pain in her abdomen and groin, and has gone on to develop depression and a fear of surgery.
Mr Baumwol says he performed the surgery on Mrs Lentzner without negligence, that there has been no recurrence of either the Spigelian hernia or the right inguinal hernia but if there has been any recurrence, this has not resulted from any negligence on his part and that the cause of her pain and depression is unrelated to the surgery which he performed.
Both liability and quantum are in issue.

LIABILITY

The issues

Based on the pleadings and argument at trial the issues are:
1.Was there negligence by Mr Baumwol in the repair of the Spigelian hernia?
2.Was there negligence by Mr Baumwol in failing to use mesh in the hernia repairs?
3.Was there negligence by Mr Baumwol in failing to ensure Mrs Lentzner was provided with PCA following the operation?
4.Was there negligence by Mr Baumwol in failing to advise Mrs Lentzner about the risk of recurrence and that the risk could be reduced if mesh was used?
5.Was there negligence by Mr Baumwol in failing to advise Mrs Lentzner to have the attenuation surgically repaired with mesh at the same time as the hernias?
6.Was there negligence by Mr Baumwol in failing to surgically repair the attenuation with mesh?
7.Has any negligent act or omission by Mr Baumwol caused or contributed to Mrs Lentzner's damages? This raises the following questions:
1.did, in fact, Mrs Lentzner suffer a recurrence of the Spigelian hernia?
2.has, in fact, Mrs Lentzner suffered a recurrence of the right inguinal hernia?
3.if warned of the risk of recurrence and advised that mesh could reduce the risk of recurrence, would Mrs Lentzner have insisted on the use of mesh?
4.as a result of Mr Baumwol's negligence, has Mrs Lentzner suffered asymmetry of her lower abdominal wall which has caused altered stance and pain of the lower back, or this been caused by Mrs Lentzner's pre-existing degenerative back condition?
5.was there a persistence of the attenuation?
6.did Mrs Lentzner suffer undue and unnecessary pain in the days following her surgery in July 2003 as a result of not receiving PCA while in hospital?
7.Is Mrs Lentzner's ongoing pain and her fear of surgery and depression causally linked to the negligence of Mr Baumwol and related to the recurrence of the hernias, or are they caused by other factors including Mrs Lentzner's pre-existing psychiatric or psychological conditions?

General principles relating to negligence and causation

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment. It extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case: Rogers v Whitaker (1992) 175 CLR 479 at 483.
Having regard to Mr Baumwol's qualification as a general surgeon, the standard of care to be observed by Mr Baumwol was that of the ordinary skilled general surgeon: Rogers v Whitaker (ibid).
The question as to whether Mr Baumwol breached that standard of reasonable care must be decided having regard to all of the evidence, including the expert evidence given in this trial by other surgeons. While the evidence of what other surgeons may or may not have done in the same or similar circumstances is a useful guide, it is for the court to decide whether Mr Baumwol's conduct conforms to the standard of reasonable care demanded by the law: Strempel v Wood [2005] WASCA 163 per McLure JA at [28] and [29]; Rogers v Whitaker at 487; Rosenberg v Percival (2001) 205 CLR 434 at 453.
In Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [65] and [66], and New South Wales v Fahy(2007) 232 CLR 486 at [57], the High Court has emphasised the need to judge the issue of whether reasonable care was exercised without the benefit of hindsight and prospectively, and not retrospectively by asking whether certain actions, if taken by the defendant, could have prevented the plaintiff's injury.
For Mrs Lentzner to succeed, she must establish both a negligent act or omission on the part of Mr Baumwol and that, on the balance of the probabilities, that negligence act or omission caused or contributed to the damage the subject of her claim. The relevant principles on the issue of causation are:
1.The plaintiff bears the legal burden of proving causation on the balance of probabilities.
2.Causation involves two distinct inquiries. The first concerns the question of causation in fact. The second involves the legal question of whether, and, if so, to what extent, the defendant should in law be responsible for the consequences of his breach: City of Stirling v Tremeer(2006) 32 WAR 155 per McLure JA at [73]; Grainger v Williams [2009] WASCA 60 at [179] and [180].
3.Causation in fact is established if the plaintiff can prove that the harm the subject of the claim would not have occurred without the defendant's negligent act or omission. Causation in fact is to be determined not according to scientific or philosophical theories of causation but by common sense principles: Dorsett v Janeska [2005] WASCA 215 at [44], citing Chappel v Hart (1998) 195 CLR 232 at 244, per McHugh J; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420–421, per Gaudron J.
4.A defendant's act or omission need not be the sole cause of the loss or damage. Causation will be established if the negligent act or omission caused or "materially contributed to" the damage: see City of Stirling v Tremeer (supra) at [71]; Bennett v Minister of Community Welfare (supra) at 420–421.
5.If an injury occurs within an area of foreseeable risk, then a prima facie causal connection will be established. The defendant has an evidential burden to adduce evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed. If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact that the injury was caused by the defendant's negligence: Bennett v Minister of Community Welfare (supra); Amaca Pty Ltd v Hannell (2007) 34 WAR 109 at [395], [396].
6.Where a defendant seeks to assert other causes of the plaintiff's damage, such as pre-existing medical conditions, the onus is on the defendant to disentangle and quantify the extent of the plaintiff's disability caused by such pre-existing conditions: Purkess v Crittenden (1965) 114 CLR 164 at 168; Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410 at [44]‑[49]. However, the defendant merely has an evidentiary burden. That burden being discharged, the ultimate onus is on the plaintiff to show, on all of the evidence, the extent of the injury caused by the defendant's negligence: Purkess v Crittenden (supra).

Experts called by the parties

There were four expert surgeons called by each of the parties – two by Mrs Lentzner, Mr Stephen Archer and Mr Gavin Cottrell, and two by Mr Baumwol, Professor John Hollinshead and Mr David Minchin.
Mr Archer is the surgeon who has since treated Mrs Lentzner and who operated on her in November 2006. He qualified as a medical practitioner in 1983 and became a consultant general surgeon in 1994. He has had experience in repairing hernias. He was the least experienced of the experts called. To the extent that he expressed an opinion he qualified it when necessary, and to his credit he also acknowledged in his evidence where changes to his earlier opinions were required. He was in agreement with some of the matters raised by Mr Baumwol's expert, Professor Hollinshead.
Mr Cottrell is a specialist surgeon who achieved fellowship of the Royal Australia College of Surgeons (FRACS) in 1970. He is currently a consultant surgeon at the Alfred Group of Hospitals in Victoria. As part of his professional experience he has dealt with hernias. He estimated he operated on those two or three times a week. Mr Cottrell was obviously very experienced. He first provided what he described as an "unofficial opinion" on Mrs Lentzner's hernia operation by a report of 30 August 2005 but he later saw her in person, and examined her, on 21 November 2005.
Also very experienced was Professor Hollinshead, who trained as a general surgeon, practised in general surgery until 1990 and has specialised since that time in upper gastrointestinal surgery. Throughout his career as a surgeon he has carried out hernia surgery. As set out in his report of 23 April 2007 and curriculum vitae, although specialising in upper gastrointestinal surgery he also has a practice in general surgery, including hernia repair. At trial he elaborated on this, advising that because there are no specialist general surgeons doing just hernias and lumps and bumps, that is something he decided he would do himself and as a result, he has actually developed a very large practice because he only has two areas of practice. He achieved his FRACS in 1979. He is a Clinical Associate Professor of the Department of Surgery at the University of Sydney, a position he has held since 1997. He has been a clinical lecturer in Surgery at the University of Sydney since 1981. He has been a Clinical Examiner in Surgery at the University of Sydney since 1985. He has had a number of other teaching assignments at various hospitals, both in Australia and at the University of California, Los Angeles, where in 1981-1982 he became a Post Doctoral Scholar at the School of Medicine. He is currently the Head of Upper Gastrointestinal Surgery at Concord Hospital in Sydney and a visiting medical practitioner at Strathfield Private Hospital, Strathfield and Mater Misericordiae Hospital, North Sydney. I regard Professor Hollinshead as the most experienced and qualified expert in the case. In giving his evidence he also impressed me more than the other experts.
Mr David Minchin qualified as a medical practitioner in 1973, achieved his FRCS in London in 1977 and his FRACS in Australian in 1980. He practises as a specialist general surgeon in breast, endocrine, hernia and gall bladder surgery and is a consultant surgeon at both St John of God Hospital Subiaco and Bethesda Hospital, Claremont. He is an Emeritus Consultant in General Surgery at Sir Charles Gairdner Hospital, a clinical lecturer and examiner at the University of Western Australia and a surgical tutor at the Surgical Teaching Unit of St John of God Hospital Subiaco.

What is a hernia and how is it diagnosed?

At trial the parties and their experts both referred to an information pamphlet for patients prepared by the Royal Australian College of Surgeons ("the RACS pamphlet"). I have taken the following information and description from that pamphlet and excerpts from the text "Principles of Surgery" attached to the report of Professor Hollinshead dated 14 August 2007.
A hernia is defined as a protrusion of a viscus through an opening in the wall of the cavity through which it is contained. A hernia may occur whenever the muscles of the abdomen develop a weak spot or tear. These muscles normally hold the organs and surrounding tissues in place. An organ such as the intestine can push the abdominal lining (or peritoneum) through the weakness and form a balloon like sac, called a hernial sac. The hernial sac can usually be seen as a bulge under the skin when the patient is standing up. A hernia can be aggravated by the strain of a chronic cough, constipation or heavy lifting and often causes significant pain. A hernia usually gets worse with time. Hernias occur in males and females of all ages, but are most common in men.
The existence of a protruding sac is an important feature of a hernia. Clinically, without a protruding sac a diagnosis of a hernia is impossible.
A clinical examination of a patient for a hernia involves examining the patient both lying down and standing up. When standing up, the patient is asked to strain or cough. A hernia sac enlarges and transmits a palpable impulse when the patient stands and strains or coughs. Mr Archer explained that in order to say that there is clinical evidence of a hernia, "you need to either feel a defect in the abdominal wall or feel a cough impulse, something protruding through a defect and then reducing."
There was general agreement from all of the experts that ultrasounds are not reliable in diagnosing the presence of hernias and surgeons will always clinically examine the patient to see if they can find the hernia. Mr Archer said that the difficulty from a clinical perspective is trying to correlate what is seen on ultrasound with the patient's clinical symptoms and the correlation is not always easy because ultrasounds may pick up very tiny bits of protruding fat, which may or may not be of clinical significance. Mr Cottrell confirmed that ultrasounds are not always reliable in diagnosing the presence of hernias and that surgeons "tend to disregard them". He went further to say that he would put little faith in an ultrasound report if there was no clinical evidence of a hernia and he would not operate on an ultrasound report alone.

What are the different types of hernia?

About nine out of ten hernias occur in the groin area (inguinal and femoral). An inguinal hernia is the most common type of hernia, particularly in men. Inguinal hernias arise in what is known as the abdominocrural crease of the groin. Those arising below that crease are femoral (thigh) hernias.
Hernias occur occasionally at other sites in the abdomen including the navel (umbilical) or at the site of a previous operation (incisional).
A Spigelian hernia is a ventral hernia occurring along the sub‑umbilical portion of what is known as Spieghel's semilunar line and fascia (named after the anatomist who first described the structures in that region). Mr Cottrell described the anatomy in this way. The rectus muscle of the abdomen, which is a vertical muscle, sits underneath the skin and a layer of fat. (Mr Archer described the rectus muscle as the lifting muscle in the central abdomen). The sheath of the rectus muscle is made up of a number of divisions. There is the external oblique, which is the outer abdominal muscle. Underneath that, there are two thin transversely‑running muscle fibre groups called the internal oblique and the transversus abdominis. The internal oblique and the transversus are the muscles that weaken the most to allow a hernia to develop. A Spigelian hernia occurs by forming through those muscles. It hits the external oblique, or the posterior layer of the rectus sheath, is unable to get through that, so it turns out sideways, or laterally, and appears at the edge of the rectus muscles, generally just below the umbilicus or belly button.
There was agreement from each of the expert witnesses that Spigelian hernias are rare. Mr Archer gave evidence that he had seen two or three over the last 15 years. Mr Cottrell gave evidence that Spigelian hernias make up 0.12 per cent of abdominal wall hernias. Professor Hollinshead gave evidence he had operated on only 10 to 15 in more than 30 years of practice. Mr Minchin said that in his practice he would not very often encounter a Spigelian hernia and that would not be as often as once a year.

What is an attenuation?

Attenuation is thinning and weakening of the abdominal muscles. Muscles weaken with age, pregnancy, obesity, lack of exercise, and conditions where there is any raised intra‑abdominal pressure. Mr Cottrell explained that with attenuation the patient may notice funny bulges. Attenuation could be asymmetrical, although usually with attenuation or thinning of the muscles, it is relatively symmetrical on both sides of the abdomen.
Mr Cottrell's evidence was that, unlike a hernia which remains as a bulge when the patient lies down and needs manipulation to reduce, you would not expect attenuation to remain when the patient laid down. Mr Archer gave evidence that an attenuation would not be a lump which could be pushed back and reduced.
In Mr Minchin's report of 6 March 2009, which he confirmed at trial, he stated that an attenuated abdominal wall would lead to generalised bulging of the abdomen, especially when standing. Attenuation is not itself a hernia, but an attenuated abdominal wall could indeed also contain a hernia.

It is important to note here that it is alleged in Mrs Lentzner's statement of claim that in June 2003 when Mrs Lentzner consulted Mr Baumwol, she also had a lump, which is defined as "the attenuation", in the right abdominal area. The term "the attenuation" has been used by Mrs Lentzner to mean that lump or bulge, not caused by any hernia, but caused by the thinning or weakening of her abdominal wall.

Background facts up to the time of the issue of the writ

Mrs Lentzner was born on 14 May 1944 in South Africa. She married in 1966. At the time she had been working as a secretary in a law firm. She continued working as a secretary during her early married life and after the birth of each of her three children, in 1968, 1970 and 1974. From 1978 she worked in sales positions before the family moved to Perth in 1982.
Upon arriving in Perth she and her husband set up a wholesale business, but that was unfortunately not successful. Mrs Lentzner then obtained a job at a senior high school on a permanent part‑time basis, with occasional full‑time work during exams. Her duties were secretarial and administrative.
In 1990 Mrs Lentzner underwent some psychiatric treatment. She had been through a difficult time with the failure of the wholesale business, her eldest daughter being diagnosed with cancer of the thyroid and her mother‑in‑law from South Africa coming to stay with the family for several months. She saw a psychiatrist, Dr Trevor Blyth, on three occasions and he wrote detailed reports to Mrs Lentzner's GP which reports were tendered at trial. Dr Blyth described Mrs Lentzner as "a woman with obsessional and emotionally responsive personality traits" who gave a couple of year's history of progressing panic disorder, hypochondriasis, agoraphobia and depression. He also described Mrs Lentzner as having experienced "classical panic attacks". Dr Blyth also noted depressive features including increasing misery, irritability, impairment of concentration and the ability to make decisions, disturbed sleep, loss of appetite and weight gain. Mrs Lentzner was at that stage already taking Xanax, which is a benzodiazepine and has addictive qualities. Dr Blyth expressed an intention to discontinue Mrs Lentzner's Xanax medication, however she continued with this medication which was prescribed by her GP.
Mrs Lentzner saw no other psychiatrist over the next decade or so, however she continued to take Xanax.
Mrs Lentzner continued working at the high school while she underwent a real estate training course in July or August of 1990 or 1991, obtaining a certificate as a sales representative. After she obtained this certificate she started work in the real estate industry on a part‑time basis, while still working part‑time at the high school.
In about 1994 Mrs Lentzner suffered a back injury at the high school when she was moving a photocopier. She underwent physiotherapy treatment. She continued work at the high school until she had another work related back injury in 1997. She was referred to an orthopaedic surgeon, Mr Richard Vaughan, who on 30 April 1997 operated on a disc protrusion which had been compressing on the S1 nerve root of Mrs Lentzner's lumbar spine. Mrs Lentzner described having received a "pump" for the pain after her surgery which she had in hospital for two days, then she was prescribed tablets, injections and then, she said, she was fine. After her discharge she said undertook hydrotherapy exercises and her main pain medication was Panadeine Forte - usually one to two tablets every four hours, although she said she took more when her back was really sore.
After recovery from this back surgery Mrs Lentzner did not return to work at the high school but went into real estate work. She joined Passmore Real Estate where she was remunerated on a commission basis, although the company also paid her superannuation. As a sales representative she was required to work weekends with home‑opens. Her husband helped her on the weekends with home‑opens and moving signs because of her back problems.
In late 1999 or early 2000 Mrs Lentzner and her husband noticed a bump or bulge in the right side of her abdomen. Mr Lentzner described this as a "tiny bulge"; Mrs Lentzner described it as the size of a 20 cent piece. Mrs Lentzner said she had no discomfort or pain but went to her GP to have it investigated. He sent her for an ultrasound and the SKG radiology report dated 13 March 2000 is included in the medical reports tendered at this trial. This reported that she had a small hernia in the anterior abdominal wall and bowel content had been demonstrated within the hernia on serial images.
Mrs Lentzner did not do anything about this until 2003. She claimed that between 2000 and 2003 her abdomen was not giving her any trouble, but her husband was concerned about it and the lump was getting larger so she went back to her GP. He referred her to Mr Baumwol.
Mrs Lentzner did not call Dr Judelman but did produce a copy of his referral to Mr Baumwol which simply stated "query femoral hernia R + L. One other R upper".
Mr Baumwol's evidence was that at the appointment on 10 June 2003 Mrs Lentzner complained of pain in her groins and in her abdomen, and pointed to what she said were lumps in all these locations.
Mr Baumwol took a history from Mrs Lentzner and examined her. His contemporaneous notes record as the first entry what Mr Baumwol said she told him:
"10/6/03Lump R groin 3 years plus now larger
L groin a few weeks ago
R side aches ++ causes discomfort."
On examination Mr Baumwol found two hernias on either side of Mrs Lentzner's groin (although these were found to be inguinal hernias and not femoral hernias, as stated on the GP's referral letter) and a hernia on the lower right of her abdomen and advised Mrs Lentzner to undergo an operation.
In terms of her history Mrs Lentzner said she told Mr Baumwol about her back operation, a tubal ligation, thyroidectomy and the medication she was on and she told him that she took "up to" six Panadeine Forte per day, plus Xanax which she described as "maintenance" of 0.5 milligrams per day. This past history was recorded by Mr Baumwol in his contemporaneous notes but in relation to drugs Mr Baumwol noted, and his evidence was, that Mrs Lentzner told him she was taking six Panadeine Forte per day, not "up to" six.
Mrs Lentzner also said she asked Mr Baumwol if she would have a pain pump after the operation, as she had had during her back surgery in 1997, and Mr Baumwol nodded but said nothing. There is a dispute about whether, at this appointment, Mrs Lentzner in fact mentioned that she wanted a pain pump, or PCA.
Mrs Lentzner said there was no discussion about recurrence of hernias, no discussion about the use of mesh in the hernia repairs and that Mr Baumwol only ever told her that she would be fine. Mr Baumwol said that he did discuss the risks of recurrence of the hernias with her. There is an issue about what was discussed in terms of the risks of recurrences and the use of mesh.
By letter dated 13 June 2003 Mr Baumwol wrote to Mrs Lentzner's GP as follows:
"Thank you for asking me to see Avril. She has had a lump in the right groin for three years, which has gradually got larger. She also noticed a lump in the left groin recently. There is also a small swelling in the right iliac fossa through the abdominal wall.
….
On examination there are a right and left inguinal herniae evident. There is also an intermuscular hernia in the RIF.
I will arrange repair of her herniae".
The surgery took place on 7 July 2003. While in hospital Mrs Lentzner did not receive PCA. She was in hospital for a total of four days before being discharged to go home.
Mrs Lentzner's evidence was that immediately following surgery she suffered from the "most excruciating pain" and her tummy was "on fire". She also said that after being discharged from hospital and going home her condition was "terrible". She described herself as being in "dreadful pain" and having a "vicious hot pain" in the whole of her stomach and into the right groin. There is an issue in this trial about the extent of the pain she suffered and when the pain which she described in fact commenced.
Mr Baumwol reviewed Mrs Lentzner on 18 July 2003. At trial Mrs Lentzner gave evidence that she had had pain since the operation, however, Mr Baumwol's contemporaneous notes make no record of any pain reported to him by Mrs Lentzner. Mr Baumwol wrote to Mrs Lentzner's GP by letter dated 28 July 2003 confirming the review on 18 July 2003 and reporting that, notwithstanding the repair of three hernias, Mrs Lentzner had done very well.
Eight months later, on 15 March 2004, Mrs Lentzner went back to see Mr Baumwol complaining of pain. Mr Baumwol found on examination that her abdomen was soft and there was an area of tenderness in the right iliac fossa supra pubic area. He arranged an ultrasound.
An ultrasound report from SKG Radiology dated 31 March 2004 reported no abnormality in the left inguinal or femoral canal. In relation to the right groin area a tongue of peritoneal or pro‑peritoneal fat extending to the deep ring was found, consistent with a recurrent indirect inguinal hernia. In relation to the abdomen pro‑peritoneal fat was visible extending through a discrete defect in the linear semilunaris, consistent with a recurrent hernia at that site. The conclusion was that appearances on the ultrasound suggested a recurrent reducible right direct inguinal hernia and right Spigelian hernia.
On 3 May 2004 SKG Radiology provided a further report to Mr Baumwol on a CT taken of Mrs Lentzner's abdomen and along the spine. There was no abnormality noted in the abdomen. The lumbar spine was noted to have moderate scoliosis with degenerative lipping seen at multiple levels, degenerative loss of disc space at L4/5 and L5/S1 and moderate facet degenerative changes at L4/5 and L5/S1.
Mr Baumwol saw Mrs Letnzner again on 10 May 2004. His notes record that she complained of a "burning" discomfort in her LIF (left iliac fossa region), "suprapubic + RIF" (right iliac fossa region)…" severe episodes in bed at night when turning over – occasional spasms. Ache right femoral triangle. Says worries her abdo might burst!" Over the page was a diagram of the abdomen with an area marked on the right hand side and a note "bulge at scar site but no muscle defect soft abdomen. No abnormalities". Mr Baumwol found that she had some muscle bulge on the right iliac fossa but he was not convinced that she had a recurrent hernia at that site. He was unable to detect any clinical evidence of recurrence of the inguinal hernia. He advised Mrs Lentzner's GP that her symptoms were out of proportion to her signs and her history led him to think she had musculoskeletal pain. He was reluctant to embark on any further surgery as he was not sure that would help her and he was going to refer her to a pain specialist, Dr P Graziotti, for further management.
In fact Mrs Lentzner did not go and see Dr Graziotti although Mr Baumwol had prepared a letter of referral to him. Mrs Lentzner went back to her GP who took over her pain management. After speaking to her GP she asked to see another surgeon, Mr Goodman. He was not called to give evidence at trial, nor were there any medical reports from him tendered at trial. Mrs Lentzner gave evidence, however, that she was referred by Mr Goodman to a pain specialist, Dr Hamzah, who examined her, mentioned nerve pain and put her on further medication including Endep. Mrs Lentzner said that this medication did not help so she went back to Mr Goodman who suggested a course of Depromedarin injections and gave her a prescription for a course of these injections. Mrs Lentzner said these injections did not help her pain and she was still experiencing an "electric sharp hot pain". Dr Hamzah was not called to give evidence at trial and there was no medical report from him tendered at trial.
Some months later Mrs Lentzner followed the suggestion of a friend that she consult a surgeon in Melbourne, Mr Cottrell. Mr Cottrell's view was that the Spigelian hernia and the right inguinal hernia had recurred and that these recurrences should be repaired surgically. Mr Cottrell offered to undertake a further operation on Mrs Lentzner in Melbourne but she returned to Perth to think about it. On her return to Perth Mrs Lentzner decided it was not practical to go to Melbourne for the surgery. She had heard of Mr Archer and asked her GP for a referral to go to him. She saw Mr Archer in August 2006, after the writ in this action had been issued and the statement of claim filed.

The credibility of Mrs Lentzner's and Mr Baumwol's evidence

From my observations of Mrs Lentzner while giving evidence I consider that Mrs Lentzner herself believed that she was telling the truth, but I find that in a number of respects her evidence is neither accurate nor reliable. I consider that Mrs Lentzner, after many years and influenced by her belief that Mr Baumwol had been negligent in not using mesh, may have convinced herself that a fact was true when other objective evidence shows otherwise. The following are examples.
Mrs Lentzner gave an account at trial that immediately following the surgery in July 2003, while in hospital, she suffered from the "most excruciating pain" and her tummy was "on fire". Her evidence at trial was quite dramatic and expansive, with Mrs Lentzner saying that it was "too terrible for words". She said she had called for a nurse to help her, the nurse told her she had already been given something for the pain and when Mrs Lentzner asked the nurse to get Mrs Lentzner's doctor, another doctor or Registrar (a lady) came soon after that, looked at Mrs Lentzner's papers and told the nurse to go and get an injection "now". Mrs Lentzner said that this injection helped with the pain. Mrs Lentzner said that was not the only occasion she complained about pain and she called the nurses sometimes but they were not happy when she called them.
Mrs Lentzner's recollection of the pain she said she was suffering in hospital at this time is not supported by any other evidence, including the evidence given by her husband (who gave no evidence of Mrs Lentzner having suffered from undue pain while in hospital) and the objective evidence available from the hospital post‑operative and nursing (multi disciplinary) notes. These notes record that:
1.On the evening after the surgery Mrs Lentzner was tolerating a light diet well and was comfortable;
2.Early on the morning of the next day, 8 July 2003, at approximately 7.00 am she had been given an IM (intra muscular) analgesic for abdominal pain;
3.Later on the morning of 8 July 2003, Mrs Lentzner was well, tolerating diet and her pain had now settled;
4.On the evening of 8 July 2003 Mrs Lentzner had an anxiety attack. She was receiving panadol for her pain with the nursing notes stating "Panadol given regularly with good results";
5.On 9 July 2003, although Mrs Lentzner was complaining of pain, it was of pain over the wound on the right side of her abdomen;
6.At all times Mrs Lentzner's pulse, blood pressure and temperature were normal and her wounds were healing as expected;
7.Her post operative progress chart entries (General Observations) for 9 and 10 July 2003 record, from Mrs Lentzner's verbal rating, that her pain score on movement was less than 5 out of 10.
In my opinion significant weight should be given to these notes, as nurses have a duty to record information and observations for a patient recovering from surgery. It is reasonable to expect that those records are accurate and reliable. Having regard to what is recorded, I find that Mrs Lentzner's account at the trial about the level of pain from which she said she was suffering in hospital following the operation is not reliable.
Mrs Lentzner's recollection of the pain she was experiencing in the initial stages after being discharged from hospital is also not supported by other objective facts. Mr Baumwol made no note of any complaint of pain made by Mrs Lentzner in his contemporaneous note of his review of her on 18 July 2003, nor in the letter which he wrote to Mrs Lentzner's GP on 28 July 2003 reporting on this review. If Mrs Lentzner was in fact suffering pain at the levels she described at that stage, I would expect her to have mentioned it to either Mr Baumwol or her GP. Mrs Lentzner did not consult Mr Baumwol again after this review for another 8 months.
Mrs Lentzner's claim that she immediately suffered terrible hot pain in her right side is also not consistent with her other evidence. She described how she was not sleeping well, that she had a feeling that there was something in her abdomen "about to tear" and there were times she could not turn in bed and had to get her husband to help her to turn. She said that if she used her stomach muscle she felt pain like a hot tearing pain and then she said "I saw Mr Baumwol about 2 weeks later at his rooms". She said that she thought it was then that he sent her for an ultrasound. The first time Mr Baumwol sent Mrs Lentzner for an ultrasound was after he saw her on 15 March 2004. This suggests that Mrs Lentzner had no issues with pain immediately following her discharge from hospital and that she only started to experience pain some months later, just before seeing Mr Baumwol for the second time post operatively on 15 March 2004.
Mr Lentzner gave general evidence of his wife having been in "terrible discomfort". He did give evidence that there were times when he had to get out of bed in the middle of the night to help her move and to get to the bathroom, when she was screaming and crying that she could not move, but as to when this occurred and on how many occasions that occurred, he did not say.
Mrs Lentzner said her pain "never let up completely, ever", that she had an excruciating hot pain in her abdomen and in the groin area and across the pubic hairline area, although that was not as bad. This account given by Mrs Lentzner is inconsistent with the pain she reported to Mr Cottrell, when she saw him in November 2005. In his report of 6 January 2006 Mr Cottrell stated that Mrs Lentzner's main problem in the immediate postoperative period was severe pain which kept her in hospital "for nearly a week" and that, following her discharge from hospital:
"she continued to experience severe wound pain….her pain remains localised to her right groin and lower abdominal wall and is aggravated by physical exertion".
That is a different type and level of pain from that described by Mrs Lentzner at trial. Mr Cottrell's evidence at trial was that Mrs Lentzner was as a "fairly tense woman" who he believed was magnifying her distress in terms of pain. He stated that recurrent hernias were not a health problem but a comfort problem.
Mrs Lentzner's account of her pain is also inconsistent with what she reported to Mr Archer, when she saw him in August 2006. During this time she said she was not coping at work, waking frequently during sleep, having terrible nightmares and that the pain in her abdomen never left her. It would be reasonable to expect that if her pain was at these levels she would mention it to Mr Archer and that if she had done so, Mr Archer would have recorded this. In Mr Archer's letter to Mrs Lentzner's GP dated 13 October 2006, he recorded her complaint as ongoing pelvic pain and there was no mention of abdominal pain. That her complaint was of bilateral inguinal pain was confirmed in Mr Archer's report of 9 March 2007 to Mrs Lentzner's solicitors. Mr Archer said at trial that if Mrs Lentzner had mentioned abdominal pain to him as a significant part of the history, that is something he would have recorded. His recollection was that she was more concerned by a bulge in her abdomen.
Having regard to these matters, I find that Mrs Lentzner is not a reliable historian and to the extent that Mrs Lentzner's evidence is inconsistent with contemporaneous records and other evidence, particularly from Mr Baumwol, Mr Cottrell and Mr Archer, I prefer to rely on those records and other evidence. I find that Mrs Lentzner did not experience continual pain following the surgery in July 2003, that she only commenced suffering from pain just before seeing Mr Baumwol again in March 2004, and between that time and the operation carried out by Mr Archer in November 2006, the pain from which she did suffer was not severe. On her own evidence, she was able to control the pain with medication.

Mr Baumwol is an experienced general surgeon who has been practising for 30 years. He is a fellow of the Royal College of Surgeons both English and Australian. Since 1976 he has been a clinical lecturer at UWA and an examiner with the Royal Australian College of Surgeons.
Mr Baumwol impressed me as a careful and conscientious witness who gave his evidence as best as he was able to remember.
There were a number of matters about which he had no independent recollection and relied either upon his contemporaneous notes or his usual practice. I find that Mr Baumwol was a reliable note-taker. He testified that he has a systematic way of taking a history and his practice, when he talks to patients, is to make notes at the time. I am satisfied he would have made a note if Mrs Lentzner told him anything relevant in a consultation.
In relation to Mr Baumwol's notes of the consultation he had with Mrs Lentzner on 10 June 2003, however, there were three particular matters upon which Mrs Lentzner relied to question the accuracy or reliability of those notes. These matters related to what was recorded as to Mrs Lentzner's presentation and her complaints, the amount of Panadeine Forte which Mrs Lentzner reported she was taking and the discussion of the risk of a recurrence of the hernias.
First, in relation to Mrs Lentzner's presentation it was submitted that Mr Baumwol made mistakes in his history taking, because his notes did not record the lump in Mrs Lentzner's right abdomen about which Mrs Lentzner and Mr Lentzner both gave evidence. Mrs Lentzner's counsel submitted that the recording of a lump in the groin for three years was incorrect and ought to have referred to Mrs Lentzner's abdomen. Mr Baumwol was adamant he had correctly recorded Mrs Lentzner's complaints in his notes and wrote down what he was told. His evidence was that his guide when he started a history was the GP's letter. He questioned Mrs Lentzner first about the problem in her right groin and she told him "I have a lump in my right groin that I've had for three years and it's getting larger, and it's giving me pain". Given the SKG Radiology ultrasound report dated 13 March 2000, there has obviously been some confusion in either the way Mrs Lentzner has related her symptoms to Mr Baumwol or alternatively, the way Mr Baumwol recorded what he was told by Mrs Lentzner. In my view, nothing turns on this and I make no adverse findings either against Mrs Lentzner or Mr Baumwol in this regard. In his letter to Mrs Lentzner's GP dated 13 June 2003 Mr Baumwol reported his findings, which included a small swelling in the right iliac fossa through the abdominal wall and a diagnosis on examination of an intermuscular hernia (the Spigelian hernia) in the right iliac fossa. That small swelling as described is consistent with the evidence given by Mrs Lentzner and her husband about the lump on her abdomen.
Secondly, in relation to the amount of Panadeine Forte which Mrs Lentzner was taking, Mrs Lentzner's evidence was that she was taking Panedeine Forte "only as a precaution" when her back was giving her too much trouble. Mr Baumwol recorded in his notes that she was taking six Panadeine Forte every day. No issue was taken as to Mr Baumwol's notes about the other medication that Mrs Lentzner was taking. The only issue was with his note of the amount of Panadeine Forte. Mr Baumwol gave cogent and credible evidence about the way he took his notes on this issue. He made the specific note of six per day because that was what she told him and it was highly significant for him, particularly in relation to her report of pain. He was unshaken about this in cross examination, explaining that he found three small hernias, but Mrs Lentzner's description of her pain and the amount of analgesics she was taking for pain were not compatible with his findings. I accept Mr Baumwol's evidence. I do not accept Mrs Lentzner's submission that his notes were inaccurate and that Mr Baumwol was mistaken about the dose of Panadeine Forte which Mrs Lentzner reported she was taking at that time.
In submissions Mrs Lentzner's counsel pointed to the Patient Admission Information form which Mrs Lentzner completed for the surgery undertaken by Mr Baumwol on 7 July 2003 as being consistent with Mrs Lentzner's evidence. Mrs Lentzner admitted that she took Panadeine Forte "regularly", yet she failed to disclose that as a current medication on the Patient Admission Information form. The Patient Admission Information form does not, in my view, assist Mrs Lentzner.
Finally, on Mr Baumwol's notes of the consultation of 10 June 2003 he made an entry "Risks; Recurrences", with a tick next to each word. The suggestion was made by Mrs Lentzner's counsel that these notes, towards the bottom right hand side, had been made in a different pen and thus must have been made at some later time. On my close examination of Mr Baumwol's notes, I have observed that the entries are all made in black pen. The pen colour for the entry "Risks; Recurrences" does appear to be a slightly lighter black pen, but I have noticed that there are other entries which also appear to have been made with a slightly different black pen. For example, under "PH" for past history next to the entry "Laminectomy 1997" the words "L5/S1" appear to have been made in a slightly different shade of black pen. Below that, still under "PH" there is an entry "breast implants" which appears also to be in a different shade of black. Although Mr Baumwol did not concede that the entry "Risks; Recurrences" had been made in a different pen, Mr Baumwol explained that he had a number of pens on his desk at any time and could have picked up a different one to make the note. Mrs Lentzner confirmed in her evidence that Mr Baumwol was making notes continuously throughout the consultation. Mr Baumwol said he may have completed the notes after seeing Mrs Lentzner out to reception and returning to his desk, when he also could have picked up another pen from his desk. I accept Mr Baumwol's explanation and find the entry "Risks; Recurrences" on Mr Baumwol's notes were made contemporaneously.

Mr Archer's treatment of Mrs Lentzner and his findings

It is important to set out what was found by Mr Archer in his diagnosis and treatment of Mrs Lentzner, as the opinions of the experts rely to some extent on Mr Archer's findings.
Mrs Lentzner saw Mr Archer on 4 August 2006. She reported to him that following the surgery undertaken by Mr Baumwol in July 2003 she had experienced persistent bilateral inguinal pain, worse on the right. She was at that time seeing a pain specialist, Dr Hamzah who was considering an L1 nerve injection. Mr Archer undertook a clinical examination and found a reducible recurrence consistent with a Spigelian type hernia in Mrs Lentzner's abdomen. Despite examination while standing and straining, however, he could not elicit an inguinal recurrence on either side.
Mrs Lentzner also reported to Mr Archer that she had noticed a bulge over the area of her right abdomen. At trial Mr Archer described this bulge as a moderately large diffuse bulge in the right iliac fossa which was situated nearly below where her original scar was. He found that when he got her to cough or strain there was a sensation of a localised cough impulse, but the area of the cough impulse was smaller than the diffuse bulge. The bulge was, from his memory, 5 centimetres or so in size and there was a small scar of 2 to 3 centimetres towards the upper part of that bulge.
In a report to Mrs Lentzner's GP dated 4 August 2006 Mr Archer reported his findings and Mrs Lentzner's concerns, which at that stage were the pain and that mesh was not used in her original repair. Mr Archer presumed that Mrs Lentzner's inguinal pain was due to L1 neuralgia and he suggested that she proceed with an L1 nerve injection which had been suggested by the pain specialist, Dr Hamzah. Mr Archer suggested that Mrs Lentzner undergo mesh repair of her Spigelian hernia and possibly consider an extra peritoneal mesh support on the right (inguinal area) if the pain was not helped by injection. Mr Archer explained that extra peritoneal mesh meant placing the mesh deep to the muscle layers but outside the lining of the abdominal cavity so it did not make contact with the bowel.
At the consultation on 4 August 2006 Mr Archer had arranged a colonoscopy which had disclosed early sigmoid diverticular disease and a few benign polyps, which were removed. Mr Archer saw Mrs Lentzner again on 10 November 2006 and reported to her GP on the same date. He reported that Mrs Lentzner was complaining of a burning sensation over what Mr Archer then described as the recurrent hernia, as well as her inguinal pain. Mrs Lentzner told Mr Archer that she had elected not to have the L1 nerve injection. On a physical examination Mr Archer confirmed a moderately large reducible right Spigelian hernia but again he could not detect any recurrent inguinal hernia. He planned surgery for Mrs Lentzner's abdomen and, at that stage, envisaged repairing only the Spigelian hernia. He was not keen on re‑exploring the inguinal canal until he saw what the residual pain was like.
The surgery to Mrs Lentzner was organised for 24 November 2006. Although in various reports Mr Archer set out what the surgery entailed, his final views about what he found is set out in the last report he prepared before the trial, and in his evidence at trial.
In his last report before trial dated 20 February 2009 Mr Archer said he wanted to clarify again the exact nature of the findings during his surgery in regard to what he said was being described as a recurrent Spigelian hernia:
"The ultrasound prior to surgery reported a recurrence of the Spigelian hernia which I assumed to mean that a well‑defined hernial sac was visualised passing through the muscle layers of the abdominal wall in the right lower abdomen. Clinical examination showed that the swelling in the right lower abdomen, most evident with the patient standing, was due to attenuation of the abdominal muscles and fascia. There was also a small cough impulse about 2 cm below (inferior) to the site of the surgical scar from Mr Baumwol's operation. The operative findings however were less impressive; I found a small (1 cm) separation of the inner thin muscle layer (transversalis) into which protruded extraperitoneal fat, but there was no well-formed peritoneal sac. The outer two muscle layers (internal oblique and external oblique aponeurosis) were intact and had to be opened to confirm the above finding. There was no scar tissue or suture material at this site, indicating it was below the site of Mr Baumwol's previous repair."
At trial he described what he did and found during the surgery. He placed an oblique incision in the right lower abdominal wall over the bulge with which Mrs Lentner had presented and went down to the first layer, which is the external oblique. That looked a little thinned out, or lax, but intact. After cutting through that he came to the next layer, the internal oblique. At that point, given his clinical findings and the ultrasound reports, Mr Archer expected to see evidence of a Spigelian hernia and a defect in the muscle. He could not actually see anything protruding through into that space. He decided he should really explore the deeper layers to see if he could explain the cough impulse and what had been seen on ultrasound. So he split the internal oblique. He found that the transversus fascia or muscle was very attenuated or thinned out, and saw extraperitoneal fat. At that stage he was trying to interpret whether that was a hernia or whether it was attenuation or breakdown of the inner layer. He was a little uncertain as to how to interpret those findings. He confirmed that in his previous reports he had called it both attenuation and a small hernia. Subsequently he went back and read the literature to try and interpret those findings. He said that "I think what I was looking at was the very inner layer, the transversus had attenuated and broke down in one small area, and there was some fatty tissue prolapsing through. But there was no sac...". As he had not found any well defined defect he repaired that area with sutures by restitching the internal oblique opening he had made and picking up some of the next layer to try and close that area. He then closed the external oblique and tightened that by marking out an elliptical shape on the fascia and then stitching it in a canoe shape so that it actually tightened the abdominal wall. He then placed a mesh over that whole area to reinforce it, anchoring that mesh both at the periphery and also to the centre of that closure.
In summary, and this was confirmed by Mr Archer at trial, although he expected to find a Spigelian hernia, that was not what he found when he operated.
On 5 December 2006 Mr Archer briefly reported on the surgery to Mrs Lentzner's GP and noted "interestingly Avril indicates that her previous RIF (right iliac fossa) and inguinal pain has resolved apart from a twinge over the pubic tubercle". Mr Archer confirmed this at trial, stating that he was surprised that her inguinal pain had improved. He also said he was not sure why his operation had led to such a dramatic improvement in her abdominal pain. There may have been some discomfort coming from the fatty tissue which he found protruding, but he did not think it was the whole explanation. He assumed that the improvement in her abdominal pain was because he had better supported the abdominal wall.
Mrs Lentzner in her own evidence said that after this operation by Mr Archer her pain was much improved. She was still experiencing right groin pain but her abdominal pain was, in her own words at trial "much better. That was almost gone".
Mr Archer saw Mrs Lentzner again on 14 February 2007 and reported to her GP that she was making good progress, with her previous right iliac fossa pain having almost completely resolved. She still reported discomfort in her right groin at the site of her previous inguinal hernia repair, although the pain was said to come and go. Mr Archer carried out a physical examination again and reported to Mrs Lentzner's GP that there was an intact repair with no signs of hernia recurrence in the groin. He also confirmed his initial view that her groin pain was related to an irritation of her ilio‑inguinal nerve. He said he would be reluctant to explore the site surgically as her symptoms were much more manageable now and surgery was unlikely to help. He also noted "I cannot fully explain why there has been marked improvement in her RIF" (right iliac fossa) "pain as the findings at surgery were predominantly attenuation above the previous repair".
On 9 March 2007 Mr Archer wrote to Mrs Lentzner's solicitors confirming what he previously reported to Mrs Lentzner's GP. He reported that Mrs Lentzner had indicated at both of her appointments with him on 5 December 2006 and 14 February 2007 that her previous right iliac fossa pain had almost completely resolved but she still had discomfort in her right groin. She was taking much less analgesia.
On 9 May 2007 Mr Archer reported again to Mrs Lentzner's GP after seeing Mrs Lentzner for review in regard to her inguinal pain. On this occasion he found what he described as a tender nodule in the right inguinal canal which partially reproduced her pain, "possibly a recurrence". The left groin was found to be normal. Mr Archer arranged a repeat ultrasound of her groin. The ultrasound report from SKG Radiology dated 9 May 2007 noted a small recurrent and reducible right indirect inguinal hernia as well as a reducible right femoral hernia. When reporting to Mrs Lentzner's GP by letter dated 16 May 2007 Mr Archer stated that Mrs Lentzner's pain could be originating from one or both of those hernias. He undertook a physical examination which showed what he described as a tender nodule at the mid‑inguinal point in the right, which may be a small inguinal recurrence. There was also sensation of a small amount of tissue at the external femoral canal, but not an actual cough impulse.
Mr Archer had obviously discussed further surgery in relation to both of these possible hernias with Mrs Lentzner, because in his report of 16 May 2007 he mentioned that there was enough evidence to consider a mesh repair of these, but that Mrs Lentzner would like to wait for two months until her daughter's situation had been stabilised (her daughter had been undergoing treatment for thyroid cancer at that time). Mr Archer expanded at trial why he proposed the further surgery. His thought process was that with the advent of the femoral hernia and the fact that he thought he could feel something at the femoral canal on clinical examination that was potentially a cause for groin pain as well, if he was going to repair the femoral hernia he should look at seeing whether there was a recurrent inguinal hernia and repair that at the same time, if it were present.
On 21 June 2007 in a report to Mrs Lentzner's solicitors, Mr Archer stated that the recurrent inguinal hernia had only just become palpable and was not evident on his previous examination. He said that it was likely that the right inguinal hernia represented a recurrence of the hernia previously repaired by Mr Baumwol in July 2003, but it was not possible to tell whether this was simply a protuberance of fatty tissue or a true hernial sac. This would only be determined at the time of re‑operation. In this letter he confirmed discussing with Mrs Lentzner undertaking surgery in about 2 to 3 months time. He also confirmed that Mrs Lentzner indicated that she needed to take care of her daughter first, who was unwell, and would contact Mr Archer when she was ready.
Mr Archer's evidence at trial, consistent with his report of 21 June 2007, was that the suggestion of a femoral hernia was something new. He thought he could feel something at the femoral canal on clinical examination and that potentially was a cause for Mrs Lentzner's groin pain.
On 31 October 2007 Mr Archer wrote a report to Mrs Lentzner's GP as he had again reviewed Mrs Lentzner in relation to her ongoing right groin pain. Despite getting her to cough and stand, he still could not discern a definite recurrence of the inguinal hernia and reported again that the burning nature of Mrs Lentzner's groin pain suggested ilio‑inguinal neuralgia. The ultrasound‑detected small fat containing hernias were less likely to be the source of her discomfort. He was to refer Mrs Lentzner to a pain specialist, Dr Paul Graziotti, for consideration of an L1 nerve injection as diagnostic test. If she obtained relief in that way it would not be necessary to operate. In this report he recorded that she had been suffering from depression and had seen Dr Lawrence Blumberg, psychiatrist. Mr Archer observed that Mrs Lentzner's depression ought to be under control before considering any further surgery.
In a further report dated 25 November 2007 to Mrs Lentzner's solicitors, Mr Archer advised that a definite recurrence of the right inguinal hernia could not be confirmed and although a small fatty recurrence was suspected on ultrasound, this may not be clinically relevant. Although he thought he could palpate a small recurrence in the right groin when he reviewed Mrs Lentzner on 16 May 2007, he could not confirm this on a later examination on 31 October 2007.
On 3 September 2008 Mr Archer reviewed Mrs Lentzner again and wrote a report to her GP. He set out what Mrs Lentzner had told him at that stage, which was that she had seen Mr Graziotti and "her supra pubic burning pain has improved by 80 per cent with a combination of Endep and Epilim". He noted, however, that she continued to experience intermittent pinching pain in the right groin radiating into the upper thigh, worse with bending and straining. Mr Archer's examination of Mrs Lentzner revealed a lump over the right femoral canal which reproduced most of her pain. He also recorded a trigger point in the mid‑inguinal canal which could be consistent with ilio‑inguinal nerve neuralgia. He again advised in this report that was no clinical evidence of a right inguinal hernia. Mr Archer said that he suspected that at least some of Mrs Lentzner's groin pain was related to the femoral hernia.

In his final report before trial, dated 20 February 2009, in relation to the ongoing problems with Mrs Lentzner's right groin Mr Archer said that in his opinion there was a "low probability" of a clinically significant right inguinal hernia recurrence. On several clinical examinations between 2006 and 2009 he had not been able to confirm the presence of a recurrent right inguinal hernia. He stated that there had been a small tender non‑reducible nodule in the medial end of her scar, but he was not convinced it had the features of a hernia. A recent ultrasound reported a recurrent fatty indirect inguinal hernia but other ultrasounds had been negative. There may well be a small occult recurrence, ("occult" meaning too small to reach clinical detection) but it had not become clinically apparent over a 3 year period of observation, may not progress and there were other explanations for Mrs Lentzner's groin pain. First, there was clinical and radiological confirmation that Mrs Lentzner had a right femoral hernia, which was unrelated to the previous surgery by Mr Baumwol. Secondly, the right groin pain was suggestion of nerve irritation (neuralgia), with the most likely explanation being entrapment of the ilio‑inguinal nerve. A third possible, but less likely, explanation for the pain was that it was referred from her degenerative disease of the spinal column.
With the benefit of this review of Mr Archer's findings before, during and after the operation he carried out on Mrs Lentzner in November 2006, I now address each of the issues.

Was there negligence by Mr Baumwol in the repair of the Spigelian hernia?

Having regard to all of the evidence and for the reasons which follow I find that Mr Baumwol was not negligent in his repair of the Spigelian hernia.
It is alleged by Mrs Lentzner that in the repair of the Spigelian hernia Mr Baumwol failed to "properly close the defect in the deepest layer of the right abdominal wall". This was later particularised in further and better particulars provided on 28 September 2006 as follows:
"(i)Prior to the surgery of 7 July 2003, there was a discrete 2 cm defect in the linear semilunaris in the right abdominal wall.
(ii)Such defect was not repaired at the time of the surgery and was not closed prior to the repair of the overlying abdominal wall muscle".
In relation to the repair of the defect there were two sets of medical notes of the operation.
Mr Baumwol recorded his own notes post‑operatively, which read:
"1.Repair right and left inguinal hernia (indirect sacs x 2 – left and right) – 0 nylon repair. Darn.
2.Repair right abdominal hernia (intramuscular hernia between internal/muscle and transversus abdominal muscle). Lax abdominal wall. 0 nylon repair."
Another set of operation notes, which formed part of the hospital records, was written by a junior trainee doctor who was assisting, but who was not surgically trained. While Mr Baumwol operated he gave the junior doctor a tutorial, telling him and showing him what he was finding. At the conclusion of the operation Mr Baumwol asked the junior doctor to make notes. Under the heading "Finding & Procedure Performed:" the junior doctor recorded:
"1.Ventral hernia 2^o (secondary to) thinly stretched external/fascia and transversus + int. oblique muscles
– muscle splitting incision down to peritoneum
– ext oblique fascia closed with nylon cont. sut (sutures)
– int/plus transversus opposed (with) catgut
2.Both inguinal hernias
– leunia sac opened, no bowel trapped
– transfixed sac and round ligament"
Mr Cottrell had access to the hospital operation record when he wrote an initial report dated 30 August 2005. Later, after examining Mrs Lentzner on 21 November 2005 Mr Cottrell wrote a second report, dated 6 January 2006. In this report and at trial he confirmed his findings on examination that there was Spigelian hernia. In Mr Cottrell's view, it is unusual for a Spigelian abdominal wall hernia to return, particularly in the relatively short period of time that had elapsed, if the neck of the sac is followed back to the defect at the lateral edge of the rectus muscle. Mr Cottrell explained that in repairing all hernias, you need to go back to where the peritoneum is actually protruding, that is the neck of the sac. He went on to say that if the defect had been closed with suturing, it would have taken a longer period for the Spigelian hernia to reappear.
In his report of 9 December 2008 Mr Cottrell stated that:
"I believe that any recurrence of Mrs Lentzner's hernias relates to the fact that mesh was not used to reinforce suturing of the defect, irrespective of what suture material was used."
In explaining at trial the observation "irrespective of what suture material was used" Mr Cottrell said that to close a defect permanently you rely on scar tissue and the stitches must remain to hold the sutured material in the correct position. If absorbable sutures are used, they lose their tensile strength and will not hold the repair in position for long enough. If the abdominal wall was closed or the hernia repair was done with catgut, which lasts about 10 days, that repair would not last, but if prolene mesh or nylon suturing (which is non absorbable) was used then the patient would be given permanent barrier to another hernia.
Mr Cottrell was cross examined about his initial report of 30 August 2005. In that report he noted from the hospital operation record that it appeared the defect (the origin of the Spigelian hernia) was not noted and was not closed prior to repair of the overlying abdominal wall. He said it appeared Mr Baumwol had dealt with the Spigelian hernia simply by dividing the outer muscle and splitting the internal muscles and then closing the wound. Mr Cottrell observed during his evidence at trial, however, that operation notes are "not infrequently unreliable". Mr Cottrell agreed in cross examination that the hospital operation record could be saying that Mr Baumwol made an incision and found the fundus of the sac. Mr Cottrell had made an assumption that because the notes did not mention this, Mr Baumwol did not trace the fundus of the sac back to its origin at the peritoneal level and close it, but instead had pushed the sac back and then re‑stitched.
Mr Cottrell agreed that a proper and reasonable method to repair a hernia such as this (certainly an isolated hernia) was to close the defect by effecting a darn with non absorbable nylon.
Professor Hollinshead was also given the hospital operation record and the letter from Mr Baumwol to Mrs Lentzner's GP dated 22 October 2004 but not, it appears, Mr Baumwol's own notes of the operation. In a report dated 23 April 2007 Professor Hollinshead considered that "although it is not stated, one would assume the neck and the sac of the hernia were defined". He went on:
"Dr Baumwol's operation report does not clearly state whether he was able to identify the neck of the hernia or the sac. If not identified and the hernia is not closed off by suture closure or insertion of a mesh then the hernia will recur".
Mr Baumwol described what he had done in surgery. He made an incision in the right abdomen, went through the subcutaneous fat and incised the external oblique muscle. He then went through the external oblique, through the internal oblique and between the tranversus and the internal oblique he found a very small sac, the size of a middle finger or his thumb. There were, he explained, two parts to a hernia repair, the herniotomy and the herniorrhaphy. He made a small incision into the sac to check to see if there was any bowel content. His evidence then was he did a transfixion of the sac, suturing it and tying a surgical knot so as to obliterate the sac. He said if the sac was very big "we" will cut the sac off, but that was not the case with Mrs Lentzner. That was the herniotomy part of the operation. The second part, the herniorrhaphy, was the repair of the defect in the muscle. As this was a small defect he repaired it with non absorbable "custom made mesh", which was darning, using non absorbable monofilament nylon. He referred to this as a nylon darn repair, a technique he had done many times before, and had never had a recurrence. He then closed the external oblique fascia with absorbable catgut suture, explaining that the external oblique was not an integral part of a hernia repair so "it doesn't matter what you use there".
When Mr Baumwol was cross examined about this he conceded that he had no independent recollection of all of this operation, but this was a description of his usual practice, and this was the procedure he had followed with Mrs Lentzner, based on his own operation notes. Mr Baumwol's own operation notes record that for all three hernia repairs he used "zero nylon", which is non‑dissolvable suturing. Mr Baumwol gave evidence that he had repaired many hernias over the course of his career and always did so by following his usual practice. He would always use synthetic nylon to repair. He would not just close.
Although it was accepted by all the experts that a Spigelian hernia is a rare form of hernia, this is not because it was different from any other type of hernia, but because its location is unusual. Mr Baumwol's evidence was that when repairing any hernia you are attempting to get the sac and the whole purpose is to obliterate the sac and then close the defect to reduce the possibility of recurrence. When he was cross‑examined about problems in locating the Spigelian hernia he said he had no special recollection about this but was sure that he had located the sac and wanted to, because the ultrasound which had been provided to him showed demonstrated bowel contents.
Mr Baumwol gave evidence that the hospital operation record was not correct in a number of respects. First, the junior doctor had not recorded that Mr Baumwol had located the hernial sac and then opened and transfixed it. Secondly, in the notation relating to the inguinal hernia the junior doctor had noted "no bowel trapped" which was incorrect. That notation could only refer to the abdominal Spigelian hernia because bowel content was referred to in the ultrasound and there was no evidence of any bowel content in the inguinal hernias. Thirdly, the junior doctor had transposed the names of the muscles and set them out in the wrong order. He referred first to the closing of the external oblique and then the internal oblique and transversus. The internal oblique and transversus would be closed before closing the external oblique. A fourth matter raising doubt about the accuracy of the junior doctor's notes related to what the junior doctor noted concerning the thinning of Mrs Lentzner's abdominal wall. A cartoon diagram of the abdomen showed a hatched area in the lower right side with the words "thin external oblique fascia". Mr Baumwol in cross‑examination explained that there was not a localised area of thinning or attenuation in the right abdomen. Muscles do not attenuate in one area. The laxity applied to the whole abdomen, but the junior doctor had only drawn the area where the operation occurred. What Mr Baumwol has stated concerning laxity or attenuation is consistent with the expert evidence I have set out at [25] above and I accept Mr Baumwol's evidence about this.
In light of the evidence concerning the inaccuracy of the junior doctor's notes in the hospital operation record, Mr Cottrell's evidence that operation notes are "not infrequently unreliable", and Professor Hollinshead's evidence that operation notes generally do not contain every fine detail, I find that the junior doctor's notes on the hospital operation record are not reliable and Mr Baumwol's own operation notes are a more reliable record. Having regard to Mr Baumwol's operation notes, his qualifications and experience and the way in which he gave his evidence, I accept Mr Baumwol's evidence. I find that he did follow his usual practice in repairing the Spigelian hernia and that he found the sac, transfixed it, then repaired the defect by closing it with a nylon darn, before closing the overlying abdominal wall muscle.
According to all of the medical experts who were called at trial the repair of the defect of this type of hernia in 2003 by nylon darn was an acceptable method of repair. Professor Hollinshead's evidence was that it was a standard method of repair. Mr Cottrell's view was that it was acceptable for an isolated hernia, but that mesh ought to have been used when repairing three hernias together, which is the next allegation I need to consider.

Was there negligence by Mr Baumwol in failing to use mesh in the hernia repairs?

I am not satisfied, on all of the evidence, including the expert evidence led by Mrs Lentzner, that in 2003 reasonable care required an ordinary skilled general surgeon to use mesh in the repair of Mrs Lentzner's hernias. I find that Mr Baumwol was not negligent in failing to use mesh in those repairs, for the following reasons.
There was evidence led about what was the practice at the time, in June 2003, regarding the use of mesh in hernia repairs. There was general agreement between the experts at trial that:
1.In 2003, at the time when Mr Baumwol carried out this surgery on Mrs Lentzner, the use of mesh was not as common as it is now.
2.Mesh was generally used for the repair of inguinal hernias in men, but not in women. The surgical repair of inguinal hernias in males is a more difficult operation than the repair of an inguinal hernia in a female. This is because in males it is necessary to allow room for the spermatic cord to pass through the inguinal canal. Mesh is routinely used in male hernia repair where the spermatic cord remains as a potential site of weakness. In the repair for a female it is not necessary to leave a defect to allow the spermatic cord to come through, and therefore in females the repair using a suture or darn results in a secure closure. Mr Archer's evidence at trial was that when Mrs Lentzner and her husband saw him on 4 August 2006, they were angry that Mr Baumwol had not used mesh, but Mr Archer explained to them that mesh was not always indicated, particularly with hernia repair in women. Professor Hollinshead stated that the recurrence of inguinal hernias after suture repair in female patients was rare and there had been no documented evidence that using mesh had improved what is already an excellent outcome.
3.In 2003, at the time when Mr Baumwol carried out surgery on Mrs Lentzner, there was only one generally acceptable surgical mesh available known as polypropylene, or prolene. There are better and more flexible types of mesh now available, and which Mr Archer used in his surgery on Mrs Lentzner in November 2006.
Mrs Lentzner's case was that mesh is superior to suturing alone particularly when there are additional risk factors, as it was submitted were present here, of multiple pregnancies, age and a thin and weak abdominal wall. She relied on the opinion of Mr Cottrell, who in his report of 6 January 2006 offered this opinion:
"The main feature in each of the three hernia repairs is that mesh (usually Prolene) reinforcement of the suturing was not employed, particularly since the surgeon observed that her abdominal musculature was thin and weak. Her age and past obstetrical history, together with three hernias being repaired at the same time, would all indicate that mesh should have been used….Mesh promotes extra scarring in the tissues about the sutures and gives a much stronger repair which in most cases is a permanent satisfactory result".
At trial Mr Cottrell explained that when he said that the surgeon observed that her abdominal musculature was thin and weak, he referred to what Mrs Lentzner had told him, that Mr Baumwol had made a comment either to Mrs Lentzner or to students that he had with him, that she had a particularly weak abdominal wall, "which means the muscles were thin, they were stretched and therefore she has a flabby, protruding stomach." Mr Cottrell said that would have warned him that the simple suturing of those weak structures would not be adequate. The sutures would cut through if the muscle was thin. Muscle was almost like "tissue paper" at body temperature and it is the sheath of fascia around the muscles that give it strength. If the fascia was stretched by the patient’s age and obstetrical history the repair ought to have been reinforced with mesh.
No witness, including Mrs Lentzner and her husband, gave evidence that in mid‑2003 Mrs Lentzner had a "flabby protruding stomach". Mrs Lentzner gave evidence at trial that on a visit to her in hospital following the surgery Mr Baumwol stood at the foot of her bed and said to her "Everyone was absolutely amazed. You have the abdominal muscles of a woman of 80. What have you been doing?" Mr Baumwol denied having said this and having observed him giving evidence I do not accept that he said these words to Mrs Lentzner as alleged. To the extent that Mr Cottrell's opinion depends on what Mrs Lentzner told him and that is not proved, however, I do not consider that anything turns on this, for two reasons. First, it is not in dispute, as Mr Baumwol noted in his own operation note, that Mrs Lentzner's abdominal wall was observed to be "lax", meaning weak and thinning. Secondly, the case as put by Mrs Lentzner at trial was that mesh should have been used not only because of Mrs Lentzner's thin and weak abdominal musculature, but because there were three hernias being repaired at the same time.
Mr Cottrell at trial expanded on his view that three hernias being repaired at the same time indicated to him that mesh should have been used for all three repairs. He explained that if you closed the inguinal defect it would pull the muscles downwards and out towards the hip on one side, and would do the same on the other side. The addition of a closed Spigelian hernia, which is usually a transversal crossways incision, would pull the muscle up. There were three forces working against each other, with a different pull of the muscles in slightly different directions, so there was a likelihood of stitches cutting through and allowing a recurrence. Mr Cottrell explained that mesh would reduce the tension on the tissues which are going to pull apart suturing and produce a much more vigorous scar reaction or fibrous reaction.
Mr Cottrell agreed that there were disadvantages to prolene mesh, which was the only mesh available in 2003. Prolene mesh could become infected and if it did, in spite of antibiotics and draining, frequently it would be necessary to go back and remove the mesh. That was something he had to do a couple of times over the years. Mr Cottrell still maintained that he would have used prolene mesh in 2003 for all three hernia repairs, laying it in the extra peritoneal layer for the Spigelian hernia and taking mesh onto the fascia transversalis of each inguinal canal behind the round ligament.
Under cross examination Mr Cottrell conceded that his opinion was expressed with the benefit of hindsight and he was influenced by his understanding that Mrs Lentzner's Spigelian hernia had recurred. He agreed that in 2003 the most common way of repairing Spigelian hernias was by suturing. Mr Cottrell also accepted that whether or not to use mesh was a surgical decision that had to be made at the time of operation.
Mr Archer addressed the use of mesh in a number of reports and at trial, but he did not suggest that Mr Baumwol should have used mesh to repair all Mrs Lentzner's hernias. His evidence as to the use of mesh related to the repair of the Spigelian hernia. In his report of 9 March 2007 his view was that in a patient with strong abdominal wall musculature local repair of a hernia without mesh would be acceptable, however, in the presence of attenuation of surrounding tissues, mesh repair would give a more sound repair with reduced risk of recurrence. In his view hernia repair without mesh had contributed to what he considered - at that stage - was a small recurrent Spigelian hernia. In his report of 21 June 2007 Mr Archer said that "technically" Mrs Lentzner had a recurrence of a Spigelian hernia and insertion of a mesh would have reduced hernia recurrence. However he noted that what he described as a Spigelian recurrence was a 1 centimetre herniation of pre‑peritoneal fat without a well formed sac. He identified the broader fascial attenuation (or bulge) was the largest issue contributing to Mrs Lentzner's abdominal findings. He went on to say that depending on how the mesh was applied it may not have solved the clinical problem of attenuation.

In his final report of 20 February 2009 Mr Archer stated that a local repair without mesh would be an option if there was no attenuation, the tissues were strong and the hernia localised. For a patient with weaker tissues or an ill defined defect, then mesh reinforcement would be indicated. However, Mr Archer specifically stated that in regard to Spigelian hernia "there have been differing approaches to surgical repair". He provided a publication from the Mayo Clinic in 2002 which reported on repairs of Spigelian hernia. This was a study done of 81 hernia repairs over a period between 1976 and 1997. Direct suture repair of the defect without mesh had been performed in most cases up to the time of the study (75 of 81 hernias) and in those repairs recurrences occurred in only three of those 75 (4 per cent). Mesh repair was used in only five cases and there were no recurrences. Laparoscopic repair was used in the remaining case and there was also no recurrence. Mr Archer's comment on this Mayo Clinic article was that even though no definite conclusions were drawn because of the small numbers, the technique seemed to be evolving towards mesh repair at that stage. However the final conclusion of the article's discussion is that "the type of repair is dependent on the individual situation but primary, mesh or laparoscopic techniques appear to be viable options". (Although not specifically reported by Mr Archer, the Mayo Clinic article in its opening states "mesh and laparoscopic repairs are viable alternatives to the durable results of standard primary closure".)
Professor Hollinshead in his report of 23 April 2007, when asked specifically about the allegation of negligence made by Mrs Lentzner of the failure to reinforce the hernia repairs with mesh, advised that:
"There is no one best way to repair these hernias".
In respect of these repairs producing tension, Professor Hollinshead discussed first the use of mesh in the repair of the inguinal hernias in males. In males bringing the conjoint tendon down to the inguinal ligament often resulted in some tension on the suture used to repair and reinforce the back wall of the inguinal canal where the hernia comes through. Using mesh allowed a tension free repair and the mesh is wrapped around the spermatic cord. The same situation was not a problem in the female. In cross examination at trial Professor Hollinshead stated that there was no tension in the female inguinal region so the use of mesh would not make any difference.
In relation to Spigelian hernias Professor Hollinshead confirmed these were very uncommon, had always been more difficult to repair and he was unaware of any large studies documenting the use of mesh had any advantages compared to using a suture to undertake the repair. The problem with these hernias is defining the defect which has to be repaired to control the hernia and even when they are clearly defined and repaired accurately, they do have a much higher rate of recurrence.
Professor Hollinshead advised in his report of 23 April 2007 that the use of mesh might increase the risk of wound infection. Should a wound infection develop it will often affect more than one of the wounds and if as a result the mesh also becomes infected, this can cause greater problems than would occur in a hernia that has been repaired using a suture technique. Infected mesh invariably has to be removed creating a major and more complex defect requiring more difficult surgery at a later date.
In a subsequent report of 14 August 2007 Professor Hollinshead confirmed that he was unaware of any studies showing mesh repair to be superior to suture repair in the management of Spigelian hernias. He said he personally would favour the use of a modern light weight mesh to control a large defect rather than simply relying on sutures. If it was a small defect, however, he would consider using a suture technique to repair the defect and close the wound without placing a mesh. Professor Hollinshead made the point that there were a number of options available for repairing a Spigelian hernia and in his opinion no one technique had been shown to be superior or more effective than the others.
In Mr Archer's report to Mrs Lentzner's solicitors dated 25 November 2007 Mr Archer addressed the reports of Professor Hollinshead and said:
"Overall, I believe he gives a fair and balanced opinion on the issues concerning Mrs Lentzner's hernia repairs. I agree with his comments that Spigelian hernias are difficult to diagnose, may have an ill‑defined mech, and that I am also not aware of any large studies documenting an advantage to mesh repair (because they are rare).
In his second report (14 August) he states that mesh repair should be used for a large ill defined defect but he may use suture repair without mesh for a small well defined defect. I think that is a reasonable comment, although personally I do use mesh for most abdominal wall hernia repairs."
[italics my emphasis]
Professor Hollinshead gave that opinion before he had been shown the Mayo Clinic article which was subsequently produced by Mr Archer just before the trial. At trial Professor Hollinshead specifically addressed the Mayo Clinic article, observing that in 20 years from this very large centre the vast majority of Spigelian hernia repairs were done using a suture technique. Professor Hollinshead confirmed that Spigelian hernias can vary in size. He confirmed what he had stated in his report of 14 August 2007 that if there was a small defect he did not see any need to use mesh, whether or not the patient had attenuation. For a small hernia most surgeons would repair a Spigelian hernia with a suture technique, rather than mesh, even if the patient had aging and a past obstetrical history. He would only recommend putting mesh in a large defect which is more difficult to close by suture techniques. He stated that a large defect would be something larger than 5 centimetres in size.
In Professor Hollinshead's view it did not matter that in Mrs Lentzner's case there were three hernias being repaired at the same time. The information indicated that repairs in female inguinal hernias are very successful with a simple suture technique and he did not see any need to put mesh in that situation. In relation to the Spigelian hernia, Professor Hollinshead stated that the fact that Mrs Lentzner had a thin and weak abdominal musculature would make no difference to whether to use mesh or suturing. Poor abdominal musculature was not something he associated with an increased risk of herniation, with many people having weak abdominal musculature never going on to develop hernias. Professor Hollinshead said he would be more inclined to stay with the suturing technique because he did not think mesh was going to add anything to help with her problem in terms of hernias. Poor tissues might come into play if the muscles would not hold the stitches well but he clarified that it was very uncommon to find tissues that will not hold.
Professor Hollinshead gave evidence that the way he repaired hernias was using open surgery but with the assistance of a laparoscope to make it easier for him to be able to define the defect and hernial sac. His own evidence was that this was something that he had developed and not what the majority of his colleagues did. When cross‑examined about this he gave the following evidence:
"That's my main approach and I am not claiming that someone else should be using it, that is something that individual surgeons have to make up – make their own minds up about, how they undertake operations because we don't follow a set line of – we have all got our own techniques and we all have got our own ideas how to do things."
[italics my emphasis]
Mr Minchen in his report dated 25 October 2006, which he confirmed at trial, advised that he also thought it was reasonable not to use mesh when the hernias were small and that would particularly apply to the Spigelian hernia. Mr Minchin gave evidence that the fact that Mr Baumwol was repairing three hernias at once did not mean that he should not have used nylon darn. As nylon darn was tension free, that overcame any issues regarding tension (as raised by Mr Cottrell).
An issue arose in the course of the exchange of expert reports as to where, if mesh had been used, it ought to have been placed. Mrs Lentzner was viewed by all experts as an anxious patient and it was thought that there might be an issue about her feeling the mesh if it had been used in the repair. (This issue arose because a letter of instructions from Mr Baumwol's solicitors to Professor Hollinshead referred to a statement said to have been expressed by Mr Baumwol that at the time when considering options he thought Mrs Lentzner may have felt mesh.)
Mr Cottrell gave evidence that he would place the mesh extra‑peritoneally, outside the peritoneum but below the muscle. That would achieve a deep layer of mesh which the patient would not be able to feel, would act as a barrier to the hernia and would result in virtually no risk of adhesive problems from the bowel.
Professor Hollinshead similarly believed that the mesh would have to be put in the pre‑peritoneal plain, in behind the muscle layers. In Mrs Lentzner's case, the Spigelian hernia was small. To use mesh to repair a defect of that size one would have to dissect around the neck of the hernia, define it, and split it open further on both sides to be able to get in behind everything so as to get a space in which to put the mesh. Once you made the defect bigger it would start to cause more damage to the tissue leading to a more complex operation with more risks than simply closing a small defect with a suture. A suture technique was, in these circumstances, all you would need.
Mr Archer addressed this issue of where mesh, if used, would need to be placed, in his report of 25 November 2007, which he confirmed at trial. He agreed that whether the mesh could be felt was an important consideration in an anxious patient, however, it was only an issue when the mesh was placed as an "on‑lay" over the external oblique (which he had done with her operation in November 2006), than when it is placed at a deeper level as suggested in the opinions of Mr Cottrell and Professor Hollinshead. Mr Archer said that it was for this reason that he used newer softer composite mesh, which had only been available on the market in Australia for the last two years or so. In his view the patient would be less likely to feel prolene mesh placed at a deeper level.
At trial Mr Archer gave evidence that when he performed the surgery on Mrs Lentzner in 2006 he used a modern mesh as an on‑lay mesh, that is, the placing of mesh on the muscle or fascial layer with fat and skin over the top of it. Although the mesh that he used in that operation was not available in 2003, Mr Archer said that if he was undertaking the same procedure in 2003 he would have used the standard mesh that was available, and used it as an on‑lay mesh. This evidence relates to the situation in which Mr Archer was operating in November 2006.
I must not use the benefit of hindsight when considering what an ordinary skilled general surgeon in the position of Mr Baumwol in 2003 ought to have done when operating on Mrs Lentzner's hernias. I must also not judge the situation by asking whether the use of mesh might have avoided the risk of recurrence (assuming that it has been shown that there was a recurrence, which I will address later). I must determine whether an ordinary skilled general surgeon in 2003 ought to have used mesh in the repairs of these three hernias.
Having summarised the evidence of all the experts, there is a division of opinion between them as to whether or not mesh ought to have been used in Mrs Lentzner's situation. I find that the evidence from the experts establishes that whether to use mesh in these repairs involves a matter of clinical judgment on which reasonable minds might differ: see Juengling v Wells [2009] WASCA 125 at [73].
Mr Cottrell was the only expert to advocate the use of mesh for the repairs of all three hernias. I find that Mr Cottrell's conclusion was made with hindsight, based on the assumption that Mrs Lentzner's Spigelian hernia and right inguinal hernia had recurred.
The weight of the expert evidence, including Mr Cottrell's initial report of 30 August 2005, shows that the use of mesh was not required for the repairs of Mrs Lentzner's inguinal hernias.
As to the use of mesh in the repair of Mrs Lentzner's Spigelian hernia, the opinions of each of the experts differ to some extent. To the extent that they do differ, I prefer the evidence of Professor Hollinshead, that mesh was not required for the repair of a small defect, which Mr Archer acknowledged was reasonable, and which was also Mr Minchin's view. I find that Mrs Lentzner's Spigelian hernia was a small defect. I also prefer the evidence of Professor Hollinshead that the fact that Mrs Lentzner had a thin and weak abdominal musculature would make no difference to whether to use mesh or suturing.
Finally, the Mayo Clinic article reported in 2002 that primary repair (without mesh) of Spigelian hernias provided durable results and although the type of repair is dependent on the individual situation, primary, mesh or laparoscopic techniques were all viable options.
Accordingly I find that reasonable care did not require Mr Baumwol to use mesh in his operation on any of Mrs Lentzner's hernias in July 2003 and that Mr Baumwol was not negligent in failing to use mesh.

Was there negligence by Mr Baumwol in failing to ensure Mrs Lentzner was provided with PCA following the operation?

I find that Mrs Lentzner has failed to prove any negligence on the part of Mr Baumwol in failing to ensure that she was provided with PCA following the operation, for the following reasons.
Mrs Lentzner claimed that during her first consultation with Mr Baumwol on 10 June 2003 she asked him if she could have a pain pump and he nodded and said nothing. Mrs Lentzner's evidence on this was not supported by the evidence of her husband who was present at this consultation. Mr Lentzner's recollection was that his wife was concerned about the time which she would need to take off work following the operation. In his evidence of what occurred during this consultation Mr Lentzner made no mention of his wife requesting a pain pump.
Mr Baumwol gave evidence that Mrs Lentzner never asked him personally for a pain pump, or as he and the experts referred to it, PCA. If she had he would have written it down and told her he would have to discuss it with the anaesthetist.
Mrs Lentzner admitted that after the surgery performed by Mr Baumwol in July 2003, while she was in hospital, she did not raise the issue of the pain pump with Mr Baumwol. I would expect that if Mrs Lentzner had previously asked Mr Baumwol for PCA, and then after surgery did not receive PCA, she would have raised that matter with him.
Having regard to the evidence from Mrs Lentzner, her husband and Mr Baumwol, I find that Mrs Lentzner did not ask Mr Baumwol for PCA. I accept Mr Baumwol's evidence that he would have written it down in his notes if she had mentioned it. It may be that Mrs Lentzner expected PCA would be provided during her surgery, as it had during the 1997 surgery for her back, however, I find that this was not a matter which she raised with Mr Baumwol at the time.
Even if I had accepted Mrs Lentzner's evidence that she had requested PCA during her consultation with Mr Baumwol on 10 June 2003, this does not mean that because she was not provided with PCA, Mr Baumwol was negligent. The evidence at trial from all the experts was that a PCA was not required for this operation and that although a surgeon may have some input into post‑operative analgesia, it is the anaesthetist who is responsible for prescribing that analgesia.
Mr Cottrell gave evidence that even with three wounds, the pain levels for Mrs Lentzner's hernia operation would not have justified setting up a PCA. He described PCA as the "Rolls Royce" of pain relief and said it would be very unusual to use a machine in that set up for someone having a hernia repair. He said that because of her perception of pain, low threshold and dramatic presentation you might anticipate that Mrs Lentzner was going to need stronger analgesia than most would need for this surgery, but he said "I certainly would not have prescribed PCA". His evidence was that if Mrs Lentzner had been his patient and asked for PCA he would have explained she was unlikely to get PCA, that the nurses and anaesthetist decide who gets PCA and the surgeon has little input into that.
Professor Hollinshead's evidence was that in his practice, a PCA is not used following hernia repairs and he could not remember ever seeing PCA used following a hernia repair. Professor Hollinshead gave evidence that PCAs are generally not a surgeon's responsibility. A PCA involves an intravenous agent, and invariably the responsibility for a PCA is the anaesthetist's, because the consequences or the risks of the PCA and the complications of it are an anaesthetic problem rather than a surgical problem.
Mr Minchin's evidence, in his report dated 25 October 2006, was that he could not recall a single case from his practice where a PCA was necessary after hernia repair and, although Mrs Lentzner had three hernia repair wounds which would have increased her post-operative pain, it would be reasonable to expect that this pain could be controlled with analgesics. Mr Minchin's evidence was also that the decision to give a patient PCA post operatively was usually made by a combination of the surgeon and the anaesthetist.
Mr Archer addressed the issue of PCA in his report of 20 February 2009 and stated his agreement that PCA is not usually used for small hernia repairs. Mr Archer gave evidence that when Mrs Lentzner underwent surgery in November 2006, PCA was arranged for her by his anaesthetist.
Professor Hollinshead in his report dated 23 April 2007 reviewed in detail Mrs Lentzner's charted analgesic following the operation in July 2003. Professor Hollinshead's evidence was that most people following hernia repairs experience the worst pain in the first 24 to 48 hours and during that period Professor Hollinshead observed that Mrs Lentzner received more than the usual analgesics that his patients would receive post-operatively.
In this case Mrs Lentzner gave evidence that she told Mr Baumwol "continuously" that she was in pain, but in light of the objective evidence about Mrs Lentzner's levels of pain which I have discussed at [57] and [58] above, I find her evidence about this to be unreliable. I find that Mrs Lentzner was not experiencing any level of severe pain in the days following the surgery in July 2003. The nursing notes and Mrs Lentzner's evidence in cross examination confirm that once Mrs Lentzner received the analgesia which had been prescribed for her by the anaesthetist, which was limited after her anxiety attack on Day 2 to Panadol, her pain was controlled.
I find that there was, in these circumstances, no need to increase either the dose, frequency, or intensity of pain relief for Mrs Lentzner, either by means of PCA or otherwise.
Even if she had asked Mr Baumwol about PCA following the surgery while she was in hospital, whether or not Mrs Lentzner would have been provided with PCA was not Mr Baumwol's decision. Although the surgeon may have some input, the decision to provide PCA is made by the anaesthetist.

Was there negligence by Mr Baumwol in failing to advise about the risk of recurrence and that the risk could be reduced if mesh was used?

Generally the duty to advise extends to information that is relevant to a decision or a course of action which, if taken, entails a risk to the patient from the treatment or procedure proposed. Cases dealing with the failure to properly advise the patient have related to a situation where the patient has not been advised or warned of the possibility of adverse effects of the proposed treatment, suffers an identifiable risk of that treatment and so the issue is whether, if properly advised as to the risks, the patient would have undergone that treatment at all: see Rogers v Whitaker. This is not such a case. Mrs Lentzner would have always undergone surgery for her hernias. What Mrs Lentzner argues is that Mr Baumwol ought to have discussed the use of mesh with her as a treatment option and if he had informed her about the option of using mesh, she would have taken that option and achieved a better outcome.

There are two matters relevant to this allegation of negligence which I need to determine. First, I have to determine whether Mr Baumwol failed to advise Mrs Lentzner of the risk of recurrence of her hernias. Secondly, as it has been admitted that Mr Baumwol did not discuss with Mrs Lentzner that the risk of recurrence could be reduced if mesh was used, I have to determine whether that is something that he ought to have discussed with her.
Mrs Lentzner claimed that Mr Baumwol did not advise her, at her consultation with him on 10 June 2003, that there was a risk that her hernias would recur. Mr Lentzner was really unable to recall much of what was discussed. He gave evidence of Mrs Lentzner's concern about how long she was going to be off work and Mr Baumwol's explanation that he could not do laparoscopic surgery and that she would have three incisions. Mr Lentzner was then asked whether Mr Baumwol said anything else in relation to what was involved in the surgery and his answer was "no. He said nothing".
Mr Baumwol, on the other hand, gave evidence that he had warned Mrs Lentzner at the consultation on 10 June 2003 that the hernias might recur and that he had a specific recollection of discussing this with her. Her history of constipation, the taking of Panadeine Forte which increases constipation, her history of smoking which increases coughing and her history of having undergone a laminectomy were all factors which would increase intra‑abdominal pressure or strain on her abdomen and thus increase the risk of recurrence. He said it was very unusual for a patient to present with three hernias and he told her that that he believed these factors explained why she had three hernias, and that these same factors might cause a recurrence of the hernias. There was also an entry on Mr Baumwol's contemporaneous notes of this consultation stating "Risks; Recurrences", both of which had been ticked, which indicated that he had given the warning. I have already addressed the issue of whether this entry had been made contemporaneously, and I have found that it was. Mr Baumwol at trial expanded on how the entry "Risks' Recurrences" refreshed his memory, and he had a memory of discussing with her the usual risks of an operation and the issue of recurrences.
Having regard to all of the evidence I find that Mr Baumwol did warn Mrs Lentzner of the risk of recurrences.
As to the use of mesh and whether that ought to have been discussed with Mrs Lentzner, Mr Baumwol gave evidence about what he told Mrs Lentzner about the surgery, which included that he would use non‑absorbable material to close the hole in the muscle and whether that was done with a nylon darn or a piece of mesh depended on what was found at the time of operation.
Mrs Lentzner's evidence was that Mr Baumwol did not mention mesh to her at all and that the first she heard about mesh was later, when she saw another surgeon, Mr Goodman.
In closing submissions Mrs Lentzner's counsel took no issue with Mr Baumwol's evidence that he had mentioned mesh to Mrs Lentzner. The submission was made that Mr Baumwol did not warn or advise in relation to the use of mesh but only mentioned, in passing, according to his evidence, that he might use sutures or mesh.
I consider that, having mentioned mesh, Mr Baumwol ought to have discussed with Mrs Lentzner what the use of mesh involved and, in 2003, the risks relating to the use of mesh. Those risks included the possibility of infection. There was also the possibility that she might feel that mesh, depending on where it was placed and in my view, that ought to have been discussed with her. It ought to also have been explained to Mrs Lentzner that, as was the evidence, the decision on whether or not to use mesh would be made depending on what Mr Baumwol found in the operation. I consider that these matters ought to have been discussed, even if Mrs Lentzner did not ask about them. Even where no specific inquiry is made by the patient, there is duty to provide the information that would reasonably be required by a person in the position of the patient: Rogers v Whitaker per Gaudron J at 493.
On Mrs Lentzner's case, however, the real issue is whether Mr Baumwol needed to go further and advise her that the risk of recurrence could be reduced by the use of mesh. In my view, Mr Baumwol did not have to go so far to advise Mrs Lentzner of this.
As I have already found, the use of mesh was not required in repairing inguinal hernias in women. The use of mesh in the repair of a Spigelian hernia depended upon the size of the defect and was, as even Mr Cottrell agreed, a matter for the operating surgeon at the time of operation. The Mayo Clinic article did not suggest that the use of mesh reduced the risk of recurrence of a Spigelian hernia so significantly that it was a matter which needed to be brought to the attention of patients. That Mayo Clinic article and Professor Hollinshead's evidence show that at the time in 2003, there were a number of options available for repairing a Spigelian hernia and no one technique was considered to be more superior than the others.
I am therefore not satisfied that Mr Baumwol was negligent by failing to advise Mrs Lentzner that the risk of recurrence could be reduced if mesh were used in repairing her hernias.

Was there negligence by Mr Baumwol in failing to advise Mrs Lentzner to have the attenuation surgically repaired with mesh at the same time as the hernias?

In relation to this allegation an issue first arises as to whether, at the time Mrs Lentzner consulted Mr Baumwol in June 2003, she in fact had an attenuation, as defined in the statement of claim, that is, a lump or bulge in the right abdominal area, in addition to a lump referrable to her Spigelian hernia.
There was no dispute that such an attenuation, that is a lump or bulge, was found by Mr Archer on his examination of Mrs Lentzner in 2006, but this was three years after Mr Baumwol's surgery. Mr Archer wondered whether the attenuation which he found in 2006 had been present back in 2003, because of the diagram made by the junior doctor on the hospital operation notes, highlighting an area on the right hand side of Mrs Lentzner's abdomen with the words "thin external oblique fascia". Mr Archer said that this suggested there was a diffuse protuberance or bulge at that site.
As I have already addressed when discussing the accuracy of the hospital operation record, the junior doctor's diagram showing the hatching on the right side of the abdomen is only representative of the area on which Mr Baumwol operated. The thinning or attenuation in this diagram applied to the whole abdomen, but the junior doctor had only drawn on the area where the operation occurred.
Although that diagram has been explained, it is still necessary to review the evidence concerning Mrs Lentzner's complaints, how she presented to Mr Baumwol and what he saw and found on examination in June 2003, to determine whether there was a lump or bulge in addition to the Spigelian hernia.
Mrs Lentzner's evidence, and that of her husband, was that she had small bulge in her abdomen, and that her husband was concerned because it was getting bigger, which prompted the plaintiff in 2003 to go back to her GP. That bulge which Mrs Lentzner and her husband found is consistent with a hernia. As described in the RACS pamphlet the sac of a hernia "can usually be seen as a bulge under the skin when the patient is standing up" and that a hernia usually gets worse with time. The bulge which Mrs Lentzner and her husband described is also consistent with the report by Mr Baumwol in his letter to Mrs Lentzner's GP of 13 June 2003 of a small swelling in the right iliac fossa through the abdominal wall, together with the finding on examination of an inter-muscular hernia in that region. Mr Baumwol gave evidence that he did not see the surface lump in her abdomen but could feel a lump on examination.
This must be compared with the evidence of what Mr Baumwol found on his review of Mrs Lentzner on 10 May 2004. He made a diagram of the abdomen with an area marked on the right hand side and a note "bulge at scar site but no muscle defect". That was, of course, some time after the July 2003 operation. Mrs Lentzner did not see Mr Baumwol again, but returned to her GP and saw a number of other people, including Mr Cottrell and Mr Archer.
Mr Cottrell gave evidence that when he saw Mrs Lentzner in November 2005 he saw she was bulging more on the right side of the lower abdomen than on the left. He said this bulging appeared to be consistent with a cough impulse he could feel and may have been exaggerated by the fact she had scar tissue just above, therefore the bulge appeared more obvious from the previous hernia repair. Later in cross‑examination he stated that if an abdomen does bulge at one point, and it is not a hernia, it just means the muscle is weaker there and there is a scar or something nearby that has made it weaker.
I find, on all of the evidence, that in 2003 when she consulted Mr Baumwol, Mrs Lentzner did not have an attenuation, that is a lump or bulge in her right abdominal area (as defined in the statement of claim), in addition to the lump associated with the Spigelian hernia. I find that the bulge on which Mr Archer later operated in November 2006 was a subsequent development.
Even if it were the case that an attenuation was present in Mrs Lentzner's abdominal wall in June 2003, the evidence from all experts was that attenuation is a cosmetic problem only, does not produce pain, does not pre-dispose to complications and there is no requirement for treatment for attenuation.
Mr Cottrell's evidence was that most attenuation would be accepted and the patient reassured because it is just wear and tear and thinning of the muscle. Attenuation did not call for surgery and in his opinion it was unwise to tackle it surgically because you rarely get much improvement. His advice to a patient with an attenuation would be to lose weight and "they rarely come back in that situation".
Professor Hollinshead's evidence was that if a patient came to him with a hernia, he would focus on repairing the hernia and if there happened to be attenuation that would not be an important issue. If a patient presented only with attenuation he would reassure them that this was not a surgical problem. He would not recommend surgery.
Mr Minchin in his report of 9 March 2009 also confirmed that surgery for an attenuated abdominal wall is unnecessary except for cosmetic purposes.
The expert evidence is consistent with Mr Baumwol's evidence when asked in cross examination about this, given the observation in his own operation notes about the laxity of Mrs Lentzner's abdominal wall. Mr Baumwol's answer was that he was operating on a hernia. He was not going to fix any laxity or thinness in the muscle and he did not operate for that. If that was the problem he would send the patient to a cosmetic or plastic surgeon. I accept Mr Baumwol's evidence about this.
As attenuation does not require surgery, even if there had been an attenuation present in June 2003 when Mrs Lentzner consulted Mr Baumwol, I find that there was no need to warn or provide advice to Mrs Lentzner about having the attenuation surgically repaired with mesh.
The fact that Mr Archer in November 2006 did operate on Mrs Lentzner's attenuation using mesh does not, in my view, support Mrs Lentzner's claim on this ground. Mr Archer in his evidence explained why he attended to Mrs Lentzner's attenuation. He did it because the surgical findings of what he called a recurrent Spigelian hernia were "fairly subtle" and in a fairly small location and they did not explain the five centimetre area of protuberance. He considered that if he did not give attention to tightening the abdominal wall, when Mrs Lentzner woke up, she would have the same protuberance as she had before, so he thought it was important to imbricate and tighten that because that was the major source of Mrs Lentzner's abdominal swelling.
I find that there was no negligence by Mr Baumwol in respect of this allegation of a failing to advise Mrs Lentzner to have the attenuation surgically repaired with mesh at the same time as the hernias.

Was there negligence by Mr Baumwol in failing to surgically repair the attenuation with mesh?

It also follows from my findings that there was no negligence in respect of the previous allegation, that there was no negligence by Mr Baumwol in failing to surgically repair the attenuation with mesh.

Causation – was there a recurrence of the Spigelian hernia?

I am not satisfied on the evidence that there was a recurrence of Mrs Lentzner's Spigelian hernia.
This issue is dependent on what Mr Archer found on Mrs Lentzner's surgery in November 2006, as set out in his report of 20 February 2009 and his evidence at trial, which I have set out in [80] to [82]. In summary, although in his earlier reports Mr Archer had suggested there had been a recurrence of the Spigelian hernia, that was not what he found when he operated. Mr Archer did not find a definable sac, but extra‑peritoneal fat. Further, where he operated was 2 centimetres below the side of the surgical scar from Mr Baumwol's operation and at that site there was no scar tissue or suture material, but there was fresh tissue, so this indicated that this was not the site where Mr Baumwol had operated.
In the light of Mr Archer's report of 20 February 2009 Mr Cottrell agreed in cross examination that there had been no confirmation that in the area of the abdomen there had been a recurrence of the Spigelian hernia, and that it may have been a new hernia. Both Professor Hollinshead and Mr Minchin were of the opinion, based on Mr Archer's report of 20 February 2009, that what Mr Archer found was not a recurrent Spigelian hernia.
At trial Mr Archer said that although he found only extra‑peritoneal fat, that prolapse of fat could be classed as an "early hernia". In addition, Mr Archer stated that whether or not this was a "recurrence" of the Spigelian hernia operated on by Mr Baumwol depended on the definition of the term "recurrence". He suggested that when talking about recurrence, it may not be exactly at the same site of the previous scar, but it may be in the general region.
Professor Hollinshead was taken to Mr Archer's report of 20 February 2009, as well as the evidence that Mr Archer gave at trial on these issues. Professor Hollinshead gave evidence that the description by Mr Archer of finding a "1 centimetre separation of the inner thin muscle layer (transversalis) into which protruded extra-peritoneal fat, but there was no well formed peritoneal sac" did not sound to Professor Hollinshead to be a hernia. His evidence was that most hernias are of a reasonable size and in the case of the Spigelian hernia there is usually a definite lump. Having regard to Mr Archer's findings Professor Hollinshead's view was "it's very hard to make it into a hernia". He said it may be an early hernia but everyone has extra-peritoneal fat which can easily pop up and be sitting there without having a hernia attached to it. A hernia relates to having a defect through which the peritoneal lining will come through. Fat coming through is not important in terms of abdominal hernias and was not of clinical significance in the absence of a peritoneal sac. A small fatty defect was really not a true hernia.
I accept Professor Hollinshead's evidence that what Mr Archer found was not a hernia. Professor Hollinshead's evidence is supported by the texts and evidence I have discussed above at [17], [18] and [20]. It is also supported by Mr Archer's own reports when he was discussing whether Mrs Lentzner's right inguinal hernia had occurred. In particular, in his report of 25 November 2007 he advised that "although a small fatty recurrence is suspected on ultrasound, this may not be clinically relevant" and again in his report of 25 February 2009, when discussing ultrasounds, he stated "while ultrasound is a useful tool for diagnosing hernias, it often reports small fatty protrusions that are simply extra-peritoneal fat bulges into the ingoing canal that may be clinically irrelevant to the patient's symptoms. I believe all surgeons have operated on patients with groin symptoms where an ultrasound reports a hernia but none is found". That was the situation with Mrs Lentzner's abdomen - what was found was extra-peritoneal fat and no hernia.
Professor Hollinshead also gave evidence that a "recurrence" means that the hernia has returned. In other words, the sac has come out, either through where the surgeon has originally repaired it or through a tear where a stitch has been placed in that original repair. That is consistent with Mr Cottrell's evidence when he discussed the use of mesh: see [118]. I accept Professor Hollinhead's evidence and, having regard to what Mr Archer found, I find that there was no recurrence in the sense of the return of the original hernia operated on by Mr Baumwol.
As to Mr Archer's suggestion that a recurrence could occur in the region of Mr Baumwol's repair, Professor Hollinshead's opinion was that there was nothing to suggest that Mr Archer was operating in the same area as where Mr Baumwol had operated. He observed that if a surgeon has used non‑absorbable stitches to repair the hernia, you will find those stitches there. Anything away from the stitched area, but close by, would be a recurrence in the sense it is in the same area, but whether it was due to the original repair or was a new hernia would be difficult to judge. Professor Hollinshead explained that a Spigelian hernia can come out anywhere along the Spigelian line and it was possible that what Mr Archer found was a new hernia (if it was a hernia), which came out a little lower than the one operated on by Mr Baumwol. I accept Professor Hollinshead's evidence on this point, and having regard to Professor Hollinshead's qualifications and experience, I prefer his explanation of what is a "recurrence" over Mr Archer's.
I find there was no recurrence of Mrs Lentzner's Spigelian hernia as operated on by Mr Baumwol in July 2003 because:
1.What Mr Archer found in the November 2006 operation was not a hernia, but a fatty protuberance amongst the breaking down of Mrs Lentzner's transversus muscle layer. There was no hernial sac.
2. There was no "recurrence" in the sense that the Spigelian hernia originally operated on by Mr Baumwol had returned. In other words, the sac had not come out, either through where Mr Baumwol had originally repaired it or through a tear where a stitch had been placed in that original repair.
3.That fatty protuberance was found in an area below and away from the area where Mr Baumwol had operated in July 2003. As Mr Archer found no scar tissue or suture material when he operated in November 2006, he was not at or near the site of Mr Baumwol's previous repair.
If I am wrong about my conclusion that there was no recurrence of the Spigelian hernia, having regard to the evidence of Mr Archer and in particular his reports of 25 November 2007 and 20 February 2009, I am not satisfied that the "fatty hernia" or what Mr Archer termed the "early recurrence" of the Spigelian hernia which he found in the operation of November 2006 in fact caused or materially contributed to Mrs Lentzner's abdominal pain. In his report of 20 February 2009 Mr Archer stated:
"So even though this was an early recurrent Spighelian hernia, it is difficult to know how much it contributed to Mrs Lentzner's iliac fossa pain. As stated before, there was this weakness and thinning of the tissues for several cm around this (attenuation) giving rise to the large clinical bulge. After this was imbricated (tightened) and mesh reinforced, most of Mrs Lentzner's pain resolved, so presumably the protrusion and stretching of the attenuated areas was the cause of her pain at this site".

Further, I find that even if mesh had been called for in the repair of Mrs Lentzner's Spigelian hernia in 2003, the weight of the expert evidence on the basis of the opinions of Mr Cottrell and Professor Hollinshead was that an ordinary skilled general surgeon in 2003 would have placed this mesh in the deeper layer of Mrs Lentzner's abdomen in order to reinforce the defect, rather than place the mesh using the on-lay method later used by Mr Archer. As stated by Mr Archer in his report of 25 November 2007, the placement of mesh in this way would not have avoided the subsequent problem of Mrs Lentzner's attenuation as found by Mr Archer in 2006, and her consequent pain. As I have already discussed, any attenuation or thinning of Mrs Lentzner's abdominal wall as existed in July 2003 did not call for surgical intervention to, as Mr Archer later did, tighten all of Mrs Lentzner's external oblique and use on-lay mesh. There were particular reasons why Mr Archer undertook this tightening of Mrs Lentzner's abdomen by the use of on-lay mesh in November 2006, which were not in existence when Mr Baumwol operated on Mrs Lentzner in 2003.
Accordingly, even if Mr Baumwol had been negligent in his repair of Mrs Lentzner's Spigelian hernia either because of his failure to properly close the defect or because of the failure to use mesh, I find that Mrs Lentzner has not proved that negligence to have caused or materially contributed to the damage she has suffered.

Another issue regarding the recurrence of the Spigelian hernia - Jones v Dunkel

In closing submissions counsel for Mrs Lentzner submitted that I should find that when Mr Baumwol operated on the Spigelian hernia and closed the defect he had not in fact used non absorbable nylon darn but had instead used catgut or absorbable stitches. Reliance was placed on the hospital operation record which recorded:
"ext oblique facia closed with nylon cont. suture
int oblique + transversus closed with catgut".
Counsel for Mrs Lentzner submitted that catgut, or dissolvable sutures, were used in the deeper layers and the nylon was only used in the outer layers. It is evident that this submission was made as a result of Mr Archer's evidence that when he had operated on Mrs Lentzner's abdomen in November 2006 to repair what he then thought was a recurrence of the Spigelian hernia, he did not find any hernia repair, sutures or scar material. The submission was that if it was the case that catgut was used to close the defect, this explained why Mr Archer did not find sutures or scar material. The absence of sutures was explicable if catgut was used because those sutures would have dissolved. Mrs Lentzner's counsel admitted that the only evidence Mrs Lentzner had that Mr Baumwol did use dissolvable sutures when repairing the hernia was the hospital operation record.
Allied with this submission, counsel for Mrs Lentzner in closing submitted that Mr Baumwol ought to have, but failed, to call the junior doctor who made the hospital operation record to give evidence and explain the conflict between those notes and Mr Baumwol's own operation notes and in not doing so the rule in Jones v Dunkel (1959) 101 CLR 298 ought to be applied against Mr Baumwol.
The rule in Jones v Dunkel (supra) provides that an unexplained failure by a party to call a witness or other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case. However, the rule in Jones v Dunkel applies in favour of and against both Mrs Lentzner and Mr Baumwol. It does not apply to the non-calling of a witness by Mr Baumwol unless Mr Baumwol might reasonably be expected to call that witness: see "Cross on Evidence" 7^th Australian Edition, JD Heydon, at [1215] and Payne v Parker (1976) 1 NSWLR 191 at 200 – 202. In this case was equally open to Mrs Lentzner to call the junior doctor to give evidence. What Mrs Lentzner's counsel put in submission, however, was that because Mr Baumwol was seeking to discredit the junior doctor's notes, it was not for Mrs Lentzner to call the junior doctor.
Whether the failure to call a witness gives rise to any inference depends upon a number of circumstances. These were recently summarized by Owen J in Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 225 FLR 1 at [999] to [1022]. The failure to call the witness may be significant if there is a close relationship between the absent witness and the party who did not call the witness, but I do not consider that to be the case here. Mr Baumwol explained in cross‑examination how the junior doctor came to be there. The significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so.
Further, the rule only applies where a party is "required to explain or contradict" something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of the evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer: see Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (supra) at [1012].
Until these closing submissions, it had not been raised by Mrs Lentzner that Mr Baumwol had used catgut or absorbable stitches to close the defect. It was not the way Mrs Lentzner's case was pleaded. As I have already set out, the particulars of the allegation of negligence in respect of the failure to properly close the defect were confined to the fact that there was a discrete 2 centimetre defect which had not been closed prior to the repair of the overlying abdominal wall muscle. It was not alleged that catgut had been used in the repair of the closure of the defect. Counsel for Mrs Lentzner argued that the particulars provided were wide enough and had always been understood to mean the fact that Mr Baumwol had used catgut and not polypropylene or nylon. I do not accept that to be the case and I did not understand that to be the way Mrs Lentzner's case was run at trial.
I would be precluded from making any finding as to a matter which was not part of the case that Mr Baumwol was required to meet and where no opportunity was given to Mr Baumwol to meet such a case: J‑Corp Pty Ltd v Coastal Hire Pty Ltd [2009] WASCA 36 at [78] to [82].
It is the case that during the trial there was some reference to the use of absorbable material to close the defect, something which I have discussed at [103] above. It was, however, never put to Mr Baumwol that he closed the defect with catgut. The only passage in the cross‑examination of Mr Baumwol which raised the use of catgut was when he was asked if what was recorded in the hospital operation record was information that he provided (T585).
In these circumstances I am not prepared to draw any adverse inference against Mr Baumwol for the failure to call the junior doctor who made the entries in the hospital operation record. It could not be inferred that the reason why the junior doctor was not called by Mr Baumwol was because he feared to do so. The differences between the notes made by the junior doctor and those made by Mr Baumwol have, in my view, been adequately explained.
As the evidence unfolded during the trial, Mr Baumwol did give evidence that he used non-absorbable nylon to close the defect, a matter which is supported by Mr Baumwol's own operation notes, and I have accepted that he did use non-absorbable nylon.

Causation – was there a recurrence of the right inguinal hernia?

I am not satisfied on the evidence that Mrs Lentzner's right inguinal hernia has in fact recurred.
Although Mr Cottrell, following his examination of Mrs Lentzner in November 2005, concluded that there had been a recurrence of the right inguinal hernia, his evidence was that it was very small and although on clinical examination he felt an impulse, nothing emerged through that area.
Mr Archer then took over the management of Mrs Lentzner and although some of the ultrasounds taken suggested fat herniation in the right inguinal canal, he could not elicit an inguinal recurrence at two of Mrs Lentzner's visits on 4 August 2006 and 10 November 2006, and he stated that there was no clinical evidence of a recurrent inguinal hernia.
Mr Archer gave evidence at trial that he did not operate on Mrs Lentzner's right inguinal area in his operation on 24 November 2006 for three reasons. First, he was unclear as to the exact cause of her groin pain at that point. Secondly, he could not confirm clinically that she had a recurrent inguinal hernia and, consistent with what I have already set out as the practice of all the experts in this case, Mr Archer said that in most patients he did not operate on an ultrasound in the absence of clinical findings. Thirdly, he considered there may have been some confusion on the issue with her inguinal pain if he had re‑operated through that area at that time.
After the November 2006 operation Mr Archer could not find an inguinal hernia. Although in his report of 21 June 2007 to Mrs Lentzner's solicitors, Mr Archer reported that he thought there was a recurrent inguinal hernia, this had only just become palpable and was not evident on his previous examination. In each of his later reports of 31 October 2007, 25 November 2007 and 3 September 2008 to Mrs Lentzner's GP and her solicitors Mr Archer advised he was unable to confirm a definite recurrence of the inguinal hernia. Finally, in his report dated 20 February 2009 he advised that there was a "low probability" of a clinically significant right inguinal hernia recurrence and again advised that he had been unable to confirm the presence of a right inguinal hernia.
As to the source of Mrs Lentzner's pain in her groin and suprapubic region, Mr Archer reported that the burning nature of Mrs Lentzner's groin pain suggested ilio‑inguinal nerve irritation and that the palpation of Mrs Lentzner's newly diagnosed femoral hernia reproduced most of her pain. Neither of these sources of pain is related to the previous surgery undertaken by Mr Baumwol. A third possible, but less likely explanation for her pain was referred pain from the degenerative disease of her spine.
In light of this evidence I find that there has not been a recurrence of the right inguinal hernia operated on by Mr Baumwol. I am also not persuaded that if Mr Baumwol had been negligent, his negligence has caused or materially contributed to Mrs Lentzner's ongoing pain in the groin and suprapubic region.

Causation – would Mrs Lentzner have insisted on the use of mesh?

If mesh ought to have been discussed with Mrs Lentzner as something which could reduce the risk of recurrence, even if this had been discussed with her, I find that she would not in fact have insisted that mesh be used in her surgery.
It needs to be remembered that a decision a plaintiff may have made or believe that he or she would have made following an unsatisfactory outcome might well be very different from a decision made by that person at the critical earlier point: see Chappel v Hart (supra) at 272.
Mrs Lentzner gave evidence that if Mr Baumwol had told her of the risk of recurrences and how the risk could be reduced by mesh, she would have used it. However, in cross examination Mrs Lentzner's evidence was that she was seeing Mr Baumwol because she trusted him, he had previously operated on her daughter and she thought he was a competent surgeon. Although guarded in her answers, stating that she would want to make inquiries, she did accept that if Mr Baumwol recommended that he would make the decision (that is, whether or not to use mesh) she would have accepted it.
I find that Mrs Lentzner would have trusted Mr Baumwol as her surgeon and relied upon his judgment on whether or not to use mesh in her surgery. She would not have insisted upon Mr Baumwol using mesh to repair each of her hernias. Even on Mrs Lentzner's expert evidence, the decision was really not Mrs Lentzner's to make, but the surgeon's, based on his findings and clinical judgment at the time of the operation.

Causation – Mrs Lentzner's altered stance and lower back pain

Assuming that I had made findings that Mr Baumwol was negligent, I am not persuaded that the problems from which Mrs Lentzner has suffered since the surgery in 2003 has led to altered stance and pain of the lower back, as she has alleged.
The only evidence about Mrs Lentzner's back pain came from Mrs Lentzner herself. She said that some time after the surgery undertaken by Mr Archer in 2006, she found that as a result of the pain in her groin and across her pubic area she found she was "leaning into the pain", standing and walking and getting out of chairs differently, in order to compensate for the pain. She could feel that she was changing and could feel it straining across the right side in her back. Her evidence was that her back felt "tired" – just a tired, sore kind of feeling.
Mr Archer and Dr Blumberg did not mention at trial or in any of their reports that the pain which Mrs Lentzner reported to them included pain or soreness in her lower back. In fact, Dr Blumberg confirmed that Mrs Lentzner had never complained to him about back ache. In light of the lack of any supporting evidence, particularly medical evidence, I have considerable doubt about the reliability of Mrs Lentzner's account.
In any event, as I have already discussed, Mr Archer's evidence is that the sources of Mrs Lentzner's pain in her groin and across her pubic area are either ilio‑inguinal irritation, the femoral hernia, or the degenerative disease of her spine, none of which are related to the surgery undertaken by Mr Baumwol in July 2003. I find that there is no causal link between Mrs Lentzner's alleged back pain and any negligence on the part of Mr Baumwol.

Causation – was there a persistence of the attenuation?

In light of my findings that the attenuation, as defined in the statement of claim, which existed in 2006 when Mrs Lentzner saw Mr Archer did not, as a fact, exist in 2003 when she saw Mr Baumwol, there was no "persistence" of the attenuation. Even if there had been a persistence of the attenuation as alleged, for the reasons I have already given the attenuation is not something which required surgery.

Causation – did Mrs Lentzner suffer undue and unnecessary pain in the days following her surgery in July 2003 as a result of not receiving PCA while in hospital

For the reasons I have given at [151] to [157], I find that Mrs Lentzner's pain was adequately addressed by the analgesia prescribed by the anaesthetist. I therefore find that the failure to receive PCA in hospital following her surgery did not cause Mrs Lentzner to suffer undue and unnecessary pain.

Causation - Mrs Lentzner's ongoing pain, psychiatric and psychological conditions

Having regard to my findings in relation to the recurrence of the Spigelian hernia and right inguinal hernia, there could be no causal link between Mrs Lentzner's alleged pain and psychiatric and psychological conditions and any negligence on the part of Mr Baumwol.
I have in any event carefully considered the extent to which Mrs Lentzner's depression has arisen following the surgery carried out by Mr Baumwol and the probable cause of that depression.
There was no issue at trial that Mrs Lentzner presently suffers from depression. The psychiatrists called by both parties – Dr Blumberg called by Mrs Lentzner, and Dr Lawrence D Terace, called by Mr Baumwol – each confirmed a diagnosis of Major Depressive Disorder, although there was a dispute between them as to whether that depression was moderate (Dr Blumberg) or mild (Dr Terace). The main issue was the cause of that depression.
Dr Terace provided a very detailed report dated 9 December 2008 which he confirmed in his evidence at trial. In his view Mrs Lentzner's depression was an aggravation of a pre‑existing condition more than a contraction of a new condition. To come to this conclusion Dr Terace relied on the long history of Mrs Lentzner's use of sedatives (Xanax) and his observations of Mrs Lentzner at interview which he described as very dramatic with demonstrable emotional reactivity. Dr Terace concluded that Mrs Lentzner was predisposed to her present psychiatric condition by her pre‑existing anxiety disorder and personality dysfunction. He relied on the medical reports produced in this trial from the psychiatrist, Dr Trevor Blyth, who had treated Mrs Lentzner in 1990.
Dr Terace's opinion was that Mrs Lentzner may simply have suffered an immediate aggravation of her anxiety disorder subsequent to uneventful surgery and he did so based on the evidence that she had had a panic attack in hospital following Mr Baumwol's surgery on Day 2, 8 July 2003. In his opinion the very recurrence of an anxiety or panic disorder post‑surgically could in itself have given rise to false or exaggerated memories or to a gross reduction in her pain threshold. The acute pain described by Mrs Lentzner retrospectively and post‑operatively after the surgery conducted by Mr Baumwol might be explained on the basis of her pre‑dispositions, including what Dr Terace described as established hypochondriasis and false or exaggerated memories.
Dr Terace's opinion was based on medical notions of causation, however "questions of cause and consequence are not the same for law as for philosophy and science": see National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569per Windeyer J at 591; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 per Spigelman CJ at [142]‑[143]. The fact that Mrs Lentzner has a predisposition to a certain reaction does not mean, if there is negligence on the part of Mr Baumwol, that his negligence is not "a" cause of her depressive and anxious condition. Her pre‑existing conditions, including her anxiety, may have rendered her more susceptible to a psychiatric consequence following surgery carried out by Mr Baumwol. The principle of law is that a negligent defendant must take his victim as he finds her and must pay damages accordingly; see Shorey v PT Ltd at [41] to [45]. Thus, so long as Mr Baumwol's negligence in carrying out the operation in July 2003 triggered Mrs Lentzner's condition and so long as its causative effects are still present as a factor to help explain Mrs Lentzner's ongoing signs and symptoms, then Mrs Lentzner will have proved causation in the legal sense.
It is therefore necessary for me to carefully review Dr Blumberg's evidence to see on what basis his conclusions are drawn and whether, in fact, the surgery carried out by Mr Baumwol on Mrs Lentzner in 2003 is what has triggered Mrs Lentzner's condition. To the extent that Dr Blumberg's opinion is based on incorrect or unproven facts, this may affect the weight of his opinion: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [69] to [85]; PownallvConlanManagement Pty Ltd (1995) 12 WAR 370 at 389-390; Pollock v Wellington (1996) 15 WAR 1 at 3-4.
There is no medical evidence that before the surgery undertaken by Mr Archer in November 2006 Mrs Lentzner was suffering from depression. Mr Cottrell in his report of 6 January 2006 did record that Mrs Lentzner had "obvious apprehension and anxiety concerning future surgery and she has admitted to panic attacks as a result of her current situation" and noted she would need counselling before any repair took place. Neither Mr Archer nor Mrs Lentzner gave evidence of Mrs Lentzner having any anxiety or apprehension about the surgery which was undertaken by Mr Archer in November 2006. Mr Archer gave evidence that when he saw Mrs Lentzner in August 2006 and suggested an operation, she had no hesitation in accepting his advice and was happy to proceed.
It is apparent from Mr Archer's reports of 16 May and 31 October 2007 that following the surgery carried out by Mr Archer in November 2006, which was confined to the abdominal area, he had discussed with Mrs Lentzner further surgery for her groin area. In his report of 16 May 2007 Mr Archer stated that the reason why exploratory surgery on Mrs Lentzner's groin area was to be postponed was because Mrs Lentzner expressed her wish to wait for two months until her daughter's situation had stabilised. There was no mention of any anxiety or depression being suffered by Mrs Lentzner at that stage. It was not until Mr Archer's report of 31 October 2007 that depression was mentioned. Mrs Lentzner had earlier that month seen Dr Blumberg. Mr Archer agreed in cross‑examination that he believed the first mention of depression that he had from Mrs Lentzner was at his consultation with her on 31 October 2007.

Mrs Lentzner's own evidence about her emotional state was very general and did not focus upon dates or any logical sequence. She said her pain and depression affected her work and she eventually stopped working in 2008, although she could not say when it was she had finished working there. The evidence was she was able to work part‑time and earned commission from real estate sales following her surgery in 2003, although in 2007 and 2008 this was referral commission. This meant she was not actually selling houses but referring work to other agents and receiving from those agents a portion of the commission from the sale. Mrs Lentzner's employer, Mr Mark Passmore, of Passmores Real Estate, gave very general evidence of having observed Mrs Lentzner at work in pain, that she was constantly talking about her stomach and the operation and then at sales meetings she was sometimes distressed, but the times when that occurred was not established and in my view is most uncertain. Mr Passmore did mention that Mrs Lentzner was depressed but this was in the context of when Mrs Lentzner stopped working for Passmores. His evidence (given in April 2009) was that she was not really working from "a couple of years ago". That would take the time when Mrs Lentzner was really not working to the first half of 2007, although she still earned referral commission during the year ending 30 June 2008. Passmores continued her employment as a matter of loyalty to her, hoping that she might get better and because they did not want to add any more stress to her.
Dr Blumberg stated in his first report to Mrs Lentzner's GP, dated 11 October 2007, that Mrs Lentzner had presented with "escalation in her depressive and anxiety symptoms". Dr Blumberg was unable to be precise, however, as to when Mrs Lentzner's depressive and anxiety symptoms commenced. He confirmed that he was relying on what Mrs Lentzner had told him about her depression and anxiety, but in cross examination Dr Blumberg was unable to state that she had told him she had always had depression and anxiety. The most he could say was that she gave a history that her depressive symptoms and her anxiety symptoms had worsened. He later advised that the picture he got from his initial assessment with Mrs Lentzner was that over the past 18 months to two years prior to his seeing Mrs Lentzner in October 2007, pain was a major factor in her day‑to‑day life and she was struggling in coping with it. Dr Blumberg, however, described at trial the onset of Mrs Lentzner's pain issues saying:
"I think in Mrs Lentzner’s case, despite having that second surgical procedure, she still continued to experience pain. I'm not an expert in pain and I’m unsure where ‑ as to the aetiology of exactly where that pain was coming from …"
Dr Blumberg also stated several times in cross examination that the pain which Mrs Lentzner described to him and which he knew about or understood her to be suffering from was in her inguinal area.
Dr Blumberg put a timeframe on Mrs Lentzner's phobia on hospitals as "plus or minus 2006/2007". Dr Blumberg referred Mrs Lentzner to a psychologist, Dr Douglas, for treatment in relation to her anxiety about hospitals. Dr Douglas' evidence at trial was that while Mrs Lentzner did undergo the surgery by Mr Archer, the prospect of having to go back for further surgery became a problem when it was suggested by Mr Archer. That suggestion was made, as seen from Mr Archer's reports, in about May 2007.
It is apparent from Dr Blumberg's report dated 11 October 2007 that Mrs Lentzner disclosed to Dr Blumberg that since her operation for repair of three hernias in July 2003 she had been experiencing ongoing severe pain and had never fully recovered. Dr Blumberg confirmed that this was the description given to him by Mrs Lentzner and his understanding, based on what he had been told by her, was that she had been continually experiencing pain ever since 2003, without any resolution. The report by Mrs Lentzner of continual severe pain following the surgery in July 2003 is inconsistent with other evidence, as I have discussed at [56] to [65] above.
Dr Blumberg gave evidence that partly because of her depressed mood Mrs Lentzner's pain perception had become strongly dependent on her internal emotional state. In other words, her depression and anxiety would definitely play a role in her perception of her pain.
Even with Dr Blumberg's explanation of how Mrs Lenztner's pain perception may be influenced by her depression, the description of the pain which she gave to Dr Blumberg when she first saw him in October 2007 is inconsistent with the evidence, both from Mrs Lentzner and as recorded in Mr Archer's reports, of the improvement of her inguinal pain following Mr Archer's surgery in November 2006, which I have set out at [83] to [86].
The history taken from Mrs Lentzner by Dr Blumberg was that Mrs Lentzner had sought a second opinion from Mr Archer who operated on her "due to a recurrence of her right Spigelian hernia". As I have already discussed there was in Mr Archer's reports considerable doubt as to whether there was in fact a recurrence of that hernia and he had advised that the broader fascial attenuation was the largest issue contributing to Mrs Lentzner's abdominal pain. Dr Blumberg also reported that "Mr Archer has subsequently diagnosed Avril with a recurrence of her right inguinal hernia and diagnosed a right femoral hernia, which needs operative repair in the future". That statement is factually incorrect, in part. Mr Archer had been unable to confirm any diagnosis of a recurrent right inguinal hernia. He had, however, diagnosed a right femoral hernia which does need operative repair.
On 20 November 2007 Dr Blumberg wrote to Mrs Lentzner's GP advising that Mrs Lentzner's mental state had improved on a combination of the anti‑depressant Lexapro and supportive psychotherapy. She was still experiencing ongoing pain in the inguinal and femoral regions and was due to have a review by pain specialist Dr Graziotti. Dr Blumberg gave evidence at trial that her medication had to be changed because of an adverse reaction to Lexapro, but she was still receiving appropriate medication.
On 10 March 2008 Dr Blumberg wrote again to Mrs Lentzner's GP advising that Mrs Lentzner was making good progress on medication and her pain was more settled, which in turn was having a positive effect on her mental state. At that stage Dr Blumberg had received a copy of a report from the pain specialist Dr Graziotti, reporting on his treatment of Mrs Lentzner which had resolved her pain in the suprapubic area. (Dr Graziotti's report was not, unfortunately, amongst the many medical reports which were tendered at this trial.) Dr Blumberg reported to Mrs Lentzner's GP that Mrs Lentzner still experienced and described ongoing panic attacks and anxiety symptoms which Dr Blumberg had been addressing with her. He was encouraging her to exercise and use distraction techniques to cope. She was still taking Xanax.
On 9 May 2008 Dr Blumberg wrote a report to Mrs Lentzner's solicitors. In this report there was an account of the history which was set out slightly differently to Dr Blumberg's previous reports, as follows:
1.Mrs Lentzner "is extremely angry and upset that mesh was not used in her procedure";
2.In the surgery which Mrs Lentzner underwent on 25 November 2006 by Mr Archer for the "repair of the Spigelian hernia", Mrs Lentzner had reported the surgery had "significantly relieved the pain which was associated with the recurrence of that hernia". That is, as I have already discussed, an inaccurate statement of what Mr Archer found following that successful surgery, and does not address the fact of the improvement of Mrs Lentzner's inguinal pain following that surgery;
3.Mr Archer had subsequently diagnosed Mrs Lentzner with "recurrence of a right inguinal hernia and diagnosed a right femoral hernia which needs operative repair in the future". That is, as I have already discussed, an inaccurate statement of what Mr Archer had diagnosed.
Dr Blumberg's report included a conclusion that Mrs Lentzner's psychiatric condition of a major depressive order with prominent anxiety symptoms arose "more likely than not and significantly from" the difficulties she had in coping since the surgical procedure in July 2003, the alleged recurrence of her Spigelian hernia and suspected recurrence of the right inguinal hernia. Leaving aside that this is an opinion expressed on the ultimate issue for determination, in my view, Dr Blumberg's opinion as to the cause of Mrs Lentzner's psychiatric problems is based primarily on facts or assumptions which, in the major respects which I have identified, are inaccurate, incomplete or unproven. It also does not take into account that Mr Archer's report of 31 October 2007 suggested that a possible cause for the "burning" pain in Mrs Lentzner's groin was ilio-inguinal neuralgia. It seems from Dr Blumberg's report of 9 May 2008 that he may not have had a copy of that report from Mr Archer of 31 October 2007, however, he did have the report from the pain specialist Dr Graziotti, recording the resolution of that burning pain following Dr Graziotti's treatment of Mrs Lentzner.
Having regard to all of the evidence I am not satisfied that Mrs Lentzner's condition of depression and fear of surgery diagnosed in October 2007 are caused or materially contributed to by Mr Baumwol's surgery of July 2003, for a number of reasons.
First, there is no medical evidence that Mrs Lentzner was, before the surgery carried out by Mr Archer in November 2006, suffering from depression. If Mrs Lentzner was experiencing symptoms of depression at that stage, I consider it extremely unlikely that she would not have mentioned this to either Mr Archer or her GP.
Secondly, Mrs Lentzner had no fear of or anxiety about undergoing the surgery peformed by Mr Archer in November 2006.
Thirdly, the surgery in November 2006 resolved Mrs Lentzner's pain issues so far as her abdomen was concerned and also significantly improved her right inguinal or groin pain.
Fourthly, the nature of the pain which Mrs Lentzner reported to Dr Blumberg in October 2007 and the time from which she told him she had been suffering that pain is unreliable and inconsistent with other evidence.
Fifthly, the sequence of events, particularly those recorded in Mr Archer's reports after November 2006 when he discussed his diagnosis of the femoral hernia and recommended surgery, together with the evidence of when Mrs Lentzner stopped work at Passmores, is consistent with an onset of depression after the successful surgery in November 2006, and after being informed by Mr Archer in May 2007 that further surgery was required.
Finally, the further surgery which Mrs Lentzner now requires and her ongoing pain are not related to Mr Baumwol's operation in July 2003. These are related to the right femoral hernia diagnosed by Mr Archer, ilio‑inguinal nerve pain and, possibly, pain from her pre-existing degenerative spine. None of these has any relationship to the surgical procedure carried out by Mr Baumwol in July 2003.

The admissibility of psychological evidence

The clinical psychologist Dr Bill Douglas, to whom Mrs Lentzner had been referred for treatment by Dr Blumberg to help her cope with her symptoms including her fear of hospitals, provided a report dated 11 September 2008 to which a number of objections were taken by counsel for Mr Baumwol at trial. These objections were based on the submission that, following Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148, and Ta v Lucky Import and Export Co Pty Ltd (2000) WADC 283, as a psychologist, Dr Douglas did not have the expertise to be able to express an opinion on whether Mrs Lentzner suffered depression, because that is the realm of the medical practitioner.
The issue of admissibility of a psychologist's diagnosis of a recognised psychiatric condition and the applicability of Klimoski v Water Authority of Western Australia (supra) has been recently discussed in Burns v Pearce [2009] WADC 150. That case concerned a diagnosis of PTSD (post traumatic stress disorder). Keen DCJ referred to a decision of Nepi v Northern Territory of Australia, unreported; SCt of NT; BC9701834; 2 May 1997 in which Martin CJ distinguished Klimoski v Water Authority of Western Australia and noted that opinions of clinical psychologists as to PTSD had been frequently received and acted upon by the courts. In Burns v PearceKeen DCJ noted the evidence was that both psychiatrists and psychologists used DMS-IV in diagnosis. That was also the evidence in this case from Dr Douglas, who stated that he had regard to DSM-IV in his practice.
My own view is that if a psychologist can demonstrate, by reason of his or her qualifications or experience or both, a knowledge of the application of relevant DSM-IV criteria and the treatment of patients with depression, then that psychologist may be able to express an opinion on whether a patient suffers from depression. In the present case counsel for Mr Baumwol submitted that there was doubt about Dr Douglas' knowledge and understanding of DSM-IV and the relevant criteria, which raised an issue about his expertise and diagnosis of depression.
The objections taken to those passages in Dr Douglas' report were not an issue since both Dr Blumberg and Dr Terace agreed in their diagnosis of Mrs Lentzner as having a major depressive disorder, although they disagreed as to the level of severity of that disorder. Thus, nothing turned on the evidence of Dr Douglas and his reported diagnosis of depression and it is not necessary for me to make any findings about the admissibility of that diagnosis.

Summary of findings on liability

I find that:
1.Mr Baumwol was not negligent in his repair of Mrs Lentzner's Spigelian hernia.
2.Although there were three hernia repairs being undertaken at the same time, Mr Baumwol was not negligent in failing to use mesh for those repairs.
3.Mrs Lentzner did not request PCA for her operation in July 2003 from Mr Baumwol. Had she in fact done so, the decision to provide PCA to her was not Mr Baumwol's but the anaesthetist's and accordingly there was no negligence on the part of Mr Baumwol in relation to this aspect of Mrs Lentzner's claim.
4.There was no negligence by Mr Baumwol in failing to advise Mrs Lentzner of the risk of recurrence of her hernias as I find that he did so advise her about the risk of recurrence. I am not satisfied that there was negligence by Mr Baumwol in failing to advise her that the risk could be reduced if mesh was used.
5.At the time of Mrs Lentzner's consultation with Mr Baumwol in June 2003, she had did not have an "attenuation" or lump on her abdomen in addition to the lump associated with the Spigelian hernia. If there had been such an attenuation, there was no negligence by Mr Baumwol in failing to advise Mrs Lentzner to have the attenuation surgically repaired with mesh at the same time as the hernias.
6.There was no negligence by Mr Baumwol in failing to surgically repair the attenuation with mesh.
7.If there was negligence on the part of Mr Baumwol, that negligence has not caused or materially contributed to the damage the subject of Mrs Lentzner’s claim because:
1.Mrs Lentzner has failed to prove that there was a recurrence of the Spigelian hernia.
2.Mrs Lentzner has failed to prove that she has suffered a recurrence of the right inguinal hernia.
3.If warned of the risk of recurrence and advised on the possibility of using mesh in the hernia repairs, I find that Mrs Lentzner would not have insisted on the use of mesh.
4.Mrs Lentzner has failed to prove that any of the ongoing problems has caused altered stance and pain of her lower back.
5.There was no "persistence" of the attenuation, as the attenuation was something which developed some time after Mr Baumwol's surgery.
6.Mrs Lentzner did not suffer undue and unnecessary pain in the days following her surgery in July 2003 as a result of not receiving PCA while in hospital.
7.Mrs Lentzner's ongoing pain, depression and fear of surgery are not causally linked to the negligence of Mr Baumwol.
In the light of my findings, Mrs Lentzner's claim against Mr Baumwol must fail.

QUANTUM

Although I have found for Mr Baumwol on the issue of liability, I must make a provisional assessment of damages to cover the situation where, if my decision on liability is varied on appeal, the matter need not be remitted back to the District Court for assessment of damages: Kerr v Minister for Health [2009] WASCA 32 at [10].
In this case there is a real issue as to whether that assessment of damages should include any allowance for events following the successful surgery undertaken by Mr Archer in November 2006, on the basis that on any view of the matter there has been no recurrence of Mrs Lentzner's right inguinal hernia and any pain and psychiatric and psychological problems she has developed since that operation in 2006 is unrelated to Mr Baumwol's surgery in July 2003.
What I will do, therefore, is to undertake two assessments -
1.one assessment for loss and damage suffered up to 31 December 2006, on the basis that the only damages arising from Mr Baumwol's surgery undertaken in July 2003 are those relating to the pain, suffering and consequential loss of earnings relating to the alleged recurrence of the Spigelian hernia which was resolved by the surgery undertaken by Mr Archer in November 2006. Taking the assessment for loss and damage up to 31 December 2006 allows for time for recovery from that surgery. ("Provisional Assessment 1"); and
2.a further assessment for all of Mrs Lentzner's loss and damage on the basis that all Mrs Lentzner's pain and suffering and consequent damage arise from Mr Baumwol's surgery undertaken in July 2003 ("Provisional Assessment 2").

General damages for non pecuniary loss

For the reasons I have already given, I do not accept the evidence from Mrs Lentzner as to the alleged level of her pain between July 2003 and November 2006. I accept that she suffered some pain or discomfort from the time when she consulted Mr Baumwol in March 2004 until her surgery with Mr Archer in November 2006, but not to the levels at which she said she suffered at trial. Mrs Lentzner was able to take medication to control the pain that she did have.
After the operation conducted by Mr Archer in November 2006, Mrs Lentzner's abdominal pain was resolved, and she was left with only pain in the region of her groin. That pain was also able to be controlled with reduced levels of medication. In October 2007 Mr Archer referred her to the pain specialist, Mr Graziotti, for treatment of her groin pain. That treatment decreased her pain by 80 per cent. Mrs Lentzner described the residual pain as a numb feeling if she pressed on it or applied any pressure along the area, but in her words she said "I would say that there's been a vast improvement."
For Provisional Assessment 1, for the pain and suffering experienced in her abdomen and loss of enjoyment of life up to the point of the successful surgery undertaken by Mr Archer and Mrs Lentzner's recovery from that surgery, I would allow an amount of general damages of $20,000.
For Provisional Assessment 2, accepting that Mrs Lentzner has suffered pain in varying degrees and different areas of her abdomen or groin since March 2004, all of which can be attributable to Mr Baumwol's surgery, and her consequent depression and fear of surgery, I consider that an appropriate award for pain and suffering and loss of enjoyment of life to be $40,000.

Past loss of earnings

The evidence of Mrs Lentzner was that after Mr Baumwol's operation she took some time off work then returned to work on a part time basis. Her evidence was that she was unable to continue her work at Passmore Real Estate ("Passmores"). She finished her work there in 2008, although she was not able to say exactly when she stopped working there. She said she enjoyed that work and had intended to continue working there.

I have set out in the table in the Schedule to these reasons Mrs Lentzner's gross earnings at Passmores by way of commission up to and including the year ending June 2008, less expenses, based on Mrs Lentzner's income tax returns and evidence given by the principal of that real estate firm, Mr Mark Passmore. Mrs Lentzner's taxation returns show that she had other sources of income, for which she had been taxed, so it is not appropriate to ascertain her net actual earnings from her real estate commission by reference to her tax returns. I have estimated her actual net earnings from commission using the applicable Australian Tax Office taxation tables.
One way of assessing Mrs Lentzner's earnings is to take an average of her previous years' net annual earnings, multiply that by 6.3 years and deduct her actual net earnings. I consider that is not the best measure in this case as the business records produced and evidence given by Mr Passmore show that the gross earnings of all real estate agents employed by Passmores varied considerably each year, both up and down, and commission earnings are affected by the state of the property market.
Contingencies can be applied to past earnings, particularly where there is doubt as to whether a plaintiff was likely to achieve the earnings which he or she claims he or she could achieve: Kschammer v RW Piper & Sons Pty Ltd & Ors [2003] WASCA 298 at [193] to [197]; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 at [22] and [46].
From the evidence given at trial by Mr Passmore including the business records produced by him for the year ending 30 June 2003, which was the last full financial year before Mrs Lentzner's surgery, she was the seventh highest earner at Passmores. The top seven, however, included two employees who held managerial positions, earning both salary and commission income. Mr Passmore was able to say that one of those employees earned a commission income which was higher than Mrs Lentzner's in that year, but Mr Passmore was unsure exactly when the other employee became a manager and, if he was a manager in the 2003 year, how much of his income was commission income. Accordingly Mrs Lentzner may have been the sixth highest commission earner. As a matter of fairness I consider regard should be had to the earnings of the fifth, sixth and seventh highest earners at Passmores in each year, when considering Mrs Lentzner's likely earnings. That would take into account the possibility that Mrs Lentzner may have been more successful after 2003, if not for the surgery, and also takes into account fluctuations in the market. On this basis I would make no further deduction for contingencies.
Table 2 in the attached Schedule to these reasons sets out the calculations I have made of Mrs Lentzner's likely earnings. I have used the average of the earnings of the fifth, sixth and seventh highest earners at Passmores in each financial year, as disclosed in the documentation produced by Mr Passmore. From that I have deducted Mrs Lentzner's likely work related expenses. The proportion of Mrs Lentzner's work related expenses to the commission income which she received from Passmores was 29 per cent in the year 2003. The proportion of expenses in the other years varies between 13 per cent (2001) and 60 per cent (2005). Having regard to the fact that in her most successful year before the 2003 surgery her expenses represented 29 per cent of her income and in her most successful year after this, in 2006, her expenses were 33 per cent of her income, I consider 30 per cent is a fair estimate of Mrs Lentzner's likely work related expenses. Applying the relevant taxation tables for each year I have calculated a net annual income. From this I have deducted Mrs Lentzner's actual net earnings (as set out in Table 1) to produce an amount representing Mrs Lentzner's likely loss of income for each financial year.
In the 2004 year only, I have made a further deduction for the fact that Mrs Lentzner would have needed time off for the surgery she underwent on 7 July 2003 and recovery from her surgery, in any event. I have allowed six weeks for this.
In a letter dated 27 February 2009 and tendered at trial, Mr Passmore claimed that in the years of 2007 and 2008 if Mrs Lentzner was employed and working at her normal ability her anticipated income, based on projected sales, would have been between $70,000 to $80,000 per annum. In cross‑examination, however, Mr Passmore admitted that he prepared that document based on estimates, on his own personal understanding or imperfect recall of what agents had earned, rather than by looking at records or statistics. I have therefore not relied on Mr Passmore's estimate for these two years but used the same basis of calculation as for previous years, by reference to the actual records of the earnings of Passmores' employees for these years.
For earnings for the 2009 year and up to the date of this judgment, I have applied the same rate as the earnings in the 2008 year, notwithstanding that Mrs Lentzner has not worked since 2008, because the psychiatrists, Dr Blumberg and Dr Terace both agreed that Mrs Lentzner's psychiatric condition does not cause total incapacity for work. Mrs Lentzner maintained that she would not be able to work on a part‑time basis in real estate. She described her work in real estate as full‑time work because "you can't really do real estate part‑time". However, she had earlier given evidence that before joining Passmores she had been working part-time in real estate while also working part-time at a high school. She had also, following her surgery both in 2003 and 2006, been able to work at Passmore's on a part-time basis. Mr Passmore gave evidence of other agents in the office of Passmore Real Estate who had worked part-time, in the sense of doing other things, so that not all of their work was in sales. He also gave evidence that real estate is "a very flexible business, it's not like we would go to a desk, we actually go to the field and meet people so it's very hard to determine an hourly basis in our industry". He did not suggest Mrs Lentzner could not work on a reduced hours or part‑time basis.
I allow $97,054.00 for Mrs Lentzner's past loss of earnings for Provisional Assessment 1, up to 31 December 2006, as follows:
2004:$23,552.00
2005:$26,624.00
2006:$33,644.00
2007: 26 weeks to 31.12.06 $13,234.00
(½ of $26,468.00)
TOTAL$97,054.00
I allow $137,225.00 for Mrs Lentzner's loss of earnings for Provisional Assessment 2, up to and including the date of judgment, as follows:
2004:$23,552.00
2005:$26,624.00
2006:$33,644.00
2007:$26,468.00
2008:$11,388.00
2009:$11,388.00
2010: 19 weeks to 06.11.09 $ 4,161.00
TOTAL$137,225.00

Past loss of superannuation

It has been recognised that a calculation of superannuation should include a deduction for contingencies, including any tax liability on exit from the superannuation fund and negative contingencies, such as the risk that the fund would sustain losses and fund management. In the past, that deduction has been 30 per cent, following Jongen v CSR Ltd (1992) Aust Torts Reports 81‑192. The law on taxation of superannuation has changed since Jongen(supra) was decided. Since 1 July 2007 superannuation payments made following retirement after the age of 60 are no longer taxed, and other changes have been made in relation to taxation on contributions. Both Mrs Lentzner and Mr Baumwol in their submissions and calculations for superannuation have applied an amount of 15 per cent, rather than 30 per cent, as the deduction which should be made for contingencies. On the basis that both parties agree that is the appropriate deduction, that is what I have applied.
I calculate Mrs Lentzner's past loss of superannuation for Provisional Assessment 1, up to 31 December 2006, to be $10,902. I calculate Mrs Lentzner's loss of superannuation for Provisional Assessment 2, up to and including the date of judgment, to be $14,797. Details of the calculations are set out in the Schedule.

Interest on past loss of earnings and superannuation

For Provisional Assessment 1, up to 31 December 2006 the past loss of earnings of $97,054 and past loss of superannuation of $10,902 total $107,956. Interest on that at 3 per cent for 6.3 years is $20,403.
For Provisional Assessment 2, the past loss of earnings of $137,225 and past loss of superannuation of $14,797 total $152,022. Interest on that at 3 per cent for 6.3 years is $28,732.

Future loss of earnings and superannuation

There would be no allowance for future earnings in relation to Provisional Assessment 1.
For Provisional Assessment 2, when assessing future loss of earnings I need to consider the age at which Mrs Lentzner would cease working and also take into account the evidence of both psychiatrists, Dr Blumberg and Dr Terace, that she has a retained earning capacity and an ability to work on a part time basis.
The usual age to which economic loss calculations are made is the age of 65. Mrs Lentzner is now aged 65. Mrs Lentzner's economic loss schedule claims that but for Mr Baumwol's negligence, she would have continued to work full‑time as a real estate sales person to age 70. Mrs Lentzner did not give evidence that she intended to continue to work to the age of 70, only that she would work as long as she could in a job she enjoyed.
Taking into account Mrs Lentzner's work history, her history of back problems before the surgery in July 2003, including the evidence that her husband had to help her in moving home open signs when she had home opens on the weekend, and the evidence of the degeneration in her spine, there would need to be a considerable deduction for contingencies for future loss of earning capacity. Further, I consider it unlikely that Mrs Lentzner would have worked on a full‑time basis until the age of 70. It is possible that she may have continued on a part‑time basis up to the age of 70, but she may have stopped working altogether earlier than that. Bearing in mind the uncertainty of her working up to age 70, her retained earning capacity and the calculations I have already undertaken in relation to her past loss, I propose to make a global allowance for both future loss of earnings and superannuation of $50,000.

Medical, hospital and associated expenses

A schedule of agreed items covering all expenses incurred since the surgery carried out by Mr Baumwol has been provided to me since the trial. The parties have agreed the amount for this head of damage, in the sum of $18,603.12. That is the amount I would allow in relation to Provisional Assessment 2. I would allow interest of $3,516 on this amount (6.3 years at 3 per cent).
For Provisional Assessment 1, I would not allow costs after 31 December 2006. Working from the schedule provided, I have deducted from the total of $18,604.12 the medical, hospital and associated expenses for consultations with Dr Graziotti, Dr Blumberg and Dr Douglas, which total $5,050, and pharmaceutical costs after 31 December 2006, which total $1,667.40. The amount for special damages up to and including 31 December 2006 for the Provisional Assessment 1 is therefore a total of $11,887 (rounded up). On this I would allow interest in the sum of $2,247 (6.3 years at 3 per cent, rounded up).

Travel Expenses

At trial the parties informed me that they were hoping to reach agreement on this claimed expense. Since the trial the parties have informed that damages for past travel expenses are agreed at $643. I consider that this is reasonable for Provisional Assessment 2.
For Provisional Assessment 1 I would allow $400 for travel expenses up to 31 December 2006, on the assumption that the expenses up to that date are of the same or similar proportion as the medical, hospital and other expenses.

Future Medical Expenses

There would be no allowance for future medical expenses in relation to Provisional Assessment 1.
Mrs Lentzner had claimed a global sum for future medical and other expenses, including pharmaceutical expenses, however, I have since been advised by the parties that future medical expenses have been agreed in the sum of $950, which I would allow in relation to Provisional Assessment 2.

Summary of provisional assessment of quantum

Provisional Assessment 1 (up to 31 December 2006):
General damages  $20,000.00
Past loss of earnings  $97,054.00
Past loss of superannuation  $10,902.00
Interest on past loss of earnings and superannuation        $20,403.00
Medical, hospital and associated expenses  $14,134.00
Travel Expenses  $     400.00
TOTAL:$162,893.00
Provisional Assessment 2 (up to date of judgment):
General damages  $ 40,000.00
Past loss of earnings  $137,225.00
Past loss of superannuation  $ 14,797.00
Interest on past loss of earnings and superannuation       $ 28,732.00
Future loss of earnings and superannuation  $ 50,000.00
Medical, hospital and associated expenses  $ 22,119.00
Travel Expenses  $     643.00
Future Medical Expenses  $     950.00
TOTAL:$294,466.00

Conclusion

In view of my findings on liability the plaintiff's claim should be dismissed.

SCHEDULE
Table 1: Mrs Lentzner's actual net earnings for the years ending 30 June 2003 to 30 June 2008:

Year ending	Commission	Work related expenses	Gross annual earnings (taxable income)	Net annual earnings (estimated; after tax)
2001	$59,869.00	$ 7,777.00	$52,092.00	$39,830.00
2002	$57,003.00	$13,075.00	$43,928.00	$34,360.00
2003	$71,084.00	$20,856.00	$50,228.00	$38,750.00
2004	$27,795.00	$15,709.00	$12,086.00	$10,972.00
2005	$20,715.00	$12,422.00	$ 8,293.00	$ 7,852.00
2006	$35,811.17	$11,986.00	$23,825.00	$20,384.00
2007	$11,283.00	$ 3,326.00	$ 7,957.00	$ 7,592.00
2008	$21,802.00	$ 5,122.00	$16,680.00	$15,028.00

Table 2: Calculations of Mrs Lentzner's estimated past loss of earnings:

Year ending	Estimated annual commission	Less Work related expenses	Gross annual earnings (taxable income)	Net annual earnings (estimate; after tax)	Less actual net earnings	Total
2004	$70,500	$21,150	$49,350	$37,596	$10,972	$26,624*
2005	$64,000	$19,200	$44,800	$34,467	$ 7,852	$26,624
2006	$107,200	$32,160	$75,040	$54,028	$20,384	$33,644
2007	$61,420	$18,426	$42,994	$34,060	$ 7,592	$26,468
2008	$44,000	$13,200	$30,800	$26,416	$15,028	$11,388

Notes on calculations in Table 2:
2004:The earnings of the fifth, sixth and seventh highest earners at Passmores from Exhibit 10 were $71,221.82, $70,642.74 and $69,449.15. The average of those figures is almost $70,500. Net annual earnings estimated after tax is calculated by reference to gross (taxable) weekly earnings of $949, less weekly tax payable of $226 = $723 x 52 = $37,596.
*There should be a further deduction for the fact that Mrs Lentzner would have needed time off for the surgery she underwent on 7 July 2003 and recovery from her surgery, in any event. I would allow 6 weeks which amounts to $3,072 (6 x $512). This results in the sum of $23,552 representing Mrs Lentzner's loss of income for the 2004 financial year.

2005:The earnings of the fifth, sixth and seventh highest earners at Passmores were $78,398.26, $62,360.68 and $51,190.08. The average of those figures is $63,983, which I would round up to $64,000. Net annual earnings estimated after tax is calculated by reference to gross weekly earnings of $862 less weekly tax payable of $199 = $663 x 52 = $34,467.
2006:The earnings for the fifth, sixth and seventh placed highest earners at Passmores for year ending 30 June 2006 were $117,392.57, $112,860.79 and $91,297.64, giving an average of $107,200. Net annual earnings estimated after tax is calculated by reference to gross weekly earnings of $1,443 less weekly tax payable of $404 = $1,039 x 52 = $54,028.
2007:The earnings for the fifth, sixth and seventh placed highest earners at Passmores for the 2007 year were $73,137.97, $63,076.57 and $48,045.45, giving an average of $61,420. Net annual earnings estimated after tax is calculated by reference to gross weekly earnings of $827 less weekly tax payable of $172 = $655 x 52 = $34,060.
2008:For the 2008 year the earnings for the fifth, sixth and seventh placed highest earners at Passmores were $52,263, $45,432.83 and $34,073.87, giving an average of $43,923 which I would round up to $44,000. Net annual earnings estimated after tax is calculated by reference to gross weekly earnings of $592 less weekly tax payable of $84 = $508 x 52 = $26,416.
Table 3: Calculations of past superannuation
Provisional Assessment 1 up to 31 December 2006:
2004:$49,350 - $12,086 = $37,264 x 9 per cent x 85 per cent $2,851.00
2005: $44,800 - $ 8,293 = $36,507 x 9 per cent x 85 per cent    $2,793.00
2006: $75,040 - $23,825 = $51,215 x 9 per cent x 85 per cent   $3,918.00
2007: (to 31.12.06) $42,994 - $ 7,957 = $35,037 x 9 per cent x
85 per cent = $2,680 x 50 per cent  $1,340.00
TOTAL$10,902.00
Provisional Assessment 2, up to and including the date of judgment:
2004: $49,350 - $12,086 = $37,264 x 9 per cent x 85 per cent   $2,851.00
2005: $44,800 - $ 8,293 = $36,507 x 9 per cent x 85 per cent    $2,793.00
2006; $75,040 - $23,825 = $51,215 x 9 per cent x 85 per cent   $3,918.00
2007: $42,994 - $ 7,957 = $35,037 x 9 per cent x 85 per cent    $2,680.00
2008: $30,800 - $16,680 = $14,120 x 9 per cent x 85 per cent   $1,080.00
2009: as per 2008  $1,080.00
2010: 19 weeks to 06.11.09  $   395.00
TOTAL$14,797.00