MD v Sydney South West Area Health Service (3)

[2009] NSWDC 24

CITATION:	MD v Sydney South West Area Health Service (3) [2009] NSWDC 24
HEARING DATE(S):	9 - 11, 13 February 2009
JUDGMENT DATE:	6 March 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. Verdict for the first defendant. 2. Verdict for the plaintiff against the second defendant in the sum of $110,120.
CATCHWORDS:	NEGLIGENCE - duty of care - failure to order a pregnancy test - INFERENCES - rule in Jones v Dunkel - TORTS - vicarious liability - relation of Visiting Medical Officer to employing health authority
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Payne v Parker (1976) 1 NSWLR 191 Manly Council v Byrne [2004] NSWCA 123 Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
TEXTS CITED:	Ipp D, "Problems with fact-finding" (2006) 80 Australian Law Journal 667 McClellan P, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655
PARTIES:	MD (Plaintiff) Sydney South West Area Health Service (First Defendant) Ian Fulcher (Second Defendant)
FILE NUMBER(S):	215 of 2007
COUNSEL:	A Lidden SC with E E Welsh (Plaintiff) K Burke (First and Second Defendant)
SOLICITORS:	Bryden's Law (Plaintiff) TressCox Lawyers (First and Second Defendant)

JUDGMENT

Issues

1 In this case MD sues the South Western Sydney Area Health Service (the First Defendant) and Dr Ian Fulcher (the Second Defendant) for negligence, which she alleges was constituted primarily by Dr Fulcher's omission to require her to have a pregnancy test before he carried out a repair of her prolapsed uterus and a tubal ligation. She says that, as a consequence of the negligence, she has suffered severe psychiatric damage and, in addition, has had to have her fifth child by caesarean section, resulting in an unsightly scar, as well as mental health problems.

2 There are a number of issues in the case.

3 The first issue is what was actually said by Ms D to Dr Fulcher and by Dr Fulcher to Ms D on different occasions. That depends on the credit of the witnesses and the degree to which I find their respective accounts corroborated by other evidence.

4 If I am satisfied that Ms D's version of events is correct, I must determine first, whether, in the circumstances, either defendant owed a duty of care to Ms D, and secondly, whether any act or omission on the part of either defendant constitutes a breach of such a duty of care.

5 Finally, if I am satisfied that there was a duty of care and a breach of it, I must determine the nature and extent of Ms D's injuries, and whether they were causally related to the breach of duty.

Ms D’s life

6 Ms D is now 29 years old. She has five children, the oldest of whom, N, is now 14. JF is the father of all these children, and although Ms D and Mr F have lived together in the past, they have not done so since shortly after the birth of the youngest child, M, in September 2004. Mr F does see the children, and his mother, Ms SF, has provided, and continues to provide, support for Ms D and the children.

7 Ms D grew up in Canberra and Sydney. Her parents separated at an early age, and she was brought up as the only child of her mother, who continues to support her.

8 She formed a relationship with Mr F when she was quite young, and became pregnant unexpectedly. Indeed, she admits that she has not planned any of her five pregnancies, but once she found out she was pregnant, except in the case of the last child, she has been happy to continue with the pregnancy.

9 After the birth of her third child, J, in May 2002, she was diagnosed with a pulmonary embolus. Because of the life-threatening nature of this condition, she was prescribed Warfarin, an anticoagulant, and subsequently Clexane, which she injects herself. She decided at that stage that she did not want more children. Because of the drugs prescribed for her, she was advised not to take the contraceptive pill. On her evidence, she did use condoms. She was aware of intrauterine devices, but not of how they worked, and appeared unaware of other contraceptive methods. There was no evidence that she had sought medical advice about this. On each occasion she gave birth, she breast fed the child, and did not have menstrual periods while lactating. Her belief was that she could not become pregnant while she was lactating. However, before she could take any action, she found herself pregnant with her fourth child, T, who was born in May 2003.

10 After the birth of T, she noticed that there was a protrusion from her vagina and that it was painful for her to have intercourse. She consulted her GP, Dr Francis Vu. Her evidence is that she also asked him about sterilisation, though his notes do not refer to this. However, there is no doubt that Dr Vu provided a referral to Dr Fulcher, and Dr Fulcher agrees that when he saw Ms D in August 2003, they did discuss tubal ligation, as well as the prolapsed uterus, and he agreed to perform this procedure at the same time as the repair of the prolapsed uterus. Dr Fulcher arranged for the procedures to be performed at Liverpool Hospital on 8 December. He subsequently wrote to Dr Vu accordingly.

11 For reasons that Ms D understood were connected with a need to perform emergency surgery, after she had been prepared for the procedure on 8 December, she was told that because of the emergency, her surgery had to be postponed, and she was sent home until a later date. The surgery was arranged for 2 February 2004.

12 For some time after the surgical procedure in February 2004, Ms D felt extreme pain. Even after she was discharged from hospital she felt bloated and continued to feel some pain. Early in May 2004, while she was still unaware that she was pregnant, Ms D consulted her general practitioner, Dr Vu, who asked her to take a urine test to check proteins and he also used the urine sample to do a pregnancy test. Ms D had seen such a test performed before. The urine tests indicated that Ms D was pregnant, and Dr Vu sent her for an ultrasound at Revesby. There is a report of this procedure in evidence. It was conducted by Dr Bark. Ms D then took the ultrasound film and report back to Dr Vu the following day. Dr Vu immediately telephoned Dr Fulcher's rooms and arranged for Dr Fulcher to see Ms D immediately. Ms D, with Ms F, went the same day to Dr Fulcher's rooms and had a further consultation with him

What happened in the consultations

13 Much of the determination of what happened turns on the credit of Dr Fulcher, on one hand, and Ms D, on the other. If there is corroborative evidence, in the case of Dr Fulcher, it is mainly in the form of notes made either by him, by other doctors, or by hospital staff. There is no written corroboration of Ms D's evidence, except in those cases where she and Dr Fulcher agree. In her case however, Ms F, her partner's mother, was present when she consulted Dr Fulcher in May. Despite the relationship between them, I regard Ms F as a reliable witness.

14 The matters which give rise to these proceedings are extremely important both to Ms D and Dr Fulcher. Ms D is claiming quite severe damage as a result of what she alleges to be negligence, and she feels very strongly about a number of matters. Dr Fulcher also was distressed and disappointed that the proceedings were brought.

15 It is important to consider the backgrounds of Dr Fulcher and Ms D. Dr Fulcher's curriculum vitae is in evidence. It shows that he attended a private school and studied medicine at the University of Sydney. He has undertaken postgraduate qualifications in medicine and obtained professional distinction both in Australia and overseas. In many ways he is typical of a highly qualified professional. My knowledge of Ms D's background depends on the accounts given to various medico-legal experts. Her background is of a young woman, born in Leeton, growing up in a single-parent family in Canberra and western Sydney, completing her School Certificate, working in various occupations, and being a mother to five children. It would not be reasonable to expect her to be either as knowledgeable or as articulate as Dr Fulcher. Because of the differences in background, it is easy to find that there are problems of communication, particularly as Dr Fulcher, like many professionals, tends to use expressions that have complete meaning for him, but may be unclear, or even incomprehensible, to a person who is less educated than he is. It is important that professionals dealing with members of the public, who almost by definition, do not have the education or extent of knowledge that they have, understand that there may be difficulties in communication and attempt to overcome these. Dr Fulcher may have made such attempts, but on the evidence before me, those attempts were not sufficient, and there were some significant failures of communication, which resulted in he and Ms D having different understandings of important questions. It does not necessarily follow that where there are such difficulties in communication, that the professional is in breach of a duty of care. In this case I must determine on the facts as I find them whether in fact there was a duty of care and whether, if so, there was a breach of that duty.

16 Dr Fulcher has no independent recollection of the greater part of the conversations he had with Ms D. He relies on his notes and other notes, which, I must say, are less than comprehensive. I am certainly satisfied that he did not destroy or materially alter any of the notes he did make. His evidence was that he sees many patients, possibly 300 or 400 each year. Ms D, on her own evidence, occasionally consulted a general practitioner at that time, and certainly had not consulted a specialist in relation to sterilisation or a prolapsed uterus before she saw Dr Fulcher. This was a unique occasion in her medical history. It is possible that both these witnesses, to some extent, reconstructed the events that happened, in some cases, more than five years ago. While I appreciate the dangers of relying too heavily on the demeanour of witnesses, a matter about which I was referred by counsel for the defendant to articles by Ipp JA (“Problems with fact-finding” (2006) 80 ALJ 667) and McClellan CJ at CL (“Who is telling the truth? Psychology, common sense and the law” (2006) 80 ALJ 655), it is my duty to attempt to assess whether witnesses are reliable, and if so to what extent. As a judge who regularly presides over criminal trials I am very familiar with the ways in which judges direct juries as to the assessment of the reliability of witnesses. I have sought to apply those directions in this case.

17 Dr Fulcher admitted that without his notes he had no direct recollection of many events about which he gave evidence. His notes are not particularly comprehensive and certainly do not record important matters, which, if they occurred at all, one might have expected him to record. His answers to questions about what and why he should communicate with referring general practitioners were, in my view unsatisfactory and evasive, and reflect an attitude on the part of specialist medical practitioners which, I hope is not widespread, bordering on contempt for general practitioners. In my view, however, he is a conscientious specialist who does his best for his patients, and is rather contemptuous of what he regards as "medico-legal practice".

18 In his view, his practice is conducted with a view to the best interests of his patients, as opposed to the possibility of litigation. I certainly do not suggest that any medical practitioner, or indeed any professional person, should practise with a view to avoiding litigation. It is, however, common sense that proper records should be kept. In my view, Dr Fulcher's records do not record important matters about which he gave oral evidence, and the inference I draw is that in such cases Dr Fulcher has attempted to reconstruct events in accordance with what he understands to be his normal practice. In the absence of proper records, I conclude that in the case of Ms D, which was, admittedly, unusual in many respects, he did not follow his normal practice in several important respects.

19 It was suggested to Ms D that she also was reconstructing events so that they fitted in with her beliefs and understanding. To some extent this may be true, but in general I found her to be a witness who did her best to recall what she did, saw or heard and was quite prepared to say that she did not remember when that was the case. I accept her as an honest and generally reliable witness, although there are some cases where the hospital records indicate that her recollection is inaccurate. In general, where there is a difference between the evidence given by Ms D and that given by Dr Fulcher, for the reasons I have given, I prefer the evidence of Ms D.

20 There is a difference between Ms D and Dr Fulcher as to what happened on the occasion of their first consultation, on 4 August 2003.

21 Dr Fulcher’s evidence in chief was that he took a history of the birth of Ms D’s children, the dates, and birth weights. They had all been normal vaginal deliveries.

22 Dr Fulcher’s clinical notes record the following. There is a note of the date, birth weight, and the natural vaginal delivery of her four children. He then records:

“- Abdo pain – low back – no cause

- Irregular periods

*- No periods since childbirth

- Prolapse 1/12 ago

*- Too painful to have sex (*)

-Out all the time

-Last PAP 2 yrs

PMH Pulm embolus Clexane 40 mg

Allergies nil

Alcohol occ

Tobacco 10 day.”

23 In cross-examination, Dr Fulcher conceded that the asterisks were probably added after he made the original notes, when he was preparing for the case and in particular, drafting a “to whom it may concern” letter, which he prepared on 19 March 2007. This document is in evidence, but I attach little weight to it, as it is almost entirely self-serving.

24 There is no reference in the notes, or in the letter he wrote to Dr Vu the next day, of pregnancy tests, of any warning about the need not to be pregnant at the time of the procedure, or of any brochures given to Ms D.

25 In his examination in chief, he then gave the following answers:

Q. Underneath that you’ve got, “Abdo pain” is that correct?
A. Correct.

Q. Dash, “low back”, dash “no cause”. What does that line refer to?
A. She was complaining of abdominal pain and also lower back pain and she could not attribute a cause to it.

Q. To either the abdo pain or to the lower back pain?
A. Yes, it was a complaint she expressed at that consultation.

Q. You [sic] then got a line, “irregular periods”. Why would you have written that on the progress notes?
A. Well she made it - well I would have enquired to [sic] her what her normal menstrual period pattern was.

Q. Yes?
A. And then she would have explained to me that her periods were irregular.

Q. Yes. The next line there’s an [this expression as recoded [sic] means “asterisk”, and there was some evidence about this](as said), “no period since childbirth”?
A. Mm.

Q. Following on [sic] what you say “irregular periods” and “no periods since childbirth”, what does the two mean, those two lines mean together?
A. Well initially she described her periods--

OBJECTION. LEGAL ARGUMENT.

HIS HONOUR

Q. If you can remember what was actually said, doctor, it’s much better to give that. We realise this all happened some five and a half years ago. You have to rely on your notes. But if you can remember the words please use them?
A. Yes.

BURKE

Q. Doctor, before you answer that question, do you have an independent recollection of what the plaintiff said to you about her periods and why you made the notations that I’ve just read out, “irregular periods” and [this expression as recoded [sic] means “asterisk”, and there was some evidence about this] “No periods since childbirth”. Do you have an independent recollection?
A. I would not be able to recall the exact words she used. This is my notation of what she said.

Q. Can you tell his Honour what you mean by the notation “irregular periods” and “no period since childbirth”?
A. Yes. It means that initially she described her periods as being irregular.

Q. Yes?
A. And when I pursued the matter to find out what she meant by that she clarified the situation by saying that indeed she had not had a period since she gave birth to her daughter in May 2003.

Q. Would that have been an unusual circumstance?
A. Not in someone who was regularly breastfeeding.

Q. Underneath that you’ve then got, dash “prolapse one over 12 ago”. Can you tell his Honour what one over 12 means?
A. One month.

Q. And do you have an independent recollection of any conversation with the plaintiff about the reference to prolapse?
A. That, aided by my notes only, that was the reason that she was sent to see me and I would have looked at the note and I would have asked her when she first developed that symptom.

Q. And she described the symptom to you. Did you then continue on [sic] conversation or would you have examined her?
A. No I would have continued to ask a few more questions.

Q. All right, thank you. Underneath that there is then, [this expression as recoded [sic] means “asterisk”, and there was some evidence about this] “too painful to have sex”, and underneath that “out all the time”, do you remember having a conversation with her, an independent recollection about her having sexual intercourse?
A. To my recollection that was in a direct response to what contraception she was currently using.

Q. Yes?
A. And her response was at the time that she was not having sex because it was too painful to have sex.

Q. And what’s the reference to “out all the time”?
A. She clarified that situation by saying that it was the prolapse that was making it too painful to have sex.

26 Ms D’s evidence in cross-examination about an important element of the discussion on that occasion was:

Q. What contraceptives were you taking as at August 2003?
A. None.

Q. So you weren’t using a condom?
A. Yes, I wasn’t taking anything, I was using condoms.

Q. All the time?
A. Most of the time.

Q. And you understood in circumstances where times that you didn’t use a condom, you could fall pregnant didn’t you?
A. Yes but I was breastfeeding so it really didn’t occur to me.

Q. Where did you get the notion that because you were breastfeeding you couldn’t fall pregnant?
A. A lot of people say it.

Q. Well who are the lot of people that say it, friends, other mothers that you know?
A. Yes.

Q. You didn’t mention it to Dr Fulcher did you, that you were breastfeeding so therefore it was safe to have sex without a condom because you wouldn’t fall pregnant. You didn’t say anything like that to Dr Fulcher did you?
A. I can’t recall exactly what we spoke about--

Q. That’s certainly one of the things you didn’t talk about did you? You didn’t discuss whether you could fall pregnant whilst you were breastfeeding and having unprotected sex did you?
A. I don’t recall speaking to him about it.

Q. No that’s because it wasn’t spoken about was it?
A. I can’t recall speaking about it.

27 It is not in dispute that because she was taking Clexane on a regular basis, she had been advised not to take contraceptive pills.

28 Much turns on what passed between Ms D and Dr Fulcher in regard to her sexual activity and contraceptive practices. In August, at the first consultation, Ms D recalls telling Dr Fulcher that, after the prolapse became apparent, it was painful for her to have sexual intercourse, and he recorded this.

29 In relation to sexual activity, Ms D was asked in her evidence in chief:

Q. After her birth and before 22 August 2003, that’s your first visit to the second defendant, were you sexually active?

A. Not really.

Q. What does that mean?
A. No, only every now and then.

30 She was cross-examined about this, but did not resile from her answer. I find that “sexually active” is not an expression Ms D would normally have used and may not have understood completely. Although Dr Fulcher may have understood the question to mean, “are you having sexual intercourse at present?” that was not Ms D’s understanding. Rather, as I understand her answers, it meant, “are you having sexual intercourse frequently?”

31 Her answer, "not really", indicates that, in her mind, the doctor was asking her whether she had sexual intercourse frequently, not whether she had sexual intercourse at all, and her answer, in that sense was truthful, although clearly inaccurate and probably unresponsive.

32 It follows that I must find that, even if Dr Fulcher thought that he was asking Ms D whether that she was currently engaging in sexual intercourse, Ms D did not understand his question to mean that. Her understanding, I find, was that he was asking her whether she was having sexual intercourse on a regular, or even a frequent, basis. This failure of communication had some serious consequences.

33 When Ms D saw Dr Fulcher on the first occasion in August 2003, it is clear that her intention was to convey that, at least since the prolapsed uterus had become apparent, sexual intercourse was too painful for her. For that reason he assumed was not having sex. I find that the only time Dr Fulcher questioned Ms D about this matter was in August. I shall give my reasons for finding that he did not ask her about it on other occasions later.

34 The position would have been different if the doctor had asked her directly? "How often do you have sexual intercourse?" However, he did not. Rather, he asked a question that it is clear she understood in a different sense from that which he meant.

35 Dr Fulcher was adamant that he warned Ms D that she should not be pregnant at the time of the proposed surgical procedure. She does not recall any such warning. I am satisfied from Ms D's evidence that the question of contraception was raised at the August consultation, and it was at that time that she told him that her normal method of contraception was the use of condoms. I am also satisfied that Dr Fulcher formed the impression that Ms D was not having sexual intercourse at the time, because of the failure of communication, and he concluded that there was no need to say more at that time.

36 It is clear from Ms D’s evidence that she knew that when she was pregnant she should not drink alcohol or smoke, and that X-rays were inadvisable.

37 It may very well be the case that Dr Fulcher believed, on the basis of the conversation with Ms D, that she was not having sexual intercourse at all, because of the pain she suffered as a result of the prolapsed uterus. If this were the case, it is understandable that he would have said little about the need for contraception. However, whatever his belief, there is no evidence other than his own recollection, assisted by his notes, which are largely silent on the issue, that he gave any warning about the importance of avoiding pregnancy before the procedure, and of having a pregnancy test in advance. I find that on that or any other occasion, he did not specifically say anything to her about the importance of not being pregnant at the time she had surgery for the prolapse repair and tubal ligation.

38 Ms D does not recall speaking to Dr Fulcher when she was admitted to Liverpool Hospital on 8 December 2003, the scheduled date for her operation, when it was postponed because of a medical emergency at the Hospital. On that occasion, of course, she was not pregnant, and had no reason to believe that she was. The hospital notes record, in Dr Fulcher's handwriting, that he did speak to her and I accept that this is probably the case. However, there is no evidence that on that occasion there was any conversation between them either about a pregnancy test or about Ms D's sexual activity at the time. No doubt she was disappointed because the procedure could not be carried out on that date, and Dr Fulcher was obviously busy with other matters.

39 I find specifically that on that occasion the question of a further pregnancy test was not raised by Dr Fulcher or anybody else on his behalf or on behalf of the health service. Nor is there any evidence that the general practitioner, Dr Vu, was given any indication either by letter or otherwise, that the surgical procedure had had to be postponed, and that any further testing was required before the rescheduled surgery could be performed.

40 When Ms D was admitted to hospital on 2 February, and the procedure of uterine prolapse repair and tubal ligation was in fact carried out, Dr Fulcher gave evidence that the anaesthetist, Dr Goonan, summoned him to the anaesthetic bay and told him that Ms D had not had a pregnancy test. If this had been the case, it was reasonable to expect that evidence would have been called from Dr Goonan by the defendants or one of them, to the effect that the conversation between him and Ms D and between him and Dr Fulcher had in fact taken place. He was not called, and no explanation was offered as to why he was not called. I must therefore infer, on the basis of Jones v Dunkel (1959) 101 CLR 298, that any evidence that Dr Goonan might have given would not have assisted either defendant. I have read and considered a number of authorities (including Payne v Parker (1976) 1 NSWLR 191 and Manly Council v Byrne [2004] NSWCA 123) to which I was referred by the defendants, which, it was argued, modified the effect of Jones v Dunkel, but in my view this is a situation where that authority applies with full force. I infer that any evidence given by Dr Goonan would not have assisted either defendant.

41 Ms D's evidence, even after vigorous and at times hostile cross-examination by Ms Burke, was that she could not recall any such conversation in the anaesthetic bay, or, indeed, any conversation with Dr Fulcher or anybody else about a pregnancy test.

42 There is no record in the hospital notes, made either by Dr Goonan or by Dr Fulcher, or by anybody else who was present at the time, of any discussion of a pregnancy test either in December or in February. Because of the importance that Dr Fulcher attached to this question, the absence of such a note, to my mind, is a powerful indication that at those times there was no such discussion.

43 Dr Fulcher was asked about whether he was able to administer pregnancy tests in his rooms or whether such a test could be administered at the Liverpool Hospital. He said that both were possible. However, he said that particularly in the early stages of pregnancy, a urine test, which was what Dr Vu had administered to Ms D in May, might prove to be inaccurate. In his view the best indication of whether or not a patient was pregnant was a blood serum test. This was a procedure whose results could not be made available for at least a couple of hours. It was a consideration which Dr Fulcher said that he had taken into account when determining whether or not to continue with the procedure on Ms D. He was aware that Ms D had previously suffered pulmonary embolus and was taking Clexane, and had stopped taking that medication because of the procedure. In his view, stopping and starting the medication might well be detrimental to Ms D's health.

44 If Dr Fulcher was so concerned about the possibility of pregnancy, given what he said was Ms D's reply to the questions about this subject, it does seem rather surprising, given his own evidence, that he did not administer a urine test, which takes a few minutes, even though it must be accepted that the results of such tests cannot be regarded as conclusive. It would have been better than nothing. However, my finding is that the matter of a pregnancy test was not raised by him or anyone else, so there would have been no reason for him to cancel the procedure on the basis of the facts as I find them.

45 I find, on the balance of probabilities, that no such conversation between Ms D, and the anaesthetist, or Ms D and Dr Fulcher, as the defendants allege, ever took place. The evidence that Dr Fulcher gave was, I am satisfied, a reconstruction by him, and I do not intend to suggest that he was deliberately being dishonest. However, his evidence was that he was distressed and disappointed because his professional reputation had been questioned, and that he always did his best to assist his patients. Nevertheless, I must find on the basis of all the evidence, that this, and other parts of his evidence were reconstructed by him, and do not reflect what actually happened.

46 Dr Barrowclough also refers to the fact that when the procedure was carried out in February, Ms D had a bulky uterus, a matter which Dr Fulcher noted in the hospital records. It is quite clear from Dr Fulcher's own evidence that he recognized that an enlarged uterus might be consistent with pregnancy, but it might also be consistent with other conditions. According to his evidence, it was a matter which he considered. He says that it was a factor, along with his understanding that Ms D had not had a pregnancy test, before he determined to continue with the procedure. He says that the reason he determined to continue the procedure was that he was satisfied that Ms D could not be pregnant because she had told him that she had not been sexually active.

47 I have already found that her response in cross examination that she was "not really" sexually active was something that she said in August 2003. I have also found that between August 2003 and May 2004, Dr Fulcher, did not at any time question Ms D about either her sexual activity or whether she had had a pregnancy test.

48 Dr Fulcher's evidence was that a bulky uterus is often found in women who had had multiple births. By the time Dr Fulcher carried out the procedure, Ms D had delivered four children by natural vaginal delivery. It would be quite reasonable to expect that such a person would have a bulky uterus. Against this, I must weigh the evidence of Dr Barrowclough, who indicates that in his opinion an enlarged uterus should put the operating surgeon on notice of the possibility of pregnancy.

49 There is no evidence before me as to exactly how Dr Fulcher became aware of the bulky uterus, although it is certainly something that he noted in his own records and the hospital records. There was no evidence as to how a laparoscopic procedure of this nature is carried out or of how Dr Fulcher came to observe the uterus, although, as the fallopian tube to which he applied the Filshie clips, on his evidence, are connected to the uterus, he must have been aware of some aspects of its size.

50 In my view the bulky uterus should have put Dr Fulcher on notice of the possibility that the plaintiff was pregnant, but I could not be satisfied on the balance of probabilities that on this basis alone he should have determined that she was likely to be pregnant and have terminated the procedure.

51 There is no note of Dr Fulcher anywhere that refers to a pregnancy test. There is certainly no mention of such a test in his letter to Dr Vu, written the day following the August consultation, or any other letter to Dr Vu, though his evidence was that he expected Ms D to follow up about the test with the GP. He was not asked whether he had himself given Ms D a pathology referral form for a blood serum pregnancy test, though one assumes that he could easily have done so.

52 Dr Fulcher also said that it was his usual practice to hand to patients contemplating a tubal ligation some brochures prepared by the College of Obstetricians and Gynaecologists. Such brochures were in evidence. On each brochure there is a sticker, which specialists are advised to place on their patient’s files, but Dr Fulcher said that it was not his usual practice to do this. There was certainly no sticker attached to his notes. Ms D says that to the best of her recollection, Dr Fulcher did not give her any brochures.

53 I find, on the balance of probabilities that when Ms D saw Dr Fulcher on 22 August 2003, there was no discussion of the desirability of her having a pregnancy test before surgery, and certainly no direction by Dr Fulcher that she should do so. I also find, on the balance of probabilities, that Dr Fulcher did not hand her any brochures.

54 Any discussion between Dr Fulcher and Ms D about contraceptive practice took place during the consultation on 22 August. I have found that there was no conversation about this subject either in December, when the surgical procedure was cancelled, or on 2 February, when it was carried out.

Consultation in May 2004

55 There is no doubt that at the initial consultation, Dr Fulcher warned Ms D that tubal ligation did not always prevent future pregnancy, and that there was a 1 in 300 chance that pregnancy would occur. This is recorded in Dr Fulcher’s notes and Ms D recalls it being said both on that occasion and also when she saw him in May.

56 Subsequently, on 4 May 2004, some 3 months after the surgery, when Ms D and Ms F were in Dr Fulcher’s rooms, their evidence was that, after Ms D had told Dr Fulcher that she was pregnant, and after the ultrasound ordered by Dr Vu had shown she was pregnant at the time of the surgery, he said words to the effect of “Didn’t I tell you to have a pregnancy test? I usually do.” Dr Fulcher denies that he said this.

57 On that occasion, Ms D may have been aware that she might have been pregnant on 2 February, because of the ultrasound report, the content of which had been conveyed to her by Dr Vu. The evidence is unclear as to whether she had actually read Dr Bark’s report, which suggested a likely date of conception. It may well be that both she and Ms F were angry when they went to see Dr Fulcher, and both may initially have believed that she had become pregnant despite the tubal ligation. It appears that, before Dr Fulcher performed his own ultrasound and made his calculations, he believed that this might have been one of the cases in which pregnancy had occurred despite the tubal litigation. However, in the course of the discussions between the three people involved, it became clear that conception had occurred some time late in December or early January. There is no issue that the sterilisation procedure had failed. The claims made by the plaintiff in this case relate to failure on the part of the defendants to act to determine whether or not she was pregnant when the procedure was carried out.

Do the facts as found disclose a duty of care and a breach of that duty?

58 It is not in dispute that Ms D did not have a pregnancy test before she saw Dr Vu on 5 May 2004. Nor is it in dispute that she had sex without any contraception on at least one occasion, that she was not pregnant on 8 December 2003, but had become pregnant by 2 February 2004, when Dr Fulcher performed the surgery on her.

59 The Civil Liability Act 2002, s 5, contains the following definition: ”’negligence’ means failure to exercise reasonable care and skill.” Section 5B of the same Act provides:

(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

60 In the statement of claim, the plaintiff alleges the following particulars of negligence against both defendants:

"a. Failing to take any or any adequate precautions for the plaintiff's safety;
b. Putting the plaintiff in a position of peril in the circumstances;
c. Failing to ensure that a pregnancy test was conducted prior to the operative procedure of 2 February 2004;
d. Allowing the plaintiff to have X-ray procedures and consume strong narcotic pain killers and drink alcohol in circumstances where these matters constituted a risk of injury to the foetus and which ought not to have occurred if it was known that the plaintiff was pregnant;
e. Failing to become aware that the signs of an enlarged uterus which the plaintiff was displaying were consistent with pregnancy;
f. Failing to advise or adequately advise the plaintiff;
g. Failing to advise the plaintiff that she may be pregnant and therefore that the operative procedure on 2 February 2004 should not occur."

61 Particulars a - e allege acts or omissions; particulars f and g allege a failure to warn.

62 The only evidence of the nature of the duty of care owed by a gynaecologist to a patient in these circumstances is the evidence contained in Dr Barrowclough's report. It is in the following form:

"1. Should a pregnancy test be carried out prior to a tubal ligation?
Yes. It is reasonable to confirm the absence of a pregnancy prior to tubal sterilisation.
Additionally, I believe that if at operation the uterus is found to be larger than the normal non-pregnant size, the procedure should be discontinued until the reason for the enlargement has been diagnosed. This naturally includes confirming or excluding a pregnancy."

63 In the course of proceedings I excluded certain evidence that the defendants sought to tender. The defendants indicated in the course of the hearing that they wished to rely on the defence provided by the Civil Liability Act 2002, s 5O. Objection was taken to the admission of some evidence tendered by the defendants, which went to this defence, on the basis that the Rules require that the defence under s 5O must be specifically pleaded and particularised before that defence can be raised as an issue in the proceedings. I accepted that submission and gave my reasons at the time. The effect of my ruling is that the defendants cannot rely on the defence. Dr Barrowclough's evidence is therefore the only evidence before me relating to the duty of care.

64 How does this meet the test set out in s 5B? Considering s 5B(1), the risk against which it is alleged Dr Fulcher should have taken precautions was the risk that, at the time of the surgical procedure, Ms D was pregnant. Was the risk of pregnancy foreseeable? Was it not insignificant?

65 The answers to these questions depend on the time at which the questions are asked. In August 2003, when Ms D consulted Dr Fulcher for the first time, she was suffering from the consequences of a prolapsed uterus, and at that time it was painful for her to have sexual intercourse. She said that it was too painful for her to have sexual intercourse at the time. Indeed, the only time at which she says that she had had sexual intercourse was one occasion after the scheduled date of the surgery in early December. As at 22 August 2003, it would not have been unreasonable for Dr Fulcher to assume that the situation described by Ms D would continue for weeks, but not indefinitely. However, I have found that there was a conversation in August 2003 about contraception and that Ms D mentioned the use of condoms.

66 In December 2003, and again in February 2004, on the two occasions when Ms D came to Liverpool Hospital for the procedure, I have found that she was not asked about whether or not she was pregnant or had been tested for pregnancy. Because of the lapse of time after her discussion with Dr Fulcher, the question should have been asked on or before each of these occasions. When the surgical procedure was performed in February, six months had elapsed since the August consultation with Dr Fulcher. There is no evidence about whether the prolapse continued to trouble her until that time. However, after four or six months, was it reasonable for Dr Fulcher to assume that she would have continued not to have sexual intercourse? I find that it was not. I do not need any expert evidence to make this finding. It is a matter of common sense.

67 The risk of pregnancy was clearly present where the woman concerned was not taking a contraceptive pill or fitted with an intrauterine device and had sexual intercourse. Condoms may be more or less effective as contraceptives, but it is notorious that they are less effective as contraception than pills or intrauterine devices. Dr Fulcher said that his usual practice was to advise patients to have a pregnancy test, but I have found as a fact in this case that he did not follow that usual practice in the case of Ms D.

68 Considering s 5B(2), in this case, if surgery of the type, which Ms D underwent, is carried out, there is a risk both to her and to the foetus. Dr Fulcher admitted this in his evidence, so there is no need to look for other evidence. Because of the intrusive nature of the surgical procedure, narcotic analgesics are used as a matter of course, and radiological procedures involving the use of X-rays are also highly probable. The possible harm to the foetus and to the mother is serious. The impact of invasive surgery on the uterus and adjoining area constitutes a trauma.

69 The birth of healthy children clearly has great social utility. There is not a great burden on an obstetrician and gynaecologist to order a blood serum pregnancy test or to ask the referring general practitioner to arrange this.

70 In the circumstances I find that the risk was not insignificant, and that a reasonable person in the doctor's position would not only have advised the patient to have a pregnancy test within a day or two before the surgical procedure, but would either have referred the patient to a pathologist for the test or have advised the referring general practitioner to ensure that a test was carried out. This is consistent with Dr Barrowclough’s opinion. Where, in circumstances that a patient had indicated that she was not using a contraceptive pill or an IUD, as was the case here, no matter what she might have said four months previously about lack of sexual activity, a reasonable medical practitioner would have reminded her that she should not be pregnant at the time of the procedure, and accordingly should have a pregnancy test before the scheduled date. Further, when the surgery was postponed in December, such a reasonable medical practitioner should have reminded the patient of both the desirability of avoiding pregnancy and the need to have a test before the date of the rescheduled procedure.

71 It follows that the failure of Dr Fulcher to take proper steps to ensure that Ms D had a pregnancy test before he performed the repair of the prolapsed uterus and the tubal ligation on 2 February 2004 constitutes a breach of the duty of care that he had to her.

Contributory negligence

72 Both defendants raised contributory negligence as a defence. The particulars of that contributory negligence set out in Dr Fulcher's defence are:

"a. Failing to disclose that she was sexually active when that information was requested by the second defendant;
b. Failing to comply with the second defendant's direction to have a pregnancy test prior to the sterilisation procedure;
c. Failing to provide an accurate history;
d. Failing to respond to the symptoms of pregnancy until it was too late to terminate the pregnancy;
e. Failing to answer truthfully that the plaintiff had been sexually active when that information was requested immediately prior to the procedure;
f. Failure to arrange a pregnancy test immediately after the procedure, despite the knowledge that she had given untruthful answers that she had not been sexually active and had been advised to have a pregnancy test prior to the procedure;
g. Failure to attend the scheduled post operative consultation; and
h. Failure to arrange a pregnancy test prior to 20 weeks gestation, despite the knowledge that she had given untruthful answers that she had not been sexually active and had been advised to have a pregnancy test prior to the procedure."

73 Of these particulars, I believe I have dealt with most of them except paragraph (g). Her failure to disclose that she was sexually active resulted from the way in which Dr Fulcher posed the question to her, a matter with which I have already dealt. I have found is a matter of fact that Dr Fulcher did not direct her to have a pregnancy test before the sterilisation procedure. I have found on the basis of the evidence that there was no reason, on or before 2 February 2004, for Ms D to believe that she might be pregnant. I could not find that any history she provided to Dr Fulcher was deliberately untruthful or intentionally misleading in any material way. She had previously not had menstrual periods while she was lactating, and while she was breast-feeding her daughter T, on the basis of her own experience, there was no reason for her to expect that she would have periods. I have also found that Dr Fulcher did not have any conversation with her about the possibility of pregnancy except in August 2003, and that his evidence of these matters was a total reconstruction on his part. If there had been such discussions, I would have expected some written record of this matter.

74 Although Dr Fulcher’s understanding of her answer to the question about sexual activity was in fact inaccurate, I do not find that she was deliberately untruthful, nor do I find that she was acting unreasonably, given her understanding of lactation on conception.

75 In view of my findings of fact, I could not find that she acted unreasonably at any time in failing to have a pregnancy test, given that Dr Fulcher did not mention this to her at any time.

76 Dr Fulcher's evidence was that normally he reviews all patients a few days to a few weeks after he carries out a procedure. He says it is his normal practice that he or a registrar tells the patient to make an appointment for review. In evidence there is a copy of the discharge summary prepared for Ms D, which certainly mentions a review, by Dr Fulcher. Her evidence was that she did not recall seeing this document, that she did not recall being given the discharge summary document, and that she did not really recall being told by Dr Fulcher, or any other doctor or nurse telling her that she should arrange a review appointment. She certainly did not remember receiving any communication from Dr Fulcher or anybody else reminding her to make such an appointment. I accept that even if she was given the document, which I could not find on the balance of probabilities, she did not understand the significance of the need for a review, and no one explained this to her. Given her suffering, pain, and treatment in the hospital, after the procedure, and her need to care for the other children, I could not find that it was unreasonable for her to fail to make an appointment for review. I accept that if she had attended for a post-operative review, it is more probable than not that Dr Fulcher would have undertaken an ultrasound, and that this procedure most likely would have revealed her pregnancy. However, this did not happen, and it was not any failure on Ms D's part that led to this not happening.

77 In so far as the defendants alleged that Ms D failed to observe possible indicators of pregnancy, this allegation that seems to ignore the fact that the procedure she undertook on 2 February 2004 was an incident of major abdominal surgery with severe aftereffects. Dr Fulcher admitted that patients who undergo this procedure are almost certain to suffer abdominal pain, possibly accompanied by nausea, and almost invariably require narcotic analgesics to relieve the pain. It was not unreasonable for Ms D to believe that her abdominal pain and associated nausea were a consequence of the abdominal surgery and were not morning sickness. I have already mentioned the absence of menstrual periods. I could not find that anything Ms D did in failing to recognize that the symptoms she experienced might have been related to pregnancy, rather than to the consequences of major surgery, was unreasonable.

78 That leaves only one allegation of contributory negligence that requires further consideration. This is the fact that, on at least one occasion, and on the evidence before me, I would find more probably than not, only on one occasion, she did have sexual intercourse without using a condom. She understood that this might result in pregnancy. As I have already indicated if she had been asked directly whether she had had unprotected sexual intercourse, I have no doubt that she would have answered that question truthfully. The question was not asked in a way that would lead her to answer it accurately.

79 I therefore cannot find in the circumstances that Ms D acted in any way that constituted an unreasonable failure to take care for her own safety.

Alleged damage suffered by Ms D

80 The plaintiff's case is that if she had known that she was pregnant at or before the time of surgical procedure was carried out, she would have had the pregnancy terminated. The following are extracts from her evidence, first in chief, and then in cross-examination by Ms Burke.

Q. If, at around the time you first saw Dr Fulcher, you’d had a test and it had shown that you were pregnant, what would you have done?
A. I would have asked for a termination.

In cross-examination she said, in relation to the birth of her youngest child:

Q. Now, you said in your evidence that if you’d known earlier you would have had a termination of pregnancy. Do you remember giving that evidence?
A. Yes.

Q. And that you didn’t have a termination because it was a child?
A. Yes.

Q. When did it become a child?
A. When it’s heart - when I saw it, when I saw it there.

Q. It’s still a child even if you haven’t seen it there, isn’t it?
A. Yes, it is but I wasn’t given the choice.

Q. You had considered termination with your fourth child, hadn’t you, because of the side effects associated with your anticoagulant?
A. Earlier on in the piece.

Q. And you in fact considered it but notwithstanding the side effects associated with the anticoagulant you decided to still go ahead and have that child?
A. Because she didn’t have any side effects.

Q. Well you didn’t know that. There was a risk, you knew that didn’t you?
A. There was a risk of facial damage but she didn’t have that.

Q. You didn’t know that at the time that you were pregnant in the early stages with your fourth child though, did you, when you were making the decision?
A. During an ultra sound it was confirmed her facial features were complete.

Q. And that was enough for you was it?
A. Yes.

Q. To have a termination?
A. Yes.

Q. And I suggest to you that had you known earlier that it is highly likely you would not have had a termination of pregnancy?
A. With her.

Q. With your fifth child--

HIS HONOUR: M.

BURKE

Q. M?
A. No I - had I have been given the choice earlier, I would’ve had a termination.

Q. At the time after you saw Dr Fulcher in May 2004, did you ask Dr Vu for a referral to see another obstetrician/gynaecologist to discuss a termination at 20 weeks?
A. No.

Q. When you found out that you were 20 weeks pregnant, it was not something that you even considered, was it?
A. At 20 weeks--

OBJECTION. LEGAL ARGUMENT.

Q. See it’s the case is it not Ms D that your evidence that you had you known earlier you would’ve had a termination is looking back, it’s not something that you would’ve done had you known earlier is it?
A. Yes.

Q. See I suggest to you it’s not something that you would’ve done had you known earlier because at all times it’s a defenceless child, as you said in your own words?
A. If I was given a choice I would’ve had a termination at the time I went in for the tubal ligation.

81 Dr Fulcher conceded that at 20 weeks it was too late to consider seriously termination of the pregnancy at all. In any event Ms D was quite clear that because she had seen the foetus on the ultrasound and considered it to be a baby, she would not have terminated the pregnancy at that stage.

82 I am satisfied on the balance of probabilities that if Ms D had known of the pregnancy at or before the time of the surgery, in view of her clear wish not to have more children, she would have had a termination of pregnancy.

83 The pregnancy was not terminated and she carried the baby, M, to full term. It was necessary for her to deliver the baby by caesarean section because of the consequences of the repair of the prolapsed uterus. As a result of the caesarean section she has an unsightly scar on her abdomen. The scar is about 13.5 cm long and in addition there are unsightly staple marks 8 mm wide.

84 However, the major consequence of the pregnancy and birth of M, Ms D says, is that she has become anxious, depressed, and agoraphobic.

85 It is therefore necessary for me to consider the nature and extent of her psychological damage, and whether and exactly to what extent, that damage is causally related to the defendant's breach of duty.

The nature of Ms D’s psychological and psychiatric harm

86 The plaintiff qualified a psychiatrist, Dr Parmigiani; the first defendant qualified Dr Lee, and the second defendant qualified Dr Brown. It is clear that while Ms D gave a history to each of these psychiatrists, which was basically the same, there were some differences in detail in what she told each of them. The defendants suggest that she deliberately gave inaccurate histories, but I do not accept this is the case. I am satisfied that she was aware that, in order for the doctors to form a medico-legal opinion, it was necessary for her to give them as full a picture of her condition as was possible. Her primary concern was with her mental condition immediately before, and after, the birth of M.

87 The hospital and other medical records indicate that, after the birth of her first child in 1994, Ms D did become depressed for a short time, and appears to have been diagnosed with post-natal depression. These records show that in 2000 she complained to a GP of anxiety and stress, and she was given a prescription for Arapax, but her evidence was that she understood this was an antidepressant and she did not wish to take it. Although she had the prescription, her evidence, which I accept, was that she never took this medication. The defendants place a great deal of weight on this, partly because they say it is any indication of her unreliability, and partly because they submit that any psychiatric condition which she suffered following the birth of M, was simply a recurrence of a pre-existing condition.

88 The 2000 incident seems, in the scale of things, to have been relatively minor. If Ms D was prevented by this condition from living a normal life or caring for her daughter, it was a situation that did not last more than a week or two.

89 Ms D says that during the pregnancy, between May and the birth of M in September 2004, she suffered from anxiety for a number of reasons. During the early months of the pregnancy, while she was unaware of it, she continued to smoke and drink alcohol. She says that she did not do either of these things during her earlier pregnancies and would not have done so had she known she was pregnant. She also knew that following surgery she had been given narcotic analgesics, which she believed might cause permanent damage to the child, and she also understood that she had undergone an X-ray procedure. She believed that X-rays could be harmful to the foetus. Dr Fulcher said that he was not aware of an X-ray procedure and the hospital records mention an ultrasound and the attendance of a radiologist. Whether or not, in fact, there was an X-ray procedure, Ms D believed that there was. Her understanding that any of these things might harm the foetus is certainly not unreasonable and is based in fact. In this regard, her anxiety, during the pregnancy and until she became aware that M was a properly formed and normal child, would not have occurred if she had not been pregnant. It is a consequence of the breach of duty of care.

90 After M was born, Ms D's evidence, corroborated to some extent by Ms F, is that she was depressed and lethargic. The hospital notes of Bankstown Hospital record some symptoms of depression. Shortly before her discharge from Bankstown Hospital, after the birth of M, she was seen by the Families First team for a psychosocial assessment. She told the Families First team that she was stressed throughout the pregnancy after she found out that she was pregnant. She told the team that she named the baby M, which meant "a gift from God". She also said she was feeling dizzy after the birth, was tired and was not eating well.

91 When Ms D saw a general practitioner some months after M’s birth, the clinical notes record that she was well and happy. This does not accord with the evidence of Ms D or Ms F, or with the records of the Bankstown Hospital Emergency Department in October 2004.

92 Ms D's evidence is that for a period of months after M’s birth she spent most of the time lying on the couch, watching television. She was too depressed to care for her older children by preparing meals for them, doing washing or the housework. Ms F's evidence was that during this period she, Ms F, did most of the housework and childcare, visiting Ms D's house on a daily basis.

93 Ms D also gave evidence that she considered that her feelings towards M were different from the feelings she had towards the four older children, which she attributed to the fact that she had not wanted M at all. She says that her feeling was that, although she tried to bond with him, it was difficult for her to do so because, although she loves him, she did not feel the same degree of intimacy as she had felt for the older children. She says that this failure to bond exacerbated her depression.

94 Ms D also gave evidence that she is fearful of going to public places and taking public transport. She has developed a fear of heights. If this evidence is accepted, it is clearly a symptom of agoraphobia.

95 Although Dr Parmigiani and Dr Brown differ slightly in their account of how the condition had developed, both agree that Ms D is suffering from symptoms of depression, whether or not properly described as postnatal depression, anxiety, and elements of agoraphobia. They agree that she would benefit from ongoing treatment from a psychiatrist, a psychologist or both. I place more reliance on the opinions of these two psychiatrists than I do on the opinion of Dr Lee, whose report is far less comprehensive.

96 The records of Bankstown Hospital do show quite clearly that Ms D attended the psychiatric clinic at that hospital on 28 October 2004. She presented to the emergency department complaining of shortness of breath over a two-week period. After examination by doctors in the emergency department, she was referred to a social worker, and was seen by a psychiatric registrar, who prescribed the antidepressant medication Avanza. After this, she did not see a specialist psychiatrist, but did continue to see a general practitioner who continued to prescribe Avanza. After some weeks, Ms D found that her condition improved, but that she put on a considerable amount of weight. She had been told that weight gain was a common side effect of Avanza.

97 Ms D says that after M's birth she developed a fear of leaving the house. Ms F, to some extent, corroborated this and it is certainly consistent with the history is that Ms D gave to the various psychiatrists.

98 The Bankstown Hospital notes relating to the admission of Ms D for the birth of M do not record any abnormality or other concerns, although, she was referred to the Families First Team for support before she was discharged.

99 Her evidence, and the history she gave to Dr Parmigiani, is that she first began to feel symptoms of anxiety and depression about a week after she was discharged. The history she gave to Dr Brown, who described her as an inaccurate historian, and to Dr Lee, suggest that the onset of symptoms was some weeks or even months later. On this issue, I prefer Ms D’s evidence and that of Ms F to the histories given to doctors some years after the events. This is consistent with what she told Dr Parmigiani. It is also true that she did not disclose to the psychiatrists any previous history of depression, anxiety, or agoraphobia, although the medical records in evidence do disclose that there were episodes of such complaints, including, in one case, post-natal depression, after earlier deliveries.

100 As I have indicated, the observations and opinions of Dr Parmigiani and Dr Brown, in my opinion, are substantially similar, although the labels they attached to the conditions they diagnosed were different. The treatment they recommend is also similar. Dr Parmigiani presents a diagnosis of postnatal depression, which developed one month after M's birth. He says,

"At this stage she had to look after five children, with limited financial support. She found it difficult to cope and she became increasingly anxious and depressed. She had panic attacks, which exacerbated her fear of pulmonary emboli.

Ms D was on antidepressant medication which partially beneficial [sic]. Her symptoms improved, but they did not resolve altogether. Ms D continued to feel anxious, self-conscious and unable to cope. She returned to work but she could not continue due to panic attacks. She developed secondary agoraphobia. And she no longer left home without a support person. Ms D's symptoms had a significant impact on her independence, occupational function and social activities."

101 Dr Brown's report goes into more detail. It is worth quoting her report at length, as the account she gives of what Ms D told her indicates the seriousness of the psychological effects she suffered after the birth of M.

"Although she then accepted the idea of proceeding with the pregnancy, Ms D said she was worried that her baby may have suffered through experiencing the surgery. She explained that she had heard that cancer cells become more rampant if they are exposed to air during an operation and wondered whether in a similar fashion her baby might have been damaged by the surgery being performed. She was also unaware that she had taken Pethidine and morphine during her hospital stay and said that she had taken Panadeine Forte in an intermittent fashion during the first two weeks post operative. Ms D explained that she had also undergone some type of abdominal x-ray in the hospital because she was feeling acutely unwell. She acknowledged that throughout the remainder of the pregnancy she smoked cigarettes, as she had done during the previous pregnancies. [Ms D’s oral evidence was that she had given up smoking cigarettes during the previous pregnancies.] On any alcohol intake, Ms D said that she probably had two drinks at each of two separate occasions prior to being aware of the pregnancy. Ms D said that she was concerned that the baby might have been affected by her use of analgesics and the x-ray but was less concerned about her minimal alcohol content. Ms D explained that although her partner was also shocked he was supportive of her proceeding with the pregnancy.

Ms D said that she did not have "much feeling" for her unborn child for around the first two-month period after the pregnancy was confirmed. She said that she then felt a "bit sad" for the baby in terms of her being concerned about him having been exposed to the surgery. .
Once the baby was born, Ms D said that she attached and bonded emotionally in a similar fashion to the previous children. She did not describe having given him "less input" than her other children and said that she felt relieved that he did not seem to have been adversely affected by events occurring during the pregnancy. However, at around four to five months post-confinement Ms D said that "things went wrong", in terms of her starting to experience a number of physical symptoms. She noticed that she was shaking and felt dizzy and as if she were "rocking" when she stood up and also noticed that if she went outside the home she felt as if she were about to collapse. At their worst for around a two to three month period, Ms D said that on the basis of these symptoms she attended a general practitioner and underwent a number of blood tests and a chest scan to exclude a further pulmonary embolus. She also underwent hearing tests because of the sense of her hearing being "distant" when she has experiencing dizziness. Ms D also recalled feeling "panicky" on standing up and said that she spent much of her time lying down and resting. She recalled having gained around 8 kg in weight presumably on the basis of being less active.

Although she did not remember having lost interest in daily activities, Ms D recalled feeling a loss of confidence and self-esteem because she was no longer as actively involved in household activities or in caring for the children. When her doctor raised with her the possibility that she was suffering with anxiety and depression Ms D said that she initially did not believe him. It took her some weeks before she agreed to trial an antidepressant medication Avanza and said it was only after around six to eight weeks of use that she noticed an improvement in how she felt and began to accept there being a possible emotional basis for her physical complaints. Ms D said that her weight rose to a highest ever level of around 89 kg. She remembered having gained weight even prior to the use of the medication and said that although she was not eating larger quantities she was probably eating the wrong types of food. She has managed to lose around 2 kg in weight since that time. Although she tries to cook healthy meals for the family, Ms D explained that she still has days, possibly three times a week, when she does not feel bothered to cook and relies on simple snacks for the family's main meal.

Of her sleeping patterns Ms D said that during the worst two to three month period she was restless at night and had difficulty in staying asleep in a sustained fashion. Once the mood improved, Ms D said she was able to sleep for around eight hours per night, albeit with her still continuing to wake several times a night to the current time [sic]. She denied these nightly awakenings have been related to the care of baby M. [The doctor describes further details of the alleged sleep disorder.]

Of ongoing symptoms of panic, Ms D said she still feels dizzy and as if she is "rocking" when she stands up. When she experiences anxiety episodes, Ms D feels weak in the legs, experiences pounding of her heart and feels as if her hearing is "distant" from her. She also experiences a sweating and shaking in the sense that she needs to get out of the particular situation. Although such episodes were occurring multiple times per day during the worst two to three month period Ms D said they have gradually reduced in frequency over time and have possibly only occurred twice over the past month. Ms D has noticed that if she is particularly tired or exhausted she is more prone to an episode in the following day or otherwise the symptoms are initiated by her being in crowded situations or by using public transport. Moreover, Ms D explained that she has developed a new fear of heights and also will not tolerate her children standing at height, even if guard rails are present. She recently refused a friend's offer to travel on a ferry with the children, because she feared either she or they would fall from the ferry. Ms D explained that she has developed a fear that if anything bad is to happen in life it will happen to her. She acknowledged having become over-protective about the children's safety and said that although she is rationally aware that she should not be limiting their activities she has not been able to bring herself to allow them to be in situation she perceives as unsafe. Ms D described being fearful of being out in public on her own and said that she has had two panic attacks in public situations and had to rush to her car and drive home. She does try to reassure herself and stay in shopping queues but acknowledged having sometimes left the queue because of panic symptoms. Ms D said that although she is now able to leave home on her own and does not need to have a companion with her she is only comfortable to travel within her local area. She was not prepared to drive to the current assessment session and said her ex-partner drove.

On symptoms of depression, Ms D said that she was uncertain what this term meant. However, she said that she sometimes still feels she cannot be bothered to undertake various activities despite having much to do in caring for the children. She provided an example of having had paperwork to apply for a case worker role for around a two month period but not having been able to motivate herself to even send back the forms. During the worst two to three month period of the symptoms, Ms D said that she had sometimes wondered about the purpose of life, however she denied having seriously considered suicide, because of her awareness of responsibilities to her children. She said that she still has to "push" herself to involve herself in daily activities and uses the motivation of needing to be available for her children to help her in this regard. Ms D said that she is still able to enjoy the company of her children and particularly enjoys watching them play soccer. She described herself as sometimes being tired and experiencing slightly diminished energy levels. Although she acknowledged having yelled more at the children in recent years, Ms D said that she viewed this as probably being a quite “normal" reaction to raising five children. She denied having lost control of her temper or being concerned that she might become physically violent with the children. She said that she is no longer able to sit and read for any length of time, on the basis of feeling unable to sit still and feeling physically restless. . . . She described being worried in a generalised fashion about being punctual and getting her chores done. She also acknowledged being concerned that she might suffer a pulmonary embolus in the future. She has not been warned to expect such a possibility and is no longer requiring medication and said that she still does have some concerns that she might experience a recurrence.

Ms D said that during the worst of her panic symptoms she was grinding her teeth at night. She did not report having been given a dental splint to wear. She said that she tries not to show her teeth much because she does not like how they look.

Ms D returned to receptionist work in July 2006, for around a one-month period. She had to leave work early on several days because she felt panicky and then decided to relinquish her role, on the basis of feeling that she would not be able to be reliable. She denied having returned to work since that time. She said she would like to become a DOCS caseworker.

Of the relationship with her partner Ms D explained that he seemed to have difficulty understanding her emotional problems. However she described the decision to separate around 18 months prior as having been on a mutual basis. Ms D said the couple remains friendly and her ex-partner visits and takes the children out in a regular fashion. He also went to the team soccer games with her and the children. Although she described feeling "comfortable" in being on her own raising the children, Ms D said that she believes there is a good chance that the couple may reunite in the future. She denied her partner as having become physically aggressive towards her."

102 I have quoted at length from Dr Brown's report, because it is largely consistent with, although more detailed than, the account in Dr Parmigiani's report, and the evidence Ms D gave in court. It is also a report prepared for the defendant, though it is not unsympathetic to Ms D. I accept that account of Ms D’s condition.

103 Dr Brown is concerned with the previous reports of depression and anxiety, and with the effect of concern about the risk of a further pulmonary embolus, both of which she considers might make Ms D more prone to the type of symptoms which Ms D reports. She relates this to the question of causation.

104 There are some minor differences between Ms D’s evidence and what Dr Brown reports as her history. Where there are differences, I either regard them as insignificant, or I prefer the evidence Ms D gave in court, because it was there tested by vigorous cross-examination.

105 Notwithstanding Dr Brown's reservations, on the balance of probabilities the onset of the symptoms that Ms D describes arose within a period of months after the birth of M. The psychiatrist at Bankstown Hospital, to whom Ms D was referred by the Outpatients Department, described her condition as post-natal depression, which is the way Dr Parmigiani describes it.

106 While her condition has improved somewhat with the medication, I am satisfied that she does suffer from a psychiatric disorder, however described, and that this is directly and causally related to pregnancy with and birth of M. It is irrelevant that she suffered from depression in 2000, because the breach of duty by Dr Fulcher is a significant causal factor in her current condition.

Liability of the Health Service

107 The plaintiff’s case is that, because Dr Fulcher was a Visiting Medical Officer at the Health Service’s hospital, the Health Service is vicariously liable for any negligence of Dr Fulcher. Alternatively, the plaintiff says that the Health Service, as the legal person operating the Liverpool Hospital, had an independent duty of care towards her.

108 In Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, 559, Reynolds JA (with whom Hope and Hutley JJA agreed) said that the relationship of a doctor and a hospital is a question of fact, to be decided on the evidence. This principle was approved and applied in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, especially per Samuels JA at 592. In both those cases, there was evidence as to the nature of that relationship. If the plaintiff wishes to establish that any Health Service, or operator of a hospital, is vicariously liable for the acts of a doctor who delivers clinical services in the hospital, that party bears the onus of proving what the relationship is. In this case the plaintiff adduced no evidence of the relationship between Dr Fulcher and the Health Service. The only evidence is that given by Dr Fulcher, namely that he was a Visiting Medical Officer at Liverpool Hospital. The other evidence suggests that Ms D was referred to him as a private patient, and that she was admitted to Liverpool Hospital. There is no indication in the evidence whether she was admitted as a public or a private patient, but she was clearly admitted to that hospital because Dr Fulcher arranged it. Given the state of the evidence, there is no basis upon which I could find that the Health Service is vicariously liable for any act or omission of Dr Fulcher.

109 There is also no evidence on the basis of which I could find that the Health Service broke any duty of care which it owed to Ms D.

Damages

110 The defendants referred me to a number of cases in other jurisdictions where awards of general damages have been made in cases where, they contend, the damage suffered by the plaintiff is similar to that which I have found was suffered by Ms D. However. I am not satisfied that the situations are as similar as the defendants contend, and, in any event, these were not awards for non-economic loss awarded after the enactment of the Civil Liability Act 2002, and can be distinguished for that reason.

111 I find, on the balance of probabilities, that the symptoms, whether described as post-natal depression or as an anxiety disorder, are serious and continuing, and despite the use of medication, may continue, albeit in a diminished form, for some time. In their acute form the symptoms lasted for a period of several months, during which time Ms D's ability to care for her family, and do simple shores, leave the house, and take the children visiting, were significantly affected. I find, also, that these symptoms would not have arisen, but for the fact that she carried M to full term and delivered him. The second defendant's breach of duty was a significant causal factor in the development of these symptoms.

112 The only damages that Ms D claims are damages for non-economic loss, and past and future out-of-pocket expenses. The amount of the past out-of-pocket expenses is agreed at $1620. Both Dr Parmigiani and Dr Brown consider that there is a need for future psychiatric care and counselling, and on this basis the need for future out of pocket expenses is established. I allow a sum of $5,000.

113 The most difficult question is the amount of damages to be awarded for non-economic loss. The plaintiff has the caesarean scar, which is relatively large, being 13.5cm long. With staple marks beside the scar up to 8mm wide. which she would not have if the pregnancy with M had not occurred or had been terminated. Most of her pain and suffering has been psychiatric. In view of all the evidence, which I have summarised above, I assess her as being 30% of a most extreme case, as I must do pursuant to the Civil Liability Act, s 16. This results in an award of damages of $103,500.

Verdicts

114 There will be a verdict for the first defendant.

115 There will be a verdict for the plaintiff against the second defendant in the sum of $110,120.

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