Micallef v Minister for Health of the State of Western Australia - [2006] WASCA 98

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MICALLEF & ANOR -v- MINISTER FOR HEALTH OF THE STATE OF WESTERN AUSTRALIA [2006] WASCA 98

CORAM: STEYTLER P
MCLURE JA
MURRAY AJA

HEARD: 6 DECEMBER 2005

DELIVERED : 31 MAY 2006

FILE NO/S: FUL 181 of 2004

BETWEEN: AMANDA ANN MICALLEF
First Appellant
JOHN CHARLES MICALLEF
Second Appellant
AND
MINISTER FOR HEALTH OF THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
Citation  :MICALLEF & ANOR - v - MINISTER FOR HEALTH OF THE STATE OF WESTERN AUSTRALIA [2004] WADC 224
File No  :CIV 1440 of 2001

Catchwords:

Tort - Negligence - Whether a failure to advise of the risk of pregnancy following tubal ligation at caesarean section - Turns on own facts

Legislation:

Hospital and Health Services Act 1927 (WA), s 15(4)

Result:

Appeal dismissed
Notice of contention dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Mr T Offer
Second Appellant          :     Mr T Offer
Respondent:     Mr P D Quinlan

Solicitors:

First Appellant               :     Trewin Norman & Co
Second Appellant          :     Trewin Norman & Co
Respondent:     Srdarov Richards Burton

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

Chappel v Hart (1998) 195 CLR 232
Charleston v Smith (1999) 30 MVR 132
Garrett v Nicholson (1999) 21 WAR 226
Rosenberg v Percival (2001) 205 CLR 434
Water Board v Moustakas (1988) 180 CLR 491

Case(s) also cited:

Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Jones v Hyde (1989) 63 ALJR 349
Rogers v Whitaker (1992) 175 CLR 479
Sidaway v Board of Governors of the Bethlem Royal Hospital & Maudsley Hospital Board [1985] AC 871

STEYTLER P: I agree with McLure JA.
MCLURE JA: The appellants appeal from the decision of Eaton DCJ dismissing their claim against the respondent (defendant) in negligence for failing to inform them of the risk of pregnancy following a tubal ligation carried out on the first appellant at Osborne Park Hospital on 21 January 1998. The respondent, the Minister for Health, was sued under s 15(4) of the Hospital and Health Services Act 1927 (WA).
The tubal ligation was carried out at the time of the caesarean section delivery of the appellants' fourth child, Michael. During this pregnancy (which was unplanned) the appellants decided that, after Michael's birth, they did not want any more children. The first appellant was aged 27 when Michael was born. By that stage the appellants had four boys all under the age of 6 years. They were a single income family living in a three bedroom house and were having difficulty making ends meet.
Two years after the tubal ligation, the first appellant became pregnant. The appellants' fifth child was born on 24 October 2000 at which time the first appellant had a total salpingectomy which involved the complete removal of her fallopian tubes. The appellants claimed they suffered loss and damage as a result of the birth of their fifth child.
During the first appellant's pregnancy with her fourth child she read the book "Everywoman" by Dr D Llewellyn Jones. Her understanding from that source was there was no possibility of pregnancy following a tubal ligation. The first appellant told her general practitioner, Dr Ponos, that she wished to have "her tubes tied" at the delivery of her fourth child and Dr Ponos conveyed that request in a letter dated 7 August 1997 addressed to the Obstetrics Outpatient Clinic at Osborne Park Hospital. The first appellant inquired of a doctor at the hospital's antenatal clinic as to the possibility of having a tubal ligation at the time of giving birth and was advised it could only be done if the birth was by caesarean section. At all times prior to the commencement of labour, it was expected that the first appellant would give birth by vaginal delivery as she had with her three other children. When she was advised on 21 January 1998 that the birth would have to be by caesarean section, the first appellant requested that a tubal ligation be performed at that time.
The first appellant's contractions commenced at around 8.30 am on 21 January 1998. Her husband took her to Osborne Park Hospital and remained with her at the hospital until she was taken to theatre for the

caesarean section. The first appellant was admitted at around 10.40 am. A midwife conducted a vaginal examination at around 10.45 am. The midwife paged Dr Doreen Sih‑Kin Yeap who conducted a second vaginal examination and requested an ultrasound. Dr Yeap was training to be a specialist obstetrician and gynaecologist. By 11.15 am, Dr Yeap had concluded that a caesarean section was necessary. Dr Yeap conducted the caesarean section and tubal ligation. Michael was born at 11.59 am on 21 January 1998.

There was no claim that the tubal ligation was negligently performed. It was not. An histopathology report obtained by Dr Yeap showed that the operation had been successful. Although it had been technically successful, it did not achieve the goal of preventing a further pregnancy. The first appellant's subsequent pregnancy was attributed to the development of a fistula (hole) in her fallopian tube allowing an egg from the ovary to escape and be fertilised. The uncontradicted expert evidence was that the risk of becoming pregnant after a tubal ligation performed when a woman was not pregnant is 1:1000. The risk of pregnancy when a tubal ligation is performed at the time of a caesarean section is around 2:1000.
The appellants' plea of negligence and causation in the statement of claim was as follows:
"6.The [respondent] through its servants or agents was negligent in that prior to the sterilisation procedure being performed the First [appellant] was not properly advised of the risks normally associated with a tubal ligation.
Particulars of [respondent's] Negligence in Failing to Advise
The [respondent] was negligent in that its servants or agents:
(a)failed to advise the First [appellant] that the failure of tubal ligation sterilisation was in the region of 1 in 1,000 for the first 2‑3 years and increased with time;
(b)failed to advise the First [appellant] that the failure of the tubal ligation procedure when performed at the time of the Caesarean section was slightly higher;
(c)failed to advise the First [appellant] to undergo testing to determine whether or not the procedure had been a success;
(d)failed to advise the First [appellant] to take alternative contraceptive precautions until such time as the [first appellant] could undergo testing to determine whether or not the procedure had been a success.
7.Had the First [appellant] been advised of the true failure rates and the increased risk of failure if the procedure was performed at the time of a Caesarean section:
(a)she would not have proceeded with the sterilisation surgery at that time but would have had it performed as soon as practicable after delivery of her fourth child when the risks of the failure of such a procedure were at a minimum; and/or
(b)in the event that she did proceed with the surgery she would have undergone tests as soon as was practicable after proceeding with the said surgery to determine whether or not the said surgery was successful; and/or
(c)she would have investigated and implemented additional contraceptive precautions."
The trial Judge found that Dr Yeap had advised the appellants that there was a risk of pregnancy following tubal ligation and that the risk was higher when tubal ligation was carried out at the time of a caesarean section delivery ("the finding"). He also found that this information was sufficient to discharge the duty owed to the first appellant. The finding as to the sufficiency of the content of the warning is not challenged on appeal. In their grounds of appeal, the appellants contend that the finding was against the weight of the evidence (ground 1), that the trial Judge failed to have regard (or sufficient regard) to specified matters (ground 2) and erred in relying on other matters (ground 3), failed to provide adequate reasons for the finding (also numbered ground 3), and failed to consider whether Dr Yeap had effectively communicated the warning to the first appellant (ground 4).
The respondent filed a notice of contention seeking to affirm the trial Judge's decision on the ground that this Court should find that, had the respondent failed to advise of the risk of pregnancy, the appellants had not proved that such failure was, on the balance of probabilities, a cause of the first appellant's fifth pregnancy or the loss and damage claimed by the appellants.

The trial Judge's reasons

Dr Yeap and the appellants gave evidence concerning whether the first appellant was advised on 21 January 1998 of the risk of pregnancy following tubal ligation. The trial Judge summarised their evidence.
Dr Yeap was very experienced, having performed many vaginal deliveries and caesarean sections. She had also carried out sterilisation procedures including tubal ligation at caesarean section and laparoscopic sterilisation. In laparoscopic sterilisation, clips are placed on the fallopian tubes. With a tubal ligation at caesarean section, clamps are placed over the tubes and a segment cut out with the tubes then being tied. Dr Yeap's understanding at the relevant time was that the risk of pregnancy following laparoscopic sterilisation was two or three in a thousand and the risk of pregnancy with tubal ligation at caesarean section was two or three times higher than that.
Dr Yeap had no recollection of either of the appellants or the events on 21 January 1998. She gave evidence of her practice established over several years.
Both Dr Yeap and the first appellant signed a consent form on 21 January 1998. The first appellant acknowledged that she consented to undergo "the procedure/treatment of caesarean section and tubal ligation the nature and purpose and risks of which has been explained to me by Dr Yeap". Dr Yeap, by her signature, confirmed that she "explained the nature, purpose and risks of this procedure/treatment" to the first appellant.
Dr Yeap was with the first appellant for most of the time between 11:05 am when she conducted a vaginal examination, until the first appellant was transferred to theatre at 11:35 am.
Dr Yeap's evidence in examination in chief was that her standard procedure is to inform a patient of the risks of the relevant procedures, in this case, the caesarean section and tubal ligation. In the case of caesarean section, the risks she would advise of included infection, bleeding and bladder, bowel or utero injury. In the case of tubal ligation, she would inform the patient of, among other things, the risk of pregnancy and that the risk was higher for a tubal ligation at caesarean section. As to her professional opinion about tubal ligation at the time of caesarean section, she said:
"It's not something I like to do as a routine. I prefer to actually have discussed it at a clinic situation where I've got more time to talk about it. I would prefer not to do it, like the tubal ligations, as a rule, at caesarean section because of the high risk of failure and also a lot of people do change their mind after. I prefer to do a lap[arascopic] steri[lisation] at a later date."
Dr Yeap confirmed that she had filled out the consent form (it was in her handwriting) and that after explaining the relevant risks, including the risk of failure of a tubal ligation procedure (pregnancy), she would have asked the first appellant to sign the document and then she would have signed it. She was then asked:
"Are you aware of any circumstances in which you would sign that document or sign that statement at the bottom of the document, in circumstances where you hadn't provided the information that you referred to?‑‑‑No."
In cross‑examination Dr Yeap confirmed that she would have been aware on 21 January 1998 that the first appellant had visited the hospital's antenatal clinic on two prior occasions and would have assumed that the first appellant had discussed tubal ligation at those visits and possibly with her general practitioner. Dr Yeap also confirmed that the situation had the potential to become catastrophic (although that potential did not materialise). However, Dr Yeap rejected the possibility that those factors may have caused her to abridge her standard warning. The evidence is as follows:
"Could you concede that, given that you had information suggesting it had been discussed previously and given the difficulty of the situation in which you found yourself, it is possible that you could have overlooked one of the items of warning, ie, the risk of pregnancy?‑‑‑No, definitely not."
She was also asked whether there would be anything to prevent other people in the room from hearing Dr Yeap's warnings to the first appellant. She said:
"I guess if the patient – I mean, she's obviously in labour so she's contracting so she's in pain and having a contraction in between, I mean, at that time, and be vocal about the pain, then I guess a family member might not hear it or – I'm not sure.
If that occurred, what would be your normal practice?‑‑‑I'll wait and then start again."
In re‑examination she confirmed that she was frequently confronted with deliveries of a serious or high risk nature but was trained to react calmly and effectively. She was also asked why she was certain that she would not omit any part of her standard warning. Her response was:
"I don't do this lightly. I feel quite strongly about doing [tubal ligation] at a caesar and usually try and talk people out of it in a clinic situation. So even though she has actually been seen at the clinic and probably even beforehand with the GP I would actually try and talk people out of this procedure because of the risk of failure."
The trial Judge accurately summarises the first appellant's evidence. She recalled that not long after her arrival at hospital, a midwife conducted a vaginal examination. She became aware that things were not progressing normally. Another person conducted a further vaginal examination. She could not remember who that was, explaining that she was having very painful contractions.
She recalled that after the second vaginal examination someone spoke to her and told her that the baby was in a transverse lie and that a caesarean section would be necessary. The first appellant was unable to say whether the person who gave her that information was male or female or was the same person that had conducted the second vaginal examination. She said:
"I'm not really too sure because I was just – I was there. I was in a lot of pain and I'd actually asked for the gas and got given a shot of pethidine instead and so it was very, very – it was just a really traumatic experience."
The first appellant confirmed that the person who spoke to her about the caesarean section also told her of the risks associated with a caesarean section. As to the consent form, the first appellant said she was given a piece of paper and, to be able to undergo the caesarean section, she signed it when asked to do so. When asked whether Dr Yeap had explained the nature of the procedures to be undertaken, their purpose and their risks she replied:
"No. That wasn't explained to me. There was no risks given on the caesarean … Of it failing, for me to fall pregnant again."
She was cross‑examined on this issue as follows:
"It's possible, isn't it, that as part of those explanations of the risks that Dr Yeap quoted the failure rates for a tubal ligation procedure to you?‑‑‑No, definitely not.
Said to you words such as that there was a difference between the failure rates depending on whether you did it laparascopically or by caesarean section. Do you remember that?‑‑‑No, I don't.
That it's about 2 to 3 in a 1000 laparascopically but it's higher with caesarean. Do you remember that?‑‑‑No, definitely not.
It's possible that that happened, that you had those things told to you at the time?‑‑‑Definitely not.
If you don't remember the person who spoke to you about the risks of the caesarean, it's possible, isn't it, that you simply don't remember this part of the day?‑‑‑Yes, I know, but like I – when you're trying to control your breathing and trying to keep as relaxed as possible, the first tendency that you do is close your eyes and with a lot of other voices going on and having an anaesthetist that can't find a vein to put the bung in ready for the operation and doing a very, very bad job of it at the same time, you know it's – everything was going on at the same time, so. I mean like I'm not dismissing that she may have said that there were some risks but it wasn't put down clear enough with the stressful times, if it was said, for me to actually comprehend it and hear it properly because there was a lot of stuff going on at the same time.
So what, you're saying it is possible that these risks were identified to you at the time?‑‑‑It could have been but I didn't hear it, and if the risk are given to you, aren't they supposed to make sure that you do fully hear and comprehend the risks at the time?"
However, the first appellant did recall that a person tried to talk her out of having the tubal ligation. Although she had requested a tubal ligation, she said she did not know whether it had been done. When asked to explain why she thought it might not have been, she said:
"Well, they were saying, you know – they were trying to talk my husband out of it – because of my age and this, that and the other – and myself out of it because of my age.
Trying to talk your husband out of what?‑‑‑To talk me out of having my tubes done because of my age.
So do you remember at the time that you requested the tubal ligation a doctor trying to talk you out of it?‑‑‑There was somebody trying to say 'but she's too young'.
So you have a recollection that the discussion about tubal ligation included – at the time that you're about to have the caesarean you said, 'I'd like a tubal ligation at the same time'?‑‑‑Yes.
And you remember that that discussion included somebody trying to discourage you from having it at that time?‑‑‑Yes."
The first appellant confirmed that she decided to have a tubal ligation some six months previously. It was suggested to her that she did not remember what she was told about tubal ligation because she had already made a firm decision to proceed. Her response was:
"No. If I'd have been told at any stage that the risk would have been higher I would have remembered it."
Dr Yeap accepted that she would not have quantified the risk which, in any event, cannot be characterised as objectively high.
The second appellant remained with his wife in the examination room until she was taken to the operating theatre. He said in examination in chief, that there were no discussions about the risk of falling pregnant after a tubal ligation. He confirmed that he was certain of that "because that would definitely be a conversation that I would remember". However, it emerged in cross‑examination that he had significant gaps in his memory of events. The second appellant could not remember whether his wife had a second vaginal examination and if so who performed it. This emerges from the following:
"You think that there was a second examination but you don't remember that?‑‑‑I honestly cannot recall that because I was pretty stressed at the time.
Okay. You weren't leaving the room?‑‑‑No.
So you were in the room but there are things that occurred that you don't have a recollection of?‑‑‑If they're directly not affecting me, I honestly cannot say for certain that there was a second examination, no."
He confirmed that different people entered the room at different times and that he was not paying attention to all aspects of what was going on in the room. He said the midwife who conducted the first examination advised of the need for an emergency caesarean. He was asked:
"Do you remember somebody, a doctor more definitely saying there will need to be a caesarean section for the health of the baby?‑‑‑I honestly do not recall.
Okay. Do you remember discussions with the doctor who was identified as the doctor who was going to do the procedure?‑‑‑No."

The second appellant gave evidence of a discussion he had with an "Asian lady" who he thought was one of the theatre staff or a midwife who advised against the first appellant having a tubal ligation because she was too young. He did not think the Asian lady was the doctor because the discussion occurred after his wife had been wheeled off into the theatre.
He was asked about the possibility that the discussion in which the Asian lady was endeavouring to discourage his wife from having the tubal ligation occurred while his wife was in the room and after she had left. He said "In all honesty, I can't say it was; you know, it was a long time ago".
The second appellant did not recall anybody speaking to his wife about the risks associated with the caesarean section. This matter was pursued:
"That might have been discussed with your wife but that wasn't something that you were a party to?‑‑‑I couldn't say what was discussed with my wife.
…
Yes?‑‑‑I could not say whether the doctor talked to her and I was there, I just do not remember.
Do you remember your wife signing the necessary consent forms for the caesarean section?‑‑‑Yes.
Do you remember the person who took her through that process?‑‑‑Well, there was no real process from my memory. It was just basically put under her hand for her to sign.
…
Certainly you don't remember a discussion about the risks of a caesarean section that I've mentioned?‑‑‑No; no.
If they happened, you just simply weren't part of that discussion or you didn't hear them?‑‑‑It would be pretty hard for me not to be part or hear them because I was standing there holding my wife's hand, so."
The second appellant confirmed that the first time he gave any thought as to what happened on the day in question was when he found out that his wife was pregnant with their fifth child.
The trial Judge made a number of findings and observations before concluding on the balance of probabilities that Dr Yeap advised the first appellant that there was a risk of pregnancy following a tubal ligation and that the risk was higher when it was performed at caesarean section than if it were undertaken laparascopically at a later stage. In particular, the trial Judge noted that neither of the appellants had occasion to recall the details of what occurred on the morning of 21 January 1998 until the first appellant was discovered to be pregnant with her fifth child some two years later. He referred to the fact that neither appellant had made contemporaneous notes of any discussion and that Dr Yeap on the other hand had the benefit of brief notes in the hospital records and the signed consent form. The trial Judge also observed:
"I find it difficult to accept that [the appellants] can be so definite about what was not said while being so uncertain as to what was said."
He also noted that the appellants were very firm about wanting a tubal ligation. The trial Judge did not make an unequivocal finding as to whether a person tried to discourage the appellants from having the tubal ligation and if so who that person was. He said (at [35]):
"It was clear from the first [appellant's] evidence that there was some discussion in her husband's presence about having the procedure done at that time. Somebody was trying to persuade the first [appellant] not to have the procedure at that stage. She said that her husband effectively took charge because of the state she was in. If such a discussion did take place prior to the first [appellant] being taken to theatre it seems likely that it was a discussion that involved Dr Yeap and both [appellants] in circumstances of great stress."
Then he concluded (at [36]):
"I accept that Dr Yeap, as an experienced doctor, having carried out many procedures such as that carried out on the first [appellant], as part of her standard practice, advised in the terms described by her. As she said, the circumstances in which such advice might be given could vary considerably. It might be given in the relatively calm circumstances of a prenatal clinic. It might be given in the relatively hectic circumstances of the preparation for an emergency caesarean section. I'm not persuaded that, on this occasion, Dr Yeap completed the consent form but failed to give appropriate warnings to the first [appellant] as to the risks associated with both caesarean section and tubal ligation."
Later in his reasons, the trial Judge referred to matters that influenced his assessment of the evidence leading to his finding. He said (at [42]):
"The [appellants] went to the hospital on the day of the delivery under the impression that a tubal ligation was completely effective. It seems that the first [appellant] left the hospital assuming that a tubal ligation had been carried out and thereafter conducted normal sexual activity with her husband on the basis that it was completely effective. Clearly the [first appellant] has no recollection of Dr Yeap speaking of a risk of pregnancy. It may be that she failed to comprehend what was being said to her by Dr Yeap given that she was undergoing a 'hellish' labour. It may be that she paid little regard to what was being said given that both she and her husband were firmly of a view that the tubal ligation should be undertaken at the time of the caesarean section both in the firm belief that a tubal ligation would be completely effective."
He returned to that issue again. He said (at [50]):
"It is clear that, following the procedure, the first [appellant] conducted herself either on the basis that she was confident in the knowledge that there was no chance of pregnancy or that she was prepared to undertake the risk. The latter seems less likely. In all probability her state of knowledge based on the information provided in the book 'Everywoman' prevailed despite what was said to her by Dr Yeap. It may be that, in the particular circumstances in which Dr Yeap mentioned these matters to the first [appellant], she paid no regard to what was being said to her or did not fully understand what was being said to her."
Grounds 1, 2 and the first ground numbered 3 relate to the weight given by the trial Judge to the evidence of Dr Yeap on the one hand, and the evidence of the appellants on the other. The overarching complaint was that the trial Judge failed to apply to Dr Yeap's evidence the "critical blow torch" that he applied to the appellants' evidence. I propose to deal with grounds 1, 2 and 3 in reverse order, starting with the specific errors said to have been made before addressing the general ground that the finding is against the weight of the evidence.

Ground 3

The appellants complain that, in weighing the evidence of the appellants and Dr Yeap, the trial Judge erred in relying on five matters. First, it is said the trial Judge erred in concluding that neither of the appellants had occasion to recall the detail of what occurred on the morning of 21 January 1998 until the first appellant was discovered to be pregnant with her fifth child when the evidence was that the appellants resumed a sexual relationship some 12 weeks after Michael's birth. It was submitted that was the latest date upon which the appellants would have had to consider the issue of birth control and the advice given to them on 21 January 1998.
The trial Judge's statement is in accordance with the evidence given by the second appellant. He was asked in cross‑examination:
"And you didn't give any thought to what had happened on this day in terms of who said what and who was in the room and at what time. You didn't have to write it down or think about that until you found out that your wife was pregnant again?‑‑‑Basically, yes, that's correct; yes.
You had no reason to think about this day or the way the events happened until you found out that she was pregnant again?‑‑‑Correct, yes.
And that was about over two years after that you found out?‑‑‑Yes.
Once you found out that she was pregnant again, was it a matter of going back and trying to work out between yourselves what had happened and what had been said and matters of that kind?‑‑‑We discussed what we remembered of the day, yes."
The appellants rely on the second appellant's evidence that they resumed a sexual relationship around 12 weeks after Michael's birth. He was then asked:
"So 12 weeks and at that stage did you have any thoughts about needing to have any birth control method in place?‑‑‑After Michael? No, because we assumed that it was done."
The latter evidence is equivocal. It assumes the second appellant heard the advice, or if he heard it attached any significance to the very low risk of pregnancy, or that it affected his understanding that tubal ligation was a fail‑safe method of contraception.
The same question was repeatedly put in cross‑examination to the first appellant (at AB 73 - 74). On each occasion she failed to answer the question. However, she did not identify the resumption of sexual relations as being relevant. In any event, the trial Judge accepted that, for one reason or another (the range of which possibilities he considered), the first appellant had no recollection of receiving the information from Dr Yeap. It is clear that the trial Judge had significant (and in my view well‑founded) reservations as to the reliability of the appellants' evidence that they were not warned of the risks (and relative risks) of pregnancy. That being the case, and in light of their (erroneous) understanding from "Everywoman", no significance can be placed on the resumption of sexual relations. I am not persuaded the trial Judge erred as alleged. Further, these types of considerations could not be used to test Dr Yeap's evidence because she did not claim to have any actual recollection of events.
Secondly, it is contended that the trial Judge erred in concluding that "Dr Yeap … had the benefit of brief notes made by her following her vaginal examination of the first [appellant] and following the surgery and delivery, those notes being made on the hospital's standard forms as part of standard procedure". The trial Judge also went on to refer to the consent form which Dr Yeap filled out and was part of the hospital's records. These contemporaneous records do, in my view, provide a specific factual context in which to assess the likelihood of Dr Yeap giving to the first appellant what she described in her evidence as the standard warning. The trial Judge was not in error to describe that documentation as providing a benefit.
Thirdly, it is contended that the trial Judge erred in commenting that it was difficult to accept the appellants could be so definite about what was not said while being so uncertain as to what was said "without identifying the evidence the subject of such comment and the reason why the … Judge had difficulty in accepting such matters".
The trial Judge was making a general comment that is to be read in the light of his summary of the appellants' evidence. He was making the point that the reliability of the appellants' recollection of what was not said can appropriately be tested by reference to their recollection of what was said and done. The comment most clearly applies to the second appellant. His evidence could be given little if any weight because of the general unreliability of his recollection of events and conversations that were proven to have occurred. Further, the first appellant admitted to the possible unreliability of her recollection or comprehension.
Fourthly, it is said the trial Judge erred in concluding that somebody was trying to persuade the first appellant not to have the procedure done at that stage when the evidence of both appellants was that the discussion was to the effect that the first appellant was too young to have a sterilisation which reinforced the effectiveness of such a procedure rather than warning of the potential for failure. It is clear the trial Judge accepted Dr Yeap's evidence that she would usually try to dissuade a patient from having a tubal ligation at caesarean both because of the risk of failure and because people later regret the decision. The procedure is not reversible.
Finally, it is said the trial Judge erred in concluding that it was likely that the discussion involved Dr Yeap and the appellants when the evidence suggested that the discussion did not involve Dr Yeap but a midwife or one of the theatre staff. It is not clear that the trial Judge made a finding that it was Dr Yeap. Even if he did, the finding is clearly open on the evidence. The first appellant did not know whether the person who conducted the second vaginal examination and who told her of the need for and risks of a caesarean was a man or a woman. The second appellant had no idea who the doctor (if any) attending his wife in the examination room was. There was evidence of another Asian woman on the staff at Osborne Park Hospital who was not a doctor but there is no evidence that she was involved with the delivery of the appellants' fourth child. Finally, the appellants' evidence is consistent with Dr Yeap's evidence that she would usually attempt to dissuade a patient from having a tubal ligation at caesarean section.
For these reasons, I would dismiss ground 3.

Ground 2

The appellants claim that the trial Judge failed to have regard, or any sufficient regard, to Dr Yeap's evidence that it would be preferable to speak to a patient about sterilisation in a clinical situation; that she was aware the first appellant had been seen in the antenatal clinic on at least two occasions and by her general practitioner; that she would have assumed that the first appellant had been informed of the risk of falling pregnant following tubal ligation; and that the delivery had the potential to become catastrophic and an emergency caesarean delivery was required. It is also said that the trial Judge failed to have regard, or sufficient regard, to his finding that it was not a situation where Dr Yeap had the luxury of a lengthy calm discussion. It is clear from this finding and the reasons as a whole that the trial Judge was aware of, and had regard to, the stressful circumstances in which Dr Yeap was operating. This is also apparent from par 36 of the trial Judge's reasons set out above. The trial Judge clearly accepted Dr Yeap's evidence that as a result of her very considerable experience in this area, she was not diverted from her standard procedure. It was reasonably open to him to do so particularly having regard to Dr Yeap's views about tubal ligation at caesarean section. I would dismiss ground 2.

Ground 1

The appellants contend that the finding that Dr Yeap had warned of the risk of pregnancy following tubal ligation and that the risk was higher when carried out at the time of caesarean delivery was against the weight of the evidence because:
(a)Dr Yeap had no recollection of the appellants, the delivery or the conversations prior to delivery;
(b)Dr Yeap's evidence was limited to her usual practice;
(c)the appellants' evidence was that they were not advised of the matters the subject of the finding; and
(d)the trial Judge made no adverse findings as to the credibility of the appellants.
In my view, the finding was in accordance with the weight of the evidence or at least reasonably open on the evidence. Dr Yeap was experienced in the field of caesarean section and female sterilisation. She had a standard procedure for advising patients of the risks and consequences of those procedures. She had firm views as to the undesirability of making decisions about and proceeding with sterilisation at caesarean section. She had contemporaneous hospital records that enabled her to identify with precision her dealings with the first appellant on 21 January 1998. That provided Dr Yeap with an accurate factual context in which to give her evidence as to her standard practice. Of particular significance is her involvement in obtaining the first appellant's consent to the caesarean section and tubal ligation and her evidence of what she does before signing a form on which she confirms that relevant information was provided to the patient.
The trial Judge did not disbelieve either appellant but had properly grounded concerns as to the reliability of their evidence. Indeed, the appellants' evidence that they were not informed on 21 January 1998 of the relevant risks was unpersuasive. The first appellant accepted the possibility that she may have been told. For the reasons I have already given, the second appellant's evidence could be afforded little, if any, weight. I would dismiss this ground of appeal.

Adequacy of Reasons

The appellants contend that the trial Judge erred in failing to provide adequate reasons for making the finding that Dr Yeap gave the relevant warning to the appellants. This ground is without merit.
The parties accepted that the trial Judge was under a duty to state his reasons. The challenge is to the sufficiency of those reasons. In determining sufficiency, it is necessary to look at the reasons as a whole, if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson (1999) 21 WAR 226 at 248 per Owen J; Charleston v Smith (1999) 30 MVR 132 at 140 ‑ 141 per Malcolm CJ. In this case, the trial Judge's reasoning process which led to the result is disclosed with sufficient certainty to enable the litigants to know how he came to his decision and to secure the statutory right of appeal. I would dismiss this ground.

Ground 4

The ground is in the following terms:
"In view of the learned Trial Judge's comments:
(a)'The first plaintiff was in great pain. Pethidine was administered at 11:15 am.'
(b)'It may be that she failed to comprehend what was being said to her by Dr Yeap given that she was undergoing a "hellish" labour';
(c)'It may be that, in the particular circumstances in which Dr Yeap mentioned these matters to the first plaintiff, she paid no regard to what was being said to her or did not fully understand what was being said to her'; and
(d)'There was no time to dwell on the question of the first plaintiff's comprehension or understanding of what had been said to her
The learned Trial Judge failed to have regard to the question as to whether the actions of Dr Yeap could in the circumstances of the situation be regarded as a warning in any real or true sense of the word."
This claim is in substance that if, which is denied, the respondent warned the first appellant of the risk of pregnancy and that the risk was greater with a tubal ligation at caesarean section, the respondent was negligent in failing to ensure that the first appellant heard or understood the information. This claim is outside the scope of the pleadings and was not litigated at trial (as to which see Water Board v Moustakas (1988) 180 CLR 491 at 496 ‑ 497). It was not suggested to Dr Yeap that her warning was inadequate in the circumstances, or that she should have taken steps to test the appellants' comprehension or understanding, or any other steps prior to proceeding. The only issue at trial was whether or not a warning of the type in question was given. I would dismiss this ground.
For these reasons, I would dismiss the appeal. In the circumstances, it is unnecessary to deal with the respondent's notice of contention. However, as the matter was argued I propose to deal with it.

Notice of contention.

The respondent contends that, had the respondent failed to warn the first appellant of the risk of pregnancy, the appellants had not proved that any such failure was the cause of the first appellant's pregnancy.
The respondent relies on a number of findings made by the trial Judge, in particular that:
(1)the appellants attended at Osborne Park Hospital on 21 January 1998 under the pre-existing, but erroneous, belief that a tubal ligation would be completely effective in preventing pregnancy;
(2)the appellants were firmly of the view that the tubal ligation should be undertaken at the time of the caesarean section;
(3)whatever information had been imparted by Dr Yeap to the first appellant she would have proceeded with the tubal ligation at the time of caesarean section in any event; and
(4)histopathological testing carried out following the tubal ligation procedure confirmed that the procedure had been successful.

The respondent also relies on other matters. There is evidence that any further testing is likely to have confirmed that the procedure had been successful. There was also evidence that the potential for the first appellant to become pregnant was likely to have developed a significant period after the tubal ligation. According to the respondent, the appellants failed to give any satisfactory or realistic evidence as to any alternative course they would have adopted had they been aware of the risks of pregnancy following the tubal ligation procedure. However, the first appellant gave evidence that if she had been told of the risk of pregnancy associated with the tubal ligation, she would have used additional contraception measures to further reduce the risk (AB 45).

The respondent also relied on the appellants' actual conduct in relation to the use of contraception following the first appellant's total salpingectomy on 24 October 2000. She did not use additional contraception because, she said, although there remained a risk of pregnancy it was of the order of one in a million.
The test of causation is subjective although objective factors are used to test the patient's reliability: Chappel v Hart (1998) 195 CLR 232; Rosenberg v Percival (2001) 205 CLR 434. It is the case that the appellants' evidence as to their hypothetical decision must be assessed in light of the circumstances at the time rather than after the risk had materialised in the form of another pregnancy. Even so, the trial Judge did not make any specific or general credibility finding about the first appellant (or the second appellant) that enables this Court to make a decision as to whether she would have used, and continued to use, additional contraception measures. I would dismiss the notice of contention.
MURRAY AJA: I agree with McLure JA and have nothing to add.