Nigam v Harm (No 2)

[2011] WASCA 221

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NIGAM -v- HARM [No 2] [2011] WASCA 221

CORAM:   McLURE P

NEWNES JA
MURPHY JA

HEARD:   13 APRIL 2011

DELIVERED          :   18 OCTOBER 2011

FILE NO/S:   CACV 105 of 2009

BETWEEN:   SHARAD CHANDRA NIGAM t/as S C NIGAM & CO

Appellant

AND

YVONNE HARM
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

Citation  :HARM -v- SHARAD CHANDRA NIGAM T/as S C NIGAM & CO [2009] WADC 117

File No  :CIV 820 of 2003

Catchwords:

Negligence - Claim against solicitor - Solicitor instructed to advise on claim against medical practitioner for negligence - Duty of solicitor to make reasonable enquiries into claim -  Finding by trial judge that solicitor negligent in failing to advise client that claim against medical practitioner had reasonable prospects of success - Appeal allowed - No failure to make reasonable enquiries into claim - On information available to solicitor no reasonable prospects of establishing claim for negligence - Duty to warn of risks of surgery - Weight to be given to evidence of client as to whether undergone surgery if warned - Method of assessment of value of loss

Legislation:

Nil

Result:

Appeal allowed
Decision of trial judge set aside
Respondent's action dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms C H Thompson

Respondent:     Mr K J Bradford

Solicitors:

Appellant:     Tottle Partners

Respondent:     Bradford & Co

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

Ainsworth v Levi (Unreported, NSWCA, 30 August 1995)

Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602

Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Darvall McCutcheon v H K Frost Holdings Pty Ltd [2002] VSCA 85; (2002) 4 VR 570

Davies v Taylor [1974] AC 207

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Feletti v Kontoulas [2000] NSWCA 59

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

Gill v Lougher [1830] 1 CR & J 170

Gore v Montague Mining Pty Ltd [2000] FCA 1214

Gregg v Scott [2005] 2 AC 176

Hall v Foong (1995) 65 SASR 281

Hammond Worthington v Da Silva [2006] WASCA 180

Harm v Nigam [2009] WADC 117

Harrison v Bloom Camillin (No 2) [2000] Lloyd's Rep PN 404

Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539

Instant Nominees Pty Ltd v Redman [1987] WAR 218

Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Leitch v Reynolds [2005] NSWCA 259; (2005) Aust Torts Reports 81‑806

Lithgow City Council v Jackson [2011] HCA 36

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

McCarthy v Kidd [2001] NSWCA 304

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

Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394

Notaras v Sly & Weigall [2005] NSWCA 275; (2005) 12 BPR 23,765

Phillips v Bisley [1997] NSWCA 246

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

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

RP Howard Ltd v Woodman Matthews & Co [1983] BCLC 117

Scottsdale Homes Pty Ltd v Gemkip Pty Ltd [2008] QSC 326

Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332

Sharpe v Addison (t/as Addison Lister) [2003] EWCA Civ 1189; [2004] PNLR 23

Shorey v PT Ltd [2003] HCA 27; (2003) 197 ALR 410

Sloan v McDonald & Sutherland (Unreported, WASCA, Library No 970608A, 14 November 1997)

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

Yager v Fishman & Co [1944] 1 All ER 552

1. McLURE P:  I have had the advantage of reading the reasons for judgment of Newnes JA and Murphy JA.  I agree with Newnes JA.  My reasons for that agreement can be shortly stated.

2. In order to establish that the appellant was negligent, the respondent had to prove that the appellant should have advised her to keep the cause of action alive, either by instructing the firm to serve the writ before 18 February 1999 or to apply to extend the validity of the writ before 21 December 1999 (when the appellant ceased acting for the respondent).

3. Whether there has been a breach of such a duty will depend upon the scope of the retainer and all the relevant circumstances.  It is clear from the conduct of the parties as a whole that the pursuit of any claim against Dr Hastwell depended on it having (at least) reasonable prospects of success.  In that context, it is relevant to determine whether reasonableness required further investigations in order to be able to assess the merits of the claim.  Most of the decided cases in this area of the law involve circumstances where investigations were materially incomplete when the cause of action became statute‑barred.

4. That is not the position in this case.  The evidence established that the appellant had taken extensive steps to investigate the merits of a negligence claim against Dr Hastwell.  There was no evidence that additional investigations would have unearthed information (or expert opinion) that had a material effect on the assessment of the merits of the negligence claim.  In those circumstances, a solicitor in the position of the appellant would not breach his or her duty to exercise reasonable care by failing to advise the respondent to serve, or to apply to extend the validity of, the writ unless the negligence action had a reasonable prospect of success. 

5. An assessment of the merits of a negligence claim for the purpose of advising a client in the respondent's position on whether or not to litigate the claim is separate and distinct from an assessment of the value of a cause of action for assessing damages for loss of a chance.

6. I agree with Newnes JA's assessment of the merits of the respondent's claims, including his assessment of the causation issues in the failure to warn claim.  Having regard to the respondent's pre‑existing pain condition and complex medical history, the test of a reasonable prospect of success is not satisfied in the failure to warn claim because of the complete absence of expert medical opinion that there is a causal connection, in fact, between the nature or size of the incision for the

appendectomy and the respondent's pain after that surgery.  Proof of this objective causal element (between the incision and the pain state) is governed by the law as stated by the High Court in Amaca Pty Ltd v Ellis (2010) 240 CLR 111. See also Lithgow City Council v Jackson [2011] HCA 36. The medical evidence goes no further than that nerve entrapment might be one of a number of possible (alternative) 'but for' causes. A real possibility is that any surgical intervention may have triggered the alleged alteration in the respondent's pain state.

1. NEWNES JA:  This appeal arises out of a claim by the respondent for damages for negligence against her former solicitor, the appellant.  The respondent alleged that the negligence of a medical practitioner had caused her to suffer severe continuing pain.  She retained the appellant to investigate and advise on the merits of an action for damages.  A writ was subsequently issued against the medical practitioner to prevent the action becoming statute‑barred, but the respondent accepted the appellant's advice that the writ should not be served until the appellant had conducted further enquiries into the claim and obtained medical evidence to support it.

2. As it turned out, the writ was never served and no application was made to extend the validity of the writ within the period permitted by the rules of court.  As a result, in due course the action became statute‑barred.  The respondent alleged that she thereby lost the chance of prosecuting a claim against the medical practitioner.  She commenced proceedings against the appellant for negligence in failing either to serve the writ or to apply to extend its validity.  The appellant contended that, consistent with the respondent's instructions, it had not taken either of those steps because on the material reasonably available to it the claim had no reasonable prospect of success.

3. In the District Court, Scott DCJ found that the appellant had been negligent and awarded the respondent damages of $200,000:  Harm v Nigam [2009] WADC 117. The appellant appeals against that decision. The respondent cross‑appeals against the award of damages, contending that the amount is manifestly inadequate.

Background

1. The respondent had for some time suffered from various gynaecological problems.  They included cervical carcinoma in 1981/82 for which she was treated, a curette in 1989, and intermittent stabbing pains on the right‑hand side of her stomach, in relation to which she

consulted a gynaecologist, Dr Hastwell, in May 1990.  The stabbing pains subsequently became more frequent and severe and, on 3 February 1992, she again consulted Dr Hastwell (ts 37).  He diagnosed a retroverted uterus, congestion and possibly endometriosis as the cause of her pain (ts 71).  Dr Hastwell recommended that the respondent undergo a diagnostic laparoscopy and a ventrosuspension of the uterus.  This surgery was undertaken by Dr Hastwell on 25 February 1992.  Dr De Souza, who was the respondent's general practitioner at the time, assisted as the anaesthetist.

1. Following the surgery, the respondent had considerable pain in the right iliac fossa and she consulted Dr Hastwell on 3 April 1992 for advice and treatment.  Dr Hastwell advised the respondent that the pain was due to appendicitis and a retroverted uterus, the ventrosuspension of the uterus in the first surgery apparently having been unsuccessful.  He arranged for the respondent to undergo an appendectomy.  The respondent assumed it would be performed laparoscopically (ts 44).

2. On 12 May 1992, Dr Hastwell performed an appendectomy through an extended Pfannenstiel incision.  (A Pfannenstiel incision is a long slightly curved horizontal abdominal incision made just above the pubic bone and is commonly used for a caesarean section.)  A further ventrosuspension of the uterus was not performed.  The respondent alleged that after the second surgery she had severe pain from the area of the incision and that the pain has remained unabated.  A histopathology examination on 14 May 1992 found that the respondent's appendix was normal (exhibit 2.11).

3. It appears that shortly after the appendectomy the respondent obtained a grant of legal aid to obtain legal advice on the prospects of a claim for damages for negligence against Dr Hastwell in respect of her continuing pain.  In June 1992, the respondent sought advice from a firm of solicitors, Fordhams.

4. Subsequently, on 31 August 1992, the respondent consulted Dr Hastwell again.  She tape‑recorded the consultation.  At that consultation, the respondent complained of pelvic pain on her right side.  Dr Hastwell told her that it could be due to irritable bowel, enlarged ovaries, endometriosis or cysts on her ovaries.  He suggested that she undergo a hysterectomy once she had finished having her family.

5. On 25 March 1993, Fordhams wrote to Dr Hastwell putting him on notice that the respondent alleged that the surgery he had performed had caused the 'formation and vigorous regrowth' of pelvic adhesions which were the cause of her pain.  On the same date, Fordhams wrote to Dr De Souza informing him of the respondent's allegation that Dr Hastwell had been negligent and requesting information on a number of matters relating to her treatment.  Dr De Souza responded by a letter dated 19 April 1993 (exhibit 2.14).  It will be necessary to come back to that letter in due course.  However, on the cause of the respondent's pain Dr De Souza said:

   [The respondent's] cause of pain is not affactorial.  I don't think there is any single cause for her pain whatsoever.  She has known adhesions which are mild to moderate.  She has had a diagnosed appendicitis.  She has also had irritable bowel syndrome.  She also had a prolapsed uterus and pelvic congestion.  Each one of these would cause severe pelvic pain at different times.

6. Fordhams also wrote to two doctors, Dr Hellmuth and Mr Marsh, who had treated the respondent after the surgery performed by Dr Hastwell.  On 25 March 1993, Fordhams wrote to Dr Hellmuth, a gynaecologist, who had been consulted by the respondent on 29 April 1992 (that is, after the ventrosuspension but before the appendectomy).  In his response of 29 March 1993 (exhibit 2.16), Dr Hellmuth said he had been consulted by the respondent in relation to her various gynaecological problems, as he thought, by way of a second opinion.  He was unaware that she was dissatisfied with Dr Hastwell's treatment.  Dr Hellmuth considered that some of the respondent's pain was due to scarring of and behind the uterus, and the prolapse of the uterus.  He thought that most of the respondent's problems could be resolved by a hysterectomy but that Dr Hastwell had treated her in a conservative manner to allow her to continue her hope of having further children.

7. On 8 September 1993, Fordhams wrote to Mr Marsh, a general surgeon, who had performed a laparoscopy on the respondent on 31 May 1993.  Fordhams sought a report on Mr Marsh's findings on the laparoscopy.  Mr Marsh replied on 15 September 1993 (exhibit 3.6), saying that the laparoscopy had revealed a solitary band adhesion between the right ovary and tubal remnant to the anterior abdominal wall.  There was no evidence of other adhesions, endometriosis or inflammatory changes.  Mr Marsh went on to say that the development of adhesions was more of a reaction of the patient's body to surgical procedures and was not due to negligence.  Mr Marsh said he considered that the cause of the respondent's pain had still not been adequately explained.

8. Fordhams wrote again to Mr Marsh on 14 January 1994 asking, among other things, whether the ventrosuspension in 1992 had been incorrectly performed and, generally, whether Dr Hastwell's treatment had been appropriate.  In his reply of 3 February 1994 (exhibit 3.7), Mr Marsh said that in performing the ventrosuspension Dr Hastwell had used a surgical technique that he (Mr Marsh) had not encountered in similar cases and he suggested that Fordhams ascertain from Dr Hastwell the actual technique used.  He said the respondent had complained to him that she had not expected to have such a long abdominal scar or such intense post‑operative pain, but as he was not privy to the information she had been given before the procedure he could not comment on those complaints.  Mr Marsh said he was not in a position to comment on whether the surgery was appropriate; only another gynaecologist present at the operation would be in a position to do so.

9. On 25 March 1994, Fordhams wrote to the respondent to say that they could not recommend commencing proceedings against Dr Hastwell (exhibit 1.15).  In the letter, Fordhams said that none of the medical reports they had received suggested that Dr Hastwell's treatment fell below an acceptable level.  They went on to say that causation was made more difficult because although the respondent maintained that her lower abdominal pain of some 14 years' duration had been made worse by Dr Hastwell's treatment, the medical evidence gave various other, and not always consistent, explanations for her continuing pain.  Fordhams noted that Mr Marsh considered that the cause of the pain had still not been adequately explained and that the development of the adhesion he found on the laparoscopy could not be attributed to any negligence on Dr Hastwell's part.  (I should say that the respondent denies that her pain was of 14 years' duration or that she told Fordhams that it was.)

10. Fordhams told the respondent that they had informed the Legal Aid Commission of their view and apparently regarded their retainer as terminated at that point.

11. The respondent did not take any further step to pursue a claim for over three years, but eventually decided to revive the matter.  On 5 September 1997, the respondent approached the appellant to act for her in investigating and advising on a negligence claim against Dr Hastwell.  It was agreed that the appellant would not bill the respondent for his fees unless a claim against Dr Hastwell was successful, but the respondent agreed to meet the appellant's disbursements as they were incurred (ts 218).

12. On 21 October 1997, she saw Mr Blatchford, a solicitor employed by the appellant.  In the meantime, the appellant had obtained, and Mr Blatchford had read, Fordhams' file or parts of it.

13. I should say that, surprisingly, neither Fordhams' file nor the appellant's file was kept intact for the trial.  Both, and most significantly the appellant's file, were broken up for the purposes of the trial into 'Agreed Book of Defendant's Running File Documents' (exhibit 1), 'Book of Agreed Medical Reports' (exhibit 2) and 'Plaintiff's Book of Medical Reports' (exhibit 3).  Why it was thought appropriate to break them up in that way is impossible to say.  Inevitably, it has not facilitated a ready understanding of the case.

14. However, it is apparent from the evidence of Mr Blatchford that the Fordhams' file included the correspondence between Fordhams and Drs De Souza, Marsh and Hellmuth, the hospital admission notes for each surgical procedure, various reports by Dr Hastwell to Dr De Souza in 1992 concerning the respondent, two histopathology reports in 1992 and a radiology report in 1991, and the referral of the respondent to Dr Hastwell by Dr De Souza in November 1992.

15. At the meeting on 21 October 1997, the respondent gave Mr Blatchford a written statement she had prepared.  Mr Blatchford explained to the respondent that the cause of action against Dr Hastwell arose on 25 February 1992, which meant that any proceedings had to be commenced within six years of that date.  He told the respondent that in order to commence proceedings the appellant would need some fairly clear medical evidence of an appropriately qualified medical expert which indicated that the care given to the respondent fell below an acceptable standard.  Mr Blatchford suggested to the respondent that he seek an opinion from Mr Marsh and if that opinion was not helpful he would look elsewhere.  Mr Blatchford told the respondent that he would prepare a draft proof of evidence based upon the respondent's written statement and send it to her for her approval.  She should make any necessary amendments and then sign the final copy and return it to him.  He said he would include the signed statement in the brief to Mr Marsh.

16. Mr Blatchford subsequently prepared a draft proof of evidence and forwarded it to the respondent.  The respondent made some amendments to it, signed it and returned it to Mr Blatchford.  The proof of evidence set out in some detail the circumstances leading up to, and the outcome of, the surgery performed by Dr Hastwell.  It also referred to the respondent having subsequently consulted Dr Ravastava at the pain clinic at Gosnells Family Hospital who, the respondent said, told her after numerous visits that the problem 'is from the 7" scar so there is nothing they can do' (exhibit 1.28). 

17. Mr Blatchford then wrote to Mr Marsh on 2 December 1997 enquiring whether, in the light of his subsequent treatment of the respondent, he was now able to explain her symptoms of pain and to comment on whether the treatment provided by Dr Hastwell was appropriate.  A copy of the respondent's proof of evidence was enclosed with the letter.

18. Mr Marsh responded by letter of 15 December 1997, saying that he was not in a position to provide any further medical opinion regarding the respondent and he 'did not know the outcome of her appointment when attending the Pain Clinic at Sir Charles Gairdner Hospital'.  The appellant forwarded a copy of that letter to the respondent.

19. The respondent subsequently telephoned the appellant's office to say that she had not attended the Sir Charles Gairdner Hospital (SCGH) Pain Clinic.  The respondent said that Mr Marsh had indicated to her that in light of that he should now be able to give an opinion.  The appellant wrote to Mr Marsh by letter of 20 January 1998, reiterating the request for his opinion.

1. Mr Marsh replied by letter of 27 January 1998, in which he suggested that an opinion be obtained from a specialist in pain management.  The somewhat enigmatic reference to the respondent's appointment at the SCGH Pain Clinic in his letter of 15 December 1997 was explained by the enclosure in that letter of a referral, dated 29 May 1997, which Mr Marsh had written to the SCGH Pain Clinic concerning the respondent.  The terms of the referral assumed some significance at trial and it is appropriate to set out its material part.  In the referral, after summarising the respondent's medical history, Mr Marsh said:

   Her pain is in the lateral aspects of both iliac fossae in the region of the rather extended Pfannenstiel wound and it is possible that she has neuralgia from an involvement of both peripheral branches of the subcostal nerves that supply the suprapubic area.  The other possibility is that she has pain due to narcotic dependency.

   I really think she needs to be sorted out by someone skilled in pain management and I do not feel further surgery along the lines of exploration of her Pfannenstiel wound, would be the right course of action.

   It is a difficult situation to assess … I am sure she would be eternally grateful to you if you could resolve the diagnostic dilemma as to the cause of her pain and arrange treatment accordingly.  She is aware that one doctor has diagnosed her pain as that of drug dependency and although this may be the case, the wide Pfannenstiel wound is notorious for peripheral nerve entrapment and this really does need to be properly assessed.

2. In the meantime, Mr Blatchford had written to the respondent on 22 January 1998 advising her that it would be necessary to commence proceedings by 24 February 1998 at the latest.  In the letter, Mr Blatchford said there had been no advance on the medical evidence which had previously been considered by Fordhams, with whose opinion the appellant agreed.  Mr Blatchford suggested that the respondent consider issuing a writ against Dr Hastwell to avoid the time limit expiring but not serve the writ until there was sufficient evidence to be confident of the strength of the respondent's case.

3. Shortly afterwards, on 30 January 1998, the appellant forwarded a copy of Mr Marsh's letter dated 27 January 1998 to the respondent, commenting:  'Mr Marsh obviously has no intention of assisting'.

4. On 3 February 1998, Mr Blatchford attended on the respondent and her husband.  In that consultation, Mr Blatchford confirmed that he was not in a position to assess the strength of the respondent's claim because of the absence of suitable medical evidence.  The respondent agreed that a writ of summons should be issued against Dr Hastwell to avoid any claim becoming statute‑barred but that it should not be served until there was evidence supporting the claim.  Mr Blatchford told the respondent that the issuing of the writ might well turn out to be a complete waste of time and money depending upon the nature of the evidence they were able to gather after the writ was issued.  He said he could foresee difficulties in gathering the necessary evidence, if only because six years had passed since the treatment in question.

5. On 18 February 1998, the appellant caused a District Court writ of summons to be issued against Dr Hastwell.  The appellant wrote to the respondent the same day confirming that the writ had been issued and that it would only be served when the appellant had obtained specialist medical opinion to support the claim.

6. I note in passing that if a writ is not served it ceases to be valid for service 12 months after it was issued, unless the validity of the writ is extended by order of the court. The parties conducted the case on the basis that, pursuant to O 7 r 1(2) of the Rules of the Supreme Court 1971 (WA), an application for an order extending the validity of a writ must be made within 12 months after the writ has expired. On that basis, the last date upon which an application to extend the validity of the writ in question could be made was 17 February 2000 and if no application had been made by that date the claim against Dr Hastwell would become statute‑barred. It is unnecessary for the purposes of this appeal to decide whether it is correct that an application to extend a writ must be made within 12 months after it has expired. As the matter was not the subject of submission by the parties that point should be left for another occasion. The appeal can properly be determined on the basis upon which the parties have proceeded.

7. On 1 April 1998, the appellant wrote to Perth Medico‑Legal Consultants to obtain the services of a medical expert.  In the letter, the appellant outlined the surgery carried out by Dr Hastwell and said that the respondent's pre‑existing pain had not been resolved by the procedures but had worsened.  The appellant asked for the respondent's position to be evaluated 'in order to determine whether or not [the appellant] can establish that there has been a failure by Dr Hastwell to provide a reasonable standard of surgical care and if there were a lack of care whether that has been the cause of [the respondent's] ongoing pain'.  The appellant suggested that the consultant see the respondent in person.  Enclosed with the letter was the proof of evidence of the respondent and the correspondence between Fordhams and Drs Hellmuth, De Souza, and Marsh.  The appellant did not enclose a copy of the referral from Mr Marsh to the SCGH Pain Clinic of 29 May 1997.

8. Perth Medico‑Legal Consultants passed the letter and attachments on to Mr Bruce Warton, a gynaecologist resident on the east coast.

9. Subsequently, Mr Warton asked to be provided with Dr Hastwell's notes.  On 30 April 1998, the appellant wrote to Dr Hastwell seeking his notes.  On 8 May 2008, Dr Hastwell telephoned Mr Blatchford and told him that his notes were available and suggested that Mr Blatchford write to the Armadale/Kelmscott Memorial Hospital to obtain them.  The appellant then wrote to the hospital requesting the release of all of Dr Hastwell's notes, summaries and reports it held in relation to the respondent's admission and treatment at the hospital.  The hospital sent the documents to the appellant on 22 June 1998.  In evidence, Mr Blatchford said he read the documents (although he conceded in cross‑examination, possibly not in detail) and assumed they included any notes Dr Hastwell had made.  The documents were forwarded to Perth Medico‑Legal Consultants on 24 June 1998.

10. On 27 July 1998, a representative of Perth Medico‑Legal Consultants telephoned Mr Blatchford's secretary and told her there were no notes by Dr Hastwell in the documents and that the consultant would like that material as 'it will make the report that much stronger'.  It appears, however, that no steps were taken to obtain the notes until October 1998.

11. Mr Warton provided a report dated 29 September 1998.  In that report Mr Warton said he did not consider that the ventrosuspension had much to do with the respondent's pain at all and was a peripheral issue.  Mr Warton was unable to arrive at a conclusion as to the cause of the respondent's pain.  He went on to refer to some other matters (based on the respondent's proof of evidence) which he said might represent instances of practice below the normal standard of care, namely, inadequate assessment of the respondent's pain while in hospital after the first surgery; the alleged inability of Dr Hastwell to locate his notes when consulted by the respondent on two occasions after the first surgery; and the alleged conflicting information given to her by Dr Hastwell and Dr De Souza in relation to the surgical procedures.  Mr Warton also commented that the completeness of his report was significantly impaired by his lack of access to Dr Hastwell's notes and thoughts on the issues.  He suggested that more complete notes at Dr Hastwell's practice may explain his management of the respondent and 'may in fact invalidate some aspects of [the] report' (exhibit 2.12).  Mr Warton noted that he had not seen the respondent.  It seems the respondent did not wish to travel to see Mr Warton because of the cost involved.

12. The appellant forwarded a copy of the report to the respondent on 8 October 1998.  Shortly afterwards, on 19 October 1998, the respondent attended on the appellant.  At that meeting, the respondent told Mr Blatchford, among other things, that doctors at the pain clinic at the Gosnells Family Hospital had said that her pain was caused by 'damaged stomach muscles, scar and stomach wall' (ts 202).  Mr Blatchford asked her to enquire whether there were any documents at the clinic that might assist.  The appellant advised the respondent that the medical evidence was not sufficient at that stage to make out a claim against Dr Hastwell (ts 202).

13. On 20 October 1998, the appellant wrote to Dr Hastwell requesting a copy of the notes he made of his consultations with the respondent at his rooms.  The appellant received the notes from Dr Hastwell on 3 November 1998 and provided a copy to the respondent the same day (ts 255).  It seems the notes were never provided to Mr Warton.

14. On 20 January 1999, the respondent's husband wrote to the appellant asking him to obtain the respondent's medical records from Dr Ravastava, whom the respondent had been seeing at the pain clinic at the Gosnells Family Hospital.  He complained that Dr Ravastava had 'been most unco‑operative and nasty' to the respondent and had declined to release her medical records.  It seems that the appellant did not attempt to obtain the records (ts 259).

15. At some time between mid‑December 1998 and 9 February 1999 the respondent provided the appellant with a transcript of the tape recording she had made of her consultation with Dr Hastwell on 31 August 1992.  The transcript bears upon several of the matters in issue in the proceedings and it will be necessary to come back to it in respect of those issues.

16. On 9 February 1999, the respondent and her husband attended on Mr Blatchford.  Mr Blatchford told them that the difficulties he had expressed previously, and those expressed by Fordhams, remained.  He noted that apart from the incidental matters raised by Mr Warton in his report of 29 September 1998, there was little evidence to establish that the surgery performed by Dr Hastwell fell below the required standard or that it was the cause of the respondent's ongoing pain.  The cause of the pain was still to be diagnosed.  Mr Blatchford told the respondent that the writ would expire on 18 February 1999 and there was a small risk that the court would not extend the validity of the writ.  The respondent agreed that nothing further was to be done in relation to the writ until the outcome of investigations by a pain specialist, Dr Salmon, was known.  It is not clear from the evidence whether at that stage the respondent had already consulted, or whether she was proposing to consult, Dr Salmon.

17. Dr Salmon is a specialist in pain management.  He provided a report of 9 March 1999 to the respondent's then general practitioner, Dr Ong (exhibit 3.3).  A copy was subsequently made available to the appellant, apparently unbeknown to Dr Salmon.  In the report to Dr Ong, Dr Salmon said that his 'initial impression' was that the respondent's 'long‑standing low abdominal pain problem is likely related to a missed appendicitis and nerve entrapment scarring exacerbated by surgery'.  He said he had suggested to the respondent that over time her pain 'had become more central nervous system in origin' and was likely to be interacting with psychological disturbance to produce her chronic pain syndrome.  Dr Salmon said he would refer the respondent to Dr Goucke at the SCGH Pain Clinic.

18. On 6 May 1999, Mr Blatchford wrote to Dr Salmon in essentially the same terms as he had earlier written to Mr Warton, requesting an evaluation of the care provided by Dr Hastwell and an opinion as to whether any lack of care on Dr Hastwell's part was a cause of the respondent's pain.  The material that had previously been provided to Mr Warton was provided to Dr Salmon.  Again, the referral dated 29 May 1997 written by Mr Marsh to the SCGH Pain Clinic was not enclosed.

19. Dr Salmon replied by letter dated 20 May 1999, in which he said that as a pain management specialist he was not in a position to comment on Dr Hastwell's care.  He said that his report of 9 March 1999 set out his opinion as to the nature of the respondent's pain.

20. Mr Blatchford discussed the matter in a telephone conversation with the respondent on 27 July 1999.  In that conversation, the respondent confirmed that she had been referred to Dr Goucke at the Pain Clinic at SCGH.  She told Mr Blatchford that Mr Marsh would assist once it was confirmed that the pain was caused by nerve entrapment.  It was agreed that the appellant would write to Mr Marsh, attaching Dr Salmon's reports.  He would also provide Mr Warton with a copy of Dr Salmon's reports, Dr Hastwell's notes, and the transcript of Dr Hastwell's consultation with the respondent on 31 August 1992.  But he would wait, in relation to Mr Warton, to ascertain what transpired with the review of the respondent by Dr Goucke in November 1999 and any further report from Mr Marsh.  In the course of the telephone conversation, the respondent told Mr Blatchford that she did not wish to pursue proceedings against Dr Hastwell only for the minor matters referred to in Mr Warton's earlier opinion.

21. On 30 July 1999, Mr Blatchford wrote to Mr Marsh enclosing a copy of Dr Salmon's report of 9 March 1999 and pointing out that Dr Salmon had the impression that the respondent's abdominal pain was likely to be related to a missed appendicitis and nerve entrapment scarring exacerbated by surgery.  Mr Blatchford sought Mr Marsh's advice as to whether the provision of that report enabled him to provide the opinions sought in his (Mr Blatchford's) letter of 2 December 1997, that is, whether Mr Marsh was able to explain the respondent's symptoms of pain and to comment on whether Dr Hastwell's treatment was appropriate.  Mr Blatchford also enclosed a copy of the clinical notes of the respondent's admission to hospital for the two procedures performed by Dr Hastwell and a copy of Dr Hastwell's notes from his practice.

22. Mr Marsh responded by letter dated 5 August 1999, noting that the respondent had had an appendectomy but the histopathology report did not support the diagnosis of 'acute or onchronic appendicitis'.  He said that nerve entrapment in her Pfannenstiel wound 'cannot be entirely excluded' and the opinion of Dr Goucke should be sought before any plans for the respondent's management were contemplated.  The appellant forwarded a copy of that letter to the respondent by letter of 11 August 1999.

23. On 13 August 1999, the respondent told the appellant in a telephone conversation that she had an appointment with Dr Goucke on 15 November 1999.  In fact, it turned out that the respondent saw Dr Berrigan at the SCGH Pain Clinic, not Dr Goucke.  No report of Dr Goucke or Dr Berrigan was sought or obtained by the appellant.  There was evidence that Dr Berrigan provided a report to Mr Marsh, as the referring doctor, on 13 June 2000 but Dr Berrigan was not called as a witness at the trial and his report did not go into evidence.

24. By a letter dated 21 December 1999, the appellant advised the respondent that his practice was closing on 23 December 1999 and that her file would be transferred to Evangel Taylor, for whom Mr Blatchford would henceforth be working.

25. At trial, Mr Blatchford recalled writing to the respondent early in 2000 requesting that she sign a costs agreement with Evangel Taylor.  He could not recall any response.

26. On 17 February 2000, the respondent's current solicitors wrote to Evangel Taylor saying that they were now acting for the respondent and requesting that the respondent's file be transferred to them.

27. No application was ever made to extend the validity of the writ.  The parties have proceeded on the basis that any claim the respondent may have had against Dr Hastwell therefore became statute‑barred after 17 February 2000.

28. The respondent subsequently commenced proceedings against the appellant alleging that he was negligent in failing properly to investigate the merits of her claim and in failing either to serve the writ or to apply to extend the validity of the writ.

The pleaded case

1. The statement of claim took an unusual form.  It commenced by pleading out in full a claim in negligence against Dr Hastwell, albeit he was not a party to the action.  The respondent then pleaded a claim in negligence against the appellant.

2. The starting point, however, is the claim against the appellant.  In substance, the respondent alleged (relevantly) that the appellant owed a duty to exercise reasonable care in advising her and acting on her behalf and that that duty required the appellant to take reasonable steps to:

   1.obtain expert medical opinion as to whether:

   •Dr Hastwell had failed to obtain the respondent's fully informed consent to the surgical procedures he performed;

   •the ventrosuspension surgery was appropriate;

   •an appendectomy was appropriate and, if it was, whether the respondent's appendix should have been removed by laparoscope or through a Pfannenstiel incision; and

   •any surgery was appropriate given the risk of the respondent developing a pain syndrome;

   2.investigate the pain and suffering caused by Dr Hastwell's treatment;

   3.advise the respondent on the merits of a claim against Dr Hastwell and the quantum of damages to which she would be entitled; and

   4.advise the respondent to institute legal proceedings against Dr Hastwell before 25 February 1998, when the limitation period expired, and to serve the writ on Dr Hastwell within 12 months or to apply to extend the validity of the writ within that time.

3. The respondent alleged that, in breach of his duty, the appellant failed to take any of those steps and as a result the respondent lost the chance to pursue a claim for damages against Dr Hastwell.

4. In his defence, the appellant (relevantly) denied that he was under a duty to obtain medical opinion on whether the ventrosuspension and/or the appendectomy was necessary or, if the appendectomy was necessary, whether it should have been performed by laparoscope.  He further denied that he was negligent in any respect and pleaded, in substance, that a writ was issued within the limitation period and that he advised the respondent as to the need to renew the writ, but it was not renewed because there was no sustainable cause of action against Dr Hastwell.

The findings of the primary judge

1. The primary judge dealt in turn with each of the specific heads of negligence alleged by the respondent.

2. His Honour found that the appellant had not given consideration to a claim against Dr Hastwell based upon a failure to provide the advice and information which the respondent reasonably required to enable her to make an informed decision as to whether to undergo the ventrosuspension procedure. However, his Honour concluded that there was no more than a negligible chance that Dr Hastwell would have been found to have been negligent in that respect and accordingly the appellant was not negligent [185].

3. The primary judge then turned to the question of whether the ventrosuspension procedure was unnecessary.  He found that there was no more than a negligible chance that such a claim would have succeeded.  His Honour further found that, in any event, there had been no breach of duty by the appellant as there was no evidence reasonably available to the appellant to indicate that this ground had any reasonable prospect of success [186] ‑ [188].

4. In relation to the appendectomy, the primary judge found that there was evidence available to the appellant that it was unnecessary [189]. His Honour noted that the post‑operative histopathology report of 14 May 1992 indicated that the respondent's appendix was normal and concluded that this should have caused the appellant to consider the accuracy of the diagnosis of appendicitis by Dr De Souza and Dr Hastwell.

1. The primary judge referred to the evidence of Mr Marsh at trial that it would have been appropriate before performing an appendectomy to conduct at least a blood test to ascertain whether the appendix was infected.  His Honour noted that Mr Marsh had said in evidence that if mild appendicitis had been seen on the ventrosuspension, the appendix may show as normal in the later histopathology report.  But if acute appendicitis was evident during the ventrosuspension procedure, an abnormality would have been apparent in the histopathology report.  His Honour observed that Dr De Souza had told the respondent that it was one of the worst appendixes he had seen, and concluded that this should have alerted the appellant as to whether an appendix in such a condition would be likely to show no abnormality in the histopathology report.

2. The primary judge considered that the issue of whether the appendectomy was unnecessary should have been further explored by the appellant [192]. His Honour found that had enquiry been made earlier, the appellant could have obtained the view that Mr Marsh ultimately expressed at trial. His Honour also found that the evidence at trial of Mr Korda, a gynaecologist called by the respondent as an expert witness, to the effect that an appendectomy was not called for in 1992 indicated that, had enquiry been made, such opinion was available to the appellant before 18 February 2000. His Honour concluded that the appellant was negligent in not undertaking further enquiries. He found that had the appellant done so, it would have been evident there was an arguable cause of action available to the respondent. His Honour was satisfied that the respondent would have been likely to have pursued such a cause of action [193].

3. The primary judge then turned to whether the appendectomy should have been performed laparoscopically. He referred to the respondent's evidence that she understood it would be performed laparoscopically and noted that in a letter dated 17 April 2003 from Dr Hastwell to the respondent's current solicitors, Dr Hastwell had referred to the respondent having been 'booked for a laparoscopic appendectomy'. His Honour also noted that performing the appendectomy by Pfannenstiel incision resulted in far more prominent scarring and in possible nerve entrapment, the latter being a cause of chronic pain syndrome. His Honour concluded that on the information available to the appellant there was an arguable cause of action on the basis that the appendectomy should have been performed laparoscopically. His Honour found that the respondent would have pursued such an action [196]. I should note that his Honour later acknowledges that there was no evidence that the appendectomy could in fact have been performed laparoscopically [216].

4. The primary judge found that the appellant was also negligent in not investigating a claim that Dr Hastwell had failed to warn the respondent of the risks associated with a Pfannenstiel incision. Evidence of those risks was available in 1992 from, at least, Mr Marsh who gave such evidence at trial [197]. His Honour concluded, however, that there was no breach of duty by the appellant in not advising the respondent to make a claim on the basis that a Pfannenstiel incision was not an appropriate method of performing an appendectomy. There was no medical opinion that in 1992 it was an inappropriate method [198].

5. Finally, the primary judge turned to the question of whether there was evidence reasonably available to the appellant which indicated that the negligence of Dr Hastwell had caused the respondent's continuing pain. His Honour concluded that it was apparent from the reports of Mr Marsh and Dr Salmon that both considered the negligence of Dr Hastwell to have been a likely cause [199]. His Honour considered that the views which Mr Marsh and Dr Salmon had expressed gave rise to an arguable claim that nerve entrapment following the second surgery was a cause of the pain [201].

6. His Honour also concluded that there was sufficient evidence available to the appellant indicating that nerve entrapment might be a cause of the respondent's pain to warrant further enquiries being made. Enquiries could have been made, first, of Dr Ravastava at the pain clinic at Gosnells Family Hospital, Mr Blatchford (according to the primary judge) having been told by the respondent that Dr Ravastava considered her pain was likely to be caused by nerve entrapment; secondly, of Dr Goucke at the SCGH Pain Clinic, whom the respondent had apparently consulted on 15 November 1999; and thirdly, of Mr Warton to provide him with Mr Marsh's referral to the SCGH Pain Clinic and to seek his opinion in the light of the reference in the referral to the possibility of nerve entrapment [200].

7. The primary judge therefore found that there were arguable causes of action against Dr Hastwell on the basis:

   •that the appendectomy 'may' have been unnecessary, and/or that, even if it was necessary, it should have been performed laparoscopically; and

   •Dr Hastwell should have warned the respondent of the risks associated with a Pfannenstiel incision, which may have resulted in the respondent insisting that it be performed laparoscopically or having further investigations undertaken, thereby avoiding pain caused by nerve entrapment and reducing the likelihood of chronic pain syndrome [202].

8. His Honour concluded that in those circumstances the appellant was negligent in not taking steps, either by service of the writ or making an application to extend its validity, to avoid the respondent's claim becoming statute‑barred. Had the respondent been offered the chance to pursue an action against Dr Hastwell she would have taken it [206].

9. I should say that the primary judge did not make any finding as to the time at which the appellant's retainer terminated or the date upon which the breaches of duty by the appellant occurred but it seems to be implicit that he found that the appellant was negligent in failing to apply to extend the writ prior to 23 December 1999, when the appellant closed his practice.  I understood the parties to approach the appeal on that basis.

10. The primary judge then turned to the question of the value of the respondent's lost chance. He commenced by noting that the value of the lost chance was to be quantified by taking a broad brush approach to the relevant matters involved in a notional case against Dr Hastwell and the relevant evidence which would or should reasonably have been available to the appellant in 2001 when a trial would have taken place. It also involved looking at the likely response of Dr Hastwell and his advisers and to make allowance for the prospect of a settlement offer by a less than well‑informed or overly cautious lawyer for Dr Hastwell [208]. His Honour observed that the task of assessment was more difficult in this case because the evidence of Mr Korda, Dr Hastwell, Dr De Souza and Mr Warton was limited to their written reports, which were admitted by consent. Only Mr Marsh and Dr Salmon gave oral evidence at the trial.

11. In relation to the issue of whether the appendectomy was necessary, his Honour observed that there was a conflict in the medical evidence. It was also likely that both Dr Hastwell and Dr De Souza would have maintained that it was necessary. Against that was the contrary evidence of Mr Marsh and Mr Korda. The primary judge considered the outcome 'very uncertain' [214].

12. The primary judge considered that it was likely the respondent would have been able to persuade a court that Dr Hastwell did not warn her of the risks associated with a Pfannenstiel incision, and in particular, nerve entrapment, because he had led her to believe the surgery would be undertaken laparoscopically [215]. His Honour said that the issue then was whether, had she been warned, the respondent would have insisted upon a laparoscopy. He considered there was a likelihood that at the notional trial it would have been accepted that she would have insisted. He noted, however, that on the other hand, there may have been evidence that laparoscopic surgery was not appropriate in the respondent's case, observing that Dr Hastwell had alluded to that in his consultation with the respondent on 31 August 1992 [216].

13. On the question of the respondent's continuing pain, the primary judge found that the weight of the evidence was that nerve entrapment consequent upon the appendectomy by Pfannenstiel incision was a likely cause of the pain [217]. His Honour also noted the evidence of Dr Salmon that over time the respondent's pain had become more central nervous system in origin and it was likely it was interacting with psychological disturbance to produce her chronic pain syndrome [217]. The primary judge considered that, given the respondent's long and rather complex gynaecological history, Dr Hastwell was likely to say that the pain would have manifested itself anyway, albeit an evidentiary onus may fall on Dr Hastwell to disentangle the causes of the pain to demonstrate any non‑negligent causes. His Honour also noted Mr Marsh's evidence that any symptoms of nerve entrapment might have been alleviated by surgery, and that could give rise to an issue of the respondent's failure to mitigate. In respect of this aspect of the respondent's claim, his Honour concluded that on the evidence there was 'significant uncertainty as to the outcome at a notional trial' [219].

14. The primary judge found that if the respondent's claim was successful at a notional trial in 2001, the respondent would have been entitled to damages in the sum of $337,000. With interest at 6%, that would have led to a total figure of approximately $500,000 [232]. His Honour considered, however, that there were 'a significant number of uncertainties relating to matters relevant to the prospects of a successful claim being made out against Dr Hastwell' [233]. On the evidence, his Honour found that the value of the respondent's loss of a chance was 40% of the amount to which she would have been entitled on making out a claim against Dr Hastwell. He concluded that the respondent was entitled to judgment in the sum of $200,000.

15. The appellant appeals against both the finding of negligence and, in the alternative, the assessment of damages.  The respondent cross‑appeals on the assessment of damages.

The grounds of appeal

1. The appellant initially relied on 10 grounds of appeal but at the hearing of the appeal counsel for the appellant (who was not counsel below) acknowledged that the way in which the trial had proceeded was problematical and that the grounds of appeal were misdirected.  Ultimately, the appeal was argued on the basis of the following issues, which were alluded to but not properly framed in the existing grounds of appeal:

   1.The primary judge erred in finding that the appellant was in breach of the duty of care he owed to the respondent by not:

   (a)making enquiries as to whether the  appendectomy performed by Dr Hastwell was an unnecessary procedure [193];

   (b)advising the respondent that there was an arguable cause of action against Dr Hastwell for performing the appendectomy by Pfannenstiel incision instead of by a laparoscopy [196];

   (c)advising the respondent that there was an arguable cause of action against Dr Hastwell for failing to warn the respondent prior to the appendectomy of the risk of nerve entrapment involved in performing it by Pfannenstiel incision [197]; and

   (d)advising the respondent that there was an arguable cause of action against Dr Hastwell on the basis that her pain was caused by nerve entrapment resulting from the appendectomy [201].

   2.The primary judge erred in finding that the appellant was in breach of his duty of care in failing to advise the respondent to either serve the writ on or before 17 February 1999 or to apply to extend the validity of the writ prior to 18 February 2000.

   3.The primary judge erred in finding that but for the failure of the appellant to advise the respondent to either serve the writ or to apply to extend the validity of the writ, the respondent would have pursued a claim for damages against Dr Hastwell.

   4.The primary judge erred in finding that the value of the chance of pursuing a claim for damages against Dr Hastwell lost by the respondent was 40% of the value of the sum to which she may have been entitled upon a claim being made out against Dr Hastwell.

The disposition of the appeal

1. The starting point in determining whether a solicitor was negligent is the scope of the solicitor's retainer. The appellant's retainer is nowhere expressly recorded by the parties. The primary judge, however, found that the respondent had consulted Fordhams for advice 'as to the pursuit of a claim for medical negligence against Dr Hastwell with respect to the pain alleged to have been suffered by her as a consequence of the first and/or second surgery' [9]. His Honour found that the respondent subsequently consulted the appellant 'with respect to the ongoing pain with which allegedly she suffered' [13]. That finding is not challenged.

2. It appears from the pleadings that it was not in issue that the appellant's retainer required him to advise the respondent as to the merits of a claim against Dr Hastwell for negligence and for that purpose to take reasonable steps to ascertain full particulars of treatment provided by Dr Hastwell, to ascertain full particulars of the pain and suffering of the respondent by reason of that treatment, to investigate any other damage suffered by the respondent by reason of that treatment, and to obtain expert medical advice on any other breach of duty by Dr Hastwell.

3. As I have mentioned, the appellant denied, however, that he was under a duty to obtain medical opinion on whether the ventrosuspension and/or the appendectomy was necessary or, if the appendectomy was necessary, whether it should have been performed by laparoscope.  It is implicit in the findings of the primary judge that he found that the appellant was under such a duty.  I did not understand the existence of that duty to be in issue on the appeal, although the finding as to negligence certainly was.

4. It was not in contention that in investigating the merits of the respondent's claim and advising her on it, the appellant was required to exercise the care and skill to be expected of a qualified and ordinarily competent and careful solicitor in the exercise of his or her profession:  Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539, 580. That duty required the appellant to make reasonable enquiries in respect of the merits of the respondent's claim. But the appellant was not obliged to embark upon speculative enquiries or to pursue lines of enquiry for which there was no apparent basis. Nor was he required to pursue medical opinions until a favourable one was found. Considerations of time, cost and utility dictate that enquiries cannot be unlimited. A solicitor is entitled and, indeed bound, to use professional judgment in the lines of enquiry that are pursued. The question is not what might have been found had more extensive enquiries been made, but whether the solicitor made reasonable enquiries in the circumstances of the case.

5. It is also necessary to bear in mind that the conduct of the appellant falls to be assessed on the basis of a reasonable solicitor in the position of the appellant at the time of the retainer, with the knowledge he then had available, and not with the benefit of hindsight.  What is relevant is what the appellant reasonably knew or ought to have known at that time, not what became known after the loss was allegedly suffered.

6. The primary question in the present case is whether the appellant should have advised the respondent that she had an arguable cause of action - that is, a claim with reasonable prospects of success - for damages against Dr Hastwell and that she should instruct the appellant to serve the writ while it remained valid for service or to apply to extend its validity before 18 February 2000.  If the appellant was negligent in failing to do so, the question then is whether that caused the respondent to lose the opportunity to pursue a claim of some (as opposed to negligible) value against Dr Hastwell that the respondent would otherwise have pursued.  Those issues are to be determined on the balance of probabilities:  see Hammond Worthington v Da Silva [2006] WASCA 180 [118] and the cases there cited.

7. If those questions are answered in favour of the respondent, the next question is what loss has been suffered and that depends upon an assessment of the chance that such a claim would have succeeded.  But, having regard to the way the case appears to have been run below, it is important to bear in mind that there could be no negligence in failing to advise a client to embark on litigation which was doomed, and nothing of value could be lost if such litigation were never commenced:  see Notaras v Sly & Weigall [2005] NSWCA 275 [78]. In that context, I should say that it was never the respondent's case that she had lost the chance of pursuing a case without reasonable prospects of success for the purposes of obtaining a settlement.

8. Against that background, I turn to the specific issues raised on the appeal.

Ground 1

1. The finding of the primary judge that there was material available to the appellant that the appendectomy was 'unnecessary' [189] runs into the immediate difficulty that it is unclear what was meant by 'unnecessary'.  It is clear enough that a surgical procedure, including an appendectomy, may be appropriate although it is not, or turns out not to have been, 'necessary' in the sense of being medically essential.  What are described as 'elective surgery' and 'cosmetic surgery' are obvious examples of surgery which is not medically essential.  Equally, for instance, where a patient is suffering severe symptoms from an uncertain cause a surgical procedure that is not otherwise medically necessary may be appropriate in an attempt to relieve the symptoms, although it cannot be known with certainty whether the procedure will in fact have that effect.

2. Whether or not to undergo any particular form of surgery is, in the end, a matter for the patient, properly advised.  It has been recognised that in determining what is an appropriate standard of medical care a court must take into account 'the paramount consideration that a person is entitled to make his own decisions about his life':  Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 487. Where a person has consented to a surgical procedure, the question is not whether the surgery was medically essential, but whether the doctor discharged his or her duty to provide the patient beforehand with relevant information and advice, including as to the material risks involved in the surgery, and performed the surgery with reasonable care and skill.

3. The duty that a medical practitioner owes to a patient in relation to the diagnosis and treatment of the patient was described by the High Court in Rogers v Whitaker, as follows:

   The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment.  That duty is a 'single comprehensive duty covering all ways in which a doctor is called upon to exercise his skill and judgment'; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.  It is of course necessary to give content to the duty in the given case.  The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill (483).

4. Whether a medical practitioner has conformed to the standard of care required by the law is a question for the court, but in cases of alleged negligence in diagnosis and treatment responsible professional opinion 'will have an influential, often a decisive, role to play':  Rogers v Whitaker (489).

1. So far as the respondent was concerned, the real issue, it seems to me, was not whether the appendectomy was 'unnecessary', but whether Dr Hastwell was negligent in diagnosing appendicitis and in advising the respondent to undergo an appendectomy.  The answer to that does not, of course, depend simply upon whether Dr Hastwell's diagnosis and advice turned out to be right or wrong.  A wrong diagnosis and inappropriate treatment is not necessarily negligent.  As Mahoney JA observed in Ainsworth v Levi (Unreported, NSWCA, 30 August 1995), 'a surgeon is expected to exercise reasonable care in diagnosing and in advising what should be done: he is not required to be omniscient'.

2. It is evident that the primary judge did not find that the appellant was ever in a position to have provided advice on the merits of a claim against Dr Hastwell on the basis that the appendectomy was 'unnecessary'. Rather, his Honour found that the appellant was negligent in failing to make enquiries that should have been made into the merits of such a claim. That conclusion was based on the histopathology report of 14 May 1992, in which it was revealed that the respondent's excised appendix was normal. As I have mentioned, his Honour considered that the histopathology report ought to have put the appellant on notice that further enquiries were necessary as to the accuracy of the diagnosis of appendicitis. His Honour also considered that Dr De Souza's statement to the respondent before the appendectomy that her appendix was one of the worst he had seen, should have raised 'alarm bells' with the appellant as to whether such an appendix would be likely to show no abnormality in a subsequent histopathology report [191].

3. In the latter respect, his Honour appears to have overlooked the fact that on the information available to the appellant, Dr Hastwell had a different view to Dr De Souza.  According to the respondent's proof of evidence (exhibit 1.28), when she saw Dr Hastwell on 3 April 1992 he told her that Dr De Souza was wrong and she did not have a 'bad appendix' when the ventrosuspension was performed.  She said that at that consultation Dr Hastwell 'checked my stomach rather roughly and agreed that it seems like my appendix now' (original emphasis).  She said Dr Hastwell booked her in for an appendectomy in six weeks time and told her to cancel the operation if the pain went away.  The respondent did not cancel it and the appendectomy went ahead.

4. As to whether the histopathology report was at odds with a diagnosis of appendicitis, the appellant had Dr De Souza's response to Fordhams' letter of 25 March 1993 (exhibit 1.8), in which Fordhams had asked, relevantly, whether, in light of the histopathology findings, the appendectomy was necessary and whether it could have caused or exacerbated the respondent's pain.  Dr De Souza said (exhibit 2.14) that the clinical signs at the time the respondent saw Dr Hastwell on 3 April 1992 were right‑sided abdominal pain which had been intermittent for a long time, rebound tenderness and clinical signs on the right side.  In relation to the histopathology findings, Dr De Souza said:

   Pathology findings in the appendix are very commonly normal.  This does not exclude inflammation necessarily.  She was operated on as a possible cause of her pain being appendicitis and I believe the operation was done to try and cure the pain that this lady has had for more than 14 years intermittently.

5. In their letter to Mr Marsh of 14 January 1994, Fordhams did not ask specifically about the appendectomy but framed their enquiry in general terms, asking for his opinion, among other things, as to whether the respondent's treatment by Dr Hastwell was 'altogether appropriate and adequate in the circumstances'.  In his report of 3 February 1994, Mr Marsh said he was unable to comment. 

6. Mr Marsh was subsequently provided with a copy of the respondent's proof of evidence.  It was contained with the appellant's letter to him of 2 December 1997.  Mr Marsh did not, however, ever suggest that the appendectomy should not have been performed or that further tests should have been conducted before it was performed.  In his letter of 5 August 1999 to the appellant, Mr Marsh simply observed, without comment, that an appendectomy had been performed but the histopathology report did not support the diagnosis of 'acute or onchronic appendicitis'.  In particular, he did not suggest that the discrepancy between the diagnosis and the histopathology analysis following surgery indicated some lack of care in the diagnosis.

7. Mr Warton, in response to the appellant's request for an evaluation of Dr Hastwell's treatment of the respondent, noted in his report (exhibit 2.12) that the respondent's appendix was found to be histologically normal, but he did not suggest that that indicated any deficiency in Dr Hastwell's treatment of the respondent.  Again, Mr Warton had been provided with, among other things, a copy of the respondent's proof of evidence.

8. Dr Salmon's initial impression in March 1999 was that the respondent's long standing pain was likely to be due to 'a missed appendicitis and nerve entrapment scarring exacerbated by surgery' (exhibit 3.3).  In his subsequent report of 20 May 1999 (exhibit 3.4), Dr Salmon noted that the pathology report did not document appendicitis in the excised appendix but went on to say 'but perhaps that does not rule out previous episodes of appendicitis which then settled'.

9. In my opinion, there was nothing in the information before the appellant which ought reasonably to have caused him to make further enquiries into whether the appendectomy was appropriate.  It was not an issue raised by the respondent and none of the three medical experts requested to advise on the appropriateness of Dr Hastwell's treatment, all of whom were provided with the histopathology report and the respondent's proof of evidence, ever raised the matter.  I would uphold this ground of appeal.

10. The appellant next submitted that the primary judge erred in finding that the appellant should have advised the respondent that there was an arguable cause of action against Dr Hastwell 'on the basis that the appendectomy ought to have been performed laparoscopically' [196].

11. I must say, with respect, that I am uncertain as to what his Honour had in mind in this finding. It appears to be a separate finding from the subsequent finding that there was an arguable cause of action for failure to warn of the risks involved in the use of a Pfannenstiel incision. As I understand this finding, however, it is not based on a finding that in 1992 it was inappropriate to perform an appendectomy by Pfannenstiel incision. There was no evidence to that effect, as the primary judge noted at [198]. (In fact, Mr Korda said in his report (exhibit 3.5) that it was an appropriate procedure for an appendectomy in 1992.) Rather, the finding is based on the proposition that Dr Hastwell led the respondent to believe that the appendectomy would be performed by a laparoscopy rather than by a laparotomy, such as a Pfannenstiel incision.

12. There was, however, no evidence that the respondent had been misled as to the manner in which the appendectomy would be performed.  The respondent's evidence was that she assumed it would be a laparoscopic appendectomy.  She made that assumption simply because the ventrosuspension had been performed laparoscopically (ts 44).  There was no evidence that Dr Hastwell ever indicated to her that the appendectomy would be performed laparoscopically.  That is consistent with his statement to the respondent at the consultation on 31 August 1992 that he did not have the equipment to perform a laparoscopic appendectomy.  I might also observe that the respondent's professed understanding would appear to sit oddly with her evidence at trial that she expected that after the operation she would 'just have an appendix scar' (ts 46).

13. There is, in any event, no evidence that she ever conveyed to the appellant her assumption that Dr Hastwell would perform a laparoscopic appendectomy.  What was before the appellant was rather to the contrary.  In her proof of evidence, the respondent said:

    I thought an appendix scar would be pretty small and not that painful but my abdomen was very sore.  I had been cut straight across my stomach.  It was like a caesarean scar.  I had 15 staples and 3 stiches.  I didn't really care much because I believed that my pain would be gone.

14. Later in the proof, the respondent said that at the consultation with Dr Hastwell on 31 August 1992:

    [Dr Hastwell] told me I got such a large scar because it is his cosmetic surgery and of course because my appendix were so bad.

15. The transcript of the respondent's consultation with Dr Hastwell on 31 August 1992, of which the appellant had a copy, is consistent with the respondent's assumption being simply her own, unexpressed, assumption, not an assumption induced by Dr Hastwell.  In the course of that consultation there was discussion about the appendectomy and the size of the scar, but no suggestion that Dr Hastwell had ever indicated that it would be a laparoscopic appendectomy.

16. It is the case that in his letter to the respondent's current solicitors of 17 April 2003, Dr Hastwell referred to the respondent having been 'booked for a laparoscopic appendectomy'.  That letter was not, of course, available to the appellant during the currency of his retainer.  It is also contrary to Dr Hastwell's statement to the respondent at the 31 August 1992 consultation that he did not have the right equipment to perform a laparoscopic appendectomy.  In the circumstances, I do not consider that any weight is to be attached to such a statement in a letter written some 11 years after the event.

17. In my opinion, on the material before the appellant a competent and careful solicitor could not have advised the respondent that a claim against Dr Hastwell for performing the appendectomy by Pfannenstiel incision rather than by a laparoscopy had reasonable prospects of success.  Nor was there anything to suggest that further enquiries might reveal such a claim.  I would uphold this ground of appeal.

18. The third challenge to the findings of the primary judge was that his Honour erred in finding the appellant was negligent in not advising the respondent that she had reasonable prospects of making out a claim against Dr Hastwell for failing to warn her prior to the appendectomy that there was a risk of nerve entrapment in performing it by Pfannenstiel incision if the incision that was made was too lateral [197].

19. It is well‑established that the obligation of a doctor to warn is an obligation to warn of material risks, being risks that a reasonable person in the patient's position would be likely to attach significance to or risks which the doctor is, or should reasonably be, aware the particular patient would be likely to attach significance to:  Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [75] ‑ [81]. On whether there is a duty to warn in any particular case the views of experts will be significant but not decisive: Rogers v Whittaker (487), Rosenberg v Percival [7].

20. In finding that the appellant should have advised that such a case was arguable, the primary judge referred to the following evidence at trial of Mr Marsh:

    If you were performing [an appendectomy] in 1992 what would you tell your patients prior to the operation when obtaining their consent to the procedure?‑‑‑Well, you'd tell them that they'd have some initial wound pain and some swelling.  You would inform them that the - there are potential complications that any wound is exposed to, like infection or bleeding, and in some cases that the - sometimes there may be pain that lasts for a longer period of time, bearing in mind what we've already discussed about a Pfannenstiel wound.  If you make the incision too lateral there's increasing risk of neuralgia, nerve pain. So that depends upon circumstances at the time (ts 157) [93]. (emphasis added)

21. While Mr Marsh's evidence concerned his own practice in warning patients, his answer suggested that a reasonably competent doctor would have given such a warning.  That evidence was not, of course, before the appellant but the appellant did have Mr Marsh's referral letter dated 29 May 1997 in which he had referred to 'the wide Pfannenstiel wound' being 'notorious for peripheral nerve entrapment'.

22. It is clear that the appellant did not consider a case based on a failure to warn.  He did not ask the respondent whether she had received any warning about that risk and he did not ask any of the medical experts he consulted about appropriate warnings, and specifically as to warning of the increased risk of nerve pain involved in a Pfannenstiel incision. 

23. In the circumstances, it was open to his Honour to find that the exercise of reasonable care by the appellant required him to make such enquiries.  And had enquiry been made, it is clear that there was evidence reasonably available to the appellant that Dr Hastwell had not warned the respondent of the increased risk of nerve pain involved in a Pfannenstiel incision.  At trial, the respondent gave unchallenged evidence that Dr Hastwell did not tell her of any complications which might arise from the appendectomy.  It was also open to his Honour to conclude that it was arguable the risk was a material one.

24. The question of whether the appellant should have advised the respondent that she had reasonable prospects of making out a claim for damages against Dr Hastwell on that basis also depended, however, upon an assessment of her prospects of proving that the failure to warn of the risk was a cause of the pain from which she was suffering.  That depended upon whether a court was likely to be satisfied, on the balance of probabilities, of two factors; first, that the Pfannenstiel incision was the cause of the pain, and secondly, that if warned the respondent would have declined to undergo the appendectomy by Pfannenstiel incision.

25. The primary judge found that on the respondent's evidence at trial it was arguable that had she been properly warned she would not have consented to the procedure [197]. In fact, the respondent did not give evidence that, if warned, she would have declined to undertake the appendectomy by Pfannenstiel incision. She was not asked. And on the material before the appellant, the respondent faced substantial difficulties on this issue. Whilst the test is a subjective one, in the sense that the question is not what a reasonable patient would have done but what the particular patient would have done if warned (Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [32], [93]; McCarthy v Kidd [2001] NSWCA 304 [66]), any evidence of the respondent that she would have declined to undergo the appendectomy by Pfannenstiel incision would inevitably fall to be tested against the relevant objective evidence: see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 560, 581; Rosenberg v Percival (463).

26. On the evidence before the appellant, the respondent had been consulting Dr Hastwell regarding her abdominal pain since May 1990.  Dr Hastwell had previously carried out the ventrosuspension procedure in an endeavour to alleviate the pain.  After the ventrosuspension procedure, the respondent readily accepted Dr Hastwell's suggestion that she undergo an appendectomy in a further endeavour to relieve the continuing severe pain she was suffering.  It was not suggested that she raised any concerns about the surgery and it was reasonably to be inferred that she had confidence and trust in Dr Hastwell's ability.  The respondent was anxious that something was done to relieve her pain.  As she put it in evidence, she 'just wanted [the pain] stopped'; she 'just wanted to be well again'.  It is also significant that the risk referred to by Mr Marsh was not in respect of a Pfannenstiel incision itself but only where the incision was made too lateral.

27. In addition, the risk involved in a Pfannenstiel incision would have had to be weighed against the risks involved in a laparoscopic appendectomy.  And if the appendectomy was to be performed by laparoscope, it appears the respondent would have had to be referred to another surgeon as Dr Hastwell did not have the equipment to carry out a laparoscopic appendectomy.

28. In my view, a reasonably competent solicitor would have concluded that it was unlikely a court would accept that, if warned, the respondent would have insisted upon a laparoscopic appendectomy.

29. The other issue is whether, on the material available to the appellant, the respondent had reasonable prospects of establishing that her pain was caused by nerve entrapment resulting from the appendectomy.  The appellant challenges the finding of the primary judge that there was material before the appellant, or which the appellant could and should reasonably have obtained, that the respondent's pain was caused by nerve entrapment resulting from the Pfannenstiel incision.

30. As I have mentioned, his Honour concluded it was evident from the reports of Mr Marsh and Dr Salmon that they both considered nerve entrapment to have been the cause, or a likely cause, of the respondent's pain after the appendectomy [199]. In addition, his Honour found that three further lines of enquiry should have been pursued by the appellant, namely of:

    (a)Dr Ravastava at the pain clinic at Gosnells Family Hospital, the respondent having made known to the appellant the substance of Dr Ravastava's opinion to the effect that her pain was likely to be caused by nerve entrapment;

    (b)Dr Goucke at the SCGH Pain Clinic, whom the respondent had apparently consulted on 15 November 1999; and

    (c)Mr Warton, once he was provided with Mr Marsh's referral to the SCGH Pain Clinic in which Mr Marsh had suggested that nerve entrapment was a possible cause of the respondent's pain [200].

31. The appellant submits that the primary judge was in error in making those findings:  on the material reasonably available to the appellant such a case did not have reasonable prospects of success and he could not properly have advised the respondent that it did.  The cause of the respondent's pain remained unknown.  And there was no evidence that any useful purpose would have been served by pursuing the further enquiries referred to by the primary judge.

32. It is necessary to turn to the relevant material which the appellant had during the currency of his retainer.  I have previously referred to Dr Salmon's report of 9 March 1999 to Dr Ong in which he gave as his 'initial impression' that the respondent's 'long standing low abdominal pain problem is likely related to a missed appendicitis and nerve entrapment scarring exacerbated by surgery' (emphasis added).  Dr Salmon went on:

    I have suggested to [the respondent] that over time her pain has become more central nervous system in origin and is likely interacting with psychological disturbance to produce her chronic pain syndrome … I have suggested that she is likely to see a considerable improvement in her pain control and reduction in medication requirement and increase in function with a cognitive behavioural and exercise based program.

33. Dr Salmon said he would refer the respondent to Dr Goucke at the SCGH Pain Clinic 'for assessment there and possible cognitive behavioural program treatment if deemed appropriate'.

34. One of the difficulties with the report for the purpose of the assessment of a possible claim against Dr Hastwell is that it was not directed to the specific issues with which the appellant was concerned.  Having set out the respondent's considerable surgical history (including the laparoscopy in February 1992, the subsequent ventrosuspension, the appendectomy, and the diagnostic laparoscopy performed by Mr Marsh), Dr Salmon does not identify any particular one or other of those surgical procedures as having 'exacerbated' the nerve entrapment, but simply refers to 'nerve entrapment exacerbated by surgery'.  In particular, Dr Salmon does not say that nerve entrapment from the Pfannenstiel wound was a likely cause of the respondent's pain.  It is also not clear whether Dr Salmon considered that the respondent's current pain had its origins in something other than appendicitis and nerve entrapment, or whether he considered that the pain from appendicitis and nerve entrapment had led to pain which was more central nervous system and psychological in origin.  Moreover, it is evident that whilst Dr Salmon had an 'initial impression' that the cause of the pain was 'likely related to' appendicitis and nerve entrapment, it was a matter which he considered required further investigation before any firm diagnosis could be made.  When he was subsequently asked by the appellant whether any lack of care on the part of Dr Hastwell was a cause of the respondent's pain, Dr Salmon had declined to offer an opinion.

1. In this appeal, the lawyers submitted that the client's evidence was, in effect, unreliable.  Particular stress was put on the finding [117] that 'she was not concerned about the scar provided she was not in pain'.  It is said that this demonstrates that she would still have undergone the surgery involving Pfannenstiel incision if warned of the risks, because she was more concerned about alleviating her pain than scarring from the incision.  I reject that submission.  It is one thing to say that she would have put up with the scar if it alleviated her pain.  It is quite another to say that she would have consented to a technique which carried with it risks of further pain.

2. The lawyers also contended that the client's evidence at trial differed from information reflected in reports by Dr Hastwell, Dr De Souza and Dr Marsh. 

3. The reports of Dr De Souza and Dr Hastwell do not refer to pain associated with the Pfannenstiel wound, but those reports could not be regarded as determinative of the issue of causation, or of the client's credibility as a witness.  As for Dr Marsh, he recorded in his letter of 15 September 1993 that he noted tenderness 'in the right iliac fossa above the right side of her extended Pfannenstiel wound'.  He also recorded that the client reported that the surgery on 12 May 1992 'had not relieved her symptoms and in fact had seem [sic] to be associated with them becoming more pronounced' (emphasis added).  Dr Marsh's report of 3 February 1994 referred to her complaint that she had not expected to experience 'such an intensity of post‑operative pain' following the surgery on 12 May 1992.  The material parts of Dr Marsh's reports of 29 May 1997 and 5 August 1999, which are set out in [228] ‑ [234] below, are not inconsistent with the client's case on causation. 

4. The lawyers did not contend in this appeal, in accordance with orthodox principle, that the finding that the client had an arguable case that the Pfannenstiel wound was a cause of, or materially contributed to, her pain after 12 May 1992 was 'glaringly improbable', or 'contrary to compelling inferences', or that it was inconsistent with incontrovertible facts or uncontested testimony:  Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] ‑ [31]. Nor, in my view, could such a submission be sustained on the evidence as a whole.

The expert evidence - overview

1. At the trial below, the lawyers did not call any medical witnesses to give expert evidence on the issues of breach, or causation, with respect to the client's potential cause of action against Dr Hastwell. 

2. The client called Dr Marsh and Dr Salmon.  The remainder of the medical evidence was given through reports tendered largely by consent.

3. The written medical evidence included reports or letters from 1992/1993, including from Dr Hastwell dated 31 August 1992, from Dr De Souza dated 19 April 1993 (Dr De Souza was the general practitioner who referred the client to Dr Hastwell), and Dr Hellmuth (whose report dated 29 March 1993 was obtained by Fordhams).  Dr Hastwell said that the client's pain was 'possibly related to an irritable bowel, her large ovaries and retroversion'.  He reported that he had given the client 'Provera' to minimise congestion, endometriosis and premenstrual syndrome.  Dr De Souza, in his reported dated 19 April 1993, said that the client's pain was not 'affactorial'.  He said:

   I don't think there is any single cause for her pain whatsoever.  She has known adhesions which are mild to moderate.  She has had a diagnosed appendicitis.  She has also had irritable bowel syndrome.  She also had a prolapsed uterus and pelvic congestion.  Each one of these would cause severe pelvic pain at different times.

4. Dr Hellmuth, a gynaecologist, saw the client on 29 April 1992, ie, before the second operation by Dr Hastwell on 12 May 1992.  In his report dated 29 March 1993, Dr Hellmuth noted the existence of gynaecological problems and pelvic pain, and said:

   She obviously had different sorts of pain including pain with intercourse and the pain leading to a diagnosis of an appendicitis.  Some of the pain was obviously related to the scarring of the uterus and the scarring behind the uterus and also the prolapse.  It is possible that a different sort of pain may have been due to an inflammed [sic] appendix.  As far as the latter is concerned, I have no access to the information regarding the appendix.

5. Dr Hellmuth's report obviously related to his examination of the client prior to the removal of her appendix by Dr Hastwell on 12 May 1992. 

6. The written medical evidence also included an expert opinion obtained by the lawyers from Dr Warton, consultant gynaecologist, dated 29 September 1998.  Dr Warton did not proffer a positive opinion on the cause of the client's pain after 12 May 1992, but he did say, in effect, that it would be difficult, on the evidence, to conclude that endometriosis, irritable bowel, enlarged ovaries, or adhesions were causes, or at least significant causes, of her pain.

7. Dr Warton also said, with respect to the first operation carried out by Dr Hastwell, ie, the one prior to the appendectomy on 12 May 1992:

   ... I do not consider that the ventrosuspension had really much to do with her pain at all.  The issue of it breaking down after the first operation and not being performed at the second operation I consider is really peripheral to the whole issue.

8. Dr Korda provided a report for the client dated 12 May 2007 (exhibit 3.5).  He said that he was not in a position to diagnose the client's pain because he had not examined her clinically.  He said, however, that 'her symptoms are not inconsistent with nerve entrapment injury'. 

9. Dr Knezevic, neurologist, whose report dated 23 February 2000 was tendered by consent as part of the agreed bundle of medical reports, said:

   I note that she is being been seen by Tom Berrigan recently at the Pain Clinic at Sir Charles Gairdner Hospital who has performed a local infiltration of her scar which has produced a significant improvement in her pain ... I do not think this lady has a neurological cause for her low abdominal pain.  I think she probably does have some neuromas related to her scar which are contributing to her pain which Tom Berrigan is dealing with.  From a neurological point of view I do not have anything further to add in a diagnostic or therapeutic sense but I am hopeful that Dr Berrigan will be able to control her pain.  (emphasis added)

10. Although Dr Salmon in his letter dated 9 March 1999 referred the client to Dr Goucke at the Sir Charles Gairdner Pain Clinic, it is evident that she attended Dr Berrigan rather than Dr Goucke at the Pain Clinic.  The decision not to call Dr Berrigan at the trial below is, prima facie, surprising, although it would be difficult to conclude that the proper inference was that his evidence would not have assisted the client on the question of whether nerve entrapment from the Pfannenstiel incision was a cause of the client's pain, in light of the evidence in Dr Knezevic's report referred to above, and the note from the Gosnells Health Care Practice (exhibit A2) - see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 320 ‑ 321. The lawyers in this appeal had originally advanced, in their written submissions, a contention that a Jones v Dunkel inference was available in relation to the client's failure to call the pain specialist from Sir Charles Gairdner Hospital Pain Clinic, but that submission was withdrawn at the hearing of the appeal (ts 93).  At trial, the lawyers' counsel, whilst referring in his oral closing submissions to Dr Berrigan and the role of Sir Charles Gairdner Pain Clinic (ts 306, 308), did not invite the primary judge to draw a Jones v Dunkel inference in relation to the absence of testimony from Dr Berrigan.  Even if the inference were drawn, however, the client still had good arguable evidence on causation.

Dr Marsh's evidence

1. Dr Marsh was a general surgeon.  He was not a pain specialist. 

2. In his first report dated 15 September 1993 to Fordhams, Dr Marsh reported on his examination of the client and on the diagnostic laparoscopy which he performed on the client on 31 May 1993.  As to the findings on examination, he said, 'She was tender in the right iliac fossa above the right side of her extended Pfannenstiel wound'.  In relation to the diagnostic laparoscopy, he said that he had found a 'solitary band adhesion', which he then divided, and that there was 'no evidence of any other adhesions, endometriosis or inflammatory changes'.  He added that he did not think, at that point, that the cause of her ongoing symptoms had been adequately explained. 

3. In a letter dated 29 May 1997 to Sir Charles Gairdner Hospital Pain Clinic, a copy of which was sent to the lawyers, Dr Marsh opined that the client's pain may be attributed to two possibilities, one of which was nerve damage in the suprapubic area.  He said:

   Her pain is in the lateral aspects of both iliac fossae in the region of the rather extended Pfannenstiel wound and it is possible that she has neuralgia from an involvement of both peripheral branches of the subcostal nerves that supply the suprapubic area.  The other possibility is that she had pain due to narcotic dependency.

   I really think she needs to be sorted out by someone skilled in pain management ...

   I am sure she should would [sic] be eternally grateful to you if you could resolve the diagnostic dilemma as to the cause of her pain and arrange treatment accordingly.  She is aware that one doctor has diagnosed her pain as that of drug dependency and although this may be the case, the wide Pfannenstiel would is notorious for peripheral nerve entrapment and this really does need to be properly assessed.

4. In his letter to the lawyers dated 5 August 1999, Dr Marsh said:

   Nerve entrapment in her lower abdominal Pfannenstiel wound cannot be entirely excluded and the opinion of Dr Roger Goucke at Sir Charles Gairdner Pain Clinic should be sought before any plans for her management be contemplated.

5. At the trial below, in examination‑in‑chief, Dr Marsh described the client's wound as 'an extended Pfannenstiel wound, a transverse cut in the lower abdomen' (ts 146).  Dr Marsh observed that the scar extended to the sides of the body more than usual.  The significance of the length of the scar was that 'there's always a worry that if you extend it too laterally you'll what we call entrap nerves, which cause pain' (ts 146).  After explaining the physiology behind this comment, Dr Marsh said, in effect, that based on his clinical experience, nerve entrapment following the Pfannenstiel wound 'was a definite possibility'.  He did not consider nerve entrapment to be a rare complication if the wound is made 'a little bit too wide' (ts 149). 

6. Under cross‑examination, Dr Marsh agreed that in a letter to Fordhams dated 15 September 1993 and a report to Sir Charles Gairdner Hospital dated 29 May 1997, he did not clearly indicate that the client's pain had increased after the appendectomy.  In the letter to Fordhams, he wrote that the appendectomy had been performed 'without relief of her pain',  and in the 1997 report he wrote that the appendectomy 'made no difference to her pain'.  Dr Marsh explained that 'tenderness' means soreness or pain on examination when the abdomen is pushed.  Dr Marsh said that pain can be experienced without tenderness, but when asked whether there can be tenderness without pain, he replied 'less so' (ts 163).  On re‑examination, Dr Marsh read from his clinical notes, which recorded that the client 'underwent an appendicectomy in May 1992 and since then she's stated that her pain has been worse and also associated with a backache at the level of the sacroiliac joints' (ts 171).  Dr Marsh said that he had urged the lawyers to seek the opinion of a pain specialist because he could not make a conclusive diagnosis as to her pain.  Her pain continued after the laparoscopy he had performed in order to free an adhesion (ts 176).  Dr Marsh said that there was a 'diagnostic dilemma as to what was the actual cause of her pain' (ts 177).  He could not arrive at a diagnosis which he was 'totally confident in', and because of that he 'elected to refer her to the pain clinic'.  Although unable to arrive at a conclusive diagnosis, Dr Marsh reiterated that his view regarding the two most likely possibilities, ie, nerve entrapment and narcotic dependency, had not changed. 

7. While Dr Marsh's evidence was consistent with the proposition that nerve injury from the Pfannenstiel incision was a cause of the client's pain, a fair reading of the evidence as a whole would indicate that he regarded it as a real and substantial possibility, but short of a probability.  The effect of his evidence was also that he would defer to pain specialists in relation to the cause of the client's pain. 

Dr Salmon's evidence

1. Dr Salmon was a pain specialist.

2. He had been briefed by the lawyers with, amongst other things, the client's proof of evidence, and the reports of Dr Hellmuth, Dr De Souza, and Dr Warton, as well as Dr Marsh's report of 15 September 1993. 

3. I have set out earlier in [187] ‑ [189] above, the material parts of Dr Salmon's reports of 9 March 1999 and 6 May 1999.  His reports were tendered as evidence‑in‑chief.

4. Under cross‑examination, Dr Salmon admitted that he only examined the client once.  It was put to Dr Salmon that his report stated that on examination the client had modest tenderness around her scar, which contradicts her description of her abdominal pain.  This was rejected by Dr Salmon, who explained that 'most chronic abdominal pain is now thought to relate to central nervous system mechanisms rather than local tissue pathology' and that local signs of nerve pain can decrease over time, but the pain as a whole can become more severe over time.  Counsel for the lawyers also suggested that the client was diagnosed by at least one gynaecologist in 1995 with chronic abdominal pain due to adhesions.  When asked whether he would distinguish between adhesions and nerve entrapment, Dr Salmon said that the relationship between chronic pain, adhesions, and nerve entrapment 'is often quite tenuous' (ts 130).  The effect of his evidence on this was that a patient could have any one of the three (chronic pain, adhesions and nerve entrapment) without the other two, or any combination of two of the three, without the third.  In response to a question about whether it is a possibility that the client could be expressing pain in order to obtain a supply of narcotics, Dr Salmon said that 'that certainly can occur' (ts 131).  However, Dr Salmon said that high dose morphine would not generate pain.  Dr Salmon was also asked about the abdominal pain prior to 1992.  He said that, according to the history he took from the client, her pain became more severe and continuous after multiple surgeries.  He said that in patients with a genetic over‑sensitivity of the nervous system, a series of injuries can provoke an escalation of nervous system pain which would not be provoked in other people.  The relationship between scarring, nerve entrapment and chronic pain was explained further by Dr Salmon in re‑examination (ts 132):

   Yes.  Dr Salmon, just on that last point when you referred to nerve entrapment scarring, what happens and how does that arise?‑‑‑Well, it's always been a speculative diagnosis the relationship between chronic pain and nerve entrapment because scarring is inevitable after any surgery or inflammatory process. Only a proportion of people get persistent pain in relation to that scarring. You can have severe scarring including nerve entrapment and no pain. And the converse is true. So there isn't a one‑on‑one relationship between the extent of scarring and the extent of nerve entrapment and the extent of pain. I think everyone would agree on that. But certainly it is the case that nerve entrapment can cause pain and if it's severe nerve entrapment it can cause more severe pain. It's just that in a range of patients there's not a consistent - a predictable relationship. Does that make sense?

5. The overall effect of his evidence in cross‑examination and re‑examination, including that just quoted, as I understand it is that:

   (a)in some individuals their nervous system can predispose them to the development of chronic pain through trauma associated with surgery, and the risk of that increases if there are repeated incidents of trauma;

   (b)nerve entrapment as a result of surgery is by no means necessarily predictive of the likelihood of the development of chronic pain in patients;

   (c)nerve entrapment can cause pain and severe nerve entrapment can cause severe pain, and the pain from nerve entrapment may result in the development of chronic pain in individuals who are predisposed to that condition as a result of genetic over‑sensitivity of their nervous system.

6. Dr Salmon's evidence did not contradict his view expressed in his reports that nerve entrapment was a likely cause of the client's pain. 

7. It was not put to Dr Salmon in cross‑examination that the client's condition prior to 12 May 1992 was such that she would have developed chronic pain even without any surgery on 12 May 1992, or that laparoscopic surgery, not involving a wide Pfannenstiel wound, would have brought her to the same condition in any event.  Nor was there any expert evidence to that effect.

Conclusion on the value of the lost chance

1. In my view, in relation to the client's cause of action against Dr Hastwell for failing to warn, the client would have clearly established a duty of care. 

2. In relation to breach, there was no suggestion that Dr Hastwell, in performing the surgery itself, was negligent in making the incision too wide.  Nor was there evidence that the length of the incision in this particular case signified any departure from Dr Hastwell's usual practice in relation to Pfannenstiel incisions.  The postulated failure to warn case falls to be considered in this context. 

3. Had Dr Hastwell, in relation to a claim for failure to warn, sought to defend the claim on the basis that he made the wound particularly wide in this case and he had no duty to warn because he had no basis for foreseeing, pre‑operatively, that he would make such a wide incision, that might have raised other issues as to whether the wound was unnecessarily wide and thus whether the surgery itself was negligently performed.  As I have said, such matters were not raised in the court below.

4. In my opinion, on the evidence in this case, the client had good prospects of establishing that injury via nerve entrapment was a risk of a wide Pfannenstiel incision of the kind performed by Dr Hastwell on 12 May 1992.

5. She would also likely have established that she was not warned of that risk. 

6. As to the materiality of the risk, the client was anxious and distressed with her pain and she had reasonable prospects of persuading a court that a reasonable person in her position, if warned, would be likely to attach significance to a procedure involving a risk of injury via nerve entrapment, and further pain on that account:  Rogers v Whitaker (490). 

7. The most controversial aspect of the client's statute‑barred cause of action against Dr Hastwell is that of causation.  She would have had to establish, on the balance of probabilities, that had she been warned of the risks, she would not have proceeded with the treatment in question, and that the Pfannenstiel incision caused or materially contributed to the pain for which she sought damages against Dr Hastwell. 

8. On the question of whether she would have proceeded if properly warned, the judge, rightly in my view, identified an issue as to whether 'irrespective of the [client's] wishes, surgery by Pfannenstiel invasion [sic] may have been inevitable' (reasons [216]). Dr Hastwell may well have contended that laparoscopic appendectomy was unwise and carried its own risks in circumstances where the surgeon reasonably expected to find a diseased appendix, and that in those circumstances it is to be inferred that in order to alleviate the existing pain, the client would have consented to surgery involving a Pfannenstiel incision, notwithstanding the risks of nerve entrapment.

1. There is some indication that a defence along those lines may have been run.  In exhibit 1.127 (page 185) there is a record that Dr Hastwell told the client, post‑operatively:

   On the right hand side if it's a normal appendix you go right on top and pull it up for sure.  You can get through a pin hole.  It's not good surgery.  In fact you can do an appendix through a laparoscope if you have got the right equipment which I haven't got.  (emphasis added)

2. The client, on the other hand, would no doubt seek to draw assistance from the principles in Chappel v Hart [34] and Rosenberg v Percival [86] ‑ [88]. Such a defence would also have put focus on Dr Hastwell's clinical judgment in removing what turned out to be a healthy appendix.

3. Further, it is always necessary to focus on the content of the relevant warning:  Rosenberg v Percival [69]. Dr Hastwell may have contended that the true content of any warning concerning nerve entrapment would have carried with it the statement that the nerve injury would not be severe or enduring because it could subsequently be remedied in a further procedure by freeing the nerve or excising it entirely - in the latter case on the basis, as Dr Marsh put it, that 'it's better to have numbness than pain' (ts 149). If there were no indication of a predisposition to chronic pain syndrome, a court might find that a warning of nerve entrapment would have carried with it that additional information and that the client, on that basis, would have been prepared to undergo the surgery by Pfannenstiel incision in any event.

4. The judge (reasons [218] ‑ [219]) identified this potential question of corrective surgery to relieve the nerve injury as relevant to mitigation.  That may be so, although I would also see it as potentially relevant to the issue of the content of the warning which ought properly have been given.

5. In relation to the question of whether the injury was a cause of the pain, the judge said, correctly in my respectful view (reasons [133]):

   On the evidence there is in my view more than a negligible chance of the plaintiff proving at a notional trial that a cause of the pain with which she suffered after the second surgery was by reason of nerve entrapment, the temporal catalyst for which was the pfannanstiel [sic] incision and that even if her ongoing pain was more central nervous system in origin, as Dr Salmon suggests, the nerve entrapment was a cause of the pain with which she still suffers (Shorey v PT).

6. In Shorey v PT Ltd [2003] HCA 27; (2003) 197 ALR 410, the appellant fell and suffered physical injuries as a result of the respondents' negligence. From this incident, she claimed that a severe, grossly disabling condition developed, resulting in profound incapacity. It was undisputed that there were other independent factors arising both before and after the accident which contributed to her condition and these factors led her to suffer from a persistent psychologically disturbed condition known as a 'conversion disorder'. The appellant succeeded in her damages claim at trial, but the Court of Appeal overturned that decision. The High Court upheld an appeal from the Court of Appeal. The plurality said (reasons [2], [9]):

   Accepting, as did the Court of Appeal, the finding of the trial judge that the appellant genuinely experienced the extreme, and in some respects bizarre, symptoms of which she complained, and that she was not malingering, the question became whether the fall for which the respondents were responsible was a cause of the appellant's condition as it manifested itself at trial. That there were other factors which contributed to that condition was beyond doubt; but if it were correct to conclude that the fall was a cause of the condition, then the appellant was entitled to succeed.

   ...

   The principal problem in the case, once the possibility of malingering is put to one side, lay in relating legal concepts of causation to the medical concept of a conversion disorder. The appellant, suffering from a not insignificant, but not catastrophic, back complaint aggravated by her fall, with a history of psychological vulnerability, and being subjected to further severe emotional distress, developed a condition in consequence of which her disablement became far greater than her physical problems could account for. Was the fall a cause of that condition? On the evidence, that became a difficult question of fact. Different conclusions were fairly open, and it is not surprising that the question gave rise to a division of judicial opinion.  (emphasis added)

7. In this case, the primary judge also said (reasons [218]):

   Given her long and rather complex gynaecological history, I anticipate that Dr Hastwell may have asserted at a notional trial that the pain with which the plaintiff alleges she has suffered since the second surgery would have resulted in any event even if it manifested itself as chronic pain syndrome ...

8. As indicated earlier, there was no expert evidence to that effect in the trial below.  Nevertheless, the judge did not err in considering that such an issue could well be raised in litigation against Dr Hastwell.  This was a case in which it could properly be concluded that difficult questions of fact would likely arise on causation, upon which different conclusions could fairly be open.  The lawyers' negligence foreclosed the prospect of a favourable outcome. 

9. His Honour ultimately concluded that there were 'a significant number of uncertainties relating to the matters relevant to the prospects of a successful claim being made against Dr Hastwell' and that 'doing the best' he could, he considered that the value of the loss of chance was 40% of the sum to which the client may have been entitled upon the claim against Dr Hastwell being made out. 

10. Dr Hastwell would clearly, in my view, have faced risks in litigation by the client and it is likely that both parties, properly advised, would have settled. Having regard to the matters to which I have referred earlier, in my assessment, the 60% discount of the client's claim is somewhat on the high side as a discount.  Nevertheless, an assessment of lost opportunity is analogous to a decision involving the exercise of discretion:  Hammond Worthington v Da Silva [128]. In this case, I would not regard the judge's assessment as outside the bounds of a proper award.

11. As Newnes JA has indicated, in this appeal the lawyers submitted that in assessing the chance of 40%, his Honour had not taken into account two distinct hurdles, one in relation to breach and the other in relation to causation.  Counsel for the lawyers accepted that it was unnecessary for the primary judge expressly to treat each step separately, but submitted that if the two had been properly considered, it was evident that the figure would have been much lower than 40%.  I agree with Newnes JA that so long as a proper allowance is made for the separate considerations that must be taken into account in assessing the prospects of success, there is no need to adopt the two‑stage approach advanced by counsel for the lawyers in this appeal. 

12. In Johnson v Perez, Dawson J said (391):

    It is not an impossible task to assess what the respondent might have been awarded in each action as at that date and to discount the figure arrived at to the extent that the plaintiff's chances of successful recovery were less than 100 per cent.

13. Although not explicit, this approach tends to suggest that a single deduction to account for all uncertainties would be an appropriate method of assessment.  Mason CJ in Nikolaou v Papasavas, Phillips & Co observed that (400):

    The court must ascertain the value of what the appellant lost as a result of the solicitor's negligence. It will need to determine what the appellant would have recovered but for that negligence and will need to discount that amount by the chance that he would not have been successful in that claim: see Kitchen v Royal Air Force Association.

14. Similarly, Baroness Hale of Richmond in Gregg v Scott observed [218]:

    The court simply asks what his claim was worth, assesses his chances of success, and discounts the full value by reference to the degree to which those chances were less than 100%.

15. In Malec v J C Hutton Pty Ltd (640) Brennan and Dawson JJ said that 'damages founded on hypothetical evaluations defy precise calculation'.

16. In Hammond Worthington v Da Silva, the Court of Appeal upheld an assessment of damages in which the trial judge found that the respondent had suffered a 65% loss of chance in succeeding in a common law claim against his employer for personal injuries.  It seems that a global discount of 35% was applied to account for contingencies, which included difficulties in establishing causation.  See also Sloane v McDonald & Sutherland, where the court dismissed an appeal against the trial judge's assessment of the plaintiff's prospects of success in personal injury claim as 40% overall.

17. These cases do not support the two‑stage discount approach contended for by the appellant.  The trial judge must make an assessment as to the prospects of success of the claim which was lost by reason of the lawyers' negligence.  In doing so, the trial judge should take into account any uncertainties, evidentiary difficulties or problems establishing particular elements of the cause of action.  The discount applied by the judge is to account for these contingencies as a whole.  The trial judge is not required to isolate each contingency and apply a separate discount.  The discount is global and evaluative in nature rather than mathematical.

Notice of contention and cross‑appeal

1. I agree with Newnes JA in relation to the notice of contention, which concerns the ventrosuspension surgery carried out in the first operation. 

2. In the cross‑appeal, the client challenges the primary judge's assessment of 40% prospects of success.  Insofar as the complaints relate to the judge's failure to take into account the claim in relation to the ventrosuspension surgery, the cross‑appeal fails for the reasons given in relation to the notice of contention.  Insofar as the cross‑appeal addresses arguments to the effect that the appendectomy was 'unnecessary', it fails for the reasons given in relation to ground 1(a) of the appeal.  Insofar as the cross‑appeal challenges the judge's assessment with respect to the failure to warn case, I have indicated earlier my reasons why I accept the judge's assessment of that figure.

Conclusion

1. The appeal and the cross‑appeal should be dismissed.