Ormsby v. Stewart & Ors
[2009] QSC 200
•31 July 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Ormsby v Stewart & Ors [2009] QSC 200
PARTIES:
SUSAN MARGARET ORMSBY
(plaintiff)
v
DR PETER ANTHONY STEWART
(first defendant)
SUNSHINE COAST DAY SURGERY PTY LTD,
ACN 055539 903
(second defendant)
LASER SIGHT CENTRES PTY LTD
ACN 095 456 456
(third defendant)
LASER SIGHT CENTRES AUSTRALASIA PTY LTD,
ACN 071 212 498
(fourth defendant)
LASER SIGHT CENTRES AUSTRALASIA (SYDNEY) PTY LTD, ACN 080 402 133
(fifth defendant)FILE NO/S:
BS9797 of 2005
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
31 July 2009
DELIVERED AT:
Brisbane
HEARING DATE:
23, 24, 25, 27, 30 March 2009
CATCHWORDS:
PERSONAL INJURIES – NEGLIGENCE - LIABILITY – DUTY TO WARN & DUTY TO TEST - Where plaintiff undertook intraocular lens replacement surgery – where plaintiff given information on risks and possible outcomes prior to surgery – where surgery did not achieve desired outcome – whether defendants had a duty to warn of actual outcome and to test plaintiff’s ability to accommodate actual outcome – whether defendants satisfied their duty to disclose material risks to plaintiff – whether the outcome of surgery in the plaintiff’s case was a material risk.
PERSONAL INJURIES – NEGLIGENCE – LIABILITY – CAUSATION - Where plaintiff undertook intraocular lens replacement surgery - where surgery did not achieve desired outcome – whether the plaintiff would have continued with surgery if pre-warned that the actual outcome of surgery was a possibility.
PERSONAL INJURIES – MITIGATION – Where the plaintiff was pre-warned of the possible need for post-operative corrective surgery – where the desired outcome of initial surgery was not achieved – where the plaintiff received advice from own expert witness to undertake post-operative corrective surgery – where the plaintiff did not act on expert’s advice - whether the plaintiff failed to mitigate damages.
PERSONAL INJURIES – DAMAGES – ASSESSMENT OF DAMAGES – Where plaintiff claimed damages for economic loss - where plaintiff did not make detailed submissions or present detailed evidence on economic loss – where plaintiff claimed damages for pain and suffering – where conflicting evidence as to the plaintiff’s psychological condition – where plaintiff had concealed previous psychological conditions & treatment – whether the plaintiff is entitled to damages – assessment of damages.
British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673
Chappel v Har t(1998) 195 CLR 232
Matters v Baker and Fawcett [1951] SASR 91
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434Smith v Commonwealth of Australia (2006) NSWSC 689
JUDGE:
Martin J
ORDER:
The action is dismissed.
COUNSEL:
J C Crowley QC and K F Boulton for the plaintiff
GW Diehm SC and M M Callaghan for the first to fifth defendantsSOLICITORS:
Cosgroves for the plaintiff
Blake Dawson for the first to fifth defendants
In November 2002 Dr Peter Stewart performed a bilateral intraocular lens extraction and replacement on Susan Ormsby. She says the operations were not successful, and that the unsuccessful outcome was something of which she should have been, but was not, warned.
The plaintiff (Ms Ormsby) is 48 years old. The first defendant (Dr Stewart) is an ophthalmologist in private practice. The second to fifth defendants are companies which carry on the business of an ophthalmic surgery or surgeries (Laser Sight Centres). Dr Stewart is a director of those defendants and one or more of them employ Chris Barrett (Mr Barrett) and Yvonne Hutchins (Ms Hutchins).
Background
Ms Ormsby has, since an early age, required correcting lenses for both long and near sight. She has also suffered from a strabismus or squint in her right eye. From about the age of 5 until 15 Ms Ormsby wore spectacles. From the age of 15, she wore contact lenses for the next 25 years or so. For reasons which are not clear, she ceased wearing contact lenses in about 2001 and resumed wearing spectacles.
The lenses in the spectacles were particularly thick – so much so that Ms Ormsby likened them to “coke bottle glass”. According to Ms Ormsby, while the contact lenses corrected her sight, she still had an obvious squint. The spectacles, on the other hand, corrected or disguised to some extent the squint but had the disadvantage of being very thick.
In the year or two before the operations the subject of this action, Ms Ormsby was employed as a merchandiser for various companies. As such, she would go to various stores and check on products, reorder them if necessary, and set up displays of products so that they were presented in an attractive fashion within the store. She formed the ambition of becoming a sales representative and concluded that it would be to her advantage if she could improve her appearance by removing the need for spectacles and correcting her squint. She explained her reasoning in the following way:
“Sorry, …, I had understood your evidence to be that the reason why you were exploring this operation was because you wanted to be rid of your coke bottle glasses?-- Yes, so I didn't look like a geek. But if I had no glasses but I still had a turn in my eye I would still have people staring at me and looking like a geek. It was for cosmetic purposes, sir. Look at me with coke bottle glasses or look at me with a turn in my eye. I had it so I didn't look like a geek for cosmetic purposes.”[1]
[1]T 2-29
In August 2002 she became interested in laser eye surgery as a means of achieving her aims. She later spoke to Ms Hutchins, Mr Barrett and Dr Stewart at different times. In November 2002 she underwent bilateral intraocular lens extractions and replacements (“the operations”).
The pleaded causes of action
The causes of action pleaded for Ms Ormsby are:
(a) a failure to warn in breach of a duty to warn;
(b) breach of a duty to advise and to test; and
(c) breach of a duty of care in proceeding with the surgery without giving the requisite advice.
It is also pleaded that the duties referred to above were implied terms of the contract between Ms Ormsby and one or more of the defendants whereby Dr Stewart would undertake the surgical procedure for reward.
The specific duties pleaded as being owed by one or more of the defendants were set out in paragraph 6A of the Further Amended Statement of Claim (FASOC):
“(a)advise the Plaintiff in relation to ophthalmic procedures and the risks involved in such procedures (the “duty to advise”);
(b)advise, warn or inform the Plaintiff of possible risks or unexpected outcomes from the procedure including but not limited to the matters listed in paragraph 7 below (the “duty to warn”); and
(c)undertake testing to ascertain whether the Plaintiff was a suitable candidate for the procedure including but not limited to the testing listed in paragraph 10 below (the “duty to test”).
(d)not conduct the procedure in circumstances where the duty to advise, the duty to warn and the duty to test had not been conducted and / or where the Plaintiff had not passed any relevant tests and / or where she had not given informed consent to the procedure (the “duty of care”).”
It is then pleaded that, in breach of the duty to warn, one or more of the defendants failed to advise, warn or inform the plaintiff:
“(a) that her eyesight may deteriorate following the procedure;
(b)that the procedure may result in the Plaintiff having blurred vision and/or poor stereoscopic vision and/or a reduced ability to use both eyes together and/or a loss of accommodation in both eyes and/or a different refractive error in each eye and/or that the Plaintiff may have difficulty wearing glasses to correct the imbalance between her eyes;
(c) the reasons for inducing monovision;
(d) of the effects of presbyopia.”It is further pleaded that, in breach of the duty to advise and to test, one or more of the defendants:
“failed to undertake testing to ascertain whether the Plaintiff was a suitable candidate for the procedure and in conducting the procedure in these circumstances and advising the Plaintiff that:
(a) she was a suitable candidate for the procedure without:(i)undertaking testing to ascertain whether the Plaintiff would be able to accept a monovision situation by requiring the Plaintiff to undergo a trial of wearing contact lenses to simulate the post-operative condition;
(ii)carrying out an examination of her ocular muscle function by conducting a cover and prism test and also a test of her binocular vision.”
It is further pleaded that, in breach of the duty to advise and the duty of care, one or more of the defendants were negligent and/or in breach of the contract by proceeding with the surgery without advising, warning or informing the plaintiff of the matters referred to above, and by proceeding with the surgery without undertaking testing as referred to above.
Finally, it is alleged that, as a result of the alleged negligence or breach of contract, Ms Ormsby suffered:
(a) a reduced ability to use both eyes together;
(b) a loss of accommodation in both eyes;
(c) a loss of vision;
(d) a different refractive error in each eye;(e)an inability to wear glasses that would correct the imbalance between her eyes; and
(f) an increase in the degree of astigmatism in the right eye.
The Issues
While the pleading sets up a number of issues, the dispute at the heart of the case was described in the plaintiff’s written submissions in the following way:
“20.The Plaintiff makes no claim of negligence by the surgeon in the operation. The case is contested on the failure of the Defendants to warn the Plaintiff of what was in fact the outcome, a condition like monovision.”
In the written submission handed to me at the trial paragraph 21 of the plaintiff’s submissions read:
“21.The principal claim which the Plaintiff made and the principle (sic) breach which the Plaintiff alleged was a failure to warn the Plaintiff of the reasons for inducing monovision.”
During Mr Crowley QC’s address I directed him to that paragraph[2] and he disclaimed it as not truly representing the way the matter was conducted. In the version of the plaintiff’s submissions e-mailed to my chambers after the trial paragraph 21 was changed to read:
“21.The principal claim which the Plaintiff made and the principal breach which the Plaintiff alleges is a failure to warn the Plaintiff of the consequences of the possible induction of monovision.”
[2]T 5-22 – 5-23
At this point, I should set out the meaning of “monovision”. Monovision is a condition which can be generated through procedures which cause one eye to be used for distance vision (that is, hyperopia is induced in that eye) and the other eye is altered so that it can be used for near vision (that is, myopia is induced in that eye). It is to be contrasted with the normal state of vision or “binocular vision” which yields a stereoscopic image with parallax-induced depth perception. Monovision is sometimes induced by laser surgery for people with both poor long and short vision as it can relieve them of the need to wear spectacles most of the time.
While the plaintiff has pleaded her case in a number of ways they all resolve back to the major complaints of a failure to warn and a failure to test. The “failure to advise” as pleaded is just another view of the same events as is the alleged breach constituted by proceeding without having given the requisite advice.
What must the plaintiff establish?
In any case in which it is asserted that the defendant has failed to warn of an inherent risk associated with a form of treatment the plaintiff must establish two things:
(a) that there has been a breach of duty to take reasonable care to disclose information, and
(b) that this breach caused the injury or loss.
As to disclosure, a medical practitioner is under a duty of care to disclose to a patient the “material risks” inherent in a medical procedure. The test for whether a risk is material was described in the following way in Rogers v Whitaker:[3]
“…a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”
[3](1992) 175 CLR 479 at 490 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ
This test of material risk was reaffirmed in Rosenberg v Percival.[4] There, Gummow J identified[5] the question which arises from imposing a duty to warn of a material risk inherent in a proposed treatment – what is the “risk” being spoken of? Once that is answered, one can turn to the next question – was that risk material? Justice Gummow considered the appropriate manner in which to approach these questions and concluded:
“[69] With this in mind, the first step must be to define the relevant risk. It is appropriate in this context to define the risk by reference to the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur. These factors are to be considered from the point of view of what a reasonable medical practitioner in the position of the defendant ought to have foreseen at the time. This approach directs attention to the content of any warning that could have been given at the time.”
[4](2001) 205 CLR 434
[5]At [42] to [69]
As to causation, the court in Rogers v Whitaker proposed a subjective test. Its content and requirements were described by McHugh J in the following way:[6]
“[24] Under the Australian common law, in determining whether a patient would have undertaken surgery, if warned of a risk of harm involved in that surgery, a court asks whether this patient would have undertaken the surgery. The test is a subjective test … . It is not decisive that a reasonable person would or would not have undertaken the surgery. What a reasonable person would or would not have done in the patient's circumstances will almost always be the most important factor in determining whether the court will accept or reject the patient's evidence as to the course that the patient would have taken. But what a reasonable person would have done is not conclusive. If the tribunal of fact, be it judge or jury, accepts the evidence of the patient as to what he or she would have done, then, subject to appellate review as to the correctness of that finding, that is the end of the matter. Unlike other common law jurisdictions … , in this field Australia has rejected the objective test of causation in favour of a subjective test.
[25] It follows from the test being subjective that the tribunal of fact must always make a finding as to what this patient would have done if warned of the risk. In some cases where there is no direct evidence as to what the patient would have done, the judge may infer from the objective facts that the patient would not have undergone the procedure. In exceptional cases, the judge may even reject the patient's testimony as not credible and then infer from the objective facts that the patient would not have proceeded. The judge might find, for example, that the patient was a person whose general credibility was so poor that no reliance could be placed on that person's oral evidence. Yet, notwithstanding the rejection of the patient's oral testimony, the judge might infer that nevertheless this patient would not have undergone the procedure. That inference would ordinarily be based not only on the objective facts but also on the tribunal's assessment of the general character and personality of the patient.” (emphasis added)[6]Rosenberg v Percival at [24]-[25]
I now turn to each of these matters in turn.
What was the relevant risk?
In order to answer the questions on risk it is first necessary to determine what the plaintiff was seeking from the defendants and what it was that was agreed to be done.
I have referred above to Ms Ormsby’s desire to rid herself of the need to wear thick spectacles. After she became aware of Laser Sight Surgery she made an appointment for 18 September 2002.
The plaintiff was not a reliable historian. Ms Ormsby’s recollection of dates when she spoke to certain people was not good. In particular, she was often wrong about the order of conversations and who said what. I have accepted, in general, the recollection of those people to whom she did speak – Ms Hutchins, Mr Barrett and Dr Stewart. They had the advantage of being able to refresh their memories from notes which they made at the time. Ms Ormsby said, for example, that she saw and was examined by Mr Barrett and Dr Stewart on 18 September. That is incorrect.
Ms Ormsby appeared to be confused about a number of other matters. Most importantly, she was confused about the type of operation she was eventually to undergo. Notwithstanding the evidence to the contrary, it remained part of Ms Ormsby’s pleaded case that one of the breaches alleged against the defendants was a “failure to advise, warn or inform the Plaintiff [of] the reasons for inducing monovision”.[7] In examination and cross-examination she said that she had been told that the operation would “give [her] one long distance eye and one short distance eye.”[8] She also told the expert ophthalmologist called on her behalf (Dr Alan Hilton) that that had been the intent of the operation. I find that that was never the case. While there were discussions about it, it was never proposed that monovision be induced.
[7]FASOC para. 7(c)
[8]T1-44,l 30-34; T2-33, l 10-20
She seems to have conflated what she was told by various people. For example, in May 2003, Ms Ormsby signed a “Notice of Claim” made by her under the Personal Injuries Proceedings Act 2002 (“the PIPA claim”). In it she stated that: “On the first occasion Mrs Ormsby attended the Laser Sight Centre Chris Barrett said that 1:3000 will suffer a bit of blurred vision but it was a temporary thing.” In cross-examination she said:
“So, was it your recollection in May of 2003 that the reference to one in 3,000 was a reference to a risk of blurred vision?-- No, risk of infection. The one thing that always stuck in my mind was the one in 3,000 risk of infection and I took extra precaution to make sure that I would not get this.
So, is what is said in that paragraph that you were told about a one in 3,000 risk of blurred vision wrong?-- It may be incorrect. He did tell me that you can experience some blurred vision after but you can return to work within 24 hours.
Do you mention in anywhere in there that you were told about a risk of infection with respect to the lens replacement surgery?-- Once Chris told me that I wasn't suitable for laser but I was suitable for the lens extraction, it was pretty much go, go, go.
So, did he not tell you after that of any risks?-- The only one that has ever stuck in my mind is the one in 3,000.
And who told you about that?-- I know Chris told me of it. And was that before or after you were told that you weren't suitable for the laser surgery?-- I was told before, to my best recollection, but I can't be sure.”
On 18 September Ms Ormsby was examined by Ms Hutchins. Ms Ormsby’s recollection is that she saw Mr Barrett that day. She is wrong in that respect. She seems to have substituted Mr Barrett in her mind’s eye for Ms Hutchins.
At that time Ms Hutchins was employed by one or more of the corporate defendants to undertake preoperative testing of patients. On that date Ms Hutchins showed Ms Ormsby a film[9] about laser surgery as, at that time, that was what Ms Ormsby was interested in. She also conducted assessments with respect to Ms Ormsby’s visual strength. As a result of the tests undertaken Ms Hutchins concluded and told Ms Ormsby that she was not a suitable subject for laser surgery because she fell outside the treatable range. They then had a discussion about what was otherwise available. The condition of her eyes did not allow for implantable collamer lenses and so the discussion turned to the option of a clear lens extraction. This is a procedure in which the natural lens in the eye is extracted and replaced with an artificial one. I find that in the discussion she had with Ms Ormsby, Ms Hutchins raised the possibilities of monovision or of having both lenses set for distance vision. In that conversation she specifically noted that the plaintiff said that she would be happy to wear reading glasses.
[9]Exhibit 36
Ms Ormsby returned to Laser Sight Centre on 10 October and was examined by Dr Stewart. Ms Ormsby’s evidence about this consultation was confused. She thought she saw Mr Barrett on the same day. She did not.
During that consultation Ms Ormsby decided, after speaking with Dr Stewart, to undergo an intraocular lens extraction and replacement operation with distance vision for both eyes being the goal.
The relevant risk in an operation of this kind would appear to be the risk that the proposed outcome would not be achieved. One of the possible unsatisfactory outcomes (as will appear from evidence referred to below) was that the patient would not achieve distance vision in both eyes and, further, that she could not cope with the result, namely monovision, as has happened with Ms Ormsby. For the purposes of this case, that unsatisfactory outcome can be regarded as the “injury” spoken of in the authorities.
I return to those matters which Gummow J said[10] were appropriate to define the risk:
(a) the circumstances in which the injury can occur,
(b) the likelihood of the injury occurring, and
(c) the extent or severity of the potential injury if it does occur.
[10]In [23] above.
The circumstances in which the “injury” can occur comprise two parts. First, the failure to achieve distance vision in both eyes and, secondly, the possibility that a person, such as the plaintiff, might not adjust to that result.
The circumstances in which the failure to achieve distance vision in both eyes can occur were considered by Dr Lee Lenton, an ophthalmologist called by the defendants. He was cross-examined and in his answers referred (among other things) to the fact that, because the lenses available for use are limited to half dioptre changes in strength, there is a statistical element to the outcome that cannot be predicted other than by reference to the statistical average.
“Doctor, if there is a significant risk that the outcome may not be or may be below the patient's expectation would you - as a matter of your professional obligation - would you advise the patient of that possible outcome?-- Oh, it's absolutely essential that the patient's expectations be – be managed in these particular procedures because they have to have a need to try and grasp or understand what the dependence on glasses following the surgery would be-----
Yes. Now, I think in the present case you've read a lot of the notes. I think that - for example, there's a warning that the refraction achieved may not be exactly as desired?-- Well, this is in fact the point that's exemplified by managing the expectation. The actual outcome of this surgery has a significant statistical element to it in the sense that the patient's eye has to go - undergo some sort of biometry or measurement to calculate the strength of the intraocular lens that's going to be substituted for their natural lens.
Yes?-- That measurement does have error bars around it and the calculation of the implant power is a statistical regression equation which has error bars around it-----
As well?-- -----and the selection of the lens is limited by half dioptre units, that is they can't - you can't sort of fine slice the choices we get given-----
Yes?-- -----from the manufacturers and those increments are in half units-----
Half units?-- -----so there's a statistical element to this outcome that the doctor cannot predict with any-----
Yes?-- -----other than statistical average certainty the likely refractive error the patient is likely to have.”[11]
[11]T 3-64
The difficulties associated with the use of artificial lenses, so far as the differences in strength from one lens to another, were explained by Dr Stewart. He was asked about the measurements which were taken of Ms Ormsby’s eyes and the calculations which appeared on the working papers associated with those measurements. Although the questions and answers are lengthy it is necessary to set them out so that the process can be understood. The plaintiff, in the written submissions made on her behalf, attempts to make something of the “fudge factor” which was applied by Dr Stewart and Mr Barrett. It is also explained in the following excerpt.
“Thank you. Now, the information - just looking at the information that's recorded on that page from your point of view is that the surgeon - we can see at the top there's the word "biometry". What is that a reference to?-- Biometry is - it's a general term to describe measurements to do with the eye, whether it be curvature measurements or distance measurements.
So it's like, in that sense, geometry-----?-- Correct.
-----may be a term used-----?-- Yes.
-----to try a shape?-- Yep.
Thank you. And there's a reference there to a K1 factor. What's that?-- K1 is the corneal curvature in the - in one meridian, either the maximum or minimum and K2 as you can see just underneath it is the corneal curvature measurement, in this case, the steeper meridian.
And there is also then a triangle next to a K written underneath the K2 measurements in each instance; what's that a reference to?-- That refers to the amount of the stigmatism that the keratometry measurements indicate should be presented in that cornea.
Is that some sort of function between the measurements in K1 and K2?-- It's simply the subtraction of one from the other.
Underneath that we have a heading of "Calculations" and there is in the middle a - an abbreviation "SPEC" for each set that refers to an S130NB. What's an S130NB?-- That's a particular brand and model of intraocular lens made by AMO.
Now, we can see then that there are - the left-hand side of the page is for the right eye and the right-hand side of the page is for the left eye. Is that because it represents how you look at the patient?-- Correct.
And there are two spaces that seem to be identical in terms of the information that they're seeking to elicit, one next to the word "formula" in the middle says SRK2 and the other refers to HOLL (ii). What are they references to?-- They were the two formulae which at that time we were using to ascertain the best predictions for lens power in people who were very far sighted. There is probably about a half dozen formulae available and we were using these two because they were found to be the best for people with Hyperopia.
So is the exercise one then of involving obtaining certain data from the patient, applying the formula and coming up with a result?-- Correct.
And the data we see there referred to for the first IOL, take the first calculation 28.5 in the right eye and 28 in the left eye. What's that a reference to?-- That's a reference to the power of the lens that the formula, itself, predicts would give a certain outcome. If you look at the - the right side, the 28 and a half power lens the SRK2 formula suggests that that lens inserted inside the eye would result in the person having approximately minus point 55 of Myopia post-operatively, in other words very close to good distance vision.
We see that the calculation done on the SRK2 formula for the left eye with an IOL of 28 produces a D figure of 0.39 is that right?-- Correct.
The D is then a reference - sorry, it's minus is it, minus -----?-- Minus, yeah.
Is the D a reference to dioptre?-- Yes, it is, and to the outcome of the surgery, the spectacle outcome of the surgery.
Now, underneath that calculation that is shown there - sorry, I will just go back over that for a moment. The SRK2 formula has predicted that if you use for the right eye 28.5 IOL you get a dioptre of point 55-----?-- Correct.
-----is that right - of minus point 55?-- Correct. That's applying the formula only.
Is there much of a difference between minus point 55 and minus point 39?-- Very little. It doesn't even amount to point 25 of a dioptre which is the steps by which glasses are prescribed.
Is it possible to get the figures to be exactly the same for each eye?-- No, it's not because the lens implants come in either half dioptre steps or one dioptre steps when the power becomes extreme and you simply got to cop the gap, basically due to the power of the range that's available.
Now, the next note that appears under the first IOL on the SRK2 calculation, there's a note there "plus fudge" and there's a figure and that seems to be repeated over the other side. Is that meant to be fudge 2.08?-- Correct.
And what's that a reference to?-- It's a reference to the fact that Chris Barrett and I had been involved in lots of lens implantations in hyperopic people due to our refracted practice and we found that the SRK2 formula tended to undershoot, basically. You needed a lens implant stronger than what the SRK2 formula was predicting, and it was even more complex in as much as that extra power was different for different degrees of hyperopia so retrospectively we constructed a graph of the extra power that would have been required in these early undershoots to achieve emmetropia and that graph, basically, told you how much extra dioptre to add to the lens implant if the person was a plus 2, how much more to apply if they were a plus 3 and so on.
All right. So with that fudge factor applied do we then get the figures that appear below still within the box equals 30.5?-- That's it.
And then on the left eye equals 30-----?-- Yep.
-----point 0. And the bracketed figures, to your understanding, do they refer to the dioptre measurement that would be expected with that lens power?-- Correct
…MR DIEHM: Doctor, you still have page 42 open there, do you?-- Correct, yes.
Is the second lot of calculations there for the Holland 2. No fudge factor is recorded there. Why is that?-- Because the Holiday II software program was a new - newly available at the time from a fellow called Jack Holiday. He's an optics expert, and it was purported to be good for all eyes, and we decided it would be a match up for the - for our existing adjustment Holiday II, those arcade 2 formula.
What's the point of using two formulas?-- Cross-referencing.
And how do you cross-reference them? What do you do in cross-referencing?-- To see whether one recommends higher or lower than the other for a desired outcome, for a similar outcome, and always that's the case with all these different formulae, otherwise there would be just one of them, and – so we were at that - at this time assessing Holiday 2.
All right. Now, the dioptre readings on the second lot of calculations at minus .35 and minus .28, would they be regarded as similar to the calculations for the SRK2?-- Similar type outcomes, yes. A little bit less myopic, closer to being zero in the predicted.
And, again, there's not much difference, is there, between the two eyes on those outcomes?-- No, there's not on the outcomes.
Now, there's a note written underneath the Holiday 2 calculation in a circle "add half D for toric". What do you understand that to mean?-- Well, a toric lens implant wasn't an SI30 type lens, wasn't made by same company, and it has a different design so that it sits in a different position or distance from the front of the cornea, and as a result it has a different A constant, which is a constant that's fed into all these different formulae, and the effect of it sitting a little bit differently in its anterioris/posterior position than the spherical lens, is that you have to add half a dioptre to what is predicted with an SI30 lens.
Now, the half a dioptre is being added to what?-- Added to the 30.5, which was the adjusted SRK2, or added to the 29, which was the Holiday 2 predicted successful lens.
So that's increasing the lens power, is it, by half a dioptre?-- Yes.
Now, the next note over the right-hand side, "NB2 little delta K for LE" with an arrow "not for toric LE", what's that telling you?-- Well, that's telling me if you go back up to that delta K reading, on the - for the left eye, the triangle K number is 1.10.
Yes?-- Whereas the delta K reading for the right eye was 2.13. So, the shape of the cornea is suggesting that there's less than one and a half dioptres of astigmatism in the left cornea, and at that stage, toric lens implants only came in two powers, one of the powers - the lesser power would correct one and a half dioptres of astigmatism, and the greater one would correct two and a half dioptres of astigmatism, so it was our practice not to use a toric lens implant if there was one dioptre of astigmatism.
All right. Now, then underneath that Mr Barrett has written a note there, "NB2". What's that abbreviation mean?-- Two little delta K for the left eye; in other words, the astigmatism in the left eye wasn't great enough to warrant the use of a toric lens implant in the left eye.
I want to go down to the note below that that also starts with an "NB"?-- Mmm-hmm.
And there it says "2" and there's a symbol for different eyes. What do you understand that symbol to mean?-- Two very different eyes.
Okay. And "LG difference", is that "large"-----?-- Large differences, yes.
And then it refers to three different things?-- Yes.
What are those references to?-- Well, the K is the abbreviation for the curvature of the cornea-----
Yes?-- -----from which you derive the astigmatism measurement. The "AXL" refers to the axial length of the eye, and if you go back up to the second line at the top, the right eye is 20.99, whereas the left eye is 21.81. That's a difference of .82 of a dioptre which - of a millimetre, which sounds small, but in biometry terms it's a significant difference in axial length between the two eyes. And the HWTW refers to the horizontal white to white, which is simply a measurement at 3 o'clock and 9 o'clock of the diameter of the cornea, so what that - that gives you an overall impression of the size of an eye. So, he was making a very interesting point that despite the fact that the spectacle prescription for these two eyes were almost identical to each other, if you go back to - you know, the first page of my notes, I think it was 29, they're both minus five and a half eyes at 1.25 dioptres of astigmatism in their specs. So, he was saying that despite that, you had this extreme difference in proportion between the two eyes, one of them was shorter but had a steeper cornea, the other was longer and had flatter corneas, and as a result ended up being roughly the same power. That only meant to us that when it came to making an adjustment in lens selection for the second eye, that it would not necessarily follow that that adjustment could be totally trusted. For example, if it was predicted that you would end up being spectacle minus a half and you have got spectacle minus 1.5 as your result, you wouldn't automatically necessarily simply adjust the lens implant power down by 1 dioptre because there were two different eyes.
The next - however, "differences balance out to give very similar" - is that "GLS" for glasses, is it?-- "Balance out to give very similar glasses", yes.
And-----?-- And "IOL results".
"IOL results"?-- Yes.
And by that, what do you understand that then to mean?-- Well, just what I have just already said, that when you are selecting a lens power for the second eye, it might not necessary be a simple matter of making an adjustment of half a dioptre if the first eye happens to be half a dioptre out.
Right. Thank you. Now, the next note is "RE", is that for right eye, is it?-- Right eye, yes.
And then there's a question mark for toric?-- Yes.
And he sets out the measurements then on the SRK2 with fudge and the Holiday 2. What do you understand that note to be saying?-- Well, that's - that adds half a dioptre for toric in the little circle.
Yes?-- Further up that we discussed means that what he's saying there is that instead of a 30.5 for the right eye with the SRK2 adjusted, we would need a 31 with the toric.
Yes?-- That's the half a dioptre more, and similarly a half dioptre more for the 29 suggested by Holiday 2 would be 29 and a half.
And why does that produce the note - again, on your understanding, "question mark for toric"?-- Well, because these toric lens implants are only available in those two powers that I have described up to a certain maximum of spherical value. So, in other words, when you get beyond – it depends on the brand now, but-----
Back then in 2000-----?-- I think if you get beyond 28 or - he actually says it there somewhere - if you have got beyond 28 or 29 dioptres, you don't have a toric correction available to you. So, you have to revert to simply choosing the best spherical power you can and expect to have some post-operative astigmatism that you would correct with lasik surgery.
…
Now, in aiming for the equivalent of 30.5 in an SI30 lens, what would you be intend - what were you, if you were to select that at that stage, intending to achieve by way of vision for that eye?-- As close to distance vision as possible, and the predictors were for the 30.5 minus .49 and that was as close to zero as we could get without - if you made a lesser powered lens, it would make you underpowered and underpowered is not good for anything, really, it's not perfect at any game. Underpowered means that the distance is not quite clear, and anywhere closer is worse.
Yes?-- So, to be underpowered is not excellent at any task, whereas to be overpowered might make our distance perfect but not down the highway, for example.
Yes. And if there's some overpower as a result of the lens implant, can that be fixed ordinarily?-- Yes, it could.
And by what means?-- By lasik surgery usually.
Thank you. Now, what lens did you end up using for the right eye on the 19th of November?-- I chose the one at the very bottom of the page, the 301.0 SA60, which is equivalent to the 30.5 SI30.”[12]
[12]T 4-24 to 4-31
The possibility of an inaccurate result is open, notwithstanding the best efforts of the particular surgeon. There was evidence, of course, that some people desire to have monovision.
I turn now to the second part of this area of consideration. Some people cannot adjust to monovision and it appears that Ms Ormsby is one of those people. Dr Hilton said: “some people just for some reason can't - can't - can't use - use one eye for distance and one eye for near and they can't - the other eye - the brain doesn't accept the blurry vision in the other eye for each particular task.”[13]
[13]T 3-14
There was no evidence about the likelihood of this reaction to monovision but I gather from Dr Hilton’s response and from evidence from Dr Stewart that it is known that this can occur.
Dr Stewart was asked :
“Prior to undertaking the first lens extraction or lens replacement on the 19th of November 2002, did you intend by the procedure on both eyes to create a situation of monovision?-- No, I did not.
What was your aim?-- My aim was to give her the best distance vision I could with no spectacles.
And for near vision?-- For near vision, she had been counselled by myself and two other people prior that she would need reading glasses. She would have a premature onset of presbyopia, in other words.”
In cross-examination Dr Stewart said:
“You indicate that - as you've said in your evidence, that you didn't intend to create monovision. That's right, isn't it?-- Yes.
But you go on to say this is a possible occurrence-----?-- Under correction or overcorrection is always possible.
-----if refractive error occurs and you indicate was advised of that?-- Yeah.
Doctor-----?-- Hence the need for fine tuning, possibly, in the advice.”
In further cross-examination he said:
“All right. Now, one of the - you weren't contemplating monovision eye; you've said that?-- Correct.
One of the potential complications with monovision is that a patient may not be able to accommodate to that condition?—
Adapt to it, yes, yes.”
As to the second (likelihood of occurrence) and third (extent or severity of the potential injury) limbs of the process of defining risk as set out by Gummow J, there was no evidence provided. One might have thought that there could be statistical evidence relating to the probability of this occurring or, perhaps, qualitative studies as to severity. The plaintiff did not satisfy the onus in this respect. There was nothing to suggest that this type of evidence was not available. The only conclusion that I can draw is that it was known that a patient might not be able to adapt to monovision. That, though, does not allow me to draw the conclusion that it was something that “a reasonable medical practitioner in the position of the defendant ought to have foreseen at the time”[14].
[14]Rosenberg v Percival at [69]
That leaves the question: was the possibility that monovision might unintentionally be induced a material risk? I have already referred to the test of materiality set out in Rogers v Whitaker [15]. For convenience, I repeat it here:
“…a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”
[15]See [20]
What were the circumstances of this particular case? I have already considered what Ms Ormsby wanted to occur. Other relevant circumstances include what was otherwise told to her, including any warnings. Given the findings I make below as to those warnings, I hold that a reasonable person in Ms Ormsby’s position would not have attached significance to the risk of monovision. There was no evidence to suggest that Dr Stewart was or should reasonably have been aware that Ms Ormsby, if warned of that risk, would have attached significance to it. It follows that I find that risk of monovision was not a material risk.
Were warnings given and, if so, what were they?
Dr Stewart made notes of what he told her. I accept that those notes are accurate and I find that she was told the following by Dr Stewart:
(a) She would require reading glasses after the operation.
(b) There was a one in 3000 risk of infection following the procedure.
(c) That a worst case scenario following intra-ocular infection was blindness in the infected eye.
(d) That the accuracy of the lenses used was not such that the result would be fool proof.
(e) There was a one in 25 chance that there would be a need for a Lasik “fine tune” after the surgery.
Ms Ormsby gave evidence that she did not remember a reference to “blindness” and that she would have “run a mile” if it had been mentioned[16]. That answer echoed an answer she had given in chief to Mr Crowley QC:
“What was your response to the question that if the defendants had told you the danger which might follow the surgery, which is what you have been left with now, what would have been your response to having the surgery?-- I would have run a mile.”[17]
I will return later to Ms Ormsby’s evidence about her attitude had she been told certain things.
[16]T 2-31
[17]T 2-10, l 32
During her consultation with Dr Stewart Ms Ormsby specifically asked him whether the squint would appear worse after the surgery. Dr Stewart told her there was no material reason why the squint would be any worse than when she wore contact lenses.
Ms Ormsby was shown Exhibits 16 and 17 during cross-examination. She accepted (although she could not remember) that she had received a five page document (Exhibit 16) containing notification of her appointment for ultrasound on 18 October and her surgery bookings. It also contained a two page document headed “Questions & Answers for Patients Having Intraocular Lens Surgery”. Ms Ormsby also could not remember receiving another document (Exhibit 17) entitled “Clear Lensectomy and Intraocular Lens Insertion”.
I find that she did receive both documents, that is, Exhibits 16 and 17. In the PIPA claim she refers to having received an “information folder” including material on the procedure involved with a clear lensectomy and intraocular lens insertion. These documents were also disclosed by the plaintiff as having been received.
Exhibit 17 contained the following:
“As we are dealing with people who are subject to biological variation and not machines, occasionally a person’s eye will not behave precisely as calculated, that is the eye will be slightly over- or under-corrected. Therefore a person should reasonably expect that after surgery:
· Spectacle or contact lens dependence will be vastly reduced
· Thin spectacles may be required to achieve the very best vision, especially if the person had a significant amount of astigmatism pre-operatively.
Astigmatism can most often be surgically corrected during or preferably five or six weeks after, lens surgery. Other surgical options may also be available if final fine-tuning is desired for the correction [of] any residual refractive error if present.
As with any surgery there are risks involved in this type of operation and they are the same as those with cataract surgery. These risks will be discussed with the surgeon before a decision is made about proceeding with surgery.”
The next consultation Ms Ormsby had was with Mr Barrett on 18 October 2002. Mr Barrett is an orthoptist, that is, someone who assists with consultations and testing. On that day he undertook biometry assessments of the plaintiff’s eyes and other routine measurements. While the measurements were being taken Mr Barrett had what he described as “a very long and involved conversation” about the proposed procedure. He reviewed the generally available options and explained to her why she was not suited for Lasik surgery or an implantable contact lens and that if she wanted to proceed with any sort of refractive surgery to reduce dependence on glasses then the proposed operation was the only option available. She said to him that she would be happy to reduce her glasses down to thinner glasses and that she would be happy with reading glasses. She also recalled that he told her that sometimes “fine tuning” was needed after the operation:
“The fine-tuning that you recall being spoken about involved, firstly, the possibility of trying spectacles to see whether that finetuned your vision; is that right?-- I thought the fine-tuning he spoke of was an eye operation that people may need after the operation.”[18]
[18]T 2-25
I find that the following relevant warnings were given:
(a) The lenses being used were not so accurate as to be fool proof.
(b) There was a one in 25 chance that there would be a need for a Lasik “fine tune” after the surgery.
(c) Occasionally a person’s eye will not behave precisely as calculated - that is, the eye will be slightly over- or under-corrected.
(d) Thin spectacles may be required to achieve the very best vision, especially if the person had a significant amount of astigmatism pre-operatively.
(e) Astigmatism can most often be surgically corrected during or, preferably, five or six weeks after lens surgery.
(f) Other surgical options may also be available if final fine-tuning is desired for the correction of any residual refractive error, if present.
If a warning was required were these warnings adequate and appropriate?
I have held, above, that monovision was not a material risk in these circumstances but, if I am wrong in that conclusion, then, clearly, Ms Ormsby was not warned, in terms, that “monovision” could be an unintentional outcome. But I do not regard that as being conclusive of this issue. The risk of monovision is the same as the risk that an “eye will be slightly over- or under-corrected” as that is the cause of monovision. Further, such a risk cannot be divorced from the warning that a “fine tune” might be necessary. The fact that the word “monovision” was not used does not mean that the plaintiff was not warned about a possible outcome. There was, though, no express warning that over or under correction might result in one eye only being useful for short vision and the other only useful for distance vision. The important and, in my view, overriding warnings were that the plaintiff might need Lasik surgery or some other form of surgery to achieve her desired outcome. It was made very clear that the operations may not be a complete success and that a further procedure might be needed. Those warnings were part of the “circumstances of the particular case” and, taken together, do constitute an appropriate warning.
Since Rogers v Whitaker, evidence of professional practice and opinion is not conclusive on the question of whether any warnings given were adequate and appropriate, but such evidence remains relevant. In Rosenberg v Percival, Gleeson CJ referred to the reasoning in Rogers v Whitaker and said:
“[6] … This Court preferred the approach of Lord Scarman, who dissented in Sidaway [28], and who said:
‘In my view the question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations, but by the court's view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes.’ (Emphasis added.)
[7] As the above passage, which was quoted with approval in Rogers v Whitaker, makes clear, the relevance of professional practice and opinion was not denied; what was denied was its conclusiveness. In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues.”
Dr Lee Lenton said:
Doctor, I think the plaintiff in this case was told that, post operation, she might need an enhancement procedure?--
That's right.That's the sort of thing you would tell her about?-- That's exactly what we would mention in terms of managing the patient's expectations, that if you don't end up with a satisfactory refractive result in the sense that it's - you're able to cope with the outcome there are options following the surgery where we can correct any anomalous - "anomalous" is not the right word, any outcome with which the patient can't cope with or finds distressing, that there are options – two particular options - that are available. One of them is a Lasik or laser surgery on the front surface of the eye, the cornea-----
Yes?-- -----or an eye intraocular lens exchange.
Yes. Well, she had an intraocular lens exchange. She was told that she might need an enhancement if the refractive result was not spot-on or not exactly as designed. Is that within your understanding of a normal warning?-- That's correct.
Doctor, would it be right to say that an enhancement is just a minor procedure that might be done by a laser treatment in the surgery?-- No, it's not a minor procedure, it's a major refractive procedure done in a laser operating theatre.
Right. Doctor, would you endorse these - you might say the conduct of telling the plaintiff that she may need reading glasses after her surgery?-- Certainly that should be part of the patient's expectation management.
Yes. Doctor-----?-- You need to inform them that that may be a possible outcome.
Well, Doctor, in fact, with your - if in fact both eyes were going to be set for distance, as you've indicated, isn't it inevitable that she would have needed reading glasses following surgery?-- Well, that's inherent in that particular refractive outcome. If you have clear distance vision in both eyes with inability to accommodate because you've had lens surgery you would need reading glasses, it follows.”[19]
[19]T 3-64 – 3-65
Dr Lenton was further cross-examined:
“I think you said that her particular preoperative eye condition made the likelihood of her having some problems higher than normal?-- Well, she would have experienced those similar symptoms preoperatively given that's the type of symptoms that people with hyperopia, presbyopia complain of in general. They're not specific general tired eyes, the symptoms that related to their refractive error.
What I'm putting to you is that taking into account her preoperative state and the possible outcome from the operation, that's something that a prudent surgeon would have warned about?-- I - well, if I'm a prudent surgeon, I don't - I don't necessarily warn people of those symptoms. They're too vague and non-specific to be of much understanding or assistance to the patient in understanding the possible outcomes because they're such common - common symptoms and so non-specific.”[20]
[20]T 3-67
Dr Lenton’s evidence supports the conclusion that the warnings given were appropriate.
The result of the operations
Shortly after the operations the plaintiff found that she was not able to focus satisfactorily. She said that if she “shut [her] right eye [she] could see long distance and if [she] shut [her] left eye [she] could use it to read, but [her] eyes wouldn’t work together.”[21] Ms Ormsby reported this to the defendants and efforts were made to provide her with spectacles and contact lenses to correct the problem but these were unsuccessful. She also complained of headaches which she said persisted until scar tissue started to grow over her right eye some two years ago.
[21]T 1-49
The development of the scar tissue was linked by the plaintiff to other problems she was experiencing. In answer to a question in cross-examination she said:
“… I'm sorry, I can't think. I'm sorry, I can't think. I can't - I don't have the memory I used to have. My brain doesn't function the way it used to function. I apologise. I can't explain it any better. I just - it's different for me now. I just - I lose my train of thought. I can't - I'm sorry. I can't even - I can't even understand it. I can't think. I can't - I'm sorry, I can't think. This is how I've lived for the last two years. I can't think. I'm sorry. I just - I could read the newspaper, one page, and not be able to tell you half of what was on it. It seems like it goes in and out. I'm sorry, I can't. I just don't have the ability to absorb things since I get all of these different symptoms in the last two years.
“But this wasn't a problem that you had before two years ago; is that right?-- The symptoms changed two years ago when the scar tissue grew across my right eye.”[22]
[22]T 2-18
There was no expert evidence about the development of the scar tissue, whether it could be linked to the operations, or whether it could be a cause of some of the symptoms identified by Ms Ormsby.
In May 2003 the plaintiff’s solicitors engaged Dr Hilton to examine Ms Ormsby and provide a report. When he examined her, she told him that “her right eye is to be used for her near vision and her left eye is for her distant vision”. She also said that “she was told that post operatively this would be the case”.
Ms Ormsby complained to Dr Hilton that her eyes would not work together, that she could drive satisfactorily but that she suffered from bad headaches and that she compared the problem that she is having with blurry vision as to what it was like when she used to wear contact lenses and one became a little bit smeared or damaged.
Dr Hilton provided a number of reports to the plaintiff’s solicitors in which he gave his opinion on her condition. In his first report he found that her stereoscopic vision was not quite but very nearly normal with her glasses on. Dr Hilton then gave another three reports to the plaintiff’s solicitors about the plaintiff’s condition and what might be done for her. In September 2008 the defendants’ solicitors engaged Dr Hilton to provide a report and gave him, among other things, a complete copy of Dr Stewart’s records. Dr Hilton noted:
“It should be noted that in my history taking from Susan Ormsby, she stated that she was told preoperatively that her right eye was to be used post operatively for her near vision and her left eye for her distant vision. This induced condition is known as ‘monovision’. The aim of such a procedure is to reduce or even eliminate the use of glasses both for distance vision and for near vision.
My examination showed that as far as her vision is concerned, her right eye was moderately short sighted compared to her left eye. That is she could use her right eye for near vision and her left eye for distance vision. However this meant that due to her fragile binocular vision associated with her life long hypermetropia or long sightedness this meant that her binocular vision was severely reduced when using both eyes unaided, that is without spectacles.
…
However in the light of my perusal of the complete copy of Dr Stewart’s records that he provided, it is quite clear from the preoperative examination that postoperative monovision was not considered at all. In the preoperative examination of the 18 March 2002, it was noted that she had a ‘small esotropia error with glasses’.”Dr Hilton was asked to answer the question: “Why is she having the postoperative symptoms of visual discomfort?” His answer was:
“The reason is that the operation has made her somewhat myopic (short sighted) in the right eye with some increased astigmatism. This means that when she uses both eyes together unaided, she loses the fragile binocular vision that she normally has. Thus the final refraction in her right postoperatively was not ideal. However it should be noted that in the preoperative information that she was given, it is stated that ‘occasionally a person’s eye will not behave precisely as calculated, that is the eye will be slightly over or under-corrected. Therefore a person should reasonably expect that after surgery:
. spectacle or contact lens dependence will be vastly reduced..thin spectacles may be required to achieve the very best vision, especially if the person had a significant amount of astigmatism preoperatively.”
Dr Hilton also gave evidence with respect to the advisability of conducting a trial to determine whether or not the plaintiff could have tolerated induced monovision. Dr Hilton expressed a clear view that it would not have been good practice to test for such an event. He said that the procedure which was undertaken had been a fairly common procedure and to carry out contact lens tests on every patient would, to him, not be good practice.
Dr Lenton gave evidence that the refractive outcome of Ms Ormsby’s surgery was entirely within the expected range of possible refractive outcomes, where the target refraction was emmetropia, that is, when no monovision was intended. His view was that the risk of induced monovision was minimal as it was not the intended refractive outcome. His opinion was that Ms Ormsby’s postoperative outcome was well within the normal practice of leaving the patient with mild myopia. He was not challenged on those opinions.
The plaintiff gave evidence that as a result of the operation she suffered greatly in her ordinary life and that she required care and assistance. The defendants tendered a film taken of Ms Ormsby on a number of different days for the purpose of showing that she did not suffer to the extent she claimed or at all. The film was taken in February 2009. It showed Ms Ormsby driving a motor vehicle for an extended period of time, walking about and examining items at a market and apparently looking at advertisements in a shop window. Dr Hilton was shown the film and it was his view that she was carrying out the functions in a relatively normal manner and, although he could not be sure of what she was looking at when she was shopping, she did appear to function normally as far as he could tell. Ms Ormsby’s evidence was that her disability was constant but that on occasions it got worse. I accept that it is difficult to tell from a film of a person in these circumstances the extent, if any, to which they are suffering from headaches or giddiness. There was, though, nothing in the film which was inconsistent with a person who was functioning in a normal way.
There was no evidence to suggest that the plaintiff’s condition after the operations or at any time since was incapable of correction. In fact, all the evidence on further treatment supports a conclusion that a further procedure (a “fine tune”) would most probably correct the problem.
Causation
In a case of this type the onus is on the plaintiff to establish that, had the appropriate warnings been given, she would not have gone ahead with the procedure. As it was put by Gaudron J in Chappel v Hart[23]:
“Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided.”
[23](1998) 195 CLR 232 at [9]
Hindsight is almost always perfect and so one must take particular care when assessing the evidence of a witness that, had certain information been provided, he or she would have acted differently. It was put this way by Gleeson CJ in Rosenberg v Percival:
“[16] There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated … . This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action.
[17] The trial judge's findings on the issue of causation did not depend solely upon the adverse opinion he formed as to the respondent's credibility, although that was important. He also took into account the seriousness of her need for corrective surgery, her evident willingness to undergo the risks of a general anaesthetic, with which she was familiar by reason of her professional background, her failure to ask specific questions about risk, and the fact that the possibility of which, on her case, she should have been warned, was "very slight". The conclusion that the respondent had not established that, if her attention had been drawn to the risk in question, she would not have gone ahead with the surgery, was justified by the evidence and supported by cogent reasons. It should not have been overturned by the Full Court.”The inquiry into causation must also focus on what the particular plaintiff would have done. The nature of that inquiry was explained in Rosenberg v Percival by McHugh J, and is set out in paragraph [22] (above).
I have already referred to the plaintiff’s condition shortly after the operation and at the time of trial. The evidence upon which the plaintiff relies to support her claim that she would not have had the operations was adduced in evidence in chief after a series of questions concerning the (failed) efforts to assist her vision through the use of various types of contact lenses. She said:
“I see. All right. So they were unsatisfactory?-- They were unsatisfactory.
All right. And so the ones that you have there, which were made by Ms Mudie, is what you have persisted with, and what effect do they have for you?-- If I look over the top like that-----
If you look over the top, yes?-- Yeah.
What can you see then?-- This eye has been fogged out and I look over the top and that's my long distance eye.
I see?-- And if I need to see anything within this range, I look through the lens, but everything beyond that far is blurry.
I follow. And if you look with the other eye beyond that far is that able to be seen?-- This eye is nearly blind now.
That's the right eye you're talking about?-- The right eye.
But the left eye, beyond where that reader area is, you are able to see with the left eye?-- If I just look with my left eye like that I have-----
But you can look over your glasses, I take it?-- Yes.
And do you find that uncomfortable?-- Yes, I look like a grandmother.
I see. Righto. What was your response to the question that if the defendants had told you the danger which might follow the surgery, which is what you have been left with now, what would have been your response to having the surgery?-- I would have run a mile.
I see. What does that mean?-- I would have said no.”[24]
(emphasis added)[24]T 2-10
The question she answered concerned “what [she has] been left with now”, that is, the conditions including the scar tissue and the other symptoms which arose after the scar tissue developed. It follows that her answer addresses more than just the induced monovision and its effect on her. As I have said above, there is no evidence to connect the scar tissue to the operations nor is it specifically pleaded as being a consequence of the operations.
It does not follow, though, that the uncertainty or inadequacy of Ms Ormsby’s answer necessarily settles the issue. As McHugh J said in Rosenberg v Percival: “In some cases where there is no direct evidence as to what the patient would have done, the judge may infer from the objective facts that the patient would not have undergone the procedure.” [25]
[25]At [25]
Ms Ormsby was, I find, extremely concerned to have her vision altered so that she would, in a best case scenario, not have to wear glasses but, at least, only have to wear thin glasses and that she was determined to change her appearance.. This was a matter to which she frequently returned in her evidence and about which she questioned Mr Barrett when she saw him on 18 October. She agreed to go ahead even after being told by Dr Stewart that blindness was a possible consequence should an eye become infected and after she was given the warnings referred to above, including that she might require further surgery or a “fine tune” if there was any residual refractive error.
Had she been told that a possible result of the operations was that she might experience monovision (and that she might not be able to adapt to it) then I find that she would, nevertheless, have continued.
Mitigation
The defendants also resist the claim for damages, if otherwise available, on the basis that the plaintiff failed to mitigate her loss.
The recognised statement of principle (although from a contract case) is that of Viscount Haldane LC in British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd , where he said that the principle of mitigation of damages imposes on the plaintiff: [26]
“…the duty of taking all reasonable steps to mitigate
the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.”
[26][1912] AC 673 at 689
The onus of establishing that there has been a failure to mitigate rests on the defendants. In this case, the defendants point to the following in satisfaction of that onus:
(a) The result of the operations was that the plaintiff was longsighted in the left eye and “somewhat myopic (short sighted) in the right eye”.[27]
(b) In the pre-operative advice she was given she was told that some further procedures (such as Lasik surgery) might be needed to correct any refractive errors.
(c) This type of treatment was recommended by Dr Hilton in his report of 19 August 2003.[28] He expressed the view that “if such an operation was carried out, she would have good vision in each eye for distance vision, but she would need a spectacle correction in front of each eye for her reading.”
[27]Ex 11
[28]Ex 8
Dr Hilton was cross-examined about the appropriate procedure to follow when, as in this case, there has been an over-correction in one eye. He agreed that a reasonable approach would be:
(a) First, see how the patient copes with the refractive error because many people can adjust.
(b) Then, if the patient could not cope, trial contact lenses or spectacles or a combination.
(c) Finally, if those steps did not succeed, proceed to an operation such as Lasik surgery.[29]
[29]The appropriateness of Lasik surgery in these circumstances was confirmed by Dr Hilton when, in cross-examination, he said at T 3-71:
It was the case that the first two steps were taken by the defendants. The plaintiff did not undergo any subsequent corrective operations.
The plaintiff’s response to the defendants’ arguments on this point was twofold:
(a) The defendants did not offer a further corrective procedure to her.
(b) The advice to undertake the procedure came from the plaintiff’s expert medical witness, but “one doesn't take advice from a medico-legal practitioner”[30].
[30]T 5-29
As to the defendants not offering the procedure to the plaintiff: there had been, at least by the end of May 2003,[31] such a breakdown in the relationship between the parties that I do not think the plaintiff would have accepted any further treatment from Dr Stewart or any other person associated with the defendants. Ms Ormsby’s evidence that she did not undergo further surgery because it was not offered by the defendants is illogical and is supportive of a view that it was said to cover a gap in her case.
[31]The PIPA claim was made at this time.
As to not taking advice from your own expert witness that is, simply, an unacceptable submission. The test is not from whom the advice comes but whether it would be reasonable to act upon it. In Matters v Baker and Fawcett [32] a plaintiff was held to have acted unreasonably in not taking the steps recommended by the medical advisor retained for her action.
[32][1951] SASR 91
It is also the case that the treatment recommended was consistent with what Ms Ormsby had accepted was a possible consequence of the operations, that is, some “fine tuning”.
The plaintiff did act unreasonably in not acting upon the advice of Dr Hilton and so, from at least August 2003, failed to mitigate her damages.
Assessment of damages
For the reasons above, I hold that the plaintiff’s action fails but, should I be wrong, I will assess damages.
On the basis that there had been a failure to mitigate but that the plaintiff should otherwise succeed I would award general damages in the sum of $5000.00 up to August 2003.
Should I be otherwise wrong in my view of the plaintiff’s claim then I assess damages as follows.
There was no submission about economic loss, past or future, apart from bald assertions as to what the award should be.
Three documents were tendered in support of a claim for economic loss: a tax return for the year ending 30 June 2004, a document intended to show that the hourly rate paid by Korbond to merchandisers was $16.50 and another showing the current rate is $18.25. I was not directed to any evidence to support the claim made by the plaintiff that she should receive an award for past loss in the sum of $100,438.00 nor an award for future loss in the sum of $232,000.00. That is not enough.
I agree with the approach of Adams J in Smithv Commonwealth of Australia[33] where he said:
“[67] I was not provided with a precise analysis of the ways in which it is alleged the supplied particulars are still inadequate and I do not propose for myself to analyse the affidavits and the plaintiff’s evidence to compare that material with the particulars sought. As I have mentioned, I made it clear to the parties who tendered voluminous documents on the application that I did not propose to read any document to which specific reference was not made. The widespread habit of tendering vast quantities of paper and then making submissions that refer in generalities to the evidence or parts of it is quite inappropriate. It requires judges to trawl through the material to assess which parts actually support the submissions and, in effect, to construct the case that counsel has not done – or cannot do. This is not a proper role for a judge to undertake.”
[33](2006) NSWSC 689.
Although this case does not have voluminous material, where calculations need to be made about rates of pay, hours worked and the like, it is not good enough to simply assert what the result should be and give no assistance as to the relevant evidence, the findings which should be made and the appropriate method to adopt.
The main thrust of the plaintiff’s submissions was with respect to pain and suffering. Ms Ormsby gave evidence about her health and how her sight problems affected her. I formed the view from her demeanour in the witness box, her sometimes odd answers and her attitude, which travelled from self-pity to belligerence, that she was exaggerating her symptoms and the effect they had on her.
Evidence was called from Ms Lynda Melville, a psychologist, to the effect that Ms Ormsby suffered from “symptoms sufficient for diagnosis with adjustment disorder; the onset being directly associated with the unsuccessful eye surgery and her ongoing visual and physical symptoms.”[34] Ms Melville recorded in her first reportthat the plaintiff denied a history of psychological conditions prior to eye surgery.[35] That denial was untrue. The plaintiff had been treated over at least four years for psychological complaints in the late 1990s and had been prescribed many types of drugs.
[34]Ex 14
[35]Ex 13
The plaintiff was also examined by Dr Steinberg, a consultant psychiatrist. He, also, was deceived by the plaintiff about previous psychiatric conditions. His view which, on the balance of the evidence, I prefer, is that her emotional reaction to her perceived worsening ophthalmic problems was within the normal range and that she had not suffered an adjustment disorder.
The absence of any reliable evidence about economic loss makes it impossible to attempt an assessment of it. I accept that the plaintiff is still discomforted and having difficulties with her sight. I also bear in mind that a substantial part of her complaints are connected with the development of scar tissue for which there is nothing to support a conclusion that it was a possible outcome of the operations. Given the state of the evidence I can only assess her damages in a global way which I do in the sum of $35,000.00.
Conclusion.
The defendants did warn the plaintiff in appropriate terms of the risks she faced and they gave advice as to treatment in the event of a less than satisfactory outcome.
The other matters about which the plaintiff says she should have been warned, such as a deterioration in her eyesight, were not shown to have occurred.
If I am wrong in my findings and appropriate warnings were not, in fact, given then I find that she would have gone ahead even if given the appropriate warnings.
On the issue of mitigation I find that the defendants have established that, from about August 2003, the plaintiff failed to mitigate her damages – both in contract and in tort.
The action is dismissed. I give judgment for the defendants. I will hear the parties on costs.
“Okay. So we will go onto another topic. I'll just see my - Doctor, can I just then bring you to - this is still the first report, and your proposal for correction of the myopia in the right eye?-- Yes.
Do you envisage, Doctor, that that would be a laser procedure?-- That would probably be the most likely procedure after discussion with the patient but the other alternative is to exchange the intraocular lens.”
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