Sharman v Boshell

No judgment structure available for this case.

CITATION:
Sharman v Boshell [2005] NSWCA 476

HEARING DATE(S):
12/05/05

JUDGMENT DATE:

22 December 2005

JUDGMENT OF:
Tobias JA at 1; Basten JA at 2; Campbell AJA at 3

DECISION:
1. Appeal allowed; 2. Verdict and judgment of Acting Judge Hungerford set aside; 3. Matter remitted to the District Court for a new trial; 4. Costs of the first trial to be determined by the Judge hearing the retrial; 5. Respondent to pay the appellant’s costs of the appeal; 6. Respondent to have a Certificate under the Suitors’ Fund Act 1951 if otherwise qualified.

CATCHWORDS:
Negligence - Failed sterilisation procedure - Trial Judge's findings of fact - Reliance upon absence of testing by cross-examination when cross-examination forgone - Failure to consider all the evidence - Reasons.

LEGISLATION CITED:
Civil Liability Act 2002
Suitors' Fund Act 1951

CASES CITED:
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Albalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1992) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Galea v Galea (1990) 19 NSWLR 263
Seymour v Australian Broadcasting Corporation (1989) 19 NSWLR 219
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Mifsud v Campbell (1991) 21 NSWLR 725
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

PARTIES:
Susan Lesley Sharman - Appellant
Dr Laurence Boshell - Respondent

FILE NUMBER(S):
CA 40758/04

COUNSEL:
J O Anderson - Appellant
D L Davies SC with Ms K E Burke - Respondent

SOLICITORS:
Maurice Blackburn Cashman - Appellant
Tresscox Lawyers - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2105/03

LOWER COURT JUDICIAL OFFICER:
Hungerford ADCJ

CA 40758/04
DC 2105/03

TOBIAS JA:
BASTEN JA
M W CAMPBELL AJA:
Thursday 22 December 2005

SHARMAN v BOSHELL & ANOR

Judgment

1 TOBIAS JA: I agree with M W Campbell AJA.

2 BASTEN JA: I agree with the orders proposed by M W Campbell AJA. I also agree, subject to one qualification, with his Honour’s reasons. The qualification concerns the nature of the error with respect to the oral testimony of Dr Parker. As explained by Campbell AJA, Dr Parker’s oral testimony was material and credible, but was not taken into account in a critical aspect of the reasoning of the trial judge. That omission demonstrates appellable error. There is no basis to presume that his Honour took the material into account, and deliberately disregarded it, for reasons which were not explained. Accordingly, I do not find it necessary to consider the operation of the principles enunciated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and subsequent authorities, discussed by Campbell AJA at [126]-[131].

3 M W CAMPBELL AJA:

INTRODUCTION

4 It was common ground on the appeal that Acting Judge Hungerford had been correct in describing the issue to be resolved by him as a pure question of fact, namely, whether a clip was properly applied by the respondent during the sterilisation procedure so as to fully occlude the left fallopian tube of the appellant.

5 The appeal challenged the Judge’s conclusion on this issue and also alleged errors in the approach adopted by the Judge such, it was put, that the judgment should be set aside.

THE CIRCUMSTANCES

6 The appellant, who was 39 years old at the time of trial and by that time was the mother of seven children, had on 31 January 2000 consulted her general practitioner as to permanent sterilisation. She was referred to the respondent, a specialist obstetrician and gynaecologist, whom she saw for the first time on 7 March 2000.

7 The respondent booked the appellant into Springwood Hospital for laparoscopic tubal clips on 24 March 2000. However, the appellant fell pregnant again and the procedure was cancelled. On 12 April 2000 she suffered an incomplete miscarriage and underwent treatment at Blacktown Hospital.

8 On 19 May 2000 at Springwood Hospital the respondent carried out a laparoscopic tubal ligation using Filshie clips on the appellant. The operation report from the Hospital noted:

”Cervix dilated … cavity sounded … sharp curettage … . Double puncture laparoscopy .… . Good view. Video laparoscopy. Filshie clip applied to mid portion of each fallopian tube. ….”

9 The respondent told the appellant that “everything went well and no follow up is needed.”

10 In about January 2001 Dr Lim, the appellant’s new general practitioner advised her, after some tests were conducted, that she was again pregnant. She consulted Dr James Parker, an obstetrician, gynaecologist and endoscopic surgeon, once on 17 May 2001. On 13 August 2001 a daughter was delivered by normal delivery and without complications.

11 On 20 February 2003 the appellant on referral from Dr Lim consulted Dr Parker as to permanent sterilisation. The doctor advised that she had the options of more Filshie clips or the less common laparoscopic salpingectomy (removal of fallopian tubes). Dr Parker agreed that the appellant had mentioned to him that she was considering taking legal proceedings, but could not recall whether she wanted to know the reason for the failure as he focused upon how best to fix the problem and the details of any surgery.

12 On 26 March 2003 the doctor performed on the appellant at Macarthur Private Hospital laparoscopic left and right salpingectomy and adhesiolysis and curettage. His report to Dr Lim stated: “The left sided Filshie clip was on the peritoneal edge of the left fallopian tube which was only partially occluded. The right Filshie clip was fully occluding the right fallopian tube.”

13 A number of photographs were taken during the laparoscopic procedure.

14 In response to a letter from the appellant’s solicitors of 1 May 2003 advising of a potential medical negligence claim against the respondent and seeking his opinion as to the cause of the failed sterilisation, Dr Parker said in a report dated 4 May 2003:

“During her laparoscopy I found that the right Fallopian tube was occluded by a Filshie clip. The left-sided Filshie clip was attached to the peritoneum and outer part of the left Fallopian tube and was covered by a thin layer of peritoneum. The left Fallopian tube had a normal appearance adjacent to the site of peritoneal attachment to the left Filshie clip.

My conclusions from the findings at laparoscopy were that the left Filshie clip was attached to the peritoneum and outer part of the left Fallopian tube resulting in partial occlusion.”

15 In a statement of claim filed on 15 May 2003, the appellant sued the respondent in negligence for damages for breach of the duty of care owed to her. As earlier indicated, following a trial Acting Judge Hungerford found a verdict for the respondent.

THE PRIMARY JUDGE’S REASONS

16 The lengthy and detailed judgment began by setting out the circumstances generally much as has been done above. Acting Judge Hungerford then noted that the parties agreed that the case fell to be determined in accordance with the Civil Liability Act 2002 and set out the relevant legal principles. There was no disagreement about this aspect of the matter and, having regard to the limited issue upon which the case was decided, it is unnecessary to refer to that material here.

17 The evidence of the appellant, whom the Judge found totally credible, played no part, except as background, in the contest between the parties. The material before the Judge to assist in determining that contest was noted by him as follows:

“The expert medical evidence called, apart from the defendant himself who gave evidence as to his usual method of performing laparoscopic sterilisations using Filshie clips, was for the plaintiff from Dr Parker and a written report from Professor Gabor Kovacs, a reproductive gynaecologist; for the defendant from Professor Alan Hewson, a consultant obstetrician and gynaecologist, and from Dr Geoffrey Reid a gynaecologist and endoscopic surgeon. In addition, the Court was provided with a number of learned papers and articles on female sterilisation world-wide, including a paper by the developer of the clip used here, Dr Marcus Filshie, a consultant gynaecologist in the United Kingdom and who introduced the clip into use in 1982 in the UK and shortly thereafter in Australia. It is still widely used and has been referred to in the literature in Australia as the “preferred method of tubal occlusion”: see report by Professor Kovacs and Dr Krins in The Journal of Family Planning and Reproductive Health Care 2002: 29(1): 34-35. Dr Parker said in evidence that 99 per cent of all cases of tubal ligations involved the use of Filshie clips.”

18 The Judge then engaged on a review of the respondent’s evidence. He noted the respondent’s impressive qualifications and the breadth of his experience as a specialist obstetrician and gynaecologist. Amongst other things he observed that the respondent had carried out approximately 2,000 procedures of laparoscopic sterilisation. The doctor was very experienced in the use of the Filshie clip.

19 The Judge noted that the respondent had no recollection of the specific operation and that he gave evidence of his “usual practice” which was explained in some detail. The respondent had prepared a document entitled “Statement of Assumptions” which was admitted into evidence as part of the appellant’s case. It outlined the consultations he had with the appellant, the surgery performed and made references to four laparoscopic photographs which were provided by Dr Parker.

20 Acting Judge Hungerford gave a short account of the procedures involved as follows:

“It is sufficient to record that it involved making two small incisions or ports in the umbilicus and in the suprapubic area – a laparoscope with an attached video camera is then passed through the umbilicus port enabling the inside of the abdomen to be viewed on a large video monitor by the surgeon, the anaesthetist and the theatre team; the Filshie clip applicator is then loaded with a clip and inserted through the suprapubic port after checking and confirming correct assembly. The defendant described his practice of manipulating the uterus so as to make clearly visible the fallopian tubes as well as other structures. At that stage the Filshie clips are applied, one to each of the left and right fallopian tubes and the defendant made these points in the statement concerning his invariable practice.”

21 Points as to the respondent’s invariable practice detailed in the statement were set out in the judgment as follows:

“ . the Filshie clips are applied across each fallopian tube at right angles to the tube and usually that can be done in the proximal third of the tube;

. . the ends of the clips are viewed through and behind the transparent meso-salpinx to ensure each is completely across the fallopian tube;

. . the clip applicator is then closed while observing through the meso-salpinx;

. . on release of the clip the end of the applicator is used to check the position and application of the clip;

. . the attached clip is rotated and manipulated gently to check it is placed across the width of the tube and is in a locked and closed state;

. . confirmation of the correct placement of the clips is made before completion of the procedure;

. . If there are any doubts as to placement of a clip on a tube then another clip is attached to that tube; and

. . re-checking of the anatomy occurs to confirm each clip is indeed placed on the fallopian tube and not on an adjacent structure.”

22 The Judge noted that the respondent’s cross-examination centred upon the positioning of the left Filshie clip. He observed that in the operation report the Filshie clip was said to have been applied to the “mid portion of each fallopian tube” which would have given about 3.5 to 4.0cm of the tube either side of the clip but in the statement of assumptions the defendant said his invariable practice was to place the clip in the proximal third of the fallopian tube that would have placed the clip in the range of 1.0 to 2.7cm from the cornu end of the tube nearest the uterus and so from 5.3 to 7.0cm from the fibrial end of the tube away from uterus. The Judge said:

“This was said for the plaintiff to be of importance because the manufacturer’s guidelines were, as published by Femcare Australia Limited, that ‘the Filshie Clip is placed across the fallopian tube on the isthmic portion (the narrowest part of the tube) 1cm – 3cm from the cornu’; a later version of the instruction manual distributed by Endovasive Pty Limited in January 1999 stated the clip was to be placed ‘on the isthmic portion of the tube, 1-2cm from the cornu’.”

23 The Judge noted that the respondent was challenged about the proposition that his usual or invariable practice as to the location of the clips was inconsistent with the operation notes. He responded that his usual practice was somewhere between the proximal third and mid-point as he had been taught to position at the mid-portion although he had changed to put the clips closer to the uterus; he conceded that in this case he probably placed mid-portion but emphasised what he had been taught as a registrar.

24 The Judge noted that the respondent said that one photograph taken by Dr Parker showed the clip was only dislodged as a result of pressure by Dr Parker in manipulating the structures whereas the other three photographs showed correct placement. He considered he had correctly placed the clip and that it had not been misapplied, because he would not close the ports until checking what had been done and put on a second clip or even a third if necessary.

25 The Judge then referred to Dr Parker’s reports as appearing above. He went on:

“In a further report dated 5 January 2004, Dr Parker reviewed the opinion expressed by him in the earlier reports in light of a report dated 21 October 2003 from Professor Hewson. It is convenient, therefore, to deal with Professor Hewson’s opinion first before turning to Dr Parker’s final views as expressed in his later report and in oral evidence.”

26 The Judge noted Professor Hewson’s extremely impressive qualifications and noted that Dr Parker received a considerable amount of his training in gynaecological surgery from Professor Hewson.

27 Acting Judge Hungerford noted that Professor Hewson had provided four reports of 21 October 2003, 17 December 2003, 3 February 2004 and the 16 March 2004. He said of Professor Hewson:

“He gave extensive oral evidence in which his views were tested by cross-examination.”

28 His Honour noted that Professor Hewson had reports of Dr Parker, the photographs with enlargements taken by Dr Parker during the salpingectomy, records of the defendant, Springwood Hospital records of the laparoscopic tubal ligation and the Macarthur Private Hospital records of the bilateral salpingectomy.

29 The Judge noted that in his first report Professor Hewson answered a number of specific questions put by the defendant’s solicitors and observed that it was convenient first to state Professor Hewson’s ultimate conclusion on the material provided to him, which he did in the following passage:

“On reviewing all the information available including the operation report of Dr Boshell, operation findings and photographs of the second operation provided by Dr Parker I do not believe there is anything to suggest that Dr Boshell’s care and skill fell short of what would normally be expected of a competent consultant gynaecologist.”

30 The Judge noted that by reference to photographs, Professor Hewson was asked whether he thought the clip was not attached across the entire width of the left fallopian tube and that he replied:

“In three of the photographs the Filshie clip appears to occlude the tube but there is no photograph taken from below and behind the tube to clarify whether in fact the clip does or does not go across the whole thickness.

In the fourth photograph the clip appears to have been pulled away from the tube and I presume this was done as part of the second operator’s manipulations to totally free the whole tube prior to its removal – so that the procedure would be safer.

In summary, I would conclude that on the photographs one certainly cannot say that there is clear evidence that the clip was not applied across the entire width of the tube at the time of the original procedure.”

31 The Judge noted that the Professor agreed that the literature and the manufacturer’s guidelines as to the positioning of the clip on the tube to be on the isthmic portion about 1 to 3cm from the cornu or as it has been stated, in the proximal third of the tube. The Judge noted, however, that the Professor added that it was accepted practice if the whole tube was visualised for the clip to be placed further out towards the fimbrial end.

32 The Judge noted that in this case Professor Hewson relied upon the pathology report to conclude correct placement by the respondent. As to this his Honour said:

“That report was sought by Dr Parker who sent a specimen of four segments of the left and right tubes for analysis. The segments measured respectively 1.8cm, 3.0cm, 3.5cm and 5.0cm in length and the report stated that the longer pieces were from the fimbrial ends. Thus, as Professor Hewson emphasised as otherwise confirming his view that the clip was placed correctly, the two shorter segments (whether from left or right tube was not identified) showed the clips were placed 1.8cm and 3.0cm from the cornu on the isthmus portion.”

33 The Judge noted that Professor Hewson said it was not possible to conclude from the histopathology report that the left tube was not occluded because “the pathologist only reported that the fallopian tube was normal … no attempt was made to actually examine histological sections through the tube at the site of application of the clip”. He noted that the Professor accepted that because a pregnancy occurred it was obvious the left tube was not fully occluded but the Professor observed that a blue dye hydrotubation test at the time of the salpingectomy was not done to confirm patency of the tube along its whole length so as to exclude other reasons for the pregnancy from the failed sterilisation or whether there was a fistula or recannulisation of the tube at the site of the clip application.

34 His Honour went on:

“In the result, Professor Hewson said it was impossible to say that Dr Parker was correct in his statement that the left fallopian tube was only partially occluded.

Relevantly, Professor Hewson added that it was impossible to say this sterilisation must have failed because of the manner in which the defendant attached the clip to the tube as from the literature there was a recognised failure rate for Filshie clip sterilisations and in only some of these can one confirm operator error.”

35 The Judge referred to Professor Hewson’s evidence as to the statistical failure rates as follows:

“In referring to the report of Professor Kovacs and Dr Krins, earlier cited by me, Professor Hewson said the study which was done over the period from 1994 to 1998 of 30,000 Filshie clip sterilisations, reported ’73 failures occurring in the practices of 276 Fellows of the Australian College who replied to a questionnaire (the failure rate was 0.24 per cent and of these on subsequent visualisation 9 (sic – the report of the study in fact showed the correct figure to be 29 and not 9) out of 73 failures failed in the presence of a properly applied Filshie clip and in 30 more instances the reasons for failure were not known because the tubes were not subsequently visualised)’.”

36 The Judge then said:

“Finally, on the question whether the photographs showed the clip as being positioned on peritoneum so as not to be fully across the tube, as Dr Parker said, rather than being covered by peritoneum Professor Hewson considered it was ‘not in accord with what is seen in the photographs and with what we know does occur in the post-operative course of patients who have had a Filshie clip application’. As the manufacturer’s material stated in this respect, and supportive of Professor Hewson’s view:

‘When tubal necrosis occurs the compressed silicone expands to maintain complete occlusion of the lumen. The tube eventually divides leaving two healed stumps, which tend to separate. The Filshie clip usually remains attached to the small ghost tissue within it and becomes covered with a thin layer of peritoneum. It peritonealisation of the clip is slow, the clip may become detached and migrate to the omentum or other parts of the pelvis. This has been shown to be of little clinical significance’.”

37 Turning then to Dr Parker the Judge set out his also impressive qualifications and broad experience. He noted that after reviewing Professor Hewson’s reports in a report of 5 January 2004 Dr Parker said:

“The aim of my operation on Ms Sharman on 26 March 2003 was to perform a bilateral salpingectomy for sterilisation. It was not my intention during the procedure to perform an exhaustive search for reasons why Ms Sharman conceived. I performed an adhesiolysis around the left tubal clip prior to salpingectomy and agree that this could have disrupted the clip from the tube. I did send the tubal specimens for histopathology but these were not examined at the site of application of the clips as stated by Professor Hewson.

In my report dated 4 May 2003 I stated that ‘the left Filshie clip was attached to the peritoneum and outer part of the left fallopian tube resulting in partial occlusion’. I agree with Professor Hewson that it is impossible to be dogmatic regarding the true cause of failure in this case. In retrospect, I should have stated that ‘the left Filshie clip was attached to the peritoneum and outer part of the fallopian tube possibly resulting in partial occlusion’. In conclusion, I agree with Professor Hewson’s conclusions that the left tubal clip may have been covered by peritoneum rather than on the peritoneum or that the clip may have been dislodged by traction and manipulation during adhesiolysis. I also agree with Professor Hewson that the reason for failure may have been fistula formation or technical problems with the applicator and that it is impossible to be dogmatic about the true cause of failure in this case.”

38 In view of the importance it later assumes I should set out the Judge’s summary of Dr Parker’s oral evidence:

“Dr Parker’s opinion in favour of the plaintiff’s position has been stated earlier. He gave oral evidence as to his observations during the salpingectomy of the results of the earlier tubal ligation and of his comments in light of Professor Hewson’s evidence.

……………………………..

In supporting his opinion as expressed in his reports, Dr Parker spoke of the advantage he had in actually performing the salpingectomy to be able to view the cavity in three dimensions from the video monitor as he manipulated the structure in real time; looking at photographs gave only a two dimensional view and the necessary depth was lost. It was on that basis he considered the clip was attached to only 10 per cent of the tube with 90 per cent not occluded, although he did observe the clip as being fully closed.

In explaining the procedure followed for a Filshie clip sterilisation, Dr Parker himself performed the procedure as he was taught it by Professor Hewson and by Dr Reid.

In emphasising the importance of him being able to assess in real time what likely occurred in the application of the clip by the defendant in only part of the tube being occluded, Dr Parker disagreed with Professor Hewson that objective tests otherwise available were preferable. Those tests, such as the blue dye test, sectional pathology and histopathological examination were, conceded Dr Parker, good tests but he had the benefit of actually treating the patient and viewing the structures which was a very objective approach. He maintained the views expressed earlier in his report.”

39 Acting Judge Hungerford referred to Professor Kovacs as the second expert relied upon by the appellant. He set out his very impressive credentials and experience and added “he was the acknowledged leader in the fields of reproductive gynaecology.”

40 The Judge went on:

“In the present matter, Professor Kovacs was supplied with the clinical notes and records of the defendant, the notes from Springwood Hospital as to the tubal ligation, the notes from Macarthur Private Hospital, Dr Parker’s notes and reports and the reports from Professor Hewson. He did not give oral evidence but his concise report dated 12 May 2004 was admitted into evidence. It concluded ‘on the balance of probabilities, the failure of sterilisation was most likely due to an inadequate clipping of the left fallopian tube’. Professor Kovacs in reaching that view gave as the possible alternatives for one of the plaintiff’s fallopian tubes being patent after a sterilisation:

(ii) Fistula formation

(iii) Spontaneous opening of the clip

(iv) re-canalisation of the tube despite correct application of a clip’.”

41 Acting Judge Hungerford thought that (iii) might be excluded because Dr Parker had found the clip to be fully closed and that was confirmed by the photographs. He then said:

“Apparently, Professor Kovacs was not supplied with the photographs to which the other witnesses had access. That leaves the alternatives in (i), (ii) and (iv) which corresponds with the evidence of Professor Hewson. In opting for (i), Professor Kovacs relied explicitly on Dr Parker’s reports, particularly those of 4 May 2003 and 5 January 2004 (this latter report being after Dr Parker adjusted his opinion in light of Professor Hewson’s views). Also, without any video or photographic evidence from the defendant’s procedure showing the appropriate application of the clip, Professor Kovacs thought on the probabilities that ‘the clip was probably applied in May 2000 as it was seen in March 2003’.”

42 The Judge then turned to the evidence of Dr Reid. That doctor provided a report dated 16 May 2004 and gave evidence.

43 The Judge set out Dr Reid’s impressive qualifications and experience. He noted that Dr Reid was provided with the reports of Dr Parker and Professor Hewson together with photographs taken by Dr Parker. The doctor’s report was as follows:

“A Filshie clip is shown applied to the left Fallopian tube. The clip is clearly visible and has become covered with a thin layer of peritoneum as normally occurs. The clip would appear to be centrally placed across the entire width of the tube, in the recommended manner. Distal to the clip there would appear to be some attenuated tubal tissue with the distal tubal stump retracted away from the clip and again this is a normal occurrence.

….

…. The Filshie clip on this side has become dislodged from the attenuated tissue and is hanging by a strip of peritoneum. Separation of the clip in this fashion from underlying attenuated tubal tissue is a common occurrence. The tube is therefore no longer occluded by the Filshie clip but is presumably occluded by the process of necrosis and fibrosis induced by previous application of the clip.

….The bottom right photograph shows … the Filshie clip applied to the left Fallopian tube. Again, in this view, it appears centrally located and covering the entire width of the tube. ….”

44 His Honour noted that under cross-examination Dr Reid agreed that the operating surgeon had an advantage in viewing in real time and in a three-dimensional way what the position was, but he would not accept that viewing photographs of a procedure could not enable a reviewer to reach a proper conclusion. Indeed the Judge noted that Dr Reid said it was well-known in the profession that on reviewing photographs an operating surgeon reached a different view.

45 The Judge commented:

“Although difficult to be sure, Dr Reid thought the clip over the left tube was placed around the mid point. Nevertheless, as to the proposition that if 90 per cent of the left tube was not encapsulated by the clip and a pregnancy occurred within seven months then the most likely cause was that the tube was patent, Dr Reid disagreed because his view of the photographs was that the clip was centrally placed across the tube.”

46 The Judge noted that Dr Reid said there was no evidence in photographs of a fimbrial cyst. Professor Hewson had said there was and the histopathology report confirmed that to be so. Acting Judge Hungerford said: “I think that it is powerful support for the ability of Professor Hewson to accurately interpret the photographs”.

47 The Judge then said:

“I have reviewed the evidence in some detail on the question of liability because of the stark difference in opinion between the expert witnesses (Dr Parker and Professor Kovacs for the plaintiff; Professor Hewson and Dr Reid for the defendant).”

48 The difference he observed was the positioning of the Filshie clip over the left fallopian tube by the respondent. The Judge went on to say that if the clip had been correctly positioned on the left tube then there was no liability in negligence. He dealt with this matter at some little length, however, there was no contest about it either at trial or on appeal and I need not refer to that discussion.

49 The Judge said that he was not satisfied to the requisite degree that the respondent had not performed the sterilisation procedure in a manner widely accepted by peer professional opinion as competent practice. The Judge then said:

“The defendant himself was an impressive witness and whose evidence I accept. He exhibited a professional approach to the performance of a procedure of care, diligence, attention to detail and the desire to ‘get it right’. It is true he did not recall this particular procedure on the plaintiff, but I think that to be unsurprising in a busy practice. What is important, I think, is that in describing his usual or invariable practice he did so in a painstaking way and demonstrating the care and attention to which I have referred. There was nothing in the operation notes of the procedure to even suggest a difficulty arose; one may reasonably accept, I think, that any disquiet the defendant may have had at the time, such as might have caused him to apply a second or even a third Filshie clip to the left fallopian tube, would have been noted in the records but nothing appeared. I accept that the procedure performed on the plaintiff accorded with the defendant’s usual or invariable practice as described by him.”

50 Acting Judge Hungerford noted that the “only concern I had during the hearing …...was that the clip was said by the defendant to have been applied ‘mid portion of each fallopian tube’ instead of in the proximal third of the tube or on the isthmic portion, 1 to 3cm from the cornu so that being on a thicker part of the tube may have placed the clip over the peritoneum so as to leave part of the tube patent.”

51 The Judge, however, considered that his concern was allayed by the fact that the right tube with the clip similarly placed was fully occluded and that the respondent had been taught to place the clip in the mid portion, although he had changed to the proximal third and neither Professor Hewson nor Dr Reid considered this aspect to be a departure from competent practice. He noted that the pathology report, as Professor Hewson remarked, confirmed that the clip was in fact placed within the proximal third being either 1.8cm or 3cm from the cornu on the isthmic portion.

52 The Judge then said:

“Professor Kovacs considered there had been inadequate clipping of the left tube as the likely cause of the failed sterilisation. However, as I have noted, that view depended wholly upon the conclusions of Dr Parker from his observations and absent access to the photographs.

Professor Kovacs did not give oral evidence and so his views and the basis for them in this case were not tested, particularly in light of the photographs which were the subject during the oral evidence of much attention. I do not adopt his conclusion.

The evidence of Dr Parker, on the one hand, and that of Professor Hewson and Dr Reid, on the other, and although in conflict, I found to be all credible and well understandable having in mind their respective views of the positioning of the clip on the left tube. As I remarked to counsel during submissions, I saw no credit issue arising in relation to these witnesses. I confirm that I accept each of them genuinely believed in the correctness of the views expressed based on what they saw as eminent practitioners. Only one view, however, can prevail and it needs to be resolved. I prefer the evidence of Professor Hewson and Dr Reid over that of Dr Parker.”

53 The Judge observed that it should be acknowledged that Dr Parker had the admitted advantage of seeing the area of the procedure but noted Dr Reid’s comment that an operating surgeon not uncommonly changes a view on later viewing of photographs. He said that photographic aids to assist analysis of what occurred during the tubal ligation are a legitimate means of doing so. He noted that the photographs were taken nearly three years later but that it was not suggested by any witness that that of itself devalued them or favoured one view over the other. He noted that it was on the basis of Professor Hewson’s opinion from the photographs that Dr Parker was prepared to modify certain views he had expressed. He said: “It must be said that the modifications so made were not insignificant”.

54 The Judge said that there were two issues concerning the critical positioning of the clip on the left tube. First, the place on the tube where it was applied and second, whether the clip was centrally placed over the tube to achieve full occlusion. His Honour said that he had already determined that the clip was placed correctly in the proximal third of the tube on the isthmic portion although it would make no relevant difference if in fact it was placed mid portion. The second matter was whether the clip was centrally placed over the tube to achieve full occlusion.

55 Dr Parker found during the salpingectomy that the left sided clip was only about ten percent on the tube with 90 percent attached to the peritoneum. The result, he said, was partial occlusion. The Judge went on:

“However, after considering Professor Hewson’s views he changed his opinion to ‘possibly resulting in partial occlusion’. That concession, in my view, and although no doubt properly made, was important particularly having in mind Professor Hewson’s reasoning based on what three of the photographs showed was correct placement on the tube. Dr Reid too reached the view from the photographs that the clip was ‘centrally placed across the entire width of the tube, in the recommended manner.’ “

56 The Judge continued his discussion of Dr Parker’s view:

“Further, Dr Parker amended his view that the left clip was attached to the peritoneum and outer part of the tube to agree with Professor Hewson that it may have been covered by peritoneum rather than on the peritoneum. Again, Dr Parker deferred to Professor Hewson to accept that the left clip may have been dislodged by traction and manipulated by him as he performed an adhesiolysis prior to a salpingectomy. This is an important change in viewpoint because it is against the basic proposition put for the plaintiff that the clip was incorrectly applied by the defendant so as to only partially occlude the left tube. It no doubt followed from this that Dr Parker also agreed with Professor Hewson that the cause of the failed sterilisation may have been fistula formation or technical problems with the applicator.”

57 It is convenient to note that Acting Judge Hungerford made no reference at this point to Dr Parker’s oral evidence.

58 The only reference to Professor Kovacs after he had been, in effect, discarded was that the Judge noted the non-controversial comment in his report that possible alternatives here for a failed sterilisation included fistula formation and re-canalisation of the tube despite the correct application of the clip.

59 The Judge continued:

“Dr Reid on this aspect noted dislodgement of the left clip from the attenuated tissue, a common occurrence, but nevertheless centrally located and covering the entire width of the tube. The views expressed by Professor Hewson and Dr Reid were consistent with the statements in the manufacturer’s guidelines, but of no clinical significance, that clips usually remain attached to ‘ghost tissue’ and become covered with a thin layer of peritoneum.”

60 The Judge then found:

“…I find that the defendant correctly applied the Filshie clip to the left fallopian tube in the procedure on 19 May 2000 and in doing so acted with the care and skill expected of a competent gynaecologist.”

61 He also said:

“That the plaintiff became pregnant about seven months later is explicable in terms of the accepted failure rate for Filshie clip applications of three in one thousand (0.3 per cent) and where the study referred to by Professor Kovacs and Dr Krins reported 73 failures per 30,000 sterilisations (0.24 per cent) of which failures 29 were confirmed as the failure of a properly applied Filshie clip”

62 Acting Judge Hungerford concluded that at most what occurred to the appellant was misadventure and said that that was not negligence on the respondent’s part. Accordingly his Honour said that the respondent was entitled to a verdict.

GROUNDS OF APPEAL

63 The grounds of appeal are as follows:

“1. In determining that the respondent correctly applied the Filshie clip to the appellant’s left fallopian tube, His Honour erred in preferring the respondent’s evidence of his ‘usual practice’ to that of Dr Parker, a surgeon who subsequently operated upon the plaintiff and saw the clip had not been applied.

2. His Honour erred in attributing to Dr Hewson, an expert called by the respondent, the opinion that intra-operative photographs showed ‘correct placement of the Filshie clip on the (fallopian) tube’.

3. His Honour erred in rejecting the expert evidence of Professor Kovacs (whose report was relied upon by the appellant) upon the basis that the respondent had not tested his views on cross examination.

4. His Honour erred in assuming that Professor Kovacs was not provided with the intra-operative photographs taken by Dr Parker.

5. His Honour erred in finding that the respondent placed the Filshie clip on the proximal third of the appellant’s left fallopian tube.”

DISPOSITION

64 Although the medical issues in this case are difficult and the evidence reflects conflicting views from highly qualified medical practitioners, the resolution of the appeal turns upon a consideration of two errors into which, in my respectful opinion, the Judge has fallen in the course of his detailed judgment.

65 Before dealing with those errors it is convenient to deal with two other matters.

66 First, Acting Judge Hungerford was in a position of definite advantage which this Court is bound to recognise, give weight to and uphold unless it is shown that the Judge failed to use or palpably misused, that advantage. (Albalos v Australian Postal Commission (1990) 171 CLR 167 per McHugh J at 178-179; Devries v Australian National Railways Commission (1992) 177 CLR 472 at 479; Fox v Percy (2003) 214 CLR 118).

67 That advantage had two aspects. The first arose from the opportunity to see and hear the witnesses, other than Professor Kovacs.

68 The appellant’s written submissions put:

Galea v Galea

Brunskill v Sovereign Marine & General Insurance Co Ltd

Walsh v Law Society of NSW

69 In address Mr Davies of Senior Counsel, who appeared with Ms Burke for the respondent, put that the Judge was faced with a conflict of expert opinion and that, quite apart from credibility, the trial judge can be influenced by the way in which witnesses give their evidence.

70 Whilst the Judge said in the judgment that he saw no “credit issues arising in relation to the witnesses” he amplified that by saying “I confirm that I accept each of them genuinely believed in the correctness of the views expressed based on what they saw as eminent practitioners”. This is not to exclude considerations of the impression made by the witnesses in the giving of their evidence.

71 Indeed Acting Judge Hungerford said “The defendant himself was an impressive witness and whose evidence I accept. He exhibited a professional approach to the performance of a procedure of care, diligence, attention to detail and the desire to get it right”. Whilst the Judge speaks here of “a procedure” I think it clear that he was reflecting the impression that the respondent made upon him in the witness box.

72 In relation to Professor Hewson the Judge said “He gave extensive oral evidence in which his views were tested by cross-examination”. Such testing goes beyond a mere matter of the words spoken.

73 The second aspect goes to the extensive use of the photographs in examination in chief and cross-examination. The experts were directed to particular portions of the photographs and used them to illustrate and demonstrate the points they were making. We were referred to some of the photographs, however, it was more than apparent that no amount of explanation by Counsel could replicate the situation presented to the Judge.

74 The photographs and the explanations and demonstrations using them were an important part of the material before the Judge. This Court had the photographs but remained in a marked position of disadvantage to the trial Judge.

75 I should mention that screens on which the photographs were displayed were used at the trial. I do not regard this as a relevant disadvantage for this Court. No doubt screens could be obtained and, in any event, courts have considered photographs without the convenience of screens for a very long time.

76 Somewhat inconsistently with its position on the absence of a credit issue, the appellant’s written submissions accepted a requirement that it be shown that the Judge’s finding as to correct application of the Filshie clip was “glaringly improbable” (Galea v Galea (1990) 19 NSWLR 263 at 266-267; Fox at 128).

77 Whilst it is the common case that the advantage of the trial judge rests on seeing and hearing witnesses, the critical factor is that there is an advantage and it does not matter that the advantage may arise in some other way, as it does in this case with the photographs.

78 In his written and oral submissions Mr Anderson of Counsel, who appeared for the appellant, advanced a range of arguments as to why Acting Judge Hungerford was in error to the extent that his ultimate finding was “glaringly improbable”.

79 On the view I take of other issues I do not need to deal with this contention in detail. However, I do express my opinion that it is close to untenable. Selected questions and answers certainly yielded apparent conflicts and arguments; however, on the evidence as a whole it seems to me it was well open to the Judge to reach the view he did. At the very least there were, at the end of the oral evidence, the opinions of two very highly qualified experts that supported the Judge’s conclusion. The submissions present a plausible case that Acting Judge Hungerford should have found a verdict for the appellant, however, fall well short of that required to set aside the verdict the Judge had reached.

PROFESSOR KOVACS “NOT TESTED”

80 Acting Judge Hungerford said:

“I have reviewed the evidence in some detail on the question of liability because of the stark difference in opinion between the expert witnesses (Dr Parker and Professor Kovacs for the plaintiff; Professor Hewson and Dr Reid for the defendant).”

81 In the passage set out at [52] the Judge removed Professor Kovacs from the contest. As he then said he had the evidence of Dr Parker, on the one hand and that of Professor Hewson and Dr Reid on the other.

82 Professor Kovacs’ conclusion was not adopted for two reasons:

(i) “…. that view depended wholly upon the conclusions of Dr Parker from his observations and absent access to the photographs;”

and

83 It is common ground that the respondent pursuant to Pt 28 r9 of the District Court Rules had arranged for Professor Kovacs to be available to give evidence. A timetable for that evidence was arranged, however, one to two days into the trial Counsel for the respondent indicated that he did not wish to cross-examine Professor Kovacs and the Professor was not called as a witness. His report had been tendered in the usual way.

84 In my opinion had Counsel for the respondent sought to rely in address upon the absence of such testing he would not have been allowed to do so on the ground that it was he who had elected to forgo the cross-examination.

85 It is not open to the Judge in his judgment to rely upon such a consideration when Counsel could not have done so. Indeed, such reliance by the Judge, as opposed to Counsel, deprives the opponent of the right to object or raise countervailing considerations. Had such an argument been raised by Counsel for the respondent, who had forgone the right to cross-examine, a question might well have arisen as to whether the appellant should have had an opportunity to then call the Professor.

86 The matter is not a minor one that can be properly overlooked. The Judge’s reference to the testing of Professor Hewson’s evidence by cross-examination at an early stage of the judgment shows that it was a factor to which he attached significance. Further, in the passage itself he linked it to photographs “the subject during the oral evidence of much attention”.

87 Mr Davies submitted that a party may properly elect not to cross-examine to avoid enlargement and possible enhancement of the material appearing in a report. I agree. However, that election having been made, the consequences I have referred to above follow.

88 Although there was a faint suggestion to the contrary in the appellant’s submissions, this was not a case in which it could be or was suggested that Professor Kovacs’ view should be accepted because it had not been challenged by cross-examination. The relevant issue was squarely joined. (Seymour v Australian Broadcasting Corporation (1989) 19 NSWLR 219). Similarly, no Browne v Dunn point arose.

89 The judgment does not suggest that the two reasons I have referred to above are alternatives so that Professor Kovacs’ conclusion would have been rejected even had the second reason not been relied upon.

90 There would, in any event, have been considerable difficulty in relying upon the first reason alone. The fact that Professor Kovacs accepted Dr Parker’s account as a credible one, as obviously he did, itself lends some support to that account.

91 Further, in circumstances which I will explain later, Professor Kovacs may be taken to have accepted that the photographs were consistent with Dr Parker’s account. This lends independent support to Dr Parker’s view.

92 Further, in his report Professor Kovacs after referring to Dr Parker’s initial report said:

“Although in his subsequent opinion (5th January 2004) Dr Parker adjusted his opinion saying that: ‘The clip may have been dislodged by traction during adhesiolysis’. I think this is most unlikely.”

93 That seems to me to read as an expression of an expert view dependent only in the most general way upon Dr Parker’s account.

94 Mr Davies put that even had an error been made as to absence of testing that was merely one matter to be taken into account on an overall weighing of the evidence in the case. I do not agree. One cannot know the precise effect the erroneous approach had on the outcome, however, I do not consider that one can conclude that it had no significant effect and I propose that the verdict and judgment be set aside. I deal later with a submission that the objective evidence in the case is such that the verdict and judgment should not be set aside or a new trial ordered.

95 Acting Judge Hungerford proceeded on the basis that Professor Kovacs had not seen the photographs when he made his report. Mr Anderson argued that he was in error in taking that view, however, I think it was a conclusion that was open to him. At best the situation was ambiguous and it lay upon the appellant to establish the materials provided to the doctor and which formed the basis of his opinion.

96 At the hearing of the appeal Mr Davies agreed to the reading of an affidavit of Ms Walsh, the appellant’s solicitor, save as to one paragraph. The affidavit annexed a letter to Professor Kovacs of 1 June 2004 which omitting formal parts, read as follows:

second

I believe the brief contained one set of photographs (containing four pictures) but to avoid confusion, I am sending all of them.

Could you please call to discuss these photographs at your convenience.

We look forward to hearing from you and thank you for your assistance.”

97 Ms Walsh deposed that she did not request Professor Kovacs to prepare a supplementary report and it was accepted that he had not provided one. Mr Anderson submitted and Mr Davies accepted that as Professor Kovacs had noted in his report that he had read the “Code of Conduct for Expert Witnesses in the District Court of New South Wales” and had agreed to abide by the guidelines, it should be inferred that he had not changed his opinion as a result of viewing the photographs.

98 It should be mentioned that the brief referred to in the letter was the material sent to Professor Kovacs by Ms Walsh on 4 May 2004. It is convenient to note that the brief contained Professor Hewson’s reports which set out his view of the photographs. It should be inferred that Professor Kovacs did not share that view.

DR PARKER’S ORAL EVIDENCE

99 With the evidence of Professor Kovacs set aside his Honour contrasted the views of Dr Parker on the one hand and Professor Hewson and Dr Reid on the other. As noted [52 ] he preferred those of Professor Hewson and Dr Reid.

100 His Honour accepted that Dr Parker had the admitted advantage of seeing the area of the procedure during the salpingectomy but then went on to explain why Dr Parker’s view did not prevail.

101 A fundamental part of his reasoning process founded upon the concessions made by Dr Parker in his letter of 5 January 2004 written by Dr Parker after a review of Professor Hewson’s reports.

102 The Judge said, after referring to Dr Reid’s evidence that an operating surgeon not uncommonly changes his view on later reviewing photographs:

“Indeed, it was on the basis of Professor Hewson’s opinion from the photographs that Dr Parker was prepared to modify certain views he had expressed. It must be said that the modifications were not insignificant.”

103 His Honour went on to detail four concessions made by Dr Parker in his later report.

104 First,

“Dr Parker found during the salpingectomy that the left sided clip was only about 10 per cent on the tube with 90 per cent attached to peritoneum; the result, he said, was ‘partial occlusion’. However, after considering Professor Hewson’s views he changed his opinion to ‘possibly resulting in partial occlusion’. That concession, in my view, and although no doubt properly made, was important particularly having in mind Professor Hewson’s reasoning based on what three of the photographs showed was correct placement on the tube.”

105 Second,

“Further, Dr Parker amended his view that the left clip was attached to the peritoneum and outer part of the tube to agree with Professor Hewson that it may have been covered by peritoneum rather than on the peritoneum.”

106 Third,

“Again, Dr Parker deferred to Professor Hewson to accept that the left clip may have been dislodged by traction and manipulation by him as he performed an adhesiolysis prior to salpingectomy. This is an important change in viewpoint because it is against the basic proposition put for the plaintiff that the clip was incorrectly applied by the defendant so as to only partially occlude the left tube.”

107 It is relevant to note in passing Professor Kovacs’ view on this question at [92] above.

108 And fourth,

“It no doubt followed from this that Dr Parker also agreed with Professor Hewson that the cause of the failed sterilisation may have been fistula formation or technical problems with the applicator.”

109 Whilst these concessions were not the sole reason upon which the Judge based his decision it is clear from reading his account that they were an important factor in his reasoning process.

110 It appears from the judgment that the oral evidence of Dr Parker played no part in that reasoning process at least in relation to the important topics dealt with in the “concessions”. I should go to the passages of the oral evidence dealing with those concessions.

111 Dr Parker said in chief:

…………………………..

………………………

…………………..………”

112 Asked in chief about a conversation he had with the respondent’s solicitor Dr Parker said:

113 It is convenient to observe at this point that a concession that something is possible has a very different impact when the words “nevertheless extremely unlikely” are added.

114 In cross-examination relating to tests that were not performed Dr Parker said:

115 Taken to his report of 5 January 2004 by Ms Burke the doctor said:

‘In retrospect I should have stated that the left Filshie clip was attached to the peritoneum and outer part of the fallopian tube possibly resulting in partial occlusion.’

Now you don’t insert the words there theoretical do you?

A. I don’t but I had legal advice from my medical defence organisation and according to the Code of Ethics that you referred to previously I’m entitled to change my view and the slight change that I made was to take into account all of the theoretical possibilities that Professor Hewson put forward.

116 Whilst being cross-examined about a photograph Dr Parker gave evidence:

117 The doctor gave evidence in cross-examination:

“Q. And there is no way that you can say conclusively, without the assistance of the dye test or the sectional pathology what the actual cause was in this case for the plaintiff’s failed sterilisation, can you?

A. I don’t think you can ever be a hundred percent certain and that’s why I wrote what I did write in my reports and why I report (sic) my second report taking into account Professor Hewson’s views. But the most likely reason that I thought at the time and I thought when I wrote both of those subsequent reports is that the tube was not properly occluded, fully occluded and the clip wasn’t placed fully across the tube because I saw it on the peritoneum.”

118 Taken by Ms Burke to one of the photographs the doctor gave evidence:

119 The doctor gave evidence:

120 Dr Parker’s oral evidence clearly qualifies, indeed in some respects effectively negates, the effect of the concessions upon which Acting Judge Hungerford placed considerable weight. It equally clearly established the doctor as holding the view put in his first report. Those are very relevant matters to the determination whether the views of Dr Parker or those of Professor Hewson and Dr Reid should prevail.

121 Whilst some, but not all, of this further evidence was referred to in the Judge’s short summary of Dr Parker’s oral evidence [38] it took no part, so far as the judgment shows, in the reasoning by which his Honour reached his decision. The concessions and their importance is discussed in the judgment as if Dr Parker’s oral evidence had not been given.

122 It seems inescapable that the experienced Judge either inadvertently overlooked the qualification and indeed, as to some matters, effective negation of the concessions made by the oral evidence or, if he did not, failed to refer in his reasons as to why he set that evidence aside.

123 The evidence was sworn testimony as to factual observations and expert opinion tested by cross-examination and given by a man the Judge found genuinely believed in the correctness of the views expressed by him based on what he saw as an eminent medical practitioner and in respect of whom the Judge considered no credit issue arose.

124 If the Judge did overlook the evidence and the issues it raised then so doing was an error of law which, in the circumstances of this matter, calls, in my opinion, for the setting aside of the verdict and judgment. In that event the Judge had “failed to give sufficient attention to all the evidence of the case…….” (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(in liq) (1999) 73 ALJR 306 per Gaudron, Gummow and Hayne JJ at [62]).

125 If the Judge did not overlook it and determined to decide the case as he did despite the evidence, as it was open to him to do, he was bound to refer to this important issue in his reasons and say something, even if brief, as to why he adopted that course.

126 The duty of a judge to give reasons was discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 especially at 280 B-C and 281 B-C, in Mifsud v Campbell (1991) 21 NSWLR 725 and in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.

127 Beale is a case in which the trial judge took an adverse view of the credit of a plaintiff without referring in his judgment to apparently strongly corroborative evidence or giving reasons for reaching his view despite such evidence.

128 The issue in this case is not credit, however, the principle is the same. The Judge has decided the principal question in the case without referring in his judgment to apparently highly relevant evidence or giving reasons for reaching his view despite such evidence.

129 In Beale Mason P (with whom Meagher and Sheller JJA agreed), speaking of the statement of reasons for decision, said at 3:

“Nevertheless, there is a miscarriage where what is and is not disclosed involves a breach of the principle that justice must not only be done but must be seen to be done.”

130 Mason P also said at 3:

“……However, the appellant’s case and (incidentally) her credibility were corroborated at critical points by three witnesses …….Yet the trial judge made no reference at all to their evidence, and offered nothing by way of reasons as to why their corroborating evidence should be ignored.”

131 In proposing a retrial on the relevant issue in Beale Mason P said at 1:

exposed

132 In my opinion, the same result should follow in this matter.

CONCLUSION

133 Mr Davies has put that the objective facts, especially those disclosed by the histopathology report, are such that the Court should decline to set aside the verdict and judgment even if satisfied that errors had been made.

134 I am not persuaded that the material relied upon by Mr Davies carries the weight he attributes to it. Further, I am satisfied that this Court is not in a position to decide the matter for itself particularly having regard to the difficulty of interpreting and understanding the photographs without expert demonstrations such as occurred at the trial.

135 Mr Anderson submitted that the Court could and should decide the matter for itself. Mr Davies submitted that if the verdict was set aside a new trial should be ordered. For the reasons I have just given I propose that a new trial be ordered.

COSTS

136 I do not consider the effect of the further evidence or the time taken in its consideration to be sufficient to justify a departure from the usual order for costs in respect of a successful appeal.

PROPOSED ORDERS

137 I propose the following orders:

1. Appeal allowed.

2. Verdict and judgment of Acting Judge Hungerford set aside.

3. Matter remitted to the District Court for a new trial.

4. Costs of the first trial to be determined by the Judge hearing the retrial.

5. Respondent to pay the appellant’s costs of the appeal.

**********

Key Legal Topics

Areas of Law

Negligence & Tort
Civil Procedure

Legal Concepts

Appeal
Negligence
Causation
Reliance
Costs
Remedies

Actions

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Citations

Sharman v Boshell [2005] NSWCA 476

Most Recent Citation

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CITATION:	Sharman v Boshell [2005] NSWCA 476
HEARING DATE(S):	12/05/05
JUDGMENT DATE:	22 December 2005
JUDGMENT OF:	Tobias JA at 1; Basten JA at 2; Campbell AJA at 3
DECISION:	1. Appeal allowed; 2. Verdict and judgment of Acting Judge Hungerford set aside; 3. Matter remitted to the District Court for a new trial; 4. Costs of the first trial to be determined by the Judge hearing the retrial; 5. Respondent to pay the appellant’s costs of the appeal; 6. Respondent to have a Certificate under the Suitors’ Fund Act 1951 if otherwise qualified.

CATCHWORDS:	Negligence - Failed sterilisation procedure - Trial Judge's findings of fact - Reliance upon absence of testing by cross-examination when cross-examination forgone - Failure to consider all the evidence - Reasons.
LEGISLATION CITED:	Civil Liability Act 2002 Suitors' Fund Act 1951
CASES CITED:	Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Albalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1992) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Galea v Galea (1990) 19 NSWLR 263 Seymour v Australian Broadcasting Corporation (1989) 19 NSWLR 219 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Mifsud v Campbell (1991) 21 NSWLR 725 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
PARTIES:	Susan Lesley Sharman - Appellant Dr Laurence Boshell - Respondent
FILE NUMBER(S):	CA 40758/04
COUNSEL:	J O Anderson - Appellant D L Davies SC with Ms K E Burke - Respondent
SOLICITORS:	Maurice Blackburn Cashman - Appellant Tresscox Lawyers - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2105/03
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ

[2005] NSWCA 476

22 December 2005

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Appeal

Negligence

Causation

Reliance

Costs

Remedies