Veitch v Connor
[2023] WADC 38
•31 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: VEITCH -v- CONNOR [2023] WADC 38
CORAM: GETHING DCJ
HEARD: 26-28 APRIL, 17-18 OCTOBER 2022, 27 FEBRUARY, 1 & 3 MARCH 2023
DELIVERED : 31 MARCH 2023
FILE NO/S: CIV 2118 of 2018
BETWEEN: JULIA ANN VEITCH
Plaintiff
AND
DANIEL IGNATIUS CONNOR
Defendant
Catchwords:
Solicitors' negligence - Solicitor allowed the plaintiff's common law claim against a medical practitioner to be dismissed pursuant to District Court Rules 2005 (WA) r 44G - Assessment of the value of the lost opportunity to pursue the dismissed claim - Assessment of past and future medical expenses in a loss of opportunity claim - Whether surgical decisions of an ophthalmologist were outside practices that were widely accepted by the health professional's peers as competent professional practice - Failure to warn of material risks - res ipsa loquitur - Scope of the non-delegable duty of care of a hospital
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5C, s 5PB
District Court Rules 2005 (WA), s 44G
Result:
Judgment for the plaintiff in the amount of $4,267.80
Representation:
Counsel:
| Plaintiff | : | Ms R L Sorgiovanni |
| Defendant | : | Mr G P Bourhill SC |
Solicitors:
| Plaintiff | : | Soul Legal |
| Defendant | : | Popperwell & Co |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229
CGU Insurance Ltd v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
Child and Adolescent Health Service v Sunday John Mabior (by his Next Friend Mary Kelei) [2019] WASCA 151
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147
Ellis (by his Next Friend Christoper Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510
F v R (1983) 33 SASR 189
Falkingham v Hoffmans (a firm) [2014] WASCA 140
Fazio v Fazio [2012] WASCA 72
Finlay v The State of Western Australia [2012] WADC 132
Golden Eagle International Training Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
Griffiths v Kerkemeyer (1977) 139 CLR 161
Grincelis v House [2000] HCA 42; (2000) 201 CLR 321
Hammond Worthington v Da Silva [2006] WASCA 180
Hodges v Frost (1984) 53 ALR 373
Holtman v Sampson [1985] 2 Qd R 472
Houlahan v Pitchen [2009] WASCA 104
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
J-Corp Pty Ltd v Thompson [2019] WASCA 173
John James Memorial Hospital Ltd v Keys [1999] FCA 678
Jordan v Lee [2012] WADC 74
Kondis v State Transport Authority (1984) 154 CLR 672
Lawson v Minister for Health [2005] WADC 105
Leheste v The Minister for Health [2012] WADC 92
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Luxton v Vines (1952) 85 CLR 352
Marsh v Baxter [2015] WASCA 169
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Nathaniel Corbett by his Next Friend Debra Todd v Town of Port Hedland [2021] WADC 55
Newman v Nugent (1992) 12 WAR 119
Nigam v Harm [No 2] [2011] WASCA 221
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Rayney v The State of Western Australia [No 4] [2022] WASCA 44
RC vThe Salvation Army (Western Australia) Property Trust [2023] WASCA 29
Rogers v Whitaker (1992) 175 CLR 479
Rowe v Stoltze [2013] WASCA 92
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
Sharman v Evans (1977) 138 CLR 563
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161
Tabet v Gett (2010) 240 CLR 537
Taylor v Fisher [2018] WASCA 126
Taylor v Hanseatic Marine Engineering Pty Ltd [2012] WADC 136
The Board of Management of Royal Perth Hospital v Frost (Unreported, WASCA, Library No 970069, 26 February 1997)
Van Der Velde v Halloran [2011] WASCA 252
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Winiarczyk v Tsirigotis [2011] WASCA 97
Wright v Minister for Health [2016] WADC 93
Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513; (1980) 31 OR (2d) 383
Table of Contents
1....... Introduction
2....... What issues arise for determination?
2.1.... How the trial progressed
2.2.... What is not in dispute
2.3.... Issues arising for determination
3....... The anatomy of the eye
4....... Chronology of events
4.1.... Overview
4.2.... Events up to 2009
4.3.... Events from the beginning of 2010 to the Surgery
4.4.... Events up to and including the Surgery on 28 January 2011
4.5.... Events post the Surgery until the end of 2011
4.6.... 2012 eye surgery by Dr Chan
4.7.... Medical treatment from 2013 onwards
4.8.... Engagement with Maurice Blackburn - September 2012 to October 2013
4.9.... Engagement with the defendant - November 2013 to November 2015
5....... Relevant legal principles
5.1.... Methodology as regards a claim against a negligent solicitor
5.2.... Common law principles relating to a medical negligence claim
5.3.... Common law principles relating to a failure to warn claim
5.4.... The CLA provisions relating to breach of duty
5.5.... The CLA provisions relating to causation
6....... Expert evidence
6.1.... The scope of CLA s 5PB
6.2.... The expert evidence in the present action
6.3.... The expert evidence in the Original Action
7....... What amount of damages would have been awarded by the court had the Original Action gone to trial and been wholly successful?
7.1.... Factual Causation - Original Action
7.2.... Basis of assessment
7.3.... General damages
7.4.... Principles relating to assessment of past and future medical expenses
7.5.... Past special damages
7.6.... Past gratuitous services
7.7.... Interest on past loss and expenditure
7.8.... Future medical expenses
7.9.... Summary
8....... Choice of Technique Claim
8.1.... Overview
8.2.... Dr Ward's knowledge
8.3.... Did Dr Ward undertake the appropriate pre-operative inquiries and tests?
8.4.... The surgeries carried out by Dr Ward and Dr Chan
8.5.... The plaintiff's pleaded position
8.6.... Causation
8.7.... Plaintiff's prospects of success on the Choice of Technique Claim
9....... Conduct of Surgery Claim
9.1.... Overview
9.2.... Use of an inappropriate surgical techniques - pleadings
9.3.... Use of an inappropriate surgical technique - particulars
9.4.... Use of an inappropriate surgical technique - Analysis
9.5.... Manner of performing the Surgery - Pleadings
9.6.... Manner of performing the Surgery - Particulars
9.7.... Plaintiff's prospects of success on the Conduct of Surgery Claim
10..... What is the value of the plaintiff's lost opportunity to pursue the Failure to Warn Claim?
10.1.. The pleadings
10.2.. Dr Ward's evidence as to the advice and warning given
10.3.. The plaintiff's evidence as to the advice and warnings given
10.4 . Factual issues at a notional trial of the Original Action
10.5.. The plaintiff's pleaded case
10.6.. If the appropriate warnings and advice had been given, would the plaintiff have proceeded with the Surgery?
10.7.. If the plaintiff proceeded as she says she would have, would she have avoided the need for a corneal transplant?
10.8.. Assessment of the lost opportunity
11..... Res Ipsa Loquitur Claim
11.1.. Overview
11.2.. Relevant law
11.3.. Pleadings
11.4.. Assessment
12..... What is the value of the plaintiff's lost opportunity to purse the Hospital Claim?
12.1.. Pleadings
12.2.. Assessment
13..... Would the plaintiff have pursued the Original Action to trial or earlier valuable settlement?
13.1.. Pleadings
13.2.. Relevant law
13.3.. The plaintiff's position
13.4.. Mr Gleeson's advice in October 2013
13.5.. Defendant's advice
13.6.. Determination
14..... What final orders are appropriate?
GETHING DCJ:
Introduction
On 28 January 2011 Dr William Ward operated on the plaintiff's left eye. He removed an intraocular lens which he had inserted into this eye some five years prior, removed a cataract which had been impeding her vision in the preceding months and inserted a different type of intraocular lens (Surgery). Unfortunately, after the Surgery the cornea of the plaintiff's left eye became dysfunctional to the point of requiring a corneal transplant. The corneal transplant surgery was undertaken by a different ophthalmologist in May 2012. The ultimate result was that the plaintiff's left eye was left with more or less the same vision as in her right eye, though with some side effects, a position that continued to trial.
Of more concern to the plaintiff was the fact that about six months after the corneal transplant surgery she was informed that the donor of the tissue used in the corneal transplant had multiple myeloma, that is a blood cancer. The plaintiff became concerned that, as a result, she would develop some form of cancer. This risk has not eventuated, though it is something that continues to weigh heavily on the plaintiff.
In November 2013 the plaintiff instructed the defendant to investigate a claim against Dr Ward in relation to the Surgery. With the looming expiration of the limitation period, in December 2013 the defendant, on the plaintiff's instructions, commenced an action in the District Court against Dr Ward and those entities responsible for the Peel Health Campus where the Surgery was carried out primarily asserting a claim in negligence in relation to the Surgery (Original Action).[1] The Original Action was ultimately dismissed as a result of being on the District Court's Inactive Cases List for six continuous months. The Original Action was not able to be reinstated.
[1] The named second defendants were 'Peel Health Campus, Health Solutions (WA) Pty Ltd, Minister for Health, Health Department of WA'. For ease of reference, I will refer to the second defendant in the Original Action compendiously as 'the Hospital'.
In June 2018 the plaintiff commenced the current action against the defendant seeking damages for the lost opportunity to purse the claims the subject of the Original Action. The trial of the current action followed a tortuous path which I describe below.
For the reasons which follow, I find that as a result of the defendant's negligence the plaintiff did lose the opportunity to pursue the claims the subject of the Original Action. However, for two reasons, the value of that opportunity was minimal. The first is that the issue of liability in the Original Action in essence turned on whether the surgical techniques used by Dr Ward in the Surgery were outside competent professional practice. The expert evidence led by the defendant was to the effect that the surgical techniques used by Dr Ward were within competent professional practice. Although there were other surgical techniques which could have been used, the choice between the techniques was one of surgical preference. I find that there is no basis in the evidence on which the plaintiff could have persuaded a court hearing a notional trial of the Original Action that the defendant's expert evidence should be wholly rejected. I assess her prosects of success at 10%. The second is that, even if the Original Action was wholly successful, I assess the amount of damages she would have been awarded at $42,678. Hence, I value her lost opportunity at $4,267.80.
What issues arise for determination?
2.1 How the trial progressed
Before identifying the issues which arise for determination, it is necessary to mention a number of matters as to how the trial progressed.
The action first came before me for directions on 14 April 2022, just under a fortnight before the trial was due to commence on 26 April 2022. There were two issues. The first was a series of amendments to the statement of claim which were not opposed. The second arose from the fact that in late March 2022 the defendant had discovered to the plaintiff certain documents which it had recently been provided with from Dr Ward. The documents were the standard set up instructions which Dr Ward provided to nursing staff at the Hospital. The discovery of these documents led the plaintiff's lawyers to seek to identify and subpoena the circulating nurse and the scrub nurse who assisted Dr Ward to perform the Surgery, who at that time were unidentified. Counsel for the plaintiff was concerned that she might not be able to identify and subpoena the two nurses in time to give evidence at the trial. The order she proposed was to take their evidence after the trial, but before closing submissions. Counsel for the defendant objected to this course as he wanted the plaintiff to close her case before the defendant opened his. In the end, I adjourned the directions hearing to 21 April 2022 to see what progress the plaintiff's lawyer was able to make in identifying the two nurses in question.
By the time of the directions hearing on 21 April 2022, the plaintiff's lawyers had gone some way towards identifying the nurses in question, but had not been able to locate or subpoena either of them. Counsel for the plaintiff confirmed that she needed to call both nurses to give evidence at the trial. After discussion with counsel, the position that was reached was that the trial would commence as scheduled, all witnesses for the plaintiff aside from the nurses would give evidence, and the trial would be adjourned part heard.
The trial commenced on 26 April 2022 and continued on 27 and 28 April 2022.
The parties had prepared a bundle of documents for the trial. It was tendered by consent.[2] In relation to the bundles the parties agreed that, unless the issue was traversed in cross-examination, I could draw any inference as to the facts that was reasonably open on the face of the document.[3] I could also rely on the written reports of the experts in this material. The parties further agreed that the reports of a number of doctors contained in the trial bundle could in effect stand as their evidence‑in‑chief.[4]
[2] And became exhibit 1 (ts 26 - ts 27, ts 30).
[3] ts 25 - ts 26, ts 29 - ts 30.
[4] ts 29.
At the first tranche of the trial, the plaintiff gave evidence. The plaintiff called three further witnesses. The first was Dr Kevin Chee. Dr Chee is an ophthalmologist who practiced with Dr Ward. At Dr Ward's request, he saw the plaintiff after the Surgery. The second was Dr Ian Chan, another ophthalmologist. Dr Chan performed the corneal transplant surgery on the plaintiff's left eye. He also performed surgery on the plaintiff's right eye to achieve the same end as in the Surgery, but using a different surgical technique. The third was Dr Steve Arshinoff, another ophthalmologist. Dr Arshinoff gave expert evidence on behalf of the plaintiff.
The second tranche of the trial took place on 17 and 18 October 2022. With the consent of the defendant, the plaintiff tendered a supplementary bundle of documents and some other medical reports.[5] The plaintiff called one further witness, Kerryn Greenham. Ms Greenham is an enrolled nurse who was working at the Hospital at the time the Surgery took place. She was one of the nurses who assisted with the Surgery. In the end, Ms Greenham did not give any evidence relevant to the determination of the issues in dispute. The plaintiff then closed her case.
[5] ts 286 - ts 287. The supplementary bundle became exhibit 4.
Because of timing and availability issues, the first witness called by the defendant was its expert, Dr Erwin Groeneveld, another ophthalmologist. By the end of 17 October counsel for the plaintiff was only part way through her cross-examination of Dr Groeneveld. At that stage it was planned to complete the taking of his evidence within the following week or so.
On 18 October the defendant called Dr Ward. Significantly for case management purposes, Dr Ward provided a description of the surgical technique he used to perform the Surgery ('extracapsular cataract surgery') that was more detailed than that identified in the Re‑Amended Defence dated 21 April 2022 ('manual small incision procedure').
At the conclusion of Dr Ward's evidence, there were two outstanding issues. The first was to complete the cross-examination of Dr Groeneveld. The second was whether counsel for the plaintiff wished to amend the statement of claim to tie it more closely to the evidence at trial.
Counsel for the plaintiff raised the concern that the plaintiff did not know the precise surgical technique used by Dr Ward in the surgery until he gave evidence. One of the consequences of this being an action against the plaintiff's former lawyer was that she was not able to interrogate Dr Ward, something that could have happened as a matter of course in the Original Action. Because of this, the plaintiff had not had the opportunity to obtain the opinion of Dr Arshinoff as to the appropriateness of the specific surgical technique used by Dr Ward.[6] The net effect was that it was necessary to again adjourn the trial.
[6] ts 472 - ts 473.
The action was listed before me for directions on 8 November 2022. In the end, I formed the view that, balancing the risks of an injustice, the appropriate course was to:
(a)allow the plaintiff to reopen her case and recall Dr Arshinoff;
(b)allow counsel for the defendant the opportunity to ask further questions of Dr Groeneveld;
(c)allow counsel for the plaintiff to complete her cross‑examination of Dr Groeneveld once (a) and (b) had occurred; and
(d)consider an application by the plaintiff to amend her statement of claim.
I made some programming orders to facilitate this outcome.
The action was then listed before me on 19 December 2022. This was primarily to consider the plaintiff's application for leave to amend her statement of claim, a proposed minute of substituted statement of claim having been filed prior to the hearing. I formed the view that there were two valid bases which would justify granting the plaintiff leave to amend her statement of claim at that late stage. The first was to tie the pleadings more accurately and clearly to the evidence adduced at trial. The second was to deal with the way the trial had progressed, in particular that the plaintiff did not become aware of Dr Ward's detailed description of the specific surgical techniques he used to perform the Surgery until he gave evidence.[7] The proposed minute of substituted statement of claim went beyond these two bases, so I made orders for the plaintiff to file a further minute.
[7] ts 500 - ts 501.
The action then came before me for directions on 6 February 2022. At this hearing, I made orders in relation to the pleadings. Pursuant to those orders, on 6 February 2023 the plaintiff filed a Substituted Statement of Claim (SSC) and on 17 February 2023 the defendant filed a Substituted Defence (SD). I subsequently granted the defendant leave to rely on an Amended Substituted Defence, in terms of a minute filed 27 February 2023 (ASD). The ASD responded to a number of paragraphs in the SSC which had not been addressed in the SD.
The third tranche of the trial took place in the week commencing 27 February 2023. The plaintiff filed another supplementary book of documents, this one containing further reports from Dr Arshinoff.[8] On that date, Dr Arshinoff gave further evidence. On 1 March 2023, Dr Groeneveld completed his evidence. On 3 March 2023 I heard closing submissions. I received written closing submissions from both counsel,[9] as well as responsive submissions from counsel for the defendant.[10]
[8] Exhibit 7.
[9] Plaintiff's Closing Submissions filed 9 March 2023; Defendant's Closing Submissions filed 7 March 2023.
[10] Defendant's Responsive Submissions filed 15 March 2023.
2.2 What is not in dispute
A number of key facts are not in dispute, which are set out in this section.[11] I find as follows.
[11] See generally SSC pars 1, 3 - 8, and 19 - 24; ASD pars 1, 3, 15 and 16.
The defendant was at all material times an Australian Legal Practitioner. As at 11 November 2013 he was a partner in the firm trading in the style 'Hoffmans'.
In November 2013 Hoffmans, and in consequence the defendant, accepted instructions from the plaintiff in relation to possible medical negligence by Dr Ward in relation to the Surgery.
On 12 December 2013 the defendant, trading as Hoffmans, commenced proceedings in the District Court by the plaintiff against Dr Ward as first defendant and the Hospital, being the Original Action.[12] It was given the number CIV 3986 of 2013. The writ in the Original Action contained the following general endorsement:
[12] See footnote 1.
The Plaintiff's claim against the First Defendant and/or Second Defendants for damages and special damages arising out of the First Defendant and/or Second Defendants' negligent provision of advice and medical services to the Plaintiff in and about 28 January 2011, such services including treatment and after care provided by the First Defendant and/or Second Defendants in relation to the Plaintiff's left eye cataract removal which took place at the Peel Health Campus. The Plaintiff will also contend that such services were also:-
1.provided to the Plaintiff in breach of contract;
2.provided to the Plaintiff in breach of the Trade Practices Act 1974 (Commonwealth);
3.provided to the Plaintiff in breach of the Fair Trading Act 1987 (WA).
AND the Plaintiff claims:-
1.damages and special damages in tort and/or contract;
2.damages pursuant to the Trade Practices Act 1974 and/or the Fair Trading Act 1987;
3.costs.
The defendant commenced trading as Connor Legal on or about 1 April 2014 and assumed conduct of the Original Action.
On 9 December 2014 the defendant, on behalf of the plaintiff, served the writ on Dr Ward's solicitors and upon the Minister for Health.
On 12 December 2014 the Original Action was placed on the District Court's Inactive Cases List.[13] The defendant did not inform the plaintiff that the Original Action was placed on the Inactive Cases List.
[13] District Court Rules 2005 (WA) (DCR) div 3, sub-div 6.
On 12 June 2015 the Original Action was dismissed having been on the Inactive Cases List for six continuous months.[14]
[14] Pursuant to DCR r 44G. See generally: Rowe v Stoltze[2013] WASCA 92.
On 17 November 2015 the defendant advised the plaintiff that he was not able to reinstate the Original Action, that he had to withdraw from being her lawyer and that she would have to seek alternative legal advice.
A subsequent application by the plaintiff's current lawyers to reinstate the Original Action was unsuccessful.
It is not in issue that the defendant owed the plaintiff a duty to act with reasonable skill and care, and I so find.
It is not in issue that the Original Action was placed on the Inactive Cases List and subsequently dismissed as a result of the defendant's negligence. One particular of negligence is that the defendant 'failed to properly name the second defendant or otherwise to separate out and identify the correct defendant or defendants so that service could be perfected against one or more of them'.[15] The defendant does not admit that the defendant was negligent in this regard, and says that, if he was, it did not give rise to any loss on the part of the plaintiff.[16] It is not necessary for me to deal with this issue in order to determine the issues in dispute in the current action.
[15] SSC, par 25, particular (d).
[16] SD, pars 14, 15.
It is sufficient for me to find that the defendant was negligent as set out in SSC par 25, particulars (a), (b), (c) and (e), in that he:
(a)failed to file a Notice of Change of Solicitor to ensure court notices reached him;
(b)failed to appreciate that the Original Action would be placed on the Inactive Cases List when no documents are filed for 12 months pursuant to DCR r 44A;
(c)failed to bring an application for the Original Action to be taken off the Inactive Cases List pursuant to DCR r 44F before it was dismissed; and
(d)failed to investigate and progress the plaintiff's claim adequately, or at all.
2.3 Issues arising for determination
In the end, there were essentially four causes of action relied on by the plaintiff in relation to the Surgery that she asserts she would have pursued in the Original Action against Dr Ward, being that:
(a)Dr Ward failed to give the plaintiff appropriate advice as to the surgical options for, and disclosure of the risks involved in, the Surgery, which would have led her to have pursued a different course of action, which would have ultimately avoided her left cornea being dysfunctional to the point of requiring a transplant (Failure to Warn Claim);
(b)Dr Ward was negligent in the choice of surgical techniques used to perform the Surgery, and that different types of surgical techniques would have avoided her left cornea being dysfunctional to the point of requiring a transplant (Choice of Technique Claim);
(c)Dr Ward was negligent in the manner in which he carried out the Surgery (Conduct of Surgery Claim); and
(d)the court can infer, using the principle of res ipsa loquitur, from the fact that the plaintiff's cornea was dysfunctional to the point of requiring a transplant after the Surgery, that the Surgery was carried out negligently (Res Ipsa Loquitur Claim).
The Original Action was against both Dr Ward and the Hospital, being where the surgery was performed. This is reiterated in the SSC.[17] The trial was contested, at least on my understanding, on the basis that the plaintiff's claim was strongest against Dr Ward directly, and that there was no need to consider the claim against the Hospital.[18] For example, there was no suggestion that a successful claim against Dr Ward would not have been able to be recovered from his insurer.[19]
[17] SSC, par 17.
[18] ts 719 - ts 720.
[19] Which in some cases may be a contingency which would ordinarily be taken into account: Falkingham v Hoffmans (a firm) [2014] WASCA 140 [44] (Pullin & Murphy JJA) (Falkingham).
However, in closing submissions,[20] counsel for the plaintiff asserted that the claim against the Hospital for a breach of a non‑delegable duty of care was the plaintiff's strongest case (the Hospital Claim).[21]
[20] Plaintiff's Closing Submissions, pars 2 to 18.
[21] See footnote 1.
The Original Action is also expressed to be based in tort, contract and breach of consumer protection legislation (see [24] above). Both counsel accepted that the plaintiff's claim against Dr Ward was strongest in tort, and that if she was not entitled to any damages in tort, she would not be entitled to any damages on any other basis. Accordingly, it is only necessary for me to determine the value of the plaintiff's lost opportunity to pursue her claims in tort against Dr Ward and the Hospital.[22]
[22] ts 719 - ts 720.
I am conscious that the case I have to determine is not whether Dr Ward and/or the Hospital were negligent as if the Original Action had been taken to a notional trial.[23] Rather, the issue is whether the plaintiff has suffered any loss by reason of the defendant's negligence and, if so, what value is to be placed on that loss. She is not to be compensated as if her claim against the defendant was a claim for damages for personal injuries.[24]
[23] Falkingham [222] (Buss JA).
[24] Falkingham [223].
At a general level, a plaintiff who proves a breach of a duty of care by her solicitors must prove on the balance of probabilities that she has suffered some loss or damage in that the cause of action had some value, and that the loss or damage was caused by the negligence of the solicitors.[25] More specifically, the court must consider three issues:
[25] Falkingham [38] (Pullin & Murphy JJA), [216].
(a)the amount of damages that would have been awarded by the court had the Original Action gone to trial and been wholly successful;[26]
[26] Falkingham [226], [298].
(b)the value of the plaintiff's lost opportunity to pursue the Original Action to trial or earlier valuable settlement, which is usually expressed as a percentage discount to the amount in (a);[27] and
[27] Falkingham [39], [237].
(c)whether the plaintiff would have litigated the Original Action to trial or earlier valuable settlement.[28]
[28] Falkingham [40].
In undertaking the analysis in (b), it is necessary to examine each of the causes of action relied on by the plaintiff which she says she would have pursued to trial in the Original Action.
It is instructive to start with a summary of the evidence relating to the anatomy of the eye (Part 3). The overall chronology of events is largely not in dispute (Part 4), nor are the relevant legal principles (Part 5). I then consider the expert evidence led at trial in general terms, as this is ultimately what the case turned on (Part 6). Against this background, there are seven issues arise for determination:[29]
[29] See generally: Falkingham [40].
•What amount of damages would have been awarded by the court had the Original Action gone to trial and been wholly successful?
•What is the value of the plaintiff's lost opportunity to pursue the Choice of Technique Claim?
•What is the value of the plaintiff's lost opportunity to pursue the Conduct of Surgery Claim?
•What is the value of the plaintiff's lost opportunity to pursue the Failure to Warn Claim?
•What is the value of the plaintiff's lost opportunity to pursue the Res Ipsa Loquitur Claim?
•What is the value of the plaintiff's lost opportunity to pursue the Hospital Claim?
•Would the plaintiff have litigated the Original Action to trial or earlier valuable settlement?
These issues are dealt with in Parts 7 to 13. Although from a chronological perspective it would make sense to deal with the Failure to Warn Clam before the Choice of Technique Claim, in this case it is appropriate to reverse this order. This is because it is necessary to consider the surgical techniques involved in some detail in order to address the allegations made in the Failure to Warn Claim.
The anatomy of the eye
In order to understand the complex medical evidence led in this case, it is instructive to summarise the evidence led at trial as to the anatomy of the eye.
Exhibit 3 is a diagram showing the cross-section of an eye.
The cornea is the clear window at the front of the eye. It is a clear, convex structure. One function of the cornea is as a focussing lens. Two-thirds of the power that is required to focus light on the back of the eye comes from the cornea. The other third comes from the lens inside the eye, the intraocular lens.[30]
[30] ts 183, ts 193 (Chee); ts 320 (Groeneveld); ts 402 (Ward).
The colour of the eye is the iris. In the centre of the iris is the pupil.[31]
[31] ts 320 (Groeneveld).
The structure between the cornea and the iris is the anterior chamber.[32]
[32] ts 191 (Chee); ts 383 (Ward).
Behind the iris is the natural lens. The natural lens is contained in a 'capsular bag'. The contents of the capsular bag comprise the nucleus of the lens.[33] One dysfunction which may occur to the natural lens is that it becomes opaque, which is termed a 'cataract'.[34]
[33] ts 329 - ts 330 (Groeneveld).
[34] ts 370 (Groeneveld).
The cornea has several layers. The innermost layer of cells at the back of the cornea is the endothelium, which comprises the endothelial cells. This is a single layer of cells. They are 'basically the pump of the cornea'. There is fluid inside the eye and the cornea tends to take in some of this fluid. The function of the endothelial cells is to keep excess fluid out of the cornea so that it is kept at the optimal level of hydration. This enables it to maintain its anatomy and function properly as a focussing lens.[35]
[35] ts 193 (Chee); ts 205 (Chan); ts 320 (Groeneveld); ts 398 - ts 399 (Ward).
The number of endothelial cells in the eye is fixed. They gradually decrease in number with age. If they are lost, they do not regenerate like other cells do. They can also be damaged or become diseased. As the number of endothelial cells decreases, there comes a threshold at which the remaining cells are insufficient to keep the cornea at the optimal level of hydration. They cease to perform their function of removing excess fluid from the cornea.[36]
[36] ts 187, ts 193, ts 195 - ts 196 (Chee); ts 205 (Chan); ts 320 (Groeneveld).
The number of endothelial cells can be measured to determine the cell density count. The unit of measurement is the number of cells per square millimetre. There is a threshold number of cells at which the cornea starts to lose function being between 500 and 1,000 cells per square millimetre. It varies from person to person and eye to eye. A healthy corneal endothelium will have about 2,000 to 3,000 cells per square millimetre, so will have 'quite a lot of in-built redundant capacity'.[37]
[37] ts 205 (Chan); ts 321, ts 343 (Groeneveld).
If the endothelial cells are not functioning effectively excess fluid will be retained in the cornea and it will swell. There are different degrees of swelling of the cornea. The swelling can be quite subtle and not actually effect the patient at all.[38]
[38] ts 193 (Chee).
When the fluid levels in the cornea are persistently higher than normal, the cornea will swell, which is referred to as 'corneal oedema' or 'oedematous'. This is an indicator that the endothelial cells are not functioning properly. This will start to impact both vision and comfort, and if it is bad enough, cause pain.[39]
[39] ts 183, ts 187, ts 188, ts 193 (Chee); ts 205 (Chan); ts 397, ts 421 - ts 423 (Ward).
The presence of excess fluid in the cornea can cause folds or creases on the surface of the cornea, something referred to as 'striae'.[40] This is a sign of corneal stress.[41]
[40] ts 385 (Ward).
[41] ts 385, ts 417 (Ward).
Another type of corneal swelling is 'bullous keratopathy'. This occurs where the cornea has swollen to the extent that little bubbles or blisters form on the surface of the cornea. This is caused by excess fluid being retained in the cornea. It is a more severe manifestation of corneal oedema. It implies that the layer of endothelial cells has depleted enough to be a problem.[42] That is, it is an indicator that the endothelial cells are not effectively performing their function of removing excess water from the cornea to the anterior chamber.[43]
[42] ts 187 - ts 188, ts 190, ts 192 (Chee); ts 205 (Chan).
[43] ts 192 (Chee).
One measurement which ophthalmologists will routinely use to determine the health of the eye is intraocular pressure. High pressure is of concern as it can result in damage to the optic nerve.[44]
[44] ts 190 (Chee); ts 326 (Groeneveld).
There was evidence about two different types of artificial lenses which can be surgically inserted into the eye.
The first is an anterior chamber intraocular lens. This type of lens sits in front of the pupil and close to the back surface of the cornea.[45]
[45] ts 187, ts 191 (Chee).
The second is a posterior chamber intraocular lens. This is a lens which is placed into the capsular bag, replacing the natural lens. When a natural lens has a cataract, one surgical response is to remove the nucleus of the cataract and replace it with a posterior chamber intraocular lens.[46]
[46] For example: ts 407, ts 414 (Ward).
Chronology of events
4.1 Overview
There is only one real primary factual dispute in the present action. This is the extent, if any, of the warnings which Dr Ward gave to the plaintiff before carrying out the Surgery. I deal with this issue in Part 10. Other than this, the overall chronology of events is not in dispute.
It is instructive to analyse the overall chronology under the following headings:
•Events up to 2009.
•Events from the beginning of 2010 to the Surgery.
•Events up to and including the Surgery on 28 January 2011.
•Events post the Surgery until the end of 2011.
•2012 eye surgery by Dr Chan.
•Medical treatment from 2013 onwards.
•Engagement with Maurice Blackburn - September 2012 to October 2013.
•Engagement with the defendant - November 2013 to November 2015.
I find the facts as set out in this part proven on the balance of probabilities. They are based on the unchallenged evidence of the witnesses and the medical records in evidence. In particular, aside from the issue of warnings, the evidence of Dr Ward as to what occurred was not challenged in cross-examination. Otherwise, his evidence was entirely consistent with the medical records, and I accept it.
To the extent required, I also find that these findings would in all probability have been made by the court at a notional trial of the Original Action.
4.2 Events up to 2009
The plaintiff was born in 1960, and so was around the age of 51 when the Surgery took place in 2011 and around the age of 62 by the time of the trial.[47]
[47] ts 72 (Veitch).
In 1994 the plaintiff was involved in a motor vehicle accident in which she sustained severe injuries, including to her head. One of the long‑term consequences of the injuries she sustained was problems with her eyesight.[48]
[48] ts 72 - ts 73 (Veitch); ts 401 (Ward); Exhibit 1, page 9.
The earliest attendance by the plaintiff on Dr Ward in the materials before the court was in May 2004, though there is a suggestion that she had previously been seen by him.[49] The May 2004 attendance was on referral from her general practitioner.[50] At that time, the plaintiff was having trouble reading fine print, but her eyesight was otherwise okay. She was prescribed glasses for reading, which she obtained and used.[51]
[49] See exhibit 1, page 56. Also ts 401 (Ward).
[50] ts 380 (Ward); Exhibit 1, pages 6, 7.
[51] ts 78, ts 127 - ts 130 (Veitch).
The plaintiff saw Dr Ward again on a number of occasions between May and July 2006. These consultations preceded surgery on 4 August 2006 in which the defendant implanted a 'Verisyse lens' in each of the plaintiff's eyes. They are a brand of anterior chamber intraocular lens. A Verisyse lens can be used to correct myopia (short sightedness) and hyperopia (long sightedness) in people who still have a natural lens. The lenses are clipped to the front of the iris, in front of the natural lens, and thereby correct the vision. The plaintiff was happy with her vision after the operation and regarded it as being successful.[52]
[52] ts 78 - ts 80, ts 131 - ts 134 (Veitch); ts 380 - ts 382, ts 403 - ts 404, ts 414 (Ward); Exhibit 1, pages 5, 6.
The plaintiff then saw Dr Ward on 10 more occasions in 2006.
The plaintiff saw Dr Ward on 16 May 2007. On that occasion, the plaintiff's vision was excellent in both eyes, the cornea looked fine and her eyes were otherwise normal.[53]
[53] ts 382 (Ward); Exhibit 1, page 4.
The plaintiff saw Dr Ward on 20 May 2008. On that occasion, the plaintiff had no complaints about her eyes, her vision was excellent, and her eyes were normal and in good health.[54]
[54] ts 382, ts 410 (Ward); Exhibit 1, pages 4, 10.
The plaintiff next saw Dr Ward on 29 July 2009. The plaintiff was then seeing very well and no abnormalities were noted.[55] Dr Ward reported to the plaintiff's general practitioner in the following terms:[56]
[55] ts 383 (Ward); Exhibit 1, pages 4 and 10.
[56] ts 410; Exhibit 1, page 13.
Thanks for asking me to see Julia who had some iris clip lenses by myself about 3 years ago to correct her hyperopia. I like to see her once a year to check on her eyes.
She is getting along very well and is happy with her vision which remains 6/4 right and left. The corneas are clear, the lenses are in good position, and her pressures are normal. The underlying discs and fundi also look ok. There is a little bit of pigment on the lens on the left but I think everything is ok and it seems quite stable.
I would like to see her again in another year …
When giving evidence, the plaintiff could not recall visiting Dr Ward between the 2006 surgery and when she saw him about the trouble she was having with her left eye. However, she did accept the accuracy of the medical records.[57]
[57] ts 134 - ts 137 (Veitch).
4.3 Events from the beginning of 2010 to the Surgery
The plaintiff next saw Dr Ward on 13 December 2010. The note in the file made by Dr Ward states:[58]
[58] Exhibit 1, page 3.
Complainant History
feels vision dropping off L VAR6/4 VAL6/18 C ok shallow AC iop 8/8 cat L R better
The plaintiff had gone to see Dr Ward because she felt that her vision was dropping in her left eye. This was confirmed by Dr Ward on examination. The plaintiff's vision in the left eye was just below the vision needed to drive. Dr Ward found that a cataract had formed behind the Verisyse lens in the natural lens. The cataract was pushing the iris, and in turn the Verisyse lens, forward. The pressure in the anterior chamber was then okay. The plaintiff's cornea was checked by Dr Ward and it was 'okay', something the plaintiff was told. The plaintiff did not have any problems with her right eye at that time.[59]
[59] ts 80 - ts 81, ts 137 (Veitch); ts 383, ts 412 - ts 414 (Ward).
Dr Ward formed the view that it would be necessary early in the new year (2011) to remove the Verisyse lens and cataract, and put in a posterior chamber lens.[60]
[60] ts 383, ts 412 - ts 414 (Ward).
The plaintiff recalls Dr Ward saying that she would need to have surgery to remove the cataract, but does not recall being told that in order to do so he would also have to remove the lenses he had put in, in 2006.[61]
[61] ts 138 (Veitch).
Dr Ward reported to the plaintiff's general practitioner by letter dated 13 December 2010, in the following terms:[62]
[62] Exhibit 1, page 14.
Thanks for asking me to see Julia who has noticed the vision dropping in her left eye. She is still 6/4 in the right eye but has dropped to 6/18 in the left eye. This is due to cataract which has formed behind the Verisyse lens. The rest of the examination showed clear corneas, pressures of 8 bilaterally, and the underlying discs and fundi are healthy.
I am going to remove the Verisyse lens and the cataract and put in a posterior chamber lens early next year. I will let you know how she goes …
As I foreshadowed, there is a dispute in the evidence as to what, if any, warnings Dr Ward gave the plaintiff at the consultation on 13 December 2011 about the proposed surgery. I will return to this evidence in Part 10.
4.4 Events up to and including the Surgery on 28 January 2011
The plaintiff saw Dr Ward next on 19 January 2001.[63] There are no clinical notes for this date, and it appears to have been purely administrative. This is because there is in evidence a letter of this date from Dr Ward's secretary to the plaintiff setting out the arrangements for the surgery.[64] Dr Ward described this as a proforma letter.[65]
[63] Exhibit 1, page 3.
[64] Exhibit 1, page 210.
[65] ts 386 (Ward).
The plaintiff saw Dr Ward on 24 January 2011. The note in the file made by Dr Ward states:[66]
[66] Exhibit 1, page 3.
Complainant History
For L cat/iol striate iol ok iop 34 see wed
Dr Ward explained that by the time of this visit, the plaintiff's left eye had deteriorated, and he observed signs of corneal distress. In his words:[67]
[67] ts 383 - ts 386 (Ward).
BOURHILL, MR: Can you just tell us what the note there records?---Yes. That - this - I would have arranged for a consultation before the surgery just to see what the situation was after Christmas and basically, what I found is that the situation had deteriorated a lot. When I had seen Julia before Christmas, the pressures were normal; the cornea looked fine. When I saw her on this date, there was evidence that the cornea was under stress; there was some folds in the cornea which are called striae, which are usually a sign of - of corneal stress and the pressure was much higher. It had been about 8 in December and the normal range is sort of 8 to about 18 and she had a pressure of 34. So the pressure was much higher and a - a dangerous level, basically.
And what's the - well, what could be the consequence of that?---Well, high - high pressure in an eye over a period, and the period depends - it varies on how old you are, how well you are, how high the pressure is, but a pressure of this level over time will basically destroy your optic nerve.
And what's the solution to that?---Well, the only solution is you have to get the pressure down. You can try drops, but in this situation, because everything was getting pushed forward, the only solution really would be to remove the lens and the cataract and make room in the eye so that the pressure could drop.
In cross-examination he described the situation as becoming urgent:[68]
[68] ts 415, also ts 422 - ts 423 (Ward).
SORGIOVANNI, MS: Well, I think he's said that the intraocular pressure was rising and that that was evidence that the cornea was decompensating, and arguably decompensating rapidly between 13 December and 24 January?---Yes.
Is that… the effect of your evidence?---Basically, when … I saw her before Christmas … in mid‑December, the cataract was present. It was pushing things forward but the pressure was still okay. I sort of decided then that we really needed to get the lens out and the cataract out before things became too crowded, but the Christmas period intervened and the theatres were closed, so we couldn't get to it straight away and by the time I saw her again in January, the pressure had increased a lot, to a dangerous level, and the cornea was starting to look cloudy because fluid was being forced in by the pressure. So the … situation was becoming much more urgent by that stage.
GETHING DCJ: And - and do I understand that to be that - that what's happened in the eye to cause the pressure is the growing cataract?---The - as - as the cataract was forming, as - the same thing happens with a cataract. The - the lenses are also kept dehydrated by the cells around them - - -
Yes?--- - - -and if you start to get a cataract - not in everybody, but in a lot of people, as the fluid goes into the cataract and it becomes worse, it actually gets bigger and pushes things forward.
Okay?---That's what was happening; it was crowding up the drainage system.
In cross-examination, Dr Ward also provided a more detailed explanation as to the issue he observed with the plaintiff's left cornea:[69]
[69] ts 417, also ts 422 - ts 423 (Ward).
SORGIOVANNI, MS: So is there any evidence in the note of 24 January that the - that the cornea had become cloudy? Because that's not recorded either, is it?---24 January?
Yes?---It said 'striate.' That - that means that there are folds in the cornea. It shows signs of corneal distress.
I see. And if there are striate, what does that - what does that translate to in terms of, for example, the thickness of the cornea?---When you - if you get somebody that - they start to get striate lines in the cornea -they're just basically lines; your cornea should be completely smooth - it's a sign that, you know, you're getting fluid pushed into your cornea and that the vision is starting to get hazy because it's no longer crystal clear. There are a variety of reasons why you can get striate. It can - you can get it with very high pressure in the eye because fluid's being forced into the cornea. You can also get it if you haven't got enough endothelial cells.
At the appointment of 24 January 2011, Dr Ward also took some measurements of the plaintiff's left eye in order to determine the appropriate lens to insert once the natural lens affected by the cataract was removed. He described the lens as being very strong.[70]
[70] ts 389 (Ward); Exhibit 1, page 213.
Dr Ward then signed a two‑page form entitled 'Patient Consent to Treatment and Investigation', in which he described the operation as being a 'left cataract extraction and lens implant'.[71] I return to the detail of this form in section 10.2.
[71] ts 389 - ts 390 (Ward); Exhibit 1, pages 258 - 259.
The plaintiff did not recall a consultation with Dr Ward a couple of days prior to the Surgery, though accepted that this may have occurred.[72]
[72] ts 139 - ts 142 (Veitch).
The plaintiff did not recall Dr Ward telling her that the intraocular pressure in her left eye had increased significantly since her consultation in December. She could not recall Dr Ward telling her that with the build‑up of pressure, she would lose sight in her left eye if she did not have the surgery.[73]
[73] ts 144 - ts 146 (Veitch).
The plaintiff could not recall signing the 'Patient Consent to Treatment and Investigation' form, though accepted that her signature appeared on it.[74]
[74] ts 139 - ts 142 (Veitch).
There is again a dispute in the evidence as to what, if any, warnings Dr Ward gave the plaintiff at the consultation on 24 January 2011 about the proposed operation. I will return to this evidence in Part 10.
Dr Ward carried out the Surgery on 28 January 2011. He described the precise procedure which he carried out in some detail when giving evidence. Although, he did say that he had a very vague recollection of the actual operation:[75]
[75] ts 392 (Ward).
I remember that it was ‑ the main ‑ the - I do remember the main problem is that everything was very crowded together and that I was trying to use as much viscoelastic as possible and try and minimise the trauma cos I was aware that it was quite risky.
In terms of the detail, Dr Ward explained what was written in his surgery notes in the following terms:[76]
[76] Exhibit 1, pages 268 - 269; ts 393 - ts 395 (Ward).
So basically, I've put removal ‑ basically, removal of the left old anterior chamber lens which was the Verisyse lens. And then this was followed by a left cataract extraction. The first thing, corneal section, means that I've ‑ actually, the ‑ the top is what I'm going to do and then what I actually did was corneal section which is opening up the cornea about seven or eight millimetres, removing a lens, which I haven't mentioned, except above. Capsulotomy which is opening the surface of the cataract, the ‑ the cataract's in the natural bag and you have to make an incision in the bag, which is very thin, so that you can get access to the cataract. And then extracapsular extraction, I would have loosened the lens and then I would have pressed on the back of the eye so that the natural lens basically tilted up and came out through the … incision. After I'd done that, I would have put a couple of sutures in to close the cornea, temporarily, reinflated the anterior chamber with … fluid and then aspirated the remnants of the cataract. The 'ASP' refers to aspiration of the remnants of the cataract. And then I inserted the intraocular lens in the posterior chamber and closed the wound …
Just in - in terms of that procedure you've just described, can you take us through, in maybe a little more detail, what you do and what you use to do it? So each step of the procedure and what, … pieces of equipment or … ‑ ‑ ‑ other product you use?‑‑‑So firstly, I would have made a ‑ two side incisions with a 45 degree knife, in the, sort of, 3 o'clock and 9 o'clock position. That's to give you access to aspirate the remnants of the … cataract and also to be able to inject viscoelastics. I then would have made an incision from about 2 o'clock, round to about 10 o'clock, at the top of the eye and would have injected viscoelastics in front of … the Verisyse lens, then finished opening up the incision. Then I would have grabbed the Verisyse lens, disinserted it. It ‑ it's held on to the iris by little … clips which you basically … you can push the iris out of those and then that would free it up and I would have slid it out of the eye. Then I would have put a couple of sutures on either side to partially close the wound so that it was reasonably watertight so I could reinflate the anterior chamber. I would have inserted more viscoelastic. Then, using a … bent needle … you get a needle and you bend it so it's got a hook on the end of it ‑ I would have then made an incision in the anterior capsule and - you make an incision, then you (inaudible) it around so that you've got a ‑ basically, a circle. And that gives you access to the cataract underneath. I would have then used the same needle to rock the cataract and loosen it, which is what you do with extracapsular cataract extractions. I would have loosened off the sutures and then I would have used the squint hook to press on the back of the eye which would ‑ and at the same time, you push on the front of the eye and that ‑ and the cataract basically comes up like that and then slides out of the eye. Then I would have tightened the sutures up again, reinflated the anterior chamber and then aspirated the remnants of the cataract with a thing called a Simcoe … which is basically, you … hold it in one hand and it's … attached to a syringe on the other hand and you can control suction and take the remnants of the cataract out. Once I got all the remnants of the cataract out, I would have put more viscoelastic in and then put the next lens in the posterior chamber. Once that was in there, I would have then tied the sutures off, put ‑ probably put another suture in. So there'll probably be three or four sutures around the top. And then I would have aspirated the viscoelastic because, if you leave it in the eye, it will push the pressure up. And at that stage, you put a drug called Myostat in which holds the pressure down and also brings the pupil down. And then, at the end of the operation, there's an injection of antibiotic called cefazolin into the eye.
The surgical technique used by Dr Ward is referred to as 'extracapsular cataract extraction' (referred to as 'ECCE' in the SSC).[77]
[77] See generally: ts 545 - ts 546 (Arshinoff).
At this point in the chronology, it is instructive to interpose an explanation of one of the terms used by Dr Ward when describing the Surgery, one which is significant to the determination of the issues in dispute. The term is a 'viscoelastic'. A 'viscoelastic' was described by Dr Chan as 'a transparent jelly that we use to fill up the cornea'.[78] Or in Dr Groeneveld's words 'a goo-like jelly'.[79] The brand of viscoelastic used by Dr Ward was 'Healon GV'.[80] He described it in the following terms:[81]
[78] ts 224 - ts 225 (Chan).
[79] ts 345 (Groeneveld).
[80] ts 395 (Ward).
[81] ts 395 (Ward).
It was a fairly standard viscoelastic; it's just basically … it's got the consistency of honey and it holds things apart so that you've got room … to move around the eye and it also protects the endothelium, which is the back surface of the cornea.
Viscoelastics are also referred to as 'ocular viscoelastic devices', an 'OVD'. I return to the significance of Dr Ward's approach to the use of viscoelastics in sections 8.4 and 8.5.
Dr Ward repeated the description at [90] in cross-examination.[82] It was not put to Dr Ward in cross-examination that he did not carry out the Surgery in the manner he described. I accept on the balance of probabilities that he carried out the Surgery in the manner he described. I also find that the court at a notional trial of the Original Action would have made the same finding, there being no evidence to the contrary.
[82] ts 436 - ts 438 (Ward).
As to the aftermath of the procedure, Dr Ward thought that the procedure went smoothly but was concerned:[83]
[83] ts 396 - ts 397 (Ward).
And what can you tell us about the aftermath of the - this procedure? Do you have any recollection of that or from looking at the notes can you tell us what - what happened from then on?---Yes. Yes. My … recollection is that … I thought the procedure went relatively smoothly … I was concerned. It was a difficult situation and it was reasonably high risk, but I felt it went okay. I was hopeful that it would all settle down okay. I'm just trying - - -
Sorry. Just before you go on. In performing the procedure, can you tell us what - I mean obviously, other than getting it done, can you tell us what your main concern is?---Yes. [M]y … main concern at the time was that (a) the pressure was intolerably high. If we left … the pressure for too long, she was going to get serious damage and permanent damage to her optic nerve. The second thing was because there wasn't a lot of room to manoeuvre, there was a danger to the cornea because the endothelial cells on the back of the cornea were probably already being compromised because there was already fluid being pushed into the cornea. There was not a lot of room to move and there's always trauma. You always lose endothelial cells, even in absolutely straightforward, run of the mill cataract surgery; you always lose endothelial cells. In this situation, you were likely to lose more, but it was basically unavoidable. It just had to be done.
Is there anything in particular you do during a procedure to try and avoid causing unnecessary damage?---Yes. … the main thing you do is you use lots of viscoelastics and try and - try to coat the back surface of the cornea and the other thing to do is to try and keep away from the endothelium as much as you can, which is one of the reasons why you wouldn't use phacoemulsification, because with the turbulence with phacoemulsification being that close to the cornea, you're almost certain to get damage.
4.5 Events post the Surgery until the end of 2011
After the Surgery, the plaintiff saw Dr Ward on 2 February, 9 February, 23 February, 15 March and 18 April.[84] During this period, the plaintiff's left eye was painful, swollen, red and irritated. Dr Ward gave the plaintiff some drops to use.[85] Dr Ward's initial impression was that things were settling down after the Surgery and that the plaintiff's vision started to recover. However, he had concerns, which led him to schedule follow up consultations more frequently than normal. Over this time, the cornea never completely cleared. By April it was 'obvious' to Dr Ward that the cornea was starting to swell and would not become clear.[86]
[84] Exhibit 1, pages 2 and 3.
[85] ts 82 - ts 83 (Veitch).
[86] ts 397, ts 462 (Ward).
At this time, Dr Ward wanted a second opinion from his colleague Dr Chee as 'he's quite good with corneas'.[87] Dr Ward wrote to Dr Chee by letter dated 18 April 2011. The substance of that letter reads:[88]
[87] ts 397, also ts 421 - ts 423 (Ward); also ts 84 (Veitch).
[88] ts 397, ts 399 (Ward); Exhibit 1, page 15.
Thank you very much for seeing Julia who is a bit of a problem. I put Verisyse lenses in her eyes in August 2006 to correct her hyperopia. She had relatively shallow AC's and although she fitted the criteria these days I don't think I would try and put them in. Nevertheless she developed a cataract on the left eye and with the swelling it pushed the Verisyse lens quite a long way forward. I removed the lens and cataract and put in a posterior chamber lens but her cornea I think was quite oedematous from the whole thing and is not settling down very well.
I would very much value your opinion as to what, if anything, we can do now with this chronic oedema of the cornea, particularly as the right eye looks like it is heading the same way …
As I have already noted ([53]), the term 'oedematous' refers to swelling of the cornea.
The appointment on 18 April 2011 was the last time Dr Ward saw the plaintiff.[89]
[89] ts 421 - ts 422 (Ward).
Dr Chee saw the plaintiff on 14 June 2011. Dr Chee's notes record the plaintiff's then recent history as regards her eye issues, including the Surgery. Dr Chee noted that the plaintiff presented with persistent left corneal oedema, and that she was off all drops. On examination, he observed that the left cornea was swollen.[90] He concluded:[91]
[90] ts 182 - ts 184, ts 190 (Chee); Exhibit 1, page 2.
[91] ts 184, also ts 186, ts 196 (Chee).
[M]y impression was that the cornea would not heal up spontaneously because it had been five months you know post-surgery. And I felt that she would be best served by having a type of corneal graft replacing the back surface which has been you know damaged so that she should hopefully regain some vision back.
For this reason, he referred the plaintiff on to Dr Chan. He had a discussion to this effect with the plaintiff.[92]
[92] ts 85 - ts 86 (Veitch); ts 185, ts 198, ts 199 (Chan).
Dr Chee reported back to Dr Ward by letter dated 14 June 2011 in the following terms:[93]
[93] Exhibit 1, page 16.
Diagnosis:
•Bilateral Verisyse anterior chamber IOL implants August 2006
•Left removal of Verisyse lens + cataract surgery + PC IOL January 2011
•Persistent left corneal oedema
•Mild left posterior capsular opacification
Treatment
•Onward referral to Dr Ian Chan for consideration of endothelial keratoplasty
Thank you for asking me to see Julia who is obviously well known to yourself.
She tells me that the vision in her left eye has not really settled since her surgery earlier this year. Her vision today is right 6/9 and left 6/30 uncorrected. There is quite marked bullous keratopathy involving the left superior cornea. The anterior chamber is quiet and the IOP is 14. She does have mild PCO on this side as well. I could not get a good look into her fundus today.
I think the left eye is unlikely to settle using conservative measures, given that she is now 5 months post operative. I note that you have previously treated her with steroid drops but these do not appear to have made any difference. We discussed hypertonic saline but the outcome from that is likely to be very modest at best, plus they are not readily available in Mandurah.
Treating the PCO with yag laser might make a small difference to her vision, but I suspect that she will remain disappointed given the underlying corneal oedema. I think that she would be best served by having an endothelial keratoplasty and I have taken the liberty of referring her onwards to Ian Chan for his opinion regarding this. I am currently unable to provide the surgery through Peel Health Campus and am not yet able to do this through Fremantle Hospital …
As noted ([55]), 'bullous keratoplasty' is a type of corneal swelling in which little bubbles are formed on the surface of the cornea because of the excess fluid.
Dr Chee also wrote a referral letter to Dr Chan, dated 14 June 2011, which was in the following terms:[94]
[94] Exhibit 1, pages 17, 94; ts 195 - ts 196, ts 199 - ts 200 (Chee). I have corrected a typo identified by Dr Chee in the third paragraph: ts 202.
I would be most grateful if you could see Miss Julia Veitch for possible left endothelial keratoplasty.
She has had a bilateral Verisyse anterior chamber IOLs implanted by Bill Ward in August 2006. She subsequently developed a cataract in the left eye and this pushed the left IOL quite far forward. In January this year, Bill removed the Verisyse lens, removed the cataract and put in a posterior chamber IOL. Her left cornea has been oedematous since. She has been tried on topical steroid eye drops but these have not made any difference. I have been asked to see her for an opinion.
Clinically, she has quite marked left bullous keratopathy involving the superior corneas. The eye itself is quiet with a normal intraocular pressure. Her vision is right 6/9 and left 6/30. There is mild left posterior capsular opacification but I do not think that a YAG laser will make a significant difference to her vision.
I think that she needs an endothelial keratoplasty and would value your opinion regarding this. She is not on any medication presently …
Dr Chee explained that an 'endothelial keratoplasty' is a form of corneal transplantation where only the damaged parts of the cornea are replaced rather that replacing the entire cornea.[95]
[95] ts 196 (Chee). Also ts 205 (Chan).
The plaintiff then saw Dr Chee on 1 September 2011, and then again on four occasions in 2012 and three occasions in 2013.[96] It is not necessary for me to go into any detail as to these consultations.
[96] Exhibit 1, page 1.
The plaintiff first saw Dr Chan on 13 July 2011.[97] There was then a second consultation on 26 August 2011. The outcome of these consultations is summarised in his letter of 26 August 2011 reporting to Dr Chee:[98]
[97] Exhibit 1, pages 97 - 98.
[98] Exhibit 1, pages 23, 101; ts 207 - ts 212 (Chan).
Thank you for referring Julia who had bilateral various size phakic intraocular lens inserted several years ago for hyperopic correction. She had left cataract extraction several months ago. As you have noted, she has endothelial failure in the left cornea, especially in the superior aspect. Her central corneal thickness in the left eye measures between 750 to 800 micros. I have given her a trial of hypertonic saline to see if her vision would improve. She has not noticed any significant improvement in her vision with this treatment. I have therefore offered her a Descemet's stripping endothelial keratoplasty. We have discussed the pros and cons of this procedure extensively, especially regarding the possible risk of rejection and graft failure. She also realized that this procedure would improve her vision, it would not restore it completely to its previous stage.
Of another concern is that her right central corneal thickness measure 690 today. The right phakic intraocular lens is also rather close to the posterior corneal surface and she is also developing a cataract in the right eye. She still has 6/7.5 unaided vision in this eye. I am currently referring her to have an endothelial cell count in the right eye. If the cell count is within normal level, we will continue to only keep the right eye under observation …
Dr Chan explained that 'Descemet's stripping endothelial keratoplasty' is a form of corneal transplantation.[99] When giving evidence he added that he needed to exhaust all avenues of conservative treatment before committing to something like a corneal transplantation procedure.[100]
[99] ts 218 - ts 219 (Chan).
[100] ts 210 (Chan).
The plaintiff's evidence of her consultation with Dr Chan is to the same effect, though less detailed. By this time, the vision in her left eye was really blurred, and it was still swollen and sore. Dr Chan told her that she would have to receive a graft from a deceased person, and that sometimes the graft fails. She was also told that they only last for a certain amount of years, possibly 10, maybe 20. Dr Chan also informed her that she had a cataract forming in her right eye, which he would need to fix.[101]
[101] ts 89 - ts 90, ts 92 (Veitch).
4.6 2012 eye surgery by Dr Chan
Having made the decision to do a corneal transplant on the plaintiff's left eye, Dr Chan placed the plaintiff on the donor waitlist, and waited for a suitable donor to become available.[102] The surgery did not take place until 2 May 2012.[103] The plaintiff gave evidence about her conversations with Dr Chan preceding the surgery,[104] though this is not material to the determination of the issues in dispute. Dr Chan described the transplant surgery in some detail when giving evidence, but, again, this is not material to the determination of the issues in dispute.[105] The position was summarised by Dr Chan in a report to Dr Chee by letter dated 2 May 2012:[106]
[102] ts 212 (Chan); Exhibit 1, pages 103 - 104.
[103] ts 90 (Veitch); ts 216 (Chan); Exhibit 1, pages 24, 106. Although Dr Chan appears to say that the surgery took place on 24 May 2012 (ts 217), his letter of 2 May 2012 to Dr Chee is to the effect that it took place that day.
[104] ts 93 - ts 94 (Veitch).
[105] ts 213 - ts 216 (Chan).
[106] ts 221 (Chan); Exhibit 1, pages 24, 116.
Julia has finally received her left cornea. She had an uncomplicated Descemet's stripping endothelial keratoplasty. The corneal graft has adhered well to the host cornea. She will return to see me again in a couple weeks' time.
On a separate note, her right cataract has certainly worsened and she only has around 6/12 vision here now. Her anterior chamber is also significantly more shallow. I have no doubt that the right Artisan lens has to be removed and her cataract has to be sorted out soon as well. Hopefully, her left eye could be seeing well in the near future so that we can proceed to do something for her right eye …
Verisyse lenses are also known as 'Artisan' lenses.[107]
[107] ts 414 (Ward).
The plaintiff's vision in her left eye began to improve immediately after the surgery.[108]
[108] ts 94 (Veitch).
The plaintiff then saw Dr Chan on 6 June 2012. Prior to this consultation, Dr Chan had arranged for the plaintiff to have an endothelial cell count in her right eye.[109] The position was summarised by Dr Chan in a report to Dr Chee by letter dated 6 June 2012:[110]
[109] ts 221 - ts 223; Exhibit 1, pages 118 - 122.
[110] ts 223 - ts 224 (Chan); Exhibit 1, pages 25, 125. As to what pachymetry is see [311].
Julia had a Descemet's stripping endothelial keratoplasty to her left eye just over four weeks ago. I am pleased to say that her vision in her left eye has returned to 6/15 already. There is a degree of interface haze between the corneal graft and her host cornea, which will likely require some time to fade away. Otherwise, her corneal graft is in good health, and she has been happy with her result.
The right eye, however, has worsened along the way. She now only manages to see around 6/12. In fact, she is slowly noticing that the left eye is almost as good as the right eye now. She had an endothelial cell count, which shows only a cell count of only 1200 in the right eye. The pachymetry in his right eye is now around 700. Although, there is no sign of any bullous keratopathy at this stage, I fear that her cornea will likely to decompensated further if the phakic intraocular lens in the right eye is left in place. She has also developed significant cataract in her eye, which is further pushing this intraocular lens towards the cornea. We have therefore decided to extract the iris and lens and remove her cataract in the near future. I will keep you informed of her progress down the track …
The surgery on the plaintiff's right eye took place on 24 July 2012. The plaintiff's case on liability is in essence that when operating on the plaintiff's left eye, Dr Ward was negligent in not using the same surgical techniques later used by Dr Chan when operating on the right eye. Accordingly, it is necessary to quote Dr Chan's description of the operation on the right eye in some detail:[111]
[111] ts 224 - ts 227, also ts 236 (Chan).
And so it wasn't an easy surgery because there was no space in there so I remember this case quite - quite clearly. And so to extract the lens out, the lens is held onto the iris through a couple of claws. Taking it out because the lens is quite a big piece, you have to cut open a big wound to take it out. And once we do that, I put in a couple of sutures in there to hold … cos we don't need a big wound like that to actually make … the eye unstable. So we put in two sutures in there to hold the … wound in place and then I used a small instrument to do standard cataract surgery which is phacoemulsification. And the … cataract was getting quite dense, as in, cataract as it gets worse becomes more like rock and more like rubber and plastic so there was a lot of energy that we have to use to break it up before it comes out of the eye. And so I was worried that it will … further damage her eye. And.. along the way, before the surgery, it wasn't taken … lightly to go inside the eye to do this because she was already having issues in the left eye and there was a good chance that she could end up having a corneal graft in the right eye. Through the procedure, through this procedure, we got away with it but … if we did nothing, she almost certainly will get into a corneal graft situation if we did nothing and that's the reason for doing it.
And when you say 'energy', are we talking about (indistinct)?---Ultrasound has a certain shockwave energy cos it - essentially, the ultrasound machine, it's a very small sort of needle about two … millimetres wide. It's … essentially like a jack hammer. It goes - when you're inside the eye, it breaks things up by … sort of very fast shaking, like a jack hammer, to actually make that piece of cataract which is a … hardened protein break up into fluid so that we can actually suck it out of the eye.
And is there anything you can do to try and manage those risks?---Be as careful as possible.
And are there - have you ever heard of an OVD?---Standard surgical - surgical device that we use. It's standard. We…we don't go without it basically. So OVD is a … viscous material, viscous - like a jelly, I suppose, probably a transparent jelly that we use to fill up the … cornea. But that only works to a certain - to - to coat the cornea. I almost always use it at a 2 - I actually always use a 2 version of OVD. So while the OVD coats the inside of the - the cornea, the endothelial side to try - and it sticks onto it so that it minimises the … shock wave to the cornea. But it still is inevitable in this situation to have more - have any surgery is trauma. So - and you saw it just then when you - when you insert the corneal graft into … a cornea, you lose 1,000 cell count. So in this case where there's a piece of plastic, there is a large wound, there is fluid going in and out. There's ultrasound shock wave. Yeah, it's going to have some damage.
And are there any other techniques? Are there any other ways it can be done?‑‑‑You can do it in two parts. Do - do take the - some people do this. They take the lens out, the actual - the - the intraocular lens, the - the large lens that's inside. And then they - they close it, let it - let it settle for a little while before going back inside to take the cataract out. But that's only really in the situation where you have - you have less cell count to - so where the cornea is not - not threatened because that actually causes more injury, yeah.
The OVDs that you've - you used them in this instance?‑‑‑It's called a - a Viscoat. Vis - Duravisc in fact. Yeah, so Duravisc is Viscoat and Provisc.
Okay, and do they have - are they the same or have they got different properties?‑‑‑One is made from shark cartilage and it sticks from - sticks onto the cornea. One is made from … chicken (indistinct). That's more … viscous so that you can get rid of it quicker. So … I inject one of them first so that it will stick onto the cornea and then I inject the second one underneath that.
And when you say underneath that are we talking underneath the endothelial ‑ ‑ ‑?‑‑‑Underneath the … first injection.
Which one goes under the endothelial layer?‑‑‑It goes directly under the endothelial layer it's Viscoat which is a more ... sticky version of … this viscoelastic.
And that selection is because, was it ‑ ‑ ‑?‑‑‑More protection for the cornea.
Okay?‑‑‑For the - because it doesn't come - so the other version, because it - it - it comes off very easily the cornea is not protected enough because when you inject it in there and fluid moves around that it will come off the surface. Whereas Viscoat tends to stick onto the - the cornea surface and it takes a while for you to remove it to be honest, yes.
Okay, and is it something that's used no matter what technique is done?‑‑‑I always do that.
And is it just you or is that standard practice?‑‑‑It's a surgical preference. But because I'm a corneal surgeon I like to protect the corneal endothelium all the time. I don't really want to go back and do - do this inside. So I - I use this all the time, standard surgery for every single one of my cataract surgery.
And in cross-examination:[112]
[112] ts 237 - ts 238 (Chan).
As I understand your description of what you had to do, you had to make a larger incision to remove the verisyse lens ‑ ‑ ‑?‑‑‑Compared to standard cataract surgery.
Compared to the - right. And - and that would have been the same problem that faced Dr Ward when he did the January 2011 surgery, cos he was removing the same lens from the right ‑ ‑ ‑?‑‑‑Correct.
‑ ‑ ‑ eye - left eye, sorry. Would that be right?‑‑‑Correct.
So he would have had to do a larger incision then normal, just for a - cataract surgery?‑‑‑(No audible answer)
Right. And the phacoemulsification, that's a reference to the standard corneal ‑ ‑ ‑?‑‑‑To the standard cataract surgery.
‑ ‑ ‑ removal?‑‑‑Yes.
Yes. Thank you. So - and you expanded on your description of the surgery on the right eye, because you said you remembered it quite well, and you talked about having to effectively jackhammer out this cataract. And you were concerned beforehand that that could cause damage to the cornea?‑‑‑Correct.
And that's - that you saw as a real possibility, no matter how you - how careful you were. Is that a fair description?‑‑‑Correct.
And I think you - you used the expression, 'You got away with it'?‑‑‑Correct.
Okay. And you warned Ms Veitch before that procedure that you were concerned about the possibility that she may end up needing the corneal graft, but she still gave you permission to put - proceed with that procedure?---Correct.
I return to the differences between the surgical techniques used by Dr Chan and the surgical techniques used by Dr Ward in section 8.4.
Dr Chan summarised what had occurred to Dr Chee by letter dated 25 July 2012:[113]
[113] ts 227, ts 237 (Chan); Exhibit 1, pages 68, 144.
Julia had an uncomplicated right phakic intraocular lens extraction and phaco and intraocular lens yesterday. It was a rather difficult procedure as her pupil was small and stuck down. There was essentially no space in the anterior chamber and the chamber was very unstable as after the large wound was made to remove the Verisyse lens. Having said that it went smoothly and her right vision has recovered to 6/12+ on day #1. I am hoping that corneal endothelium would be able to continue to maintain this clarity. The left Descemet's stripping graft has cleared some more since our last correspondence. She has over 8/9 vision.
She is very happy that she has regained driving level vision, and I will keep you informed of her progress down the track.
On 16 November 2012, Dr Chan was notified that the donor of the tissue used in the corneal transplant in the plaintiff's left eye had multiple myeloma, that is a blood cancer. This appears to have been detected on a post-mortem examination.[114] Dr Chan arranged for the plaintiff to attend an appointment, at which he informed her of what had occurred. This was on 5 December 2012. The plaintiff was understandably distressed by this news.[115]
[114] ts 230 - ts 231 (Chan).
[115] ts 97 - ts 100 (Veitch); ts 231 (Chan); Exhibit 1, pages 159 - 163.
Dr Chan reported to Dr Chee by letter dated 5 December 2012 summarising the position as regards the plaintiff's eyes:[116]
[116] Exhibit 1, pages 27, 167.
Julia has returned for a follow up appointment. She has recovered even more since the last appointment. She now has 6/6+ unaided vision in the right eye and can se around 6/9+ in the left eye. The left corneal graft remains clear and free from trouble at this stage.
I am very glad that she has regained normal visual acuity.
She has some residual refractive error in the left eye and she is keen to have that treated. I have discouraged her against further surgery at this stage as we have been fairly fortunate so far with the surgery she has had.
I will continue to watch her progress. She will return to see me again in six months' time.
…
Dr Chan sent a second letter dated 5 December 2012, this time to the plaintiff's general practitioner dealing with the issue of the donor tissue. The letter reads:[117]
[117] Exhibit 1, pages 26, 169.
Thank you for writing to me regarding Julia. Julia had a long list of ophthalmic procedures, as you have undoubtedly noted along the way. Her left eye has recovered very well from a posterior lamellar corneal graft. Until she received the cataract surgery to the right eye recently, her left eye was actually her better eye. I am very pleased with her progress in the left eye.
Unfortunately, I was recently alerted by the Eye Bank that the donor of this corneal graft had multiple myelomas. This was discovered after Julia's transplantation procedure when the Bone Bank recently noticed this abnormality on donated bone from the same donor. Multiple myeloma patients are usually contraindicated for tissue donation. This donor was not excluded because the diagnosis was not made at postmortem. Given the fact that the cornea is an avascular tissue with minimal immune cells, the risk of this diagnosis to her would be minimal.
However, given her problems along the way, it would be beneficial for her to receive an oncology opinion as you have suggested …
Rowland J agreed generally with the other members of the Court.
As to the basis of liability of RPH, Wallwork J observed:[487]
[487] Frost (11) (Wallwork J).
The question is raised in this appeal whether, if a specialist cardiologist would have taken a second ECG, doctors working in an emergency department at a big public hospital in a city the size of Perth, should undertake similar procedures. It might be wrong to say that because a doctor working in such a situation is not a senior medical practitioner, the test should be different to that applied to cardiologists. A procedure could be laid down by specialists to be followed by medical practitioners in that situation.
The casualty department at Royal Perth Hospital is a designated place to which members of the public, suffering from suspected heart attacks are taken by ambulance. It was the evidence in this case that persons suffering from a myocardial infarction may reveal a normal ECG within some hours of the onset of chest pain. However, it is possible that changes will show up on a later ECG.
Wallwork J referred to the decision in Ellis v Wallsend District Hospital[488] and held that RPH owed an 'independent non-delegable duty to ensure that the treatment it undertakes to provide is performed with reasonable care'.[489] His Honour observed that the question of whether the patient's injury falls within the scope of a hospital's non‑delegable duty of care turns in each case on the nature of treatment the hospital undertakes to provide.[490] His Honour concluded:[491]
[488] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 (Wallsend).
[489] Frost (14) (Wallwork J).
[490] Frost (14) (Wallwork J).See also: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, 651 (Reynolds JA, with whom Hope & Hutley JJA agreed).
[491] Frost (15) (Wallwork J).
Knowing that action had to be taken within six hours of the onset of pain, it in my view would have been reasonable to expect that doctors on duty at the casualty department of a public hospital such as the Royal Perth Hospital, would take a second ECG in circumstances such as were present in this case, before they sent a suspected heart attack patient away from the hospital. It would have been reasonable to have had some kind of a checklist available to the doctors on emergency duty at such a hospital, detailing what ought to be done for the treatment of suspected heart attack patients.
Wallwork J quoted with approval from the judgment of Samuels JA in Wallsend, who in turn quoted from the decision of Houlden JA in the Canadian decision of Yepremian v Scarborough General Hospital,[492] a passage apposite to the determination of the issues in the present case:[493]
[492] Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513; (1980) 31 OR (2d) 383 (Yepremian).
[493] Wallsend (603) - (604) (Samuels JA, with whom Meagher JA agreed).
Leaving aside for the moment the recent development in Australia of the doctrine of independent or non-delegable duty, it seems to me that, so far as the responsibility of hospitals to their patients is concerned, the matter has been well stated, if I may say so, by Houlden JA in the second dissenting judgment in Yepremian. His Lordship said (at 581):
First, a general hospital may function as a place where medical care facilities are provided for the use of a physician and his patient. The patient comes to the hospital because his physician has decided that the hospital's facilities are needed for the proper care and treatment of the patient. This use of the hospital is made possible by an arrangement between the hospital and the physician by which the physician is granted hospital privileges. Where a hospital functions as merely the provider of medical care facilities, then, as the trial Judge pointed out, a hospital is not responsible for the negligence of the physician. The present case does not, of course, come within this classification.
Second, a general hospital may function as a place where a person in need of treatment goes to obtain treatment. Here the role of the hospital is that of an institution where medical treatment is made available to those who require it. The present case falls in this second classification. Tony Yepremian was brought to the Scarborough General Hospital because he was in need of treatment. Does a hospital in these circumstances have the duty to provide proper medical care to a patient? In my judgment, it does.
….
In my opinion therefore while proof of the relationship of hospital and 'patient' will generate a special duty of some kind, closer scrutiny of the facts (cf the analysis proposed by Mason J in Stevens v Brodribb Sawmilling) is necessary in order to establish its scope. It is a question of what medical services the hospital has undertaken to supply.
In Frost, the facts came within the second category.
In Wallsend, the facts came within the first category. The appellant consulted a Dr Chambers in relation to chronic neck pain over a four or so year period, including a prior surgery. She consented to Dr Chambers performing a second surgery on her neck, which he did at the respondent hospital. She subsequently developed paralysis. The trial judge found that Dr Chambers had failed to warn the appellant of this risk. She had settled a claim against Dr Chambers, but sued the respondent hospital on the basis of both vicarious liability and breach of a non-delegable duty of care. Samuels JA, with whom Meagher JA agreed, held that Dr Chambers was an independent contractor for whom the respondent was not vicariously liable, concluding:[494]
[494] Wallsend (599), see more generally (590) - (601).
It seems to me that … Dr Chambers was never at any time an employee of the hospital, but was at all times an independent specialist who had an agreement with the hospital pursuant to which he provided certain services, and accepted a degree of management, in return for the provision of facilities and resources necessary to enable him to carry on his own practice as a surgeon.
Samuels JA then considered the non-delegable duty of care owed by the hospital, beginning with the remark that 'there is another possible basis of liability which does not arise out of the hospital's relationship with Dr Chambers, but has its source in its relationship with the patient'.[495] It is in this context that the passage quoted at [575] appears. His Honour held that respondent hospital did not owe a non-delegable duty of care in relation to actual surgery carried out by Dr Chambers:[496]
[495] Wallsend (601).
[496] Wallsend (605).
[T] he nature of the obligation which a hospital has assumed becomes ultimately a question of fact … In the present case, however, it is quite clear that the appellant did not knock at the hospital's door … It was not the hospital's door but the door of … Dr Chambers' consulting rooms upon which she knocked, and it was that door which was opened to her and which admitted her to the treatment and advice upon which she thereafter principally relied. I do not think it can be doubted but that it was Dr Chambers and not the hospital to whom the appellant looked for medical care. The hospital … was merely the place in which surgical procedures which he had recommended and which the appellant had agreed to undergo were performed by Dr Chambers.
Meagher JA agreed with Samuels JA. The third member of the court, Kirby P dissented, holding that the respondent hospital was vicariously liable for the negligence of Dr Chambers and also bore 'a direct and un‑delegable duty' to the appellant for negligence on the part of Dr Chambers.[497] In this regard, the reliance by counsel for the plaintiff on the minority reasoning of Kirby P is misplaced.[498]
[497] Wallsend (572) - (573).
[498] Plaintiff's closing submissions, par 14, footnote 11.
There may well be cases in which a patient attends a hospital for a surgery in the first Yepremian category, but suffers an injury as a result of negligence of nursing staff. In this case, the hospital may well be directly liable for a breach of its non-delegable duty of care in respect of that particular injury. This occurred in John James Memorial Hospital Ltd v Keys.[499] In that case the respondent patient was admitted to the appellant hospital at the instigation of a consultant physician for pain relief and observation for her severe sciatic pain. She fell twice and was injured. The Full Court of the Federal Court referred with approval to the passage from Yepremian quoted at [575].[500] The court concluded that the hospital was liable for a breach of the non‑delegable duty of care that it owed to the respondent. However, this was on the basis of the actions of nursing staff who permitted the respondent to 'to be left alone while under the influence of sedative medication' and who failed 'to ensure that [she] did not attempt to walk by herself without assistance'.[501]
[499] John James Memorial Hospital Ltd v Keys [1999] FCA 678 (Keys).
[500] Keys [15] - [16], [21].
[501] Keys [23], [30].
In the present case, the particulars which I have set out at [564] make it clear that no fault is attributed to the nursing staff who assisted Dr Ward or who otherwise looked after the plaintiff during her brief stay at the Hospital.
The evidence before the court is that:[502]
[502] Drawing the relevant factors from the analysis in Keys at [21].
(a)the plaintiff has been a private patient of Dr Ward's for a number of years, on referral from her general practitioner;
(b)the plaintiff chose Dr Ward;
(c)the plaintiff saw Dr Ward in his private rooms, as opposed to, say, an outpatient clinic of the Hospital;
(d)Dr Ward's rooms were leased from the Hospital;[503]
[503] ts 464 (Ward).
(e)Dr Ward was not employed by the Hospital;[504]
[504] ts 465 (Ward).
(f)Dr Ward both saw patients privately and undertook public surgery under a contract with the Hospital which allowed him to use a certain number of the operating sessions he was given for public patients, so is appropriately described as an independent contractor;[505]
[505] ts 464 - ts 465 (Ward).
(g)there is no evidence as to whether the Hospital exercised any oversight or quality control over Dr Ward;[506]
[506] Contrast Wallsend (592) - (596).
(h)the plaintiff's admission to Peel Health Campus was initiated by Dr Ward;
(i)the plaintiff provided pre-admission information to the Hospital[507] and a consent to treatment on a Hospital Form;[508]
[507] Exhibit 1, page 256.
[508] Exhibit 1, pages 258 - 259.
(j)the plaintiff was a public patient with the 'hospital providing all hospital and medical services without charge';[509]
[509] Exhibit 1, page 256.
(k)the Surgery was performed as a day procedure at the Hospital, using the operating theatre and staff of the Hospital;[510]
[510] Exhibit 1, pages 517 - 522.
(l)all three of Dr Ward, the anaesthetist and a nurse signed a document entitled 'Surgical Safety Checklist' in relation to the Surgery;[511] and
[511] Exhibit 1, page 523.
(m)aside from the fact that the plaintiff was a public patient, there is no evidence as to how Dr Ward was paid for the Surgery, the two logical alternatives being the Medicare paid Dr Ward directly for the Surgery or the Hospital paid Dr Ward as part of the contractual arrangement in (f).
In my view, on the pleaded case and the evidence before me, at a notional trial of the Original Action the trial judge would inevitably have concluded that the plaintiff's claim falls within the first of the Yepremian categories. The judge would have concluded that the Hospital did not owe the plaintiff a non-delegable duty of care in relation to the injuries she says she suffered in the Surgery. Critically, unlike in Frost, the particulars do not assert a corporate failure by the Hospital, one which could be independent of any vicarious liability arising from the negligence of Dr Ward. Nor, unlike in Keys, do the particulars assert a failure by nursing staff. Rather, as in Wallsend, the particulars focus on the negligence of Dr Ward. As was the case in Wallsend, the Hospital was merely the place in which surgical procedures which Dr Ward had recommended, and which the plaintiff had agreed to undergo, were performed by him.[512]
[512] Wallsend (605).
In any event, even if the Hospital did owe the plaintiff a non‑delegable duty of care in relation to the injury sustained in the Surgery, the particulars do not set out how the Hospital, as opposed to Dr Ward, breached this duty. The particulars do not specify what, if anything, the Hospital failed to do or did in a negligent manner. They do not even assert a failure by the Hospital to supervise Dr Ward in some manner. Nor is there anything in the evidence which could have been used to support particulars of this nature.
In my view, the plaintiff would have had no prospect of proving the Hospital Claim at a notional trial of the Original Action. Nor, on the principles and evidence I have outlined, is there anything which if disclosed prior to the trial of the Original Action would have persuaded the insurers for Dr Ward to have made a valuable offer to settle in relation to it. I assess the value of the lost opportunity to pursue the Hospital Claim as being zero.
Would the plaintiff have pursued the Original Action to trial or earlier valuable settlement?
13.1 Pleadings
The plaintiff's case is that, as a result of the negligence of the defendant, she lost the opportunity to progress her claim and receive compensation. Specifically:[513]
[513] SSC, par 26.
26.As a result of the Defendant's negligence, the Plaintiff has lost the opportunity to be compensated for the Injury and consequential loss and damage, through settlement or judgement in the Action.
PARTICULARS OF LOST OPPORTUNITY
(a)the Plaintiff lost the opportunity to:
i.progress her claim against Mr Ward and the Hospital;
ii.interrogate Mr Ward and the Hospital;
iii. be compensated by or on behalf of Mr Ward and/or the Hospital for the Injury, or injuries loss and damage, her residual disabilities and losses.
The defendant denies this allegation. His position is that the plaintiff would not have pursued the Original Action to trial or earlier valuable settlement.
13.2 Relevant law
As I have already noted (section 5.5), the issue of causation is to be determined having regard to CLA s 5C(3). The effect of CLA s 5C(3) is that the issue of what the injured person (and not a reasonable person) would have done if the tortfeasor had not been at fault is to be determined by inference from the objective facts.[514]
[514] Falkingham [258] - [259].
The issue of causation was the central issue in dispute in Falkingham. The trial judge found, in effect, that whilst the appellant would have proceeded with the issue of the writ, he had not established whether he would have pursued the action against the neurosurgeon thereafter. So the trial judge was not persuaded on the balance of probabilities that the appellant would have pursued the lost cause of action. For this reason, the claim against the respondent failed and the action was dismissed. All members of the Court of Appeal found that the trial judge erred in coming to this finding. All members of the Court of Appeal were of the view that the appellant was only required to prove that he would have pursued the hypothetical proceedings at least to the stage where there was a reasonable possibility that he would have received a valuable offer of settlement.[515] Pullin and Murphy JJA held that the trial judge did apply this test;[516] Buss JA held that he did not.[517]
[515] Falkingham [41], [52], [242].
[516] Falkingham [53].
[517] Falkingham [241] - [242].
Pullin and Murphy JJA summarised the principle in the following manner:[518]
[518] Falkingham [40].
… the plaintiff must establish, on the balance of probabilities, that he or she would have pursued the opportunity to obtain compensation by way of verdict or by compromise. Ordinarily, that would be established by proof that the plaintiff would have litigated the cause of action to trial or earlier valuable settlement. That is not to deny the possibility that there may be cases where the evidence might be that the hypothetical defendant would have agreed to pay or settle the claim without the need for the plaintiff to litigate.
Their Honours identified a number of facts from which causation could and should have been inferred:[519]
[519] Falkingham [62].
(a)the appellant was not deterred from the pursuit of the claim against the neurosurgeon by the rejection of his application for legal aid;
(b)as the appellant's solicitors recognised at the time they were acting for him, the appellant's 'disability was great and would affect him for the whole of his life' … and that if his claims were successful 'he [would] receive compensation that [would] total in the hundreds of thousands of dollars' …;
(c)the appellant put the solicitors in funds, apparently promptly, on the occasions he was requested to do so;
(d)the hypothetical advice on prospects would have indicated that the neurosurgeon would have also been at some significant risk in the action in respect of his pre‑operative warning and post‑operative care, and that, accordingly, there would be some real prospect that the neurosurgeon would wish to avoid a trial and negotiate a settlement;
(e)the appellant pursued an action against the solicitors to trial for their negligence in handling his claims against the neurosurgeon, and he did so essentially in reliance on the information obtained by the solicitors prior to their omission in failing to issue the writ against the neurosurgeon.
The analysis by Buss JA was to similar effect.[520]
[520] Falkingham [270].
The following guidance may also be discerned from the decision in Falkingham relevant to determining causation:
(a)the issue of causation requires the plaintiff to prove what would probably have eventuated had the solicitors' negligence not occurred, which is necessarily a hypothetical question and involves an evaluation of circumstances which did not in fact happen;[521]
[521] Falkingham [218].
(b)the issue of causation ordinarily involves the question of what advice a reasonable and prudent solicitor, having properly obtained evidence, would have given to the plaintiff and what course the plaintiff would have taken after that advice;[522]
[522] Falkingham [43].
(c)the objective prospects of success that, properly advised, the plaintiff would or should have obtained from his or her solicitors is relevant to the issue of causation;[523]
[523] Falkingham [43].
(d)the onus is on the plaintiff to prove, on the civil standard, that they would have litigated the matter to judgment or at least to the stage where there was a reasonable possibility that they would have received a valuable offer of settlement;[524]
[524] Falkingham [54], [241] - [242].
(e)the judge's ultimate finding as to prospects of success cannot automatically be equated with the hypothetical advice on prospects which a prudent solicitor would have given the plaintiff as the judge, unlike the solicitor, includes the advantage of hearing evidence from the witnesses called by the parties in relation to the merits of the underlying claim;[525] and
[525] Falkingham [59].
(f)a prudent solicitor would also have advised on the likely adverse costs consequences if the action failed.[526]
[526] Falkingham [61].
13.3 The plaintiff's position
There are three aspects of the plaintiff's evidence which form part of the objective facts relevant to inferring causation.
The first is the plaintiff's financial position. The plaintiff knew that the basis on which she had engaged the defendant was not a 'no‑win/ no-fee' basis, so she would have to pay him. At the time she saw the defendant, the plaintiff was on a carer's pension. However, she had around $20,000 left over from a compensation settlement arising out of her car accident. She also had the capacity to borrow money off her brother, though it does not appear to be much.[527] The plaintiff was able to provide the defendant with $3,300 in order to pay for the issue of the writ and a second expert opinion.
[527] ts 74, ts 125 - ts 127, ts 172 - ts 173 (Veitch).
The second is that counsel for the defendant does not dispute that as at the time the Original Action was struck out, the defendant had instructions from the plaintiff to obtain a second expert medical opinion.[528]
[528] ts 120 (Veitch).
The third is that the plaintiff has pursued the present action to trial.
13.4 Mr Gleeson's advice in October 2013
As I have mentioned in section 4.8, in October 2013, Mr Gleeson advised the plaintiff that he could no longer represent her on a 'no win, no fee basis', and confirmed the advice in a letter dated 28 October 2013. In that letter, Mr Gleeson referred to an earlier letter of advice and reiterated that no claim could proceed without a detailed letter from Dr Chan and a medico-legal opinion from an independent ophthalmic surgeon commenting on the cause of her injury and the appropriate standards of competent professional care. Mr Gleeson then referred to the letter he had received from Dr Chan (which I have set out at [125]). He then set out the reasons why he could no longer represent the plaintiff on a 'no win, no fee basis':[529]
[529] Exhibit 1, pages 346 - 347.
I confirm that you have previously suffered injuries in a motor vehicle accident for which you have claimed damages. You are not suffering loss of earnings due to the corneal transplant and so any potential claim for damages from Dr Ward would be limited to general damages for pain and suffering and reduction in quality of life.
Under Section 9 of the Civil Liability Act 2002 (WA) there are restrictions on the recovery of damages for pain and suffering. The Civil Liability Act imposes a deductable threshold of $19,000. In practical terms assessments of damages at or below $19,000 are disallowed.
Moreover, assessments of damages greater than $19,000 have the first $19,000 deducted. For awards of damages up to $57,500, the deductable threshold slowly decreases. For amounts in excess of $76,500 there is no deduction.
I have considered the following very carefully:
1.The time and expense necessary to seek and obtain evidence to prove breach of duty on the part of Dr William Ward, and
2.The likely scope and amount of damages that you might recover even in the event of success, and
3.Delays in evidence preparation which you will experience in light of my current work load and trial schedule.
I have now concluded that the potential risks and costs in pursuing a claim against Dr William Ward are not currently warranted in light of the limited scope of damages your may receive. Consequently, your claim no longer meets my criteria for representation on a speculative or 'no win, no fee' basis.
The plaintiff's recollection of why Mr Gleeson declined to take her case was that he did not have the time to do the case. In cross‑examination, the plaintiff appeared to have difficulty understanding what Mr Gleeson meant when he wrote: 'the risks and costs in pursuing a claim are not currently warranted in light of the limited scope of damages you may receive'. She had little recollection of her meeting with Mr Gleeson.[530]
[530] ts 150 - ts 154 (Veitch).
13.5 Defendant's advice
There are four documents from the defendant which contain significant information going to the issue of whether the plaintiff would have pursued the Original Action to trial or earlier valuable settlement:
(a)the costs disclosure, which she signed on 11 November 2013;
(b)the letter of advice dated 12 November 2013;[531]
[531] Exhibit 1, pages 358 - 361.
(c)the letter of advice dated 5 December 2013 (quoted at [131]);[532] and
[532] Exhibit 1, page 378.
(d)the letter of advice dated 8 September 2013, following receipt of Dr Chan's report (quoted at [134]).[533]
[533] Exhibit 1, page 402.
The plaintiff had little recollection of her meeting with the defendant, or the correspondence she received from him.[534] However, given CLA s 5C(3)(b), this is not of any real significance.
[534] ts 155 - ts 159, ts 162 - ts 167 (Veitch).
From this material, seven points relevant to the issue of causation are apparent from the plaintiff's interaction with the defendant.
The first was that in order to succeed in her claim, the plaintiff had been advised that she would have to prove that, in the Surgery, Dr Ward failed to do what a reasonable ophthalmic surgeon would have done, or did something a reasonable ophthalmic surgeon would not have done.
The second was that the plaintiff was informed that damage to the cornea was a recognised complication from cataract surgery. This, she was advised, left open the possibility that despite the fact that she sustained damage to her cornea during the surgery, Dr Ward did not negligently cause her to suffer that harm.
The third was that Dr Chan's report did not support the plaintiff's position that Dr Ward was negligent.
The fourth was that the plaintiff nonetheless wished to proceed with the Original Action and had instructed, and funded, the defendant to obtain a further expert opinion. As mentioned, counsel for the defendant accepted that this continued to be the position up to the point in time that the Original Action was dismissed.
The fifth was that the plaintiff was advised that the amount of damages she could claim was limited. The general damages which she could recover was probably over the then $19,000 threshold but, in the defendant's words, 'but not by very much'. She would not be entitled to any damages for past or future loss of earning capacity. The defendant did not think she would exceed the then $6,500 threshold for gratuitous services. There would not be a particularly significant amount of medical expenses which she could claim.
The sixth was that the cost to the plaintiff to take the matter to either a pre-trial conference or trial was significant. She was advised that the cost for the matter to proceed to a pre-trial conference and settle would be in the range of $12,500 to $17,500, with disbursements in the range of $3,000 to $4,000. For a three-day trial, she would have to pay further legal fees of between $55,000 and $75,000 (solicitor and counsel) and disbursements of between $15,000 and $20,000. She was advised that, if successful, she would be likely to recover all her disbursements and between two thirds and three quarters of the legal fees.
I interpose some analysis of my own. To take the plaintiff's best case:
(a)assume she recovered all her disbursements;
(b)assume she paid legal costs at the lower end, being $67,500; and
(c)assume recovery of legal costs at the best case of three quarters being say $50,000.
On these assumptions, the plaintiff would have to receive damages of at least $17,500 ($67,500 - $50,000) before she would actually receive any money into her pocket. Based on the fifth point, this was unlikely. If the plaintiff's costs and disbursements were at the higher end of the range, she would have needed to receive damages of at least $23,000 in order to actually receive any money into her pocket ($17,500 + $75,000 = $92,500, recovering three quarters on taxation), or $30,000 if she only recovered two thirds on taxation.
The seventh is that the financial implications of losing at trial were significant. For a start, the plaintiff would have had to have paid her own legal fees and disbursements. She was then advised that she could well be ordered to pay costs to the defendants in the Original Action in the amount of $94,760. So her total loss would be in the vicinity of $200,000 (adding in her costs set out in the preceding paragraph).
13.6 Determination
There are two very strong factors which would have led a reasonable person to the conclusion that the Original Action was not worth pursuing.
The first is the plaintiff's prospects of success.
As counsel for the defendant quite properly points out, the defendant, or any lawyer retained by the plaintiff for that matter, had professional obligations limiting the extent of any inquiries made.[535] He placed reliance on the following passage from the judgment of Newnes JA in Nigam:[536]
[535] Defendant's closing submissions, pars 11 ‑ 13.
[536] Nigam [85] (Newnes JA) (references omitted), also [3] (McLure JA).
It was not in contention that in investigating the merits of the respondent's claim and advising her on it, the appellant was required to exercise the care and skill to be expected of a qualified and ordinarily competent and careful solicitor in the exercise of his or her profession … That duty required the appellant to make reasonable enquiries in respect of the merits of the respondent's claim. But the appellant was not obliged to embark upon speculative enquiries or to pursue lines of enquiry for which there was no apparent basis. Nor was he required to pursue medical opinions until a favourable one was found. Considerations of time, cost and utility dictate that enquiries cannot be unlimited. A solicitor is entitled and, indeed bound, to use professional judgment in the lines of enquiry that are pursued. The question is not what might have been found had more extensive enquiries been made, but whether the solicitor made reasonable enquiries in the circumstances of the case.
Having said that, the plaintiff's new lawyer was able to obtain the evidence before the court in the current action. So it is appropriate that I assume that the plaintiff and her lawyer at the time (whether the defendant or another lawyer exercising due care and skill), would have received prior to entry for trial and engagement with the formal settlement processes of the District Court:
(a)all the documents in evidence at trial;
(b)the substance of the evidence given by Dr Ward at trial;
(c)the substance of the evidence given by Dr Arshinoff at trial; and
(d)the substance of the evidence given by Dr Groeneveld at trial.
This is subject to the caveat as regards Dr Arshinoff's evidence, which I have noted in section 6.3.
What would have been readily apparent from the materials in the preceding paragraph was that Dr Groeneveld's evidence provided strong support that the surgical choices of Dr Ward were in accordance with practice widely accepted by his peers as being competent professional practice at the time. As I set out in Part 6, in order to overcome the hurdle to a finding of liability that this evidence would have created by CLA s 5PB(1), the plaintiff would have needed to persuade the trial judge to wholly reject the opinion of Dr Groeneveld in favour of that of Dr Arshinoff. Consistent with the analysis I have undertaken throughout these reasons, there would have been no rational basis in the evidence in [614] from which to do so.
On the totality of this evidence, it is evident from the analysis in Parts 8 to 12 that the plaintiff's objective prospects of success would have been minimal. A reasonable and prudent solicitor, having obtained the evidence in [614], would have advised the plaintiff of this prior to entering the Original Action for trial, and certainly prior to engaging in any settlement negotiations.
The second is the economics of the Original Action. Both Mr Gleeson and the defendant were concerned that the Original Action was not cost effective to pursue given the low level of damages to which the plaintiff would have been entitled if successful verses the cost to the plaintiff to pursue the action to a settlement conference or trial. The modest damages is evident in the assessment I have made in Part 7. On the information set out from the defendant, I have calculated that the plaintiff would have had to have recovered in excess of $17,500 before she would have actually received any money in her hand ([609]). To this is added the very significant costs the plaintiff would have been liable to pay had she been unsuccessful at trial. A reasonable and prudent solicitor would have drawn this to the plaintiff's attention, as indeed both Mr Gleeson and the defendant did.
In my view, a reasonable person so advised would not have progressed the Original Action to trial, and would have tried to settle it without payment of any of the defendants' costs. However, it is not the position of the reasonable person which I need to consider. Rather, CLA s 5C(3)(a) makes it clear that 'the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault'.
In my view there is one very powerful factor which leads me to infer that the plaintiff would have pursed the Original Action to trial or at least to the point in time at which was a reasonable possibility that she would have received an offer of settlement. This is the fact that she pursued the present action to trial. Her limited financial means did not prevent her from doing so. Whatever financial arrangements she put in place to pursue the present action to trial could have been used to pursue the Original Action to trial. The present action was always going to be less economic to pursue than the Original Action as the damages to which the plaintiff was entitled, if wholly successful, were always going to be less given the requirement to bring to account the prospects of success and that past and future medical expenses were assessed on a net basis (section 7.4). The lack of economics of the present action did not deter the plaintiff from pursuing it, so I infer that it would not have deterred the plaintiff from pursuing the Original Action.
For these reasons, I infer that, had the defendant not been at fault, the plaintiff would have pursued the Original Action to trial or at least to the point in time at which there was a reasonable possibility that she would have received some offer of settlement. Given what I have said in [615] and [616], it is difficult to see any basis on which there would have been a valuable offer of settlement, though there is the point I make at [395]. She has established on the balance of probabilities that the fault of the defendant in allowing the Original Action to be dismissed was a necessary condition of the occurrence of the harm, being the lost opportunity to pursue the Original Action to trial or some offer of settlement.
What final orders are appropriate?
For these reasons, I assess the amount of damages the plaintiff would have received at a notional trial of the Original Action to be $42,678. However, I only assess her prosects of success on the Choice of Technique Claim, the Conduct of Surgery Claim and the Failure to Warn Claim at 10%. The value of her lost opportunity is thus $4,267.80. She is entitled to judgment in this amount.
I will hear from counsel on the issues of interest and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JS
Associate to the Judge
31 MARCH 2023
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