Candutti v ACT Health and Community Care [2003] ACTSC 95 (25 November 2003)

Last Updated: 22 January 2004

JAQUALENE ALISON CANDUTTI v ACT HEALTH AND COMMUNITY CARE

[2003] ACTSC 95 (25 November 2003)

NEGLIGENCE - surgical procedure - informed consent

TRESPASS TO PERSON - surgical procedure - lack of consent

DAMAGES - abdominal incision - no issue of principle

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

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

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

Malec v J.C. Hutton Pty Ltd (1990) 196 CLR 368.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

No SC 826 of 2001

Coram: Master Harper

Supreme Court of the ACT

Date: 25 November 2003

IN THE SUPREME COURT OF THE )

) No SC 826 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JAQUALENE ALISON CANDUTTI

Plaintiff

AND: ACT HEALTH AND COMMUNITY CARE

Defendant

ORDER

Coram: Master Harper

Date: 25 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $30,000.00.

1. The plaintiff claims damages against the defendant for negligence in the conduct of the Canberra Hospital. Her case is that she went into hospital to undergo a laparoscopic tubal ligation, and that she was instead subjected, without her consent, to a laparotomy with tubal ligation, a significantly more invasive procedure which has left her with a scar across her abdomen, and continuing abdominal cramps and pain. She says that if she had known that she might be subjected to this procedure, in the absence of a life-threatening emergency, she would never have agreed to it.

2. The defendant's case is that the plaintiff gave her consent in advance to the procedure which was carried out. The defendant also contests the asserted causal connection between the procedure and the plaintiff's current complaint of abdominal pain and cramps.

3. The plaintiff was born on 30 November 1971 and is almost 32 years of age. She has two sons, born in 1994 and 2000. After the birth of the second son, she decided that she did not want to have any more children, and consulted her general practitioner about available options for sterilisation. He told her that the preferable choice was a laparoscopic procedure. He explained that two small incisions would be made into the abdomen, one for the laparoscope and the other for the surgical instrument. She would be left with hairline scars the size of her fingernail. It would be a day surgery process: she would be able to go home on the same afternoon. He referred her to the Canberra Hospital as a public patient, and told her that her name would be placed on a waiting list.

4. In response to a letter from the hospital, she came in on 2 August 2000 for a pre-admission appointment. She remembers speaking to a female doctor, who saw her in the presence of two other people, probably students or junior hospital staff. She explained to the plaintiff that the procedure was irreversible, that there would be two keyhole incisions, and that her abdominal cavity would be inflated with gas. The tubes would be clamped. The plaintiff's recollection is that she was told of the risks of internal bleeding and of allergic reaction to the gas: in such an emergency the surgeon might need to open her up. She agreed to this. She says that she was not told anything about the possibility that the laparoscopic procedure might not work because of any difficulty in inflating the abdomen. She was then told that there would be quite a long wait before the surgery could be carried out.

5. The female doctor who saw the plaintiff on that occasion has been identified as Dr Fariba Behnia-Willison, who was at the time an obstetric registrar employed by the hospital. By the time of the hearing, she was working in a similar capacity at a hospital in Sydney, and did not give oral evidence. She has no independent recollection of the attendance on 2 August 2000, but made a statement which was admitted into evidence, confirming from written records that the attendance had taken place and that she had explained to the plaintiff the risks of bleeding, infection and damage to other organs. She also said that there was a one-in-three-hundred failure rate, and emphasised that the procedure was permanent and irreversible.

6. The document from which Dr Willison refreshed her memory was a double-sided four-page form headed Request for Admission. It appears from the form that Dr Willision saw the plaintiff on 2 August 2000, recorded the operation as a tubal ligation and noted the risk areas mentioned in her statement. It appears to me that, as completed at the time, the form read as follows

I, Jaqualene Candutti of [indecipherable] hereby consent to undergo the operation of tubal ligation the nature and risks of which have been explained to me by Dr B Willison. I also consent to such further alternative operative measures as may be found urgently necessary during the course of the above mentioned operation and the administration of general, local or other anaesthetics for this purpose. I understand that an assurance has/has not been given to me that the operation will be performed by a particular surgeon. Dated 2.8. Signed J Candutti patient/parent/guardian.

I confirm that I have explained the nature, purpose and risks of this operation to the patient/parent/guardian. Date 2/8. Signed F B Willison.

7. The form included another page headed Instructions to Referring Consultant. This was also completed by Dr Willison of 2 August 2000. She completed the items Provisional Diagnosis and Proposed Operation/Procedure both with the words `tubal ligation'. The item Other Specialist Attending was filled in `place under Dr Mukerjee'. Dr Willison completed the estimated length of operation as ten minutes and expected length of stay, as best as I can decipher it, as one day. It was put to the plaintiff in cross-examination that Dr Mukerjee attended the meeting with Dr Willison on 2 August 2000, but she was adamant that this was not the case, and that the first time she met Dr Mukerjee was on the day of the operation.

8. On 21 February 2001, the plaintiff attended at the hospital a consultation with Dr T Crispin, anaesthetist, for a routine pre-admission check as to any known relevant family history, medical problems or allergies. None were identified.

9. The day set for the operation was 1 March 2001. The plaintiff made arrangements for her husband to look after the children for the day. He dropped her off at the hospital and stayed with her until she went into the pre-admission area. Her evidence was that Dr Mukerjee introduced himself to her as the surgeon. He had with him the consent form which the plaintiff had signed on 2 August the previous year. He asked the plaintiff if she was having her tubes cut and tied and she said no, she had been told that that was not done any more. He asked her what she had been told, and she said that she had been told that she would have two keyhole incisions and be bloated with gas. Dr Mukerjee said "Oh, that's called a laparoscopic ligation, that's not what you've signed for. You've signed for tubal ligation." She asked what that meant. Dr Mukerjee told her that that was a much more major operation. He noted that she had been admitted as a day patient only and said, "So you want laparoscopic ligation done?" The plaintiff said yes. Dr Mukerjee said, "OK, we'll have to change the form." He took the form and wrote on it, and asked her to sign it. She did so.

10. The form reveals that at some point, the words `tubal ligation' were lined through and the words `lap. tubal sterilisation' were written in. In what appears to be the same handwriting, the words were added `Matter explained. She agreed.'

11. The plaintiff's evidence was that nothing was said to her about the likelihood of any problem with the laparoscopic procedure. Shortly afterwards she was anaesthetised, and thereafter she remembers nothing until coming out of the anaesthetic.

12. She remembers regaining consciousness and being in a lot of pain. She remembers one of the nurses saying: "Is this one staying overnight?" and hoping they were not talking about her. She had been put on a self-administered morphine drip for pain relief. She was wheeled to a ward and given no explanation on that day. The next day her husband came in and was told in front of the plaintiff that there had been some complications. The plaintiff was sleeping for short periods at regular intervals and describes herself at that time as quite groggy. She had headaches she described as a migraine which she attributed to the morphine. She said the nursing staff explained to her that she had been opened up but would not tell her any more and said that she would have to wait to talk to the doctor. The plaintiff vomited at least once and said that she was in extreme pain at the site of the laparotomy incision.

13. On the same morning, Dr Mukerjee called to see her. He asked how she was and she said that she was not very well. She asked him what had happened. He said, "Oh, we were unable to get the gas in, I think probably because there was too much fat, so we just did that because you were in here to have your tubes done". The plaintiff says that she was too shocked to say anything. She was upset and angry and could not believe that Dr Mukerjee had taken it upon himself to make a decision to perform a laparotomy unnecessarily.

14. The plaintiff was later told that she would be unable to do anything for up to six weeks. In particular she would not be able to lift her twelve-month old son, because this might rip the wound open from the inside. She was told that she could not drive for up to three weeks. By the second or third day the plaintiff found that it hurt to sit up and to get out of bed. The skin at the incision site was "all bunched up and grabbed in, and it pinched, and it was very sore and very uncomfortable." The incision had been stapled. An infection developed and the plaintiff was put on oral antibiotics for this. The infection cleared up after about two and a half weeks. Meanwhile the plaintiff developed thrush, which she blamed on the antibiotics. She was incapacitated in terms of resuming her normal life for six to eight weeks. She needed help from her husband and her sisters for periods which she estimated at eight to ten hours a day, seven days a week, for about six weeks. The wound was very red and sore, and this took about two months to clear up.

15. The plaintiff describes an area along the ridge of the scar which still has no sensation. She says that it feels horrible and that she is aware of the scar all the time. She describes it as like a big line drawn on her.

16. After the operation, the plaintiff started to experience painful periods with excessive bleeding. Towards the end of 2001, her general practitioner referred her to Dr P M V Mutton, an obstetrician and gynaecologist, who told her that he could not be certain what was causing her problems and that she would have to undergo a laparoscopic diagnostic procedure to be sure about this. She was not prepared to undergo such a procedure in case the same thing happened again, and has not done so.

17. Dr Mukerjee was at the time of the operation the Director of the Department of Obstetrics and Gynaecology at the Canberra Hospital. He is a highly qualified and experienced obstetrician and gynaecologist, who has over his career performed hundreds of laparoscopic sterilisation procedures and hundreds of ligation procedures by open laparotomy. His skill as a surgeon is not in question. The principal issue in the case is whether I should prefer the recollection of the plaintiff or that of Dr Mukerjee where they are in conflict.

18. Dr Mukerjee gave evidence that he first met the plaintiff in the outpatient clinic on 2 August 2000, in the presence of Dr Willison, who informed him that the plaintiff wanted a tubal ligation procedure. Such a request being uncommon in this day and age, he asked the registrar whether there was any particular reason for this. The registrar said that this was the plaintiff's preference. Dr Mukerjee decided to speak with the plaintiff, and did so. He found out that her preferred option was open laparotomy. He mentioned that there was another way that it could be done, whereby the hospital stay would be shorter, the patient would be able to go home the same day and the result would be the same. As a result of the conversation, he got the impression that the plaintiff agreed to that and would rather go for laparoscopic sterilisation. He was asked whether he had any discussion with the plaintiff at the time as to whether or not there might be anything which would prevent laparoscopic sterilisation from proceeding as planned. His answer was: "Well, that is always the situation that to any laparoscopic procedure and that is I talk to the patient that if this method failed then the open laparotomy method may need to be carried out".

19. Dr Mukerjee recalled that the scout nurse for the list was Sister Boyd. After speaking to her he deposed to a conversation with the plaintiff in the side room of the theatre. He was asked the contents of the discussion with the plaintiff, and answered, "The contents was that it was - we were going to try with a laparoscopic sterilisation and if I fail to do that, then we'll do that laparotomy sterilisation and whether she would be consent with that. And a matter I mentioned there explained to her". Dr Mukerjee confirmed that the writing on the consent form `lap. tubal sterilisation', `Matter explained. She agreed.' and the line through the words `tubal ligation' were his. Dr Mukerjee was asked about the conversation which he had summarised as `matter explained'. He answered, "The matter is explained to her that what in fact the procedure laparoscopic sterilisation would entail. And this - it is in fact, it was explained to her, before that as you read through it, it listed laparoscopic sterilisation, but considering the procedure - part of the procedure and her build, this may be a difficulty and if that be the case, with a open laparotomy procedure would be - would need to be done and whether she consented that. And naturally if it does happen at times when this technical procedure is difficult to do, but alternative is to better to get the consent before hand to say that, yes, someone consented to having an open procedure and to go ahead with it, and..." He was asked whether the plaintiff voiced any concerns to him at the time of the conversation about the need for open laparotomy as a possible course of action. His answer was "I can't recall that".

20. Following his conversation with the plaintiff, Dr Mukerjee spoke to Sister Boyd again, told her that laparotomy might be required, and asked her to arrange for a set of appropriate instruments to be available in the operating theatre.

21. Dr Mukerjee commenced the surgical procedure. He inserted a needle in the abdominal wall through which it was intended that gas would be introduced. The gas would not flow. He took the needle out and tried it again in the same opening. This took quite some time, but was again unsuccessful. He then told Sister Boyd that they would have to do the open laparotomy. He brought in an assistant surgeon. He was quite comfortable that he had sufficient consent from the plaintiff to change the nature of the operation. The operation proceeded to its conclusion without incident.

22. Dr Mukerjee's evidence is that he saw the plaintiff the next day and explained that they had had to do the laparotomy procedure because they could not do the laparoscopic procedure. He said the plaintiff did not object or raise any concern, and said, "Well thank you very much for doing it".

23. Dr Mukerjee conceded that he was relying on his memory in relation to the events of the day. The plaintiff being a hospital patient, there had been no necessity for him to make or keep any notes of his own, other than the hospital records, and he did not do so. Dr Mukerjee said that the words `tubal ligation' without any addition would normally mean to him open surgery involving a laparotomy. In cross-examination, Dr Mukerjee gave evidence that he had crossed out the words `tubal ligation' and written in `lap. tubal sterilisation' at the time when he first met the plaintiff in Dr Willison's company at the hospital in August 2000. The other words in his handwriting, `Matter explained. She agreed' he wrote in on the day of the operation. He accepted in cross-examination that the change on another page on the hospital form, Instructions to Referring Consultant, from `tubal ligation' to `lap. sterilisation' were in his handwriting and bore his initials. He said that he had made these changes at the same time that he had made the change about the procedure on the first page, that is, on 2 August 2000.

24. Dr Mukerjee could not recall the plaintiff discussing with him what would happen about looking after her children if she was unable to leave the hospital on the afternoon of the operation or mentioning that she had made arrangements for the children to be looked after only for that day.

25. Sister Boyd gave oral evidence. She is a highly experienced theatre sister who has assisted at hundreds of open laparotomy and laparoscopic sterilisation procedures. Her evidence was that she checked the consent form on the morning of the operation and noticed that the consent related to laparoscopic sterilisation. She assessed the plaintiff as rather obese and thought that the needle used to admit gas into the abdomen might be too short to reach into the cavity. She expressed this concern to Dr Mukerjee when he arrived in theatre. He said, "That's OK, it's already been discussed with her that we might have to do a mini-laparotomy." She said "Well it doesn't say that on the consent form" and Dr Mukerjee said "OK, well, I'll fix that". He then spoke to the plaintiff. Sister Boyd said that she heard the conversation. She heard Dr Mukerjee say, "Do you remember when we spoke about maybe having to do a little cut in your abdomen if we can't get the telescope in and the instruments in, we would have to make a small cut down here in the tummy. Do you remember that being explained to you?" The plaintiff replied "Yes". Dr Mukerjee said "So are you happy for me to change the consent?" The plaintiff replied "Yes". Sister Boyd then sent her scout out to get the additional instruments which would be required for a laparotomy. She said that if she had had any concerns regard the issue of consent, she would have filled out an incident report form. Sister Boyd was definite that she remembered the conversation, but there were no contemporaneous notes to confirm it, and I infer that she would not have been asked to recollect it for at least a year.

26. The plaintiff's version is supported by the evidence of her husband. Their marriage was going through difficulties after the birth of the second boy, and they are still living apart, although now both in Queensland and within a short distance of each other to facilitate contact with the children. Mr Candutti's evidence was that when the plaintiff was given the operation date by the hospital, she asked him if he could mind the boys for the day. He offered to drop her off at the hospital as well, and he stayed with her until she went into the pre-admission area. At the end of the day, he went back to pick her up and discovered that she would have to stay in hospital at least overnight and probably for the rest of the week. He had made no arrangements to take time off work, and said that he had to ring his boss that night and negotiate a period of immediate leave. He said it almost cost him his job, but he managed to talk his boss around.

27. I accept that the plaintiff is a truthful witness and that she believed her evidence to be the truth. Supported as it is by that of her estranged husband, I have no doubt that that the plaintiff went into hospital on 1 March 2001 confident in the expectation that she would be home that afternoon. I am satisfied that it did not occur to her that there was any practical likelihood that she would be in hospital any longer. It follows that I am satisfied that the plaintiff believed that the procedure she was to undergo was a laparoscopic tubal ligation or sterilisation.

28. I accept that both Dr Mukerjee and Sister Boyd gave evidence which they believed to be true. However, Dr Mukerjee's evidence about meeting the plaintiff on 22 August 2000 is inconsistent with the Request for Admission form and with the plaintiff's evidence, and gains no support from Dr Willison. I suspect that his recollection of his presence at the consultation on 22 August with the plaintiff and Dr Willison, whilst he genuinely believes it to be true, is a false one and is the product of subconscious reconstruction. I think that it is far more likely that all of the changes to the request for admission form in Dr Mukerjee's handwriting were made in the operating theatre shortly prior to the plaintiff being anaesthetised for surgery.

29. It seems to me that some confusion arose because Dr Willison used the expression `tubal ligation' as a general one encompassing laparoscopic tubal sterilisation. It is entirely understandable that a medical practitioner in her position would reasonably take the view that the expression covered occlusion of the tubes both by ligature and by Filshie clip. Both came within the concept of ligation.

30. It is, however, clear that Dr Mukerjee at the time of operation and trial, used the expression `tubal ligation' to mean ligation as part of a laparotomy procedure, and understood the expression in that sense. He did not use the expression to cover laparoscopic surgery. It was because of this difference in usage that Dr Mukerjee thought on the morning of the operation that a mistake had been made in the form. I accept the plaintiff's evidence as to the conversation Dr Mukerjee had with her immediately prior to the operation. There is no doubt in my mind that at all times until she was anaesthetised, the plaintiff believed that she had consented only to laparoscopic surgery and not to laparotomy.

31. It is quite likely that the plaintiff did not entirely understand what Dr Mukerjee was saying to her. I had difficulty at times following his oral evidence, as I think will be apparent from some of the passages quoted above. It may well be that as part of the `Matter explained' by Dr Mukerjee to the plaintiff immediately prior to surgery, he intended to convey to her that the laparoscopic procedure might be unsuccessful, and that in such an event, sterilisation by laparotomy would be an available alternative. If he did, I am satisfied that the plaintiff did not understand that this is what was being put to her. It is, I suppose, possible that Dr Mukerjee thought that the plaintiff understood him and that her agreement to the `Matters explained' included a consent to laparotomy in such a contingency. If this is what happened, it was not an informed consent.

32. Dr Mukerjee's evidence is supported as to some contested issues by that of Sister Boyd. In general I take the same view about her evidence as I do about Dr Mukerjee: I found her a genuine person doing her best to give a truthful account of her recollection of the events of 1 March 2001. However, I take the view that, in relation to the content of the conversation between Dr Mukerjee and the plaintiff, her evidence also reflects a degree of subconscious reconstruction. I am completely satisfied that nothing occurred in the operating theatre which raised any doubt in her mind as to whether the plaintiff had consented to the surgery which was performed. I am satisfied that she believed that Dr Mukerjee had obtained the plaintiff's consent. I think the most likely explanation is that Sister Boyd did not hear the conversation, or did not hear all of it, and made some assumptions about what was being said. This is not a criticism of her evidence in any way. However, she had no contemporaneous notes to rely upon in refreshing her memory and has been involved in numerous similar surgical procedures over the intervening period of more than two years. For the plaintiff, this was an isolated and important conversation, and I think that her recollection of it is more likely to be correct.

33. It follows that whilst the plaintiff had given her consent on 2 August to being `opened up' in the event of an emergency during surgery such as internal bleeding or an allergic reaction to the gas, she did not at any time consent to surgery in the form of laparotomy in the absence of an emergency of that kind. The hypothetical emergency situations which had been explained to her were such that, if they arose, it would not have been an option simply to terminate the laparoscopic procedure. The need for the laparotomy would have arisen from the necessity for the surgeon to deal with an emergency which might be life-threatening and could not be dealt with in any other way.

34. The situation which arose whilst the plaintiff was under general anaesthetic was not an emergency of that kind, or an emergency at all. At an early stage of the surgical procedure it became clear to the surgeon that the abdominal cavity was not able to be inflated with gas. Sister Boyd explained that the reason for this is that the Verres needle was too short to penetrate the plaintiff's layer of abdominal subcutaneous fat. This meant that the abdominal cavity could not be inflated, an essential prerequisite for laparoscopic surgery. Sister Boyd gave evidence that she was concerned before the operation commenced that this was likely to be a problem, having regard to the plaintiff's then obesity. It seems surprising that the potential problem was not adverted to by Dr Willison at the consultation on 2 August 2000. It is highly undesirable that a plaintiff who has consented months earlier to a surgical procedure should be provided with a last-minute further warning in the operating theatre. The circumstances and timing of such a warning would often leave room for doubt as to whether what followed could truly be described as an informed consent. Obviously sometimes this cannot be avoided, but in the present case it seems to me that the likelihood that there might be a problem with the introduction of gas to the abdominal cavity should have been foreseen much earlier.

35. It is unnecessary for me to base any finding on that consideration, having regard to my conclusion that the plaintiff was not made aware prior to surgery that the laparoscopic procedure might not be successful because of a difficulty with the Verres needle and the introduction of gas to the abdominal cavity. In the circumstances, a finding must follow that the plaintiff did not consent to the laparotomy. When the problem arose during surgery, there was no reason why the surgery could not have been terminated, and the difficulty explained to the plaintiff. The plaintiff would then have had a number of alternatives available to her. She could have opted to make an attempt to lose enough weight to reduce the fatty layer to an acceptable level. She could have given consideration to other forms of contraception, and reconsidered whether to proceed with surgical sterilisation. She could have decided to go ahead with sterilisation by laparotomy.

36. The plaintiff was asked by her counsel in chief the following question: "If you'd been told that the laparoscopic procedure may not be successful, and a laparotomy procedure might be used, would you have agreed to that or not?" Her answer was in the negative. I have no doubt that this was an honest answer, but this is not necessarily enough to satisfy the Court that the answer would have been the same if an adequate warning and explanation had been given to the plaintiff at the appropriate time (which I think was the time of the consultation with Dr Willison on 2 August 2000, rather than the morning of the operation in the theatre). As McHugh J said in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at p 444:

...human nature being what it is, most persons who suffer harm as the result of a medical procedure and sue for damages genuinely believe that they would not have undertaken the procedure, if they had been warned of the risk of that harm.

37. The leading authorities on failure to warn in the surgical context, Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, and Rosenberg v Percival itself, were all cases involving a plaintiff whose case was that if she had been adequately warned, she would not have had the operation. The failure to warn related to a risk that the surgical procedure to which the plaintiff had consented might lead to a serious unintended and unusual consequence. The present case is different: the plaintiff's case is that she was subjected to surgery to which she did not consent at all. She went in to undergo a relatively minor surgical procedure, and was subjected without her consent to a much more major procedure.

38. The statement of claim was amended on two occasions. In the form in which the action went to trial, it was pleaded as a claim for `damages for bodily injury in relation to a medical negligence'. Particulars of negligence were described in the alternative as particulars of breach of contract, though no contract between the plaintiff and the defendant was specifically pleaded. Subsequently the statement of claim made reference to the `assault or breach of contract or negligence of the defendant and by (sic) its servants or agents'. The defendant accepted the statement of claim as pleaded, and relied on a defence denying some paragraphs and not admitting others. Specifically, the defendant denied that the loss and damage suffered by the plaintiff were a result of any assault, breach of contract or negligence of the defendant. Counsel conducted the case without specific reference to the pleadings on the basis that the plaintiff relied upon causes of action in negligence and in trespass to the person. It seems to me that the plaintiff succeeds on both counts. The laparotomy procedure was performed on the plaintiff without her consent. There was no life-threatening emergency which justified it. In the circumstances it amounted to a trespass. Additionally, the defendant through Dr Mukerjee owed the plaintiff a duty of care not to cause her injury or damage. In performing the laparotomy without consent, the defendant committed a breach of that duty which I am satisfied resulted in injury to her.

39. The assessment of damages is not as simple as it might seem. Despite the plaintiff's honest evidence, I am in some doubt as to what decision the plaintiff would have made if it had been explained to her at an appropriate time prior to the surgery that the laparoscopic procedure might be unsuccessful because of problems with the Verres needle. The plaintiff concedes that she consented to laparotomy in the event of an emergency arising, for example, from internal bleeding or allergy to the gas. If it had been properly explained to her well in advance, it is possible that she might have given her consent to laparotomy in the event of failure of the laparoscopic process. She would after all have been under a general anaesthetic, which carries its own risks, and at that time might have been more focused on the aim of achieving sterilisation. This is a hypothetical issue, rather than a fact upon which I can make a finding by reason of being satisfied on the balance of probabilities that it occurred.

40. I must consider another hypothetical situation: if the defendant's agents had realised that they had no consent for laparotomy, and had terminated the operation before embarking on it, the plaintiff would presumably have made a quick recovery from the minor incisions and the general anaesthetic, but would not have achieved her aim of sterilisation. She was still under thirty. It seems to me quite likely that she would have pursued further options in the future to achieve that aim. Her evidence was that she has lost a considerable amount of weight since then. I do not know how much, and there was no expert evidence as to whether in her present physical condition a Verres needle would be able to penetrate her abdominal wall and inflate the cavity adequately for laparoscopic surgery. One possibility is that the plaintiff would have tried to lose weight and present herself for a further attempt at laparoscopic sterilisation. Another possibility is that, after reflection, she would have resigned herself to laparotomy. In the alternative, she might have decided to rely on contraceptive measures. Again, we are in the realm of speculation rather than facts which can be determined on the balance of probabilities.

41. One of the possibilities is that the plaintiff would have undergone laparotomy, either at the time she did or at some later time. Were she to have done so, there is no evidentiary basis on which it is open to me to find that that the consequences would have been any different to those which flowed from the surgery which took place in March 2001 - except that she and her family would not have been taken by surprise by having to spend a week rather than a day in hospital.

42. It seems to me in all the circumstances that the appropriate approach is to assess damages as though the laparotomy was wrongful and to allow for the consequences of that; and to discount the figure arrived at to reflect the chance that the plaintiff might in any event have come to laparotomy, either in March 2000 or later, applying the methodology explained in Malec v J.C. Hutton Pty Ltd (1990) 196 CLR 368.

43. I accept that the plaintiff went through considerable pain and distress after she regained consciousness following the laparotomy, and that she has been left with a scar which is unsightly and in her perception ugly, though it would almost always be covered by clothing, even at the beach. I am not satisfied that her problems with painful and heavy periods are causally related to the surgery. In part they may be caused by an ovarian cyst, and she may have adenomyosis which is probably unrelated to the surgery (see the reports of Dr Mutton of 19 February and 30 April 2002).

44. I accept that the plaintiff was unable to engage in any activity for six weeks after the surgery, which caused her considerable inconvenience, particularly in caring for her twelve-month-old son. I accept that she was put to expense for consultations with her general practitioner, Dr Strelnikow, and with Dr Mutton, of about $400. I am also satisfied that she needed help from her husband and her sisters falling within the principle in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. I think that an appropriate allowance in that regard would be four hours a day for about six weeks at about $15 per hour which would amount to just on $2,500 on which I allow $600 interest.

45. By way of general damages for pain and suffering, interference with enjoyment of life and disfigurement, I would allow $35,000, apportioned as to $20,000 for the past and $15,000 for the future. On the past component, I would award interest of $1,500.

46. The individual components are thus:

General damages $35,000.00

Interest thereon $1,500.00

Treatment expenses $400.00

Griffiths v Kerkemeyer $2,500.00

Interest thereon $600.00

Total $40,000.00

47. I would then reduce this, for the reasons explained above, by 25% to take account of the possibility that the plaintiff would in any event have ultimately come to a laparotomy procedure.

48. There will accordingly be judgment for the plaintiff for $30,000.00. I will hear the parties as to costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 25 November 2003

Counsel for the plaintiff Mr B A Meagher

Solicitor for the plaintiff Blumers

Counsel for the defendant Ms L A Walker

Solicitor for the defendant ACT Government Solicitor

Date of hearing 3-4 June 2003

Date of decision 25 November 2003