Ljubic v Armellin [2009] ACTSC 21 (13 March 2009)

NEGLIGENCE – doctor and patient – gynaecologist – patient authorising total abdominal hysterectomy – surgeon removing ovaries in addition – whether patient authorised or consented to removal of ovaries

TRESPASS – trespass to person – doctor and patient – gynaecologist – patient authorising total abdominal hysterectomy – surgeon removing ovaries in addition – whether patient authorised or consented to removal of ovaries

DAMAGES – personal injury – removal of ovaries without consent during surgery for total abdominal hysterectomy – patient aged forty-four at operation – immediate onset of menopause – severe menopausal symptoms – depression and anxiety – impairment of earning capacity

1. This is an action by a patient against a surgeon for damages for negligence and trespass arising out of a surgical procedure. The plaintiff’s case is that she submitted to, and consented to, a total abdominal hysterectomy, and that in the course of the operation the defendant, without her consent, removed her ovaries as well.

2. These events happened in November 2003. The plaintiff was born in February 1959 and was forty-four at the time of the operation.

3. The plaintiff was born in Croatia. She migrated to Australia at the age of nineteen, in 1978, and married the following year. She and her husband, who is also of Croatian background, have two sons born in 1980 and 1988. The elder son suffered serious injuries, including brain damage, in a car accident in April 2000.

4. The plaintiff’s husband, who worked in the construction industry, was injured at work in March 2001 and suffered a stroke later the same year.

5. The plaintiff worked as a cleaner for various employers during her time in Australia leading up to her operation. She has not returned to work since the operation.

6. The plaintiff’s general practitioner is Dr Michael Yeung of Foundation Healthcare Erindale, a group practice. She has been a patient of the practice since 1993 and of Dr Yeung in particular since 2000.

7. In June 2003, the plaintiff complained to Dr Yeung of heavy but regular menstrual loss. Subsequent investigation revealed a bulky uterus. Dr Yeung referred her to the defendant, Dr Armellin. He has been practising as a specialist obstetrician and gynaecologist in Canberra since 1983. He has performed innumerable hysterectomies, a significant number of which have included removal of the ovaries.

8. The plaintiff made an appointment with Dr Armellin, and saw him at his rooms on 20 November 2003. There is a conflict between the evidence of the plaintiff and the defendant as to what happened and what was said during the consultation (there was no-one else present).

9. Dr Armellin had a cancellation in his operating list the following Tuesday, 25 November, and the operation took place on that afternoon. Dr Armellin performed a total abdominal hysterectomy and bilateral salpingo-oophorectomy. The plaintiff’s evidence is that she found out that her ovaries had been removed when she went to see Dr Yeung with concerns about post-operative symptoms of pain and vomiting on 3 December.

10. Both the plaintiff and the defendant gave oral evidence about the consultation. Dr Armellin recalled the plaintiff as a patient. He had had no prior professional or other contact with her. He explained that he followed his usual practice of making handwritten notes as they spoke. It was his invariable practice to dictate a letter to the referring doctor immediately following the consultation, not in the presence of the patient but before he called his next patient in from the waiting room.

11. It is apparent from the documentation produced by Dr Yeung, Dr Armellin and Calvary Hospital that Dr Yeung gave the plaintiff a referral letter to Dr Armellin, and that Dr Armellin was also provided with a report by a radiologist of a pelvic ultrasound carried out in June 2003 showing that the plaintiff’s uterus was anteverted and bulky, with at least four fibroids ranging from 1.6 cm to 7.2 cm in diameter. A copy of a somewhat cryptic sheet filled in by Dr Armellin at the time of the consultation assisted him in recalling information he had obtained from the plaintiff during the consultation. Dr Armellin said that in accordance with his usual practice, he conducted a physical examination of the plaintiff. He confirmed the presence of a palpable fibroid equivalent in size to a sixteen-week pregnancy. He looked at the ultrasound film also, and this was consistent with his physical examination. There appeared to have been some increase in the size of the fibroid since the ultrasound.

12. Dr Armellin asked the plaintiff about her symptoms and how they were affecting her life. She told him that she was experiencing pain and heavy bleeding during the first three days of her periods. He initiated a discussion with her of the available options. The first was to do nothing, which he did not favour, considering that the fibroid was growing and the symptoms worsening. The plaintiff raised the possibility of scraping or, as she called it in her evidence, scrubbing, which Dr Armellin assumed referred to a curettage. He explained to her that this was not open because the fibroids were too large.

13. He explained another option, of blocking the arteries to the uterus in an attempt to “kill” the fibroids. Yet another option was to give her injections to induce the onset of menopause, which would cause the fibroids to die. Other options discussed were surgical removal of the fibroids leaving the uterus in place, and surgical removal of the uterus (hysterectomy) including the fibroids.

14. Of the various options, Dr Armellin recommended hysterectomy. In his view immediate surgical removal was preferable to leaving the problem and allowing the fibroids to grow further. A later operation would require a much larger incision and would be a longer operation involving more pain. For various reasons which he explained to the plaintiff, Dr Armellin took the view that the other options were not appropriate to her circumstances. He explained to her that a hysterectomy operation would take about an hour under general anaesthetic. The uterus and cervix would be removed. He outlined possible complications of anaesthetic and of surgery. It was not essential to remove the cervix but was highly desirable as it removed the future possibility of cancer of the cervix, and obviated any need for future Pap smears.

15. During the consultation, Dr Armellin drew a diagram of the uterus showing the fibroids. He gave the plaintiff the diagram and did not keep a copy.

16. He also gave her a leaflet on hysterectomy published by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. This included diagrams and coloured pictures of the parts of the body involved and of the techniques used during surgery. The pamphlet explained the position and function of the uterus, the reasons for and techniques for surgical removal of the uterus, and possible side effects. Relevantly, the pamphlet included, in four A4 pages of close print, the following passage:

As the uterus does not produce female hormones, its removal does not change the level of female hormones in the blood. However, if the ovaries are removed during a hysterectomy in a premenopausal woman, the level of female hormones in the blood will decrease quickly. This will cause symptoms of the “change of life” as well as the absence of periods.

Making a decision: The decision whether to have surgery is always yours and should not be made in a rush. Make a decision only when you are satisfied with the information you have received and believe you have been well informed.

Consent form: If you decide to have the procedure, your gynaecologist will ask you to sign a consent form. Before signing, read it carefully. If you have any question about it, ask your gynaecologist.

18. At the end of this process, although Dr Armellin conceded that he could not remember the precise words used, he thought that, in accordance with his normal practice, he had asked the plaintiff what she would like to do, and that she had replied that she would like to have a hysterectomy. Up to that point, there had been no discussion about possible removal of the ovaries.

19. He then asked when she would like to have the operation, and she said that she would like to have it soon. He told her that he had a cancellation the following week, which had arisen in the last day or so, at Calvary Hospital. The plaintiff accepted this, but said that she would have to speak to her family first. He encouraged her to do so and to get back to him with her decision. He repeated some of his warnings about possible complications. He told her that she would be in hospital for four days and off work for about six weeks, but back to normal physical activities in about two or three weeks.

20. Dr Armellin said that it was always his practice to discuss with patients who were about to have a hysterectomy whether or not the ovaries should be removed. He said that such a discussion took place. The plaintiff was a young woman, just under forty-five, and the ovaries probably did not need to be removed. He told her that some hysterectomy patients over forty-five wanted to have their ovaries removed because they were worried about cancer, and that hysterectomy patients over fifty invariably chose to have their ovaries removed because they were no longer functional but were a potential site for cancer. He explained that about 1% of women contract ovarian cancer, and that he had had patients who had chosen not to have their ovaries removed at hysterectomy and had later contracted cancer. Ovarian cancer was a silent cancer, that is a cancer giving rise to no immediate symptoms in the patient.

21. Dr Armellin said that he also discussed with the plaintiff the need to go on to hormone replacement therapy if her ovaries were removed. By the end of this discussion, he formed the opinion that the plaintiff did not want her ovaries removed.

22. He was aware that it was necessary for a patient to sign a consent form for surgery, to be forwarded to the hospital in advance. He kept a stock of consent forms for each of the hospitals where he operated. He took out a Calvary Hospital consent form. This included a section to be completed by the medical practitioner, certifying that the patient had been informed as to the nature, likely results and material risks of the recommended procedure or treatment. Dr Armellin signed but did not date this portion of the form. He then completed the patient consent portion of the form, which read as follows, with the words inserted by Dr Armellin in italics:

Dr Armellin and I have discussed my present condition and the various ways in which it might be treated. The Doctor has recommended total abdominal hysterectomy.

• The procedure/treatment carries some risks and that complications may occur;

• An anaesthetic, medicines or blood transfusion may be needed, and these may have some risks;

• Additional procedures or treatments may be needed if the doctor finds something unexpected;

• The procedure/treatment may not give the expected result even though the procedure/treatment is carried out with due professional care.

I understand the nature of the procedure and that undergoing the procedure/treatment carries risks.

I have had the opportunity to ask questions and I am satisfied with the explanation and the answers to my questions.

I understand that I may withdraw my consent at any time prior to the procedure/treatment.

I also consent to anaesthetic, medicines or other treatments which could be related to this procedure/treatment.

I have been told that the procedure/treatment may be performed by another doctor.*

23. It is apparent that despite the instruction at the start of the patient consent portion of the form that it is to be completed by the patient, in this case it was completed by Dr Armellin and not by the patient. It is also apparent that the instruction to delete the items indicated by an asterisk if not applicable was not followed.

25. This part of the form was signed by the plaintiff and dated 20 November 2003. The patient’s name was not inserted.

26. It seems to me an unavoidable inference that Dr Armellin treated the completion of this form as something of a formality. It appears likely that the purpose of those who drafted the form, being a hospital form, was to afford some protection to the hospital against complaints by a patient following surgery or other treatment. Regardless of this, the form had the benefit of assuring hospital staff that the patient was aware of the proposed surgical procedure or other treatment and consented to it. Clearly this would be better achieved if medical practitioners adopted the practice intended by those who drafted the form, of having the patient consent portion completed by the patient rather than the surgeon. At all events, the plaintiff’s signature on the form satisfies me that she understood that she was to be admitted to hospital for a total abdominal hysterectomy, and that she consented to that procedure.

27. Dr Armellin’s evidence is that after the completion of the consent form, and some discussion about expense and hospital insurance, the plaintiff got up to leave but stopped and wanted to talk further about the removal of the ovaries. She said that she was concerned about cancer. He went over what he had said to her previously about ovarian cancer. He discussed with her the fact that the ovaries looked to be quite normal. He discussed hormone replacement therapy with her at some length. There was some discussion of the risk of breast cancer in conjunction with hormone replacement therapy: Dr Armellin explained to the plaintiff that there was evidence of an increased risk of breast cancer for a patient taking oestrogen and progesterone, but that progesterone would not be prescribed for a patient whose uterus had been removed. There was no evidence of oestrogen alone increasing the risk of breast cancer. He said that he explained this to the plaintiff using somewhat simpler language, though unsurprisingly he could not remember the precise words he had used.

28. He also talked to her about the fact that some women developed menopausal symptoms after hysterectomy, including hot flushes, dryness of the vagina and mood changes, whilst other women did not. His practice was to wait and see whether any of these symptoms developed, and if necessary to commence hormone replacement therapy should they do so.

29. At about this stage in the conversation, Dr Armellin’s evidence is that he said to the plaintiff “you’ll have a hysterectomy, what do you want to do about the ovaries?” and she replied “take it all out”. He confirmed that she would be checking with her family and that the surgery would be carried out on the following Tuesday unless she called his rooms to advise otherwise.

30. At about this time he was called briefly out of his room into the reception area. He was away only a minute or two. He went back into his room and escorted the plaintiff out to his secretary. He returned to his room and immediately dictated a letter to Dr Yeung, before seeing his next patient. His system was to dictate onto tape, so that his secretary would type the letter on the same day or the next day.

31. The letter to Dr Yeung is in evidence. It is dated 21 November 2003, the day after the consultation, and reads as follows:

Thank you for asking me to see Dragica. As you are aware she aged 44 [sic] and over the last several months has noticed she has had worsening pelvic pain and also some increased bleeding. It is apparently quite a problem for particularly the 1st three days of her period and it is affecting her daily activities.

On examination today there is certainly a large fibroid uterus equivalent to a 16 week pregnant uterus in size. This is also confirmed on ultrasound where there are some fibroids present up to the size of 7 cm. The cervix appeared normal. I have had a long discussion with her regarding her options and at this stage Mrs Ljukic [sic] is keen to have a hysterectomy, as her symptoms are becoming significant. We did discuss the question of the ovaries and she tells me she wishes to have them removed.

I have had a long discussion with her regarding the operation, its cost and potential complications and I have also given her literature regarding the hysterectomy.

Her husband has recently had a stroke and I understand one of her children has some mental disability. Because of these problems I have suggested I do this using the NO Gap system so she is not out of pocket. I have asked if she could check if she is covered for this.

32. The pamphlet given by Dr Armellin to the plaintiff during the consultation has somehow been lost. An identical pamphlet was tendered. On the second page there are diagrams to illustrate the four main types of hysterectomy, being total hysterectomy; total hysterectomy with bilateral salpingo-oophorectomy; subtotal hysterectomy; and radical hysterectomy. The plaintiff’s evidence is that Dr Armellin circled type 1 (total hysterectomy) with a pen during the consultation, and that she took the pamphlet away from the consultation marked in that way and without any marking around type 2. Dr Armellin in cross-examination had no recollection about this but conceded that it was possible and that he had probably circled it. He also agreed that the purpose of the pamphlet was to explain to someone who did not understand what a total abdominal hysterectomy involved. He agreed that it was designed to minimise the risk of any misunderstanding between doctor and patient as to what was involved in the various procedures described in the pamphlet.

33. The plaintiff gave her evidence in English, although her counsel took the precaution of having an interpreter sworn in case of language difficulties. The plaintiff spoke reasonable English and appeared to understand the questions asked of her. It was readily apparent that English is not her first language. In the course of her evidence she made many grammatical errors and I would not be confident of her understanding of many longer and more complex English words.

34. Her evidence was that in mid-2003 she went to her general practitioner, Dr Yeung, because of heavy periods. He referred her for an ultrasound test and subsequently referred her to Dr Armellin. She went to see him by appointment on 20 November 2003, taking the ultrasound film and report. He examined these and had a discussion with her. He referred to the seven-centimetre fibroid and told her that her uterus would have to be removed. She had heard through a friend about a procedure she described as scrubbing of fibroids. Dr Armellin told her that this could not be done. He spoke about giving her an injection but said that the fibroids would keep coming, and bleeding would continue. The only practical option was to remove the uterus. If the fibroids were left they could grow to the size of a rockmelon, and an operation to remove them at that stage would require a long incision. The plaintiff’s evidence was that at that stage she said to Dr Armellin “You not going to – you not going to touch my ovaries?”. He replied “no, your ovaries is healthy. . . . You a young lady, you know, if I do that you need . . . to go on hormone replacement”.

35. Dr Armellin then told the plaintiff that he had a cancellation in his hospital list the following week. She said that she was shocked by the suddenness of and was not expecting it. She had problems at home, including a son with a brain injury and a husband who had had a stroke, and she would need to organise things at home. He asked her to go home and speak to her family, and to ring him back.

36. She was asked by her counsel whether he had shown her anything during the discussion. She said that she had kept disturbing him when he was writing a consent paper. She asked whether he could explain more to her and talk to her family. He said that he could not do that, and that he would see her again at the hospital just before the operation.

37. She was shown the diagram drawn by Dr Armellin and asked when that had been drawn. The plaintiff said that she believed he had drawn it when she asked him the question “You’re not going to touch my ovaries?”. He had given her a pamphlet and ticked on it a picture relating to the procedure he was recommending. She no longer had the pamphlet and did not know what had become of it.

38. She was then shown the consent form. She said that she had signed the form in Dr Armellin’s rooms during the consultation. She was a little uncertain about this, saying that she had also signed a different consent form at the hospital and was not sure which was which.

39. In cross-examination, the plaintiff said that she had obtained Dr Armellin’s name from a friend, and asked Dr Yeung to refer her to him. She denied that Dr Armellin discussed with her the removal of the cervix, saying that she did not know what the cervix was at that time and had not heard the word before. She conceded that she had had Pap smears in the past and that she knew that these were for early detection of cervical cancer. At that point I asked the interpreter the Croatian word for cervix. The plaintiff had never heard the Croatian word before.

40. She agreed that Dr Armellin explained the ramifications of a total abdominal hysterectomy to her in detail, but she said that he treated her as though she was worthless. She said that she was suspicious immediately because he seemed to be hurrying her. She had an instinctive feeling that something might go wrong. She did not mention this to Dr Armellin. She accepted that he knew what he was doing, but she had a funny feeling about it. She thought that he dismissed too readily her suggestion about “scrubbing” the uterus.

41. She said that she asked a question about her ovaries. Dr Armellin said that she was still young at forty-four, and that her ovaries were healthy. She denied that he had discussed with her the fact that some patients contract ovarian cancer after a hysterectomy, and she did not recall him talking about the fact that some patients choose to have their ovaries removed at the same time because they are reasonably close to menopause. She denied that there was any discussion about removal of the ovaries negating the risk of ovarian cancer in the future. Pressed about this, she said that she was not sure but could not remember any mention of ovarian cancer. She categorically denied that she raised the question of ovarian cancer at the end of the consultation. She denied saying to Dr Armellin “take the whole lot out”.

42. The plaintiff’s evidence was that she went home and told her family what was proposed. Two days later, on the Saturday, she saw an acquaintance, Mrs Helen Domazet, at a social function at the Croatia-Deakin Soccer Club. She arranged to visit Mrs Domazet at home, and did so on the Sunday or Monday. She brought the pamphlet with her, and asked Mrs Domazet to explain it to her. She said that Mrs Domazet was originally Croatian but that her English was much better than the plaintiff’s. Mrs Domazet asked whether Dr Armellin was going to remove her ovaries, and the plaintiff said he was not. Mrs Domazet looked at the pamphlet and confirmed that the plaintiff’s ovaries were not the subject of the surgery.

43. This evidence was confirmed by Mrs Domazet, who had herself had a hysterectomy some years earlier in which the ovaries had not been removed. Mrs Domazet’s recollection was that the plaintiff showed her the diagram drawn by Dr Armellin. The plaintiff seemed apprehensive about her ovaries, and Mrs Domazet reassured her that, based on the diagram, the ovaries would not be involved in the surgery. Mrs Domazet offered to go with the plaintiff to see Dr Armellin on the Monday, the day before the operation, to clarify this but the plaintiff seemed reassured and this suggestion was not taken further at the time. Mrs Domazet had seen the pamphlet subsequently at the plaintiff’s solicitors office, but understood that it had since been lost.

44. The plaintiff’s evidence was that she arrived at Calvary Hospital at about 10.00 am on the morning of the operation. She completed and signed some forms. She was admitted to a ward, and was taken to the operating theatre at about 6.00 pm. When she was in an anteroom adjoining the operating theatre, Dr Armellin came in and had a short conversation with her. Her recollection was that he greeted her and asked whether she was ready for her operation, and that she replied in the affirmative. She had no further memory until waking up after the operation.

45. Dr Armellin’s evidence was that he saw the plaintiff in the anaesthetic room shortly before the operation. She was either the second or third patient in his list for that afternoon. His evidence was that he greeted her and asked her how she was feeling. He then said specifically “You’re having a hysterectomy, are you still happy for your ovaries to be removed?”. The reason he asked the question was that he had looked at the operating list in the theatre just before he spoke to the plaintiff, and noticed that the printed sheet showed against her name “total abdominal hysterectomy” with no mention of the ovaries. The printed sheet would have been generated by the hospital from the consent and admission forms signed by the plaintiff, which his secretary had sent to the hospital the previous Thursday.

46. The plaintiff replied to Dr Armellin’s question in the affirmative. He was in no doubt that she understood what he had asked. He then described what was about to happen. She would have a bikini cut. A catheter would be inserted which would be removed the following morning, and there might be a drain into the abdominal cavity if there was any bleeding. He thought that he had asked the plaintiff whether his assistant surgeon had introduced herself.

47. Shortly after this he conducted the operation, at the end of which he wrote up an operation record on the standard hospital form. This records “large fibroid uterus equivalent to approximately 14 weeks pregnant in size. Ovaries NAD [no abnormality detected]. Total abdominal hysterectomy with bilateral salpingo-oophorectomy”.

48. The plaintiff stayed in hospital for about four days, during which time Dr Armellin saw her again twice, making a notation in the hospital notes “home Saturday or Sunday. Rooms 6 to 8 weeks”. This signified that all had gone well and that he wished to see the plaintiff at his rooms for a standard follow-up consultation.

49. I had the benefit of the Calvary Hospital records in evidence. These showed that the plaintiff was admitted to the hospital at 11.00 am on 25 November and discharged on 29 November 2003. The request for admission form was completed by Dr Armellin on 20 November, the day of the consultation, and is marked as received at the hospital on 24 November, the day before the operation. The proposed operation is described in Dr Armellin’s handwriting as “total abdominal hysterectomy”.

50. Dr Armellin conceded in cross-examination that it was reasonable for hospital staff to assume, at the time of admission on 25 November, that the plaintiff was being admitted for a total abdominal hysterectomy only.

51. Dr Armellin also agreed that, as appeared from the hospital records, on the day of admission the plaintiff had been seen by a resident medical officer who would reasonably have assumed from the hospital file that the plaintiff was coming in for a total abdominal hysterectomy only: if the documentation had made reference to an oophorectomy, it was likely that the resident would have raised this with the plaintiff and the misunderstanding would have come to light at that stage.

52. Dr Armellin also agreed that the hospital had used clinical pathway documentation which had been designed for patients undergoing total and sub-total abdominal hysterectomy, and that there may have been a different set of clinical pathway documents for hysterectomy with oophorectomy. He agreed that at least one milestone might be different if the ovaries were removed as well, being the occurrence of hot flushes. It was put to him that such a milestone might have flagged the need for immediate hormone replacement therapy, and he did not disagree with this.

53. Dr Armellin explained that when he spoke to the plaintiff in the holding bay immediately prior to surgery, he was convinced from his memory of the conversation on the previous Thursday that the plaintiff’s consent to removal of her ovaries was not in doubt. He had made an error in not writing this in the hospital documents. When he realised the mistake, he had two options, one being to cancel the operation, and the other being to check with the patient, which is what he did. He said that if the same thing happened again he would adopt the first course and cancel the operation. Something similar had indeed happened recently: in that case he had had the patient sign a fresh consent form before she went into the operating theatre. He agreed with senior counsel for the plaintiff that this would have been the more satisfactory way to deal with the situation in which he found himself immediately prior to the plaintiff’s operation. Dr Armellin also accepted that it would have been preferable to take the plaintiff back through the pamphlet, or a fresh copy of it, and to circle the diagram for the operation which he now understood she wished to have performed.

54. The nurses’ theatre report shows that the plaintiff entered the holding bay at 3.35 pm, the anaesthetic commenced at 3.40 pm, the operation commenced at 4.52 pm and was completed at 5.40 pm, and the patient left the theatre at 5.45 pm. I accept that these recorded times are accurate.

55. The operation record itself was completed and signed by Dr Armellin, and included the words “total abdominal hysterectomy, bilateral salpingo-oophorectomy”. For some reason it was dated 27 November, but I think that this must have been a mistake made by Dr Armellin and that it was completed on the day of the operation, 25 November.

56. On 27 November 2003, two days after the operation, Dr Armellin wrote, in accordance with his usual practice, a letter to the referring general practitioner, Dr Yeung. The letter read:

I performed a total abdominal hysterectomy and bilateral salpingo-oophorectomy on your patient on 26 November 2003. This is for management of a large fibroid uterus causing pain and menorrhagia. At operation the uterus was perhaps equivalent to a 14-week pregnant uterus in size. Both ovaries appeared normal and at her request I removed them. Haemostasis was secured and there were no immediate problems.

57. The operation date was incorrect and should have been 25 November. There was nothing about this letter which would have taken Dr Yeung by surprise: he had previously received Dr Armellin’s letter of 21 November saying, among other things, that he had discussed with the plaintiff “the question of the ovaries and she tells me she wishes to have them removed”.

58. Following the plaintiff’s discharge from hospital, she spent some time recuperating at home. One night at about 2.00 am she was in pain. She got up and went to the toilet. She fainted and a little later, vomited. Following this incident she went to see Dr Yeung. She asked Dr Yeung whether he had received a letter from Dr Armellin. Dr Yeung replied in the affirmative, and added, in the plaintiff’s words, “you know he operate your ovaries”. The plaintiff said that she was shocked to hear this. She went home and spoke to her son, after which she telephoned her solicitor. She also spoke to Mrs Domazet.

59. She saw Dr Armellin again for the first time after her discharge from hospital, on 22 December 2003. She was accompanied by Mrs Domazet. The plaintiff’s evidence was that Dr Armellin apologised a number of times, and said that there must have been a misunderstanding. He said that she would have to go onto hormone replacement therapy. He said to her “I know exactly how you feel. If somebody operate my thing without . . . knowing . . . I be the same upset”.

60. Dr Armellin’s evidence was that a friend of the plaintiff, whom he now believed to be Mrs Domazet, had telephoned his rooms about a month after the operation. Mrs Domazet had told him that the plaintiff was very upset to have found out that her ovaries had been removed. Dr Armellin replied that the plaintiff had told him that she wanted her ovaries removed. An arrangement was made for the plaintiff and Mrs Domazet to come to his rooms for a discussion. This occurred on 22 December 2003. Dr Armellin said that he related his recollection of the discussion at his first consultation with the plaintiff. He told them that initially the plaintiff had not wanted her ovaries removed, but after further discussion she had changed her mind and said “take it all out”. The plaintiff then said that she had not meant this to include the ovaries. Dr Armellin said that he was by this stage in something of a state of shock. There was a silence, at the end of which he apologised. He said that he was terribly sorry about what had happened. He asserted that he had asked the plaintiff again just before the operation to confirm that she wanted her ovaries removed. The plaintiff said that she did not recall any such conversation. Dr Armellin showed the plaintiff and Mrs Domazet his letters of 21 November and 23 November to Dr Yeung, saying that these proved that there was an apparent consent to remove the ovaries. At that point Dr Armellin agreed with a proposition I put to him, that if he had adopted a practice of sending a copy of such letters to the patient as well as to the general practitioner, the misunderstanding in the present case would have become apparent before the operation. He said that it was not standard practice to send copies of letters to patients: sometimes a specialist might want to say something to a general practitioner which he would not want the patient to see.

61. Dr Armellin agreed that the plaintiff and Mrs Domazet had brought with them the pamphlet published by the College. The pamphlet had diagrams and short explanations of four different types of hysterectomies. One of these, the total abdominal hysterectomy, had been circled or marked. Dr Armellin did not remember marking it at the consultation before the operation but conceded that he might have done so.

62. Mrs Domazet gave generally consistent evidence about the discussion at Dr Armellin’s rooms in December. She said that Dr Armellin had said that the reason for removing the ovaries was to prevent cancer in the future. It was a precautionary measure, the ovaries being in a healthy condition, but ovarian cancer was a particularly serious cancer.

63. In accordance with his usual practice, Dr Armellin dictated a letter to Dr Yeung immediately after the consultation on 22 December. The letter read:

I reviewed Dragica on 22 December 2003. There seems to be some major confusion about Dragica’s operation as when I saw Dragica we had a long discussion regarding her operation (as you will read on my letter dated 21 November 2003). At that stage we had a long discussion regarding her ovaries and the pros and cons of removing them and I recall quite vividly asking her what she wished to do and she told me “take the whole lot out” which I interpreted as taking the uterus and ovaries out. Dragica tells me now that she actually meant the uterus and the fibroids but not the ovaries.

I did ask her just prior to the operation about whether she was certain about the ovaries but Dragica does not recall that. Dragica was quite distressed that the ovaries were removed and all I could do was apologise for the misunderstanding. In my defence I honestly felt (and recorded) that she wished the ovaries to be removed so obviously there was a communication problem in that area. She seems to have accepted my explanation. We did have the conversation with one of her friends being present today, so there was no misunderstanding.

Dragica seems quite well today and the wound was well healed. She does have some occasional hot flushes and again we discussed the pros and cons of HRT and she wishes to go on Premarin 0.625 mg daily. I will review her in 6 weeks if she is happy.

64. In chief, the plaintiff described her initial symptoms as including hot flushes, sleep disturbance, itchiness and dryness of the vagina. The symptoms began to hit her about two weeks after she came out of hospital. She began taking hormone replacement therapy, but said that after a week or so she developed lesions on her breasts, and stopped taking the medication. The hot flushes continued, lasting about five minutes and slowly dissipating. She became emotional and jumpy. Her sexual relationship with her husband was affected to the extent that eventually sex between them became almost non-existent. Intercourse was painful and the plaintiff was non interested in sex. She did not want her husband to touch her. Her skin generally became dry, and split readily on her feet and around her arms as well as in her genital area. She developed infections, for which Dr Yeung prescribed antibiotics.

65. She took hormone replacement therapy on and off. She tried different medications but the symptoms remained much the same. She had discontinued the hormone replacement therapy well before the hearing. She was referred by Dr Yeung to another gynaecologist, Dr Heaton, because of bleeding from the vagina.

66. The plaintiff said that she had suffered from depression at times, for which she had been prescribed Cipramil. She had been referred to Antoinette Harmer, a psychologist, for cognitive behaviour therapy. About two months before the hearing the plaintiff said that she had suffered a panic attack. The treatment by Ms Harmer had greatly improved her emotional condition.

67. She had been unable to return to work as a cleaner, partly because of her physical symptoms and partly because of her depression.

68. The plaintiff agreed in cross-examination that after a 1990 work accident, in which she had slipped and fallen from a plastic milk crate she was standing on, she had been out of work for five or six years because of back pain. She also agreed that during 2005 she received moneys from her son’s personal injury settlement, presumably representing the Griffiths v Kerkemeyer component of that claim.

69. At times since her surgery the plaintiff had tried natural therapy purchased from a health food shop, rather than the prescribed hormone replacement therapy.

70. The plaintiff relies on two reports by Professor MJ Bennett, a Melbourne-based professor of obstetrics and gynaecology who practises additionally as part of a medico-legal group, Medelink International Pty Limited. Initially the plaintiff’s solicitors sent Professor Bennett a brief of documents. Subsequently the plaintiff attended his rooms for interview and examination.

71. Professor Bennett said that the average age of the menopause is 51.6 years. Hence the plaintiff could have expected a further seven years of ovarian function before the ovaries failed naturally. Their excision removed from the plaintiff’s body its major source of oestrogen and testosterone. In Professor Bennett’s opinion, there was no indication for their removal at all. Even if Dr Armellin had been correct in his interpretation that the plaintiff wished to have the ovaries removed, Professor Bennett thought that he was in error in agreeing to remove them.

72. Professor Bennett had no doubt on the documentation that Dr Armellin had failed to ensure that his patient understood what the operation involved. He formed a view as to what the plaintiff said without bothering to ascertain whether his interpretation was correct, and to that extent breached the appropriate standard of care.

73. Professor Bennett explained that all women reach a point in their lives when their ovaries fail naturally. This may be in the mid-to-late forties, or as late as the mid-fifties. During the decade leading up to ovarian failure there is a slow fall in production of hormones from the ovaries, to the point where they eventually cease to function. Some women suffer significant problems and symptoms associated with oestrogen deficiency while others suffer hardly or not at all.

74. Where functioning ovaries are removed surgically, the fall in hormone levels is dramatic and the symptoms can be significant. The symptoms can generally be treated by hormone replacement therapy.

75. Professor Bennett saw the plaintiff in August 2005, approaching two years after her surgery. It was apparent to him that English was very much a second language for the plaintiff. He experienced some communication difficulties. She told him that about a month after discharge from hospital she developed profound hot flushes. Her general practitioner prescribed hormone replacement therapy. Friends informed her that this was not safe. She became concerned and stopped the treatment. She tried a number of alternatives. When she saw Professor Bennett she was on Livial, which controlled the hot flushes, but she remained nervous because friends told her that such medications were not safe. Professor Bennett recommended that she discuss the issues with her doctor in the presence of an interpreter, so that her fears and anxieties could be allayed.

76. Professor Bennett recorded that the plaintiff was 157 centimetres tall and considerably overweight at 85 kilograms. He found no abnormality on physical examination. The only symptom of which the plaintiff complained to Professor Bennett was that of hot flushes, although he would also have expected a dry and painful vagina during intercourse, and sleep disturbance. In the much longer term, it would be likely that she would develop osteoporosis, but all of these symptoms could be prevented if her ovarian function was replaced, I take it by hormone replacement therapy.

77. The solicitors for the defendant qualified Professor Michael Chapman, professor of obstetrics and gynaecology at the University of New South Wales, based at St George Hospital in Sydney. Professor Chapman said that his advice to a patient in her mid-forties requiring hysterectomy was that the ovaries should be removed at the same time. The major reason was removal of the risk of ovarian cancer, which is potentially lethal because it is usually so far advanced when it is detected. The second reason is that a significant percentage of women will return following hysterectomy with symptoms requiring a second operation to remove one or both of the ovaries because of abdominal pain. Removal of the ovaries at a second operation was more risky than removal at the same time as hysterectomy, because of adhesions.

78. Professor Chapman would have taken steps to anticipate the onset of symptoms such as hot flushes by inserting an oestradiol implant in the wound, or commencing oestrogen therapy in the days following the hysterectomy.

79. Professor Chapman said that there was an older body of opinion that the expression “total abdominal hysterectomy” included the ovaries, but that this was no longer the common view. It would, he said, have been appropriate to have had the patient change the consent form to make specific mention of removal of the ovaries.

80. Professor Chapman accepted that the symptoms of which the plaintiff complained, including hot flushes, headaches, interference with sleep, fatigue, joint pain, dry skin and dry vagina, and loss of libido, were consistent with menopause induced by removal of the ovaries at the time of the hysterectomy. The removal of the ovaries would not have contributed to increased blood pressure, breast soreness, constipation, vaginal infection or infections in the breasts. The physical symptoms of menopause should not prevent the plaintiff from working as a cleaner.

81. Professor Chapman was provided with medical reports and documentary material only, and did not see the patient.

82. The general practitioner, Dr Yeung, has seen the plaintiff regularly over the years since her surgery. He had previously prescribed Cipramil for depression between October 2000 and July 2001, and in July 2003. He diagnosed depression again after the hysterectomy and prescribed Cipramil. He also prescribed hormone replacement therapy for the menopausal symptoms of sweating and hot flushes. After the hysterectomy the plaintiff complained of abdominal pains, which he was unable to relate to the surgery. Dr Yeung advised psychological counselling for depression, which the plaintiff declined, and referred her to Dr Roger Heaton, gynaecologist, at her request, for opinion about her abdominal pains.

83. Dr Yeung expressed the opinion that the plaintiff’s headaches, chest pain and shortness of breath had been present intermittently since 1998 and were unrelated to the removal of her ovaries. The hot flushes and sweating were attributable to the removal. He had treated the plaintiff in August 2004 for a urinary tract infection unrelated to the surgery.

84. He expressed the opinion in May 2006 to the plaintiff’s solicitors that patients generally, after an uncomplicated bilateral salpingo-oophorectomy with or without a total abdominal hysterectomy, should be able to return to normal duties six to eight weeks after the surgery. Returning to work would depend on the nature of the work: a patient might not be able to return to a heavy labouring job until three months after the operation. From a physical point of view, there was no reason why the plaintiff should not have been able to go back to work as a cleaner after at most a break of three months. For various reasons, Dr Yeung said, including family and personal problems, depression and the menopausal symptoms, the plaintiff had not been back to work after the surgery.

85. Dr Heaton saw the plaintiff in January 2005 on referral from Dr Yeung. She complained of depression following the removal of her ovaries. Other symptoms were pain in the left side of the abdomen, a feeling of pressure in the lower abdomen, deep dyspareunia and some discharge of watery pink fluid.

86. Dr Heaton examined the plaintiff, and detected firmness in the left iliac fossa extending up the left flank, suggestive of constipation. She had a loaded and tender rectum. The vagina was normal. Dr Heaton thought that the anti-depressant Cipramil might have been a contributing factor to the constipation. He advised her to increase her fluid and fibre intake and suggested a stool softener such as Normacol.

87. The plaintiff saw him again in February 2006, complaining of vaginal bleeding and lower back pain. She also complained of hot flushes at night, hair loss and skin dryness. She had breast discomfort and was still depressed. On examination, there was some loss of colour of the vulva and vagina suggestive of hormone loss. The rectum was still tender and loaded, and Dr Heaton thought that this was contributing to the plaintiff’s discomfort, especially with intercourse.

88. Dr Heaton felt that the vaginal dryness and depression could be accounted for by the removal of the ovaries. As a secondary effect, anti-depressants had probably contributed to constipation causing pain on the left side of the lower abdomen, which could be corrected by appropriate diet. He thought that the plaintiff should continue with hormone replacement therapy for a minimum of five years and preferably for ten years, to be reassessed at that time. Hormone replacement therapy would maintain vaginal and bladder health, and restore a feeling of wellbeing, good skin and hair, good memory and uninterrupted sleep.

89. The plaintiff saw Dr Heaton again in November 2006 complaining of abdominal pain, as well as depression, nightmares and dyspareunia. He found no abnormalities on examination but arranged an ultrasound to make sure. This was normal, with no evidence of hernia or adhesion which might have been responsible for the symptoms.

90. The plaintiff’s solicitors sent her to Dr William Knox, psychiatrist, in August 2004 for a medico-legal assessment and report. She complained to him about experiencing significant pain when given an anaesthetic injection into the dorsum of her hand before her hysterectomy, causing her body to shake. She told Dr Knox that she “feared they were going to kill me”. She also described an occasion in hospital during the days after the surgery when she was visited by medical staff who looked at her medical records at the end of the bed, one of them shaking his head and appearing to be angry, although nothing was said to her to explain this. (The plaintiff did not mention any of this in her oral evidence, no doubt because her counsel did not see it as relevant and did not elicit it).

91. She told him that she had discovered that her ovaries had been removed when informed by Dr Yeung some time after the operation. She was shocked and panic stricken. She was confused and screamed. She asked herself what she had done to deserve such ill fortune.

92. At times the plaintiff had been reminded of her circumstances. She told Dr Knox about watching a television program dealing with the harvesting of stem cells from ovaries. She wondered whether or not her ovaries had been used for such a purpose and whether “my children are out there walking around somewhere”.

93. She reported weight gain, irritability caused by noise and other people, confusion, distress and unhappiness. She said that she had not returned to work as a cleaner because of fear of pain and the risk of further injury. She said that she had been well before her hysterectomy, although Dr Knox noted that she had had considerable worry since her son’s car accident in April 2000.

94. Dr Knox diagnosed the plaintiff as suffering from adjustment disorder with mixed anxiety and depressed mood. He thought on balance that she had suffered psychological impairment as a result of learning of the removal of her ovaries. He recommended that she undergo psychological counselling as the most effective treatment.

95. Following receipt of this report, the solicitors for the plaintiff organised for her to see Ms Antoinette Harmer, a psychologist, who treated her from September 2004. By December 2006 she had seen the plaintiff on twenty-two occasions. Ms Harmer thought in December 2006 that the plaintiff met the diagnostic criteria for major depression.

96. Dr Knox reviewed the plaintiff in November 2006 at the request of her solicitors. Dr Knox by this time had been made aware that the plaintiff had had a history of depression prior to her hysterectomy, including treatment by the anti-depressant Cipramil.

97. Dr Knox remained of the view that the plaintiff was suffering from adjustment disorder with mixed anxiety and depressed mood. He said that the plaintiff had relatively fixed ideas concerning the effects of the removal of her ovaries on her physical and mental health. He doubted whether she would “easily give up these cognitions”. He expressed the belief that the plaintiff had experienced symptoms and disability arising out of the circumstances of her operation which would not otherwise have been present, or certainly not to the same degree, if it had not been for the alleged misunderstanding.

98. The defendant’s solicitors sent the plaintiff to a Sydney psychiatrist, Dr Klaas Akkerman. He saw the plaintiff in December 2006 and again in February 2008. The plaintiff told Dr Akkerman that she believed that Dr Armellin had removed her ovaries deliberately. She thought that he had taken advantage of her language difficulties and had removed her ovaries so that he could sell them.

99. She told him that her relationship with her husband was strained. Her husband suspected that she was having an affair, but the reality was that she was no longer interested in sex. Dr Akkerman diagnosed the plaintiff as suffering from an adjustment disorder with anxious and depressed mood. He thought that she was capable of working part-time as a cleaner, for about twenty hours per week. The main cause of her depression was her son’s head injury rather than the removal of her ovaries, the latter contributing in Dr Akkerman’s view about 10% to her depression. The removal of the ovaries had not really made much difference to her depression: she would have been as depressed as she was when he saw her regardless of the removal of the ovaries, and she would not have been working.

100. By the time Dr Akkerman reviewed the plaintiff, her relationship with her husband had improved. She continued, in his view, to suffer from a mild adjustment disorder. 10% of her condition was related to the removal of the ovaries and 90% to the problems with her son. She was fit to return to work. There were no restrictions on her employment from a psychiatric point of view, and similarly no restrictions on her social or leisure activities. She required no treatment other than Cipramil on prescription by her general practitioner.

101. Senior counsel for the defendant tendered a copy of the statement of claim in the plaintiff’s 1995 action against City Group Pty Limited. The originating process had been filed in June 1995. The action arose out of a work injury in July 1990 and relied on a failure by the employer to provide a safe system of work. The injuries claimed were to the neck and lower back. The statement of claim asserted that the plaintiff at the time of issue continued to suffer from neck pain, and pain and restriction of movement in the lower lumbar spine, reducing her capacity to work and to engage in recreational, social and domestic activities.

102. An appearance was entered by the employer’s solicitors in July 1995, and judgment was entered by consent in August 1995 in the plaintiff’s favour for $193,772.74. Having regard to the brief interval between issue and judgment, I am inclined to the view that the claim was probably already settled when proceedings were instituted, and that the settlement was implemented, by arrangement between the parties, as a consent judgment in an action under the general law, a relatively simple mechanism ensuring that the plaintiff would have no continuing entitlement to workers’ compensation. As I mentioned earlier, the plaintiff conceded that following the 1990 injury she was off work for five or six years because of back pain. It appears that she rejoined the workforce as a cleaner after judgment was entered in the 1995 action.

103. Senior counsel for the defendant invited me to infer from the amount of the settlement that the 1990 injuries must have been severe, and that the settlement amount must have included a substantial component for loss of earning capacity for the future. I find myself unable to draw any such inference on the limited material available. The settlement sum, for all I can tell, may have included workers’ compensation payments made by the employer’s insurer between 1990 and 1995, and there may have been little if any allowance for the future.

104. Senior counsel for the defendant also tendered copies of the pleadings in the action brought by the plaintiff’s son, and a bundle of other documents including correspondence about particulars, a statement of particulars, and a report by an occupational therapist commissioned by the solicitors acting for the plaintiff’s son, who are the same solicitors as are representing the plaintiff in the present proceedings.

105. The son’s accident happened in April 2000. Proceedings were commenced in October 2001. Initially a defence was filed but in November 2003 liability was admitted. The injuries alleged included a severe closed head injury involving a fractured skull and generalised brain damage, with a prolonged coma. The statement of particulars, filed in July 2004, listed some one hundred and thirty disabilities, including a need for his mother’s assistance in providing domestic and quasi-nursing services.

106. The occupational therapist, Ms Wall, went to the plaintiff’s home, where she was living with her husband and injured son, in January 2004. She interviewed the plaintiff and the son, and carried out an assessment of the plaintiff’s needs for present and future care. The mother and son told her during the course of the interview that the mother had worked as a cleaner before the son’s injury but had left work to care for him. The mother said that she felt unable to go away and leave her son for more than a couple of hours because he was unable to tend to his daily needs and would forget even simple things he had been told to do. She was also afraid, having regard to the level of his depression, about what he might do to himself if left alone. The mother had initially stayed with him in hospital, and after his discharge spent, on her estimate, ten hours a day looking after him. This reduced over time but, in Ms Wall’s expert opinion, had involved an average of 13.5 hours per week by the time of her assessment, in the provision of services including care, meal preparation, shopping, travel and household maintenance. Some of this care had been provided by other family members but the mother was clearly the principal provider.

107. There was a substantial claim included in the statement of particulars for future provision of services, principally by the mother, to the son for the rest of his life.

108. The son’s action was settled during 2005. As I have previously mentioned, the plaintiff received payment of a portion of the damages presumably representing the Griffiths v Kerkemeyer component attributable to the time she had spent providing services. The material in evidence does not go so far as to quantify the amount, but senior counsel for the defendant submits that I should infer that after the son’s accident in 2000, I should accept the plaintiff’s assertion to Ms Wall that she had given up work to look after her son, and should not be satisfied that she would have returned to work at all, even by now, because of the son’s continuing needs.

109. The evidence is that the son is no longer living at home and is, at least to some extent, able to look after himself. I do not have the benefit of medical reports in the son’s case and can do no more than speculate as to whether he has made a better recovery than was originally expected, or whether his needs may have been somewhat exaggerated to Ms Wall in the context of preparation of his case.

110. I did not find the plaintiff a particularly convincing historian. This was not so much due to language difficulties as to her personality style. She is, as Ms Harmer reported, a person who sees herself as a victim and tends to “catastrophise” events, making it difficult for her to maintain motivation to implement effective coping strategies. It seems to me that this personality style also affected her evidence which was in a number of areas emotional and exaggerated, although I thought that generally she was doing her best to give her evidence truthfully.

111. I generally accept the evidence of Mrs Domazet, although she was, as she conceded, a little vague about dates and, in some respects, the sequence of events.

112. Dr Armellin was, as one might expect, an articulate and believable witness. I did not for a moment gain the impression that he was doing anything less than his best to give honest evidence based on his recollection of events. Of course, human recollection is notoriously selective and less than completely reliable. In relation to the whole of the oral evidence, I prefer the contemporaneous written records as more likely to be accurate where there is any inconsistency.

113. In arriving at detailed factual findings, I am particularly influenced by two matters. The first is the plaintiff’s reaction when she realised, during her visit to Dr Yeung’s surgery early in December 2003, that her ovaries had been removed. I accept unreservedly that this was the first the plaintiff knew about it, that she had not intended to agree to it, and that it came as a genuine shock to her to discover what had happened.

114. The second matter which influences me is the evidence about Dr Armellin’s response during his discussion with the plaintiff and Mrs Domazet. I am satisfied that Dr Armellin was similarly surprised and indeed shocked to discover that there was any issue about consent to the removal of the ovaries. It is inconceivable that a surgeon of Dr Armellin’s skill and experience would have removed the ovaries during the hysterectomy operation if he had not believed that this was what the patient had asked and authorised him to do. I am satisfied that Dr Armellin went into the operating theatre believing that he had the plaintiff’s consent and authority to remove her ovaries.

115. It follows that there was a misunderstanding, and a very serious one with irreversible consequences.

116. As to what was said at the initial consultation between the plaintiff and Dr Armellin before the surgery, much is not in contention. As to the areas of disagreement between the patient and the doctor, there was no-one else present and no contemporaneous record which might assist in resolving the issue with the exception of the hospital consent and admission request forms. Plainly these recorded the proposed surgery as “total abdominal hysterectomy” with no mention of bilateral salpingo-oophorectomy.

117. Although it has been lost, I accept that on the College brochure, Dr Armellin circled the total abdominal hysterectomy diagram and wording, and that he did not circle the diagram and wording for the total abdominal hysterectomy with salpingo-oophorectomy.

118. It is not necessary for me to make a specific finding about precisely what was said by each of the plaintiff and the defendant, if anything, about removal of the ovaries after the forms were signed. It is enough for me to say that I am satisfied that the plaintiff left the consultation having, in her mind, authorised and consented to surgery for the removal of her uterus and cervix, but not the removal of her ovaries.

119. The hospital forms were sent to the hospital, which brought documentation into existence based on the proposed surgery being simply the total abdominal hysterectomy. This was the operation which appeared against the plaintiff’s name on Dr Armellin’s operating list for the afternoon in question. It is common ground that there was some short conversation between Dr Armellin and the plaintiff in the anteroom to the operating theatre just before the operation. Again, it is unnecessary for me to make a specific finding about precisely what was said. It is enough for me to say that I am satisfied that whatever Dr Armellin said was not enough to cause the plaintiff to realise that he thought that she had authorised and agreed to the removal of her ovaries, and that he was proposing to remove them. I am satisfied that by that time, Dr Armellin realised that the operating list did not mention the oophorectomy. I accept that he believed that he had the plaintiff’s authority and consent to the removal of the ovaries. I accept that he said something to her about it, and that she did not say anything in reply which put him on notice that there was a problem about the consent. The misunderstanding accordingly persisted. The plaintiff was anaesthetised and taken into the theatre, the operation was performed and the damage was done.

120. I am satisfied that Dr Armellin did not have the consent or authority of the plaintiff to remove her ovaries during the operation.

121. In those circumstances the removal of the ovaries amounted to a breach of the surgeon’s duty of care to the patient, and, as a matter of law, to a trespass to the person of the patient.

123. The observations I have made about the plaintiff as a witness apply equally to her evidence about the impact of the loss of her ovaries, and her realisation that they had been removed. She tended to blame all of her problems since the operation on the loss of her ovaries. It is apparent that her counsel elected not to lead evidence from her about a number of the complaints she had made to various doctors about matters which could not possibly have any causal connection with the removal of the ovaries.

124. Having said that, I accept that the removal of the ovaries has had a significant effect on the plaintiff physically and emotionally, and in addition I accept that the emotional impact on the plaintiff of the knowledge that her ovaries had been removed without her authority was, and continues to be, severe, and productive of symptoms of anxiety and depression of mood. The plaintiff was predisposed to such a reaction by her psychological makeup, illustrated by the fact that she had suffered and required treatment for depression in earlier years. The other side of that coin is that the plaintiff was probably vulnerable to episodes of anxiety and depression in the future, triggered by other events in her life, regardless of the removal of her ovaries.

125. Physically, the plaintiff has been subjected to the sudden termination of the production of female hormones, and deprived of the normal gradual progression towards menopause. Probably her symptoms would have been lessened if she had taken the advice of her doctors and taken hormone replacement therapy throughout, but the defendant must take the plaintiff as he finds her, with her ethnic, linguistic and educational background. I am not prepared to find that her pattern of giving up medically prescribed hormone replacement therapy and trying out health food store alternatives amounts to a failure to mitigate her damage. Because of the pattern she has adopted, the symptoms have been worse and I am satisfied that she has had a generally unpleasant time of it, with hot flushes, interference with sleep, dryness of the skin and the vagina, and the other symptoms she has described. I also take account of the fact that the combination of her symptoms has impaired her interest and participation in sexual activity with her husband, to the detriment of their relationship more generally.

126. In weighing up the various factors relevant to the assessment of general damages, I take account of the evidence of Professor Chapman that a significant percentage of women return after a hysterectomy without removal of the ovaries, for a second operation to remove one or both of the ovaries. I must take account of the possibility that if the plaintiff had had the hysterectomy alone, she might have fallen into that group of women at some time in the future.

127. I invited counsel to make submissions as to a range for general damages. Senior counsel for the plaintiff suggested $70,000.00 to $80,000.00. Senior counsel for the defendant put a range of $35,000.00 to $40,000.00 should I find generally for the plaintiff on the issues on which I have.

128. On reflection it seems to me that an appropriate allowance for general damages for pain and suffering and loss of enjoyment of life is $60,000.00, of which I apportion $40,000.00 to the period from the operation until judgment. That portion attracts interest, weighted a little more heavily to the period immediately after the plaintiff’s realisation that her ovaries had been removed. I award $5,000.00 for interest on general damages.

129. Past treatment expenses were agreed between the parties in July 2008 at $8,004.50. On the evidence the plaintiff will have incurred some further expenses in the months since then. I allow $8,500.00 for past treatment expenses. The evidence does not enable me to find that the plaintiff has personally paid any of those expenses, so there will be no award of interest.

130. Some allowance is justified for future treatment expenses. The plaintiff will need to continue with hormone replacement therapy or some substitute she may choose, for a few years. She will need to see her general practitioner from time to time. She may need further prescriptions of anti-depressants and perhaps other medication. There is a remote possibility that she will need further psychological counselling. All things considered I allow $2,500.00 for future expenses.

131. In relation to past loss of earnings, senior counsel for the plaintiff, acknowledging the plaintiff’s previous work record and the effect on it of her previous neck and back injuries and the demands of her son’s head injury, submitted that it would be appropriate to award a buffer for the past and a buffer for the future, rather than a figure calculated mathematically. Senior counsel for the defendant did not submit otherwise.

132. It appeared to be acknowledged on both sides that the plaintiff’s theoretical earning capacity as a cleaner was about $250.00 per week after tax. A person earning at that rate for the period since the plaintiff’s surgery would have earned something like $65,000.00 after tax. Taking account of the plaintiff’s previous working history and the other events in her life before the surgery and since, I allow $30,000.00 for impairment of earning capacity for the period up to judgment. That sum attracts interest at the prescribed commercial rate of 9% per annum. For interest I allow $7,000.00.

133. As to future economic loss, the 3% compound interest multiplier for a woman aged fifty to age sixty is 446 and to sixty-five 618. Taking those figures into account, and having regard to the general vicissitudes of life and the particular vicissitudes for the plaintiff, it seems to me appropriate to award an amount of $50,000.00 to compensate for lost earning capacity for the future.

134. I adopt the conventional approach of allowing 9% of the amounts allowed for loss of earning capacity for the past and the future, as an allowance for loss of superannuation benefits. The amounts are $2,700.00 for the past and $4,500.00 for the future.

General damages	$ 60,000.00
- interest thereon	$ 5,000.00
Past expenses	$ 8,500.00
Future expenses	$ 2,500.00
Loss of earning capacity - past	$ 30,000.00
- interest thereon	$ 7,000.00
Loss of earning capacity - future	$ 50,000.00
Loss of superannuation benefits
- past	$ 2,700.00
- future	$ 4,500.00
Total	$170,200.00

137. On consideration, that amount seems to me to represent a proper reflection of the plaintiff’s damage caused by the tortious conduct of the defendant. There will be judgment for the plaintiff for $170,200.00. I shall hear the parties as to costs.

I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Supreme Court of the ACT

Ljubic v Armellin [2009] ACTSC 21 (13 March 2009)