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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 5 March 2001
NEW SOUTH WALES COURT OF APPEAL
CITATION: Bridges v Pelly [2001] NSWCA 31
FILE NUMBER(S):
40135/99
HEARING DATE(S): 8 November 2000
JUDGMENT DATE: 02/03/2001
PARTIES:
Jacqueline Ellen Bridges - Appellant
Elizabeth Mary Pelly (as executrix of the late Anthony Darcy Pelly) - Respondent
JUDGMENT OF: Sheller JA Giles JA Brownie AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 19301/87
LOWER COURT JUDICIAL OFFICER: Boyd-Boland ADCJ
COUNSEL:
P Rout - Appellant
A Sullivan QC - Respondent
SOLICITORS:
Mee Ling Solicitors - Appellant
Blake Dawson Waldron - Respondent
CATCHWORDS:
NEGLIGENCE - cosmetic surgery - patient not made aware of material risks - whether would have had surgery if had been made aware - whether surgery performed negligently - whether negligent post-operative treatment - on facts, patient failed on all three issues - many complaints about conduct of trial and findings of trial judge - consideration of rule in Jones v Dunkel - consideration of inference available if defendant surgeon did not produce medical notes - Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 - reference to coincidence rule in s 98 of the Evidence Act 1995 - none of the complaints upheld. D
LEGISLATION CITED:
DECISION:
(1) Appeal dismissed; (2) Reserve question of costs of appeal; (3) Direct respondent to file and serve by 4pm on 12 March 2001 written submissions in which she states (a) the order or orders she seeks as to the costs of the appeal; (b) the grounds on which she seeks the order or orders; and (c) her argument in support of those grounds. (4) List the appeal on 16 March 2001 for further directions in the light of the respondent's written submissions.
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40135/99
DC 19301/87
SHELLER JA
GILES JA
BROWNIE AJA
Friday 2 March 2001
1 SHELLER JA: I agree with Giles JA
2 GILES JA: In mid-1981 the appellant consulted Mr Anthony Pelly, a plastic and reconstructive surgeon, with a view to cosmetic surgery. According to the appellant's evidence, her purpose was to alter the shape of her nose but Mr Pelly said that he would also alter the shape of her chin. After a further consultation with Mr Pelly the appellant decided to undergo the combined procedure.
3 On 3 September 1981 Mr Pelly performed a rhinoplasty and a genioplasty on the appellant at Hunters Hill Private Hospital. The appellant was discharged from the hospital on 6 September 1981. According to the appellant's evidence, when the bandages were removed she did not like what she saw, and as well was unable properly to close her mouth and had difficulty in pronouncing consonants and unpleasant sensations in her chin.
4 The appellant was reviewed by Mr Pelly on four occasions in the period September 1981 to January 1982. She complained to him about her appearance, and said in her evidence that she complained about the other matters, but she said she chose not to make an issue of her complaints.
5 Over the following years the appellant consulted a number of plastic and reconstructive surgeons, and underwent a number of other procedures involving surgery to her nose and chin and otherwise in relation to her appearance. The principal occasions, in summary, were -
(a) In April 1982 the appellant first consulted Mr Desmond Rea, who with further consultations performed a rhinoplasty (24 August 1982), a genioplasty (29 September 1982), a secondary rhinoplasty (6 July 1983), a blepharoplasty (a procedure involving the eye lids) (6 January 1984) and removal of excess skin from under the appellant's chin (13 January 1984).
(b) On 1 March 1983 the appellant consulted Mr Graeme Miller, who was not keen on any further procedures and to whom she did not then return.
(c) On 12 May 1983 the appellant consulted Mr Ian Carlisle, with whom she had a further consultation on 9 June 1983 before returning to Mr Rea.
(d) On 9 February 1984 the appellant again consulted Mr Carlisle, and following a further consultation on 29 March 1984 Mr Carlisle performed a rhinoplasty.
(e) On 27 July and 3 August 1983 the appellant consulted Mr R K Newing, who reported that it would be difficult to do anything about her complaint of a crooked smile and was not further consulted.
(f) The appellant consulted Mr Carlisle on five further occasions in 1984 expressing concern about her chin and a desire for a face-lift, and latterly requesting a breast augmentation. On 9 January 1995 Mr Carlisle performed a bilateral augmentation mammaplasty.
(g) Reviews and consultations with Mr Carlisle on seven occasions during 1985 included discussion of scar revisions in relation to the previous genioplasty scars and possible further chin surgery.
(h) In May and June 1985 the appellant consulted Mr Gerard Sormann and Professor Wayne Morrison in relation to the closing of her mouth, both of whom thought that they could not offer surgery to improve her position.
(i) On 4 and 25 July 1985 the appellant again consulted Mr Carlisle, who on 29 August 1985 performed a procedure in relation to muscle attachment and scar revision with a view to improvement of her chin.
(j) There were reviews or consultations with Mr Carlisle on six occasions over the period September 1985 - January 1987, in which as well as concern over her lip closure the appellant expressed concern about an irregularity on her nose. On 5 March 1987 under general anaesthetic Mr Carlisle rasped smooth a boney spur at the top of her nose.
(k) The appellant consulted Mr John Anstee in April 1987, who thought her lower jaw function was "near enough to normal". He proposed referring her to an oral surgeon.
(l) In the course of reviews and consultations with Mr Carlisle on three occasions to June 1987 the appellant expressed concern about scars from the previous surgery on her eye lids. She was given a test dose of collagen and then on 21 July 1987 collagen injections to the scars.
(m) On 7 August 1987 the appellant consulted Mr Stephen Kleid complaining of her nose and lip, but Mr Kleid considered that her nose was acceptable and that she was over-reacting. She did not return to him.
(n) The appellant consulted Professor Morrison again in January and October 1987. He referred her back to Mr Carlisle.
(o) The appellant returned to Mr Carlisle on 23 October 1987 and 1 December 1987 with concerns about the scarring on her chin and her lip movement, and on 3 December 1987 Mr Carlisle released the scar and "re-contoured some bone with the drill".
(p) In the course of Mr Carlisle's reviews in December 1987 the appellant wished him to "re-do her eye lids", which Mr Carlisle felt was not necessary.
(q) The appellant returned to Mr Carlisle on 5 July, 30 August and 22 November 1988 with concerns about her chin and lip closure, and on 1 December 1988 Mr Carlisle performed a procedure with a view to improvement of her position.
(r) The appellant consulted Mr Hunter Fry in August 1988. He said that he could not suggest anything to help her and that he believed she would be disappointed if she had any further surgery.
(s) The appellant again consulted Mr Carlisle on 2 May 1989, 12 December 1989 and 9 January 1990 with a view to further surgery, which Mr Carlisle was reluctant to consider. In his report he said of the last of these occasions that the appellant "still had complaints about the appearance of her chin".
6 This summary does not include the surgeons consulted for medico-legal purposes. It is apparent from references to them in the various reports that there were other consultations with surgeons with a view to modification of the appellant's appearance, although the evidence did not disclose details.
7 The trial judge said that in the course of the consultations and operations with the surgeons the plaintiff widely consulted other medical practitioners, in particular psychiatrists, and she also consulted associated practitioners such as speech therapists. The trial judge canvassed the reports in evidence of a number of psychiatrists. I do not think it necessary to provide further summaries. The trial judge accepted the psychiatric conclusion that the appellant had become obsessed with problems she perceived were associated with her chin and could not be dissuaded by rational argument.
8 Mr Pelly had died on 30 August 1982. In 1987 the appellant brought proceedings in the District Court against the corporation which had conducted Hunters Hill Private Hospital and the respondent, the executrix of Mr Pelly. The appellant later discontinued the proceedings as against the hospital.
9 The appellant alleged that Mr Pelly had failed to exercise due care and skill in and about her treatment, in breach of a contractual or alternatively a tortious duty to exercise such care. The negligence asserted was in relation to her chin, in failure fully to inform the appellant and to warn her of the risks of the procedure ("advice negligence"), failure properly to perform the procedure ("operative negligence"), and by amendment in the course of the trial failure properly to provide post-operative care ("post-operative negligence"). The appellant claimed that the procedure had exacerbated rather than improved her unwanted appearance, that in its performance there was damage to muscles in the chin area causing the problems as to lip closure, pronunciation and sensation, and that an undiagnosed and untreated post-operative wound haematoma left her with chin ptosis ("witches chin deformity"). She alleged that there were consequential personality changes, that she suffered anxiety, nervousness and depression and problems with attention, concentration and memory, and that she had become effectively unemployable. The procedures in and after 1982 were said to have been made necessary by Mr Pelly's treatment.
10 The proceedings were heard by Boyd-Boland ADCJ over seven days commencing on 6 August 1998. The parties' submissions were then made in writing, the respondent's submissions on 24 September 1998, then the appellant's submissions, and the respondent's submissions in reply on 27 November 1998. Judgment was delivered on 25 February 1999.
11 The trial judge found that, contrary to the appellant's evidence, she had initiated discussion about chin reduction surgery, and that she had then pressed Mr Pelly to deal with that aspect of her concern. Directing himself in accordance with Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 as to the appellant's case of advice negligence, he found that on the balance of probabilities the appellant was not made aware of material risks associated with the proposed surgery, but said that he was satisfied that if the appellant had been given a full and detailed explanation of the risks she would still have proceeded to the surgery.
12 The trial judge stated that the appellant's claim failed as a result of this finding. This was erroneous, because the appellant's case as to operative negligence or post-operative negligence could have sustained her claim in whole or part even if her case of advice negligence failed.
13 However, the trial judge went on to deal with what he described as the outstanding issues of negligence and damage in case of an appeal. He found that, of the appellant's case of operative negligence, she had established only that as a consequence of the surgery undertaken by Mr Pelly there was damage to the sensory nerves, probably the nerves to the triangularis muscle, creating a loss of sensation to the lower lip, but that the appellant had failed to prove operative negligence. He did not expressly address post-operative negligence, but it was not necessary for him to do so because he said that he was not satisfied that the appellant had been left with chin ptosis. The error mentioned in the preceding paragraph does not matter, because the trial judge's further reasons effectively dealt with the cases of operative negligence and post-operative negligence and the appellant's claim failed as to those cases also.
14 The appellant's further amended notice of appeal effectively stated 20 grounds of appeal. Each was followed by reference to a paragraph or paragraphs in the appellant's written submissions. The written submissions were rambling and undirected, repetitious, and often not easy to understand. Little further clarity came through the appellant's oral submissions, which had the same characteristics and at times went beyond the written submissions. It is nonetheless necessary, in the interests of the appellant, to deal as best can be done with the grounds of appeal as put forward.
Ground 1: "The trial judge failed to deal with evidence given by Marcia Palmer, Mr Bridges and Mr Yates"
15 The trial judge was not satisfied that the appellant suffered any inability to close her mouth as a consequence of the surgery undertaken by Mr Pelly, saying that photographs in evidence clearly demonstrated that the inability "to the minor extent that it is apparent" was "no different pre- and post-operation". At a later point the trial judge repeated that the evidence failed to satisfy him on the balance of probabilities that the appellant "suffered or suffers from any inability to close her mouth as a consequence of the surgery undertaken by Dr Pelly", and that on the basis of evidence to which he had already referred labial incompetence "was a condition which, if it exists at all, pre-dated the surgery by Dr Pelly". The failure alleged was in connection with that finding.
16 At the trial the appellant's counsel provided a glossary to the trial judge in which labial incompetence was said to be "mouth open in repose", and the only evidence of the meaning of the condition to which we were referred was in a report noting that the appellant complained that she "has to make an effort to close her lips (ie labial incompetence)".
17 Ms Palmer, who was a friend of the appellant, and Mr Yates, who was her father, each gave evidence to the effect that after the 1981 procedure the appellant's mouth did not close properly, and Mr Yates gave evidence also that she "could not form certain words". The appeal papers did not contain any such evidence from Mr Bridges. Both Ms Palmer and Mr Yates were cross-examined, with reference to photographs of the appellant prior to the 1981 procedure, to suggest that there was no relevant change in her appearance.
18 Ms Palmer agreed that the photographs showed how the appellant's lips looked before the surgery, and -
"Q. Her mouth didn't close?
A. I'd never noticed it before so I can't tell you just from a picture."
19 Mr Yates was unable to agree that the photographs showed how the appellant looked before the surgery, saying that it was too long ago and suggesting various reasons why the photographs might not have represented her normal appearance (even that the photographs might have been `doctored'). He maintained that "there was nothing wrong in her lips prior to November [sic] 1981".
20 The trial judge did not expressly refer in his reasons to this evidence of Ms Palmer and Mr Yates, but he did refer to their evidence and that of Mr Bridges -
"The plaintiff claims that prior to surgery she was jolly, talkative and very chatty. Reference is made to the evidence of John Yates, Marcia Palmer and William Bridges as to the plaintiff's attitude and conduct before the surgery. Whilst I am confident those persons gave their evidence on the basis of their best recollections, the medical evidence to which I have referred earlier concerning the plaintiff's pre-surgery disposition presents an entirely different picture of a troubled plaintiff who had experienced very many setbacks and who moved frequently in the context of failed personal relationships. Because of that evidence I think it inappropriate to regard her as the happy-go-lucky person the witnesses described."
21 I consider that the trial judge must have had the evidence of Ms Palmer and Mr Yates in mind when finding by regard to the photographs that the appellant did not suffer any inability to close her mouth as a consequence of the surgery undertaken by Mr Pelly. He clearly did not find their evidence reliable.
22 The appellant submitted that her condition was "essentially a functional, not cosmetic condition", it seems meaning that the photographs were an unsound basis for discounting the evidence of inability properly to close the mouth and difficulty in pronunciation. Given the meaning of labial incompetence provided to the trial judge, in my view the photographs could properly be regarded as significant, if not determinative, on the question of whether any labial incompetence suffered by the appellant was as a consequence of the surgery undertaken by Mr Pelly.
23 In my opinion, on that question in the light of the photographs the trial judge was entitled to find as he did notwithstanding the evidence of Ms Palmer and Mr Yates, evidence which in the light of the cross-examination (and quite apart from more general unreliability) was far from compelling. There was no error in failing expressly to refer to it. This ground of appeal fails.
Ground 2.1: "The trial judge erred in law in failing to draw adverse inference from defendant's failure to call Dr Giles".
24 At the conclusion of the appellant's case at the trial her counsel referred to the existence of two reports by a plastic surgeon, Mr John Giles. From what was then said it appears that the reports had been obtained by the respondent and served on the appellant. The transcript records -
"HIS HONOUR: And it [sic] hasn't been tendered.
ROUT: That's right.
HIS HONOUR: I presume you'll ask that it [sic] draw an inference won't you?
ROUT: I'm indebted to you.
HIS HONOUR: And Mr Sheldon will have to respond to that. Does that complete the plaintiff's case?"
25 In her written submissions at the trial the appellant said -
"MR GILES
Although requested to do so, the Defendant declined the opportunity of calling a Sydney cosmetic surgeon, Mr GILES, from whom the Defendant obtained and served two reports. If he had been called the Plaintiff would have put her case to him. She was not permitted this opportunity."
26 The trial judge did not in his reasons refer to the existence of the reports of Mr Giles. Despite the trial judge's remark, the appellant had not in fact invited the drawing of an inference, but had complained that she had not had the opportunity of putting her case to Mr Giles. Assuming, however, that the trial judge should have understood the submission as inviting the drawing of an adverse inference, and the appellant's submissions on appeal complained of his failure to draw such an inference, in accordance with the principles for which Jones v Dunkel (1959) 102 CLR 298 is conventionally cited the available inference would at most have been that the evidence of Mr Giles would not have assisted the respondent so that evidence or inferences in the appellant's case might more comfortably have been accepted.
27 I express no view on whether the conditions for such an inference were otherwise fulfilled. There were many issues in the proceedings which Mr Giles might have addressed, but the trial judge did not know what issue or issues he was competent to address, had been qualified to address, or had in fact addressed. Unless this were known, it would have been wrong for the trial judge to draw any adverse inference from the failure of the respondent to call Mr Giles. There was no error on the part of the trial judge in this respect.
Ground 2.2: "The trial judge erred in law in failing to draw adverse inference from defendant's failure to call any hospital staff".
28 Mr Pelly's surgery on 3 September 1981 was performed in the presence of Dr Singer as anaesthetist, Sister Gaymore as instrument sister and Nurse Finn as scout nurse. The appellant submitted that a Jones v Dunkel inference should have been drawn as to her case of operative negligence, described in her written submissions on appeal as a case -
" ... to the effect that in all the circumstances undertaking a `shave mentoplasty' procedure and/or use of the old cable-driven style of bone `burr'/rotating osteotome or HALL drill whilst failing to advise the Appellant of the risk of haematoma and/or recommend the alternative `more sophisticated' procedure, the sliding myo-osseous flap was negligent."
29 Whether it was negligent to use a particular form of procedure for chin reduction, or a particular piece of equipment, and what advice to give the prospective patient, were not self-evidently matters on which Dr Singer, Sister Gaymore or Nurse Finn were able to give relevant evidence. We were not referred to anything which established that they were able to give relevant evidence on those matters. The appellant relied in particular on Dunning v Scheibner (15 February 1994, unreported), in which Wood J considered a Jones v Dunkel inference open when an anaesthetist and nursing staff were not called to give evidence, but on the facts they were in a position to give relevant evidence. That was the case also in Australian Capital Health Authority v Moorby (CA, 25 June 1997, unreported). Again assuming that the conditions for a Jones v Dunkel inference were otherwise fulfilled, it would have been incorrect for the trial judge to have drawn such an inference from the failure to call the hospital staff. There was no error on the part of the trial judge in this respect.
Ground 3.1: "The trial judge erred in law in drawing an adverse inference from the plaintiff's failure to avail herself of the procedure in Waind v Hill (1978) 1 NSWLR 372 at 381, 382."
Ground 3.2: "Further, or in the alternative, the admission over objection and placing of evidential weight on exhibit 6 ... was contrary to law and effected [sic] the outcome of the proceeding. Further, drawing an adverse inference from the plaintiff's failure to cross-examine on the content of exhibit 6 was contrary to law and effected [sic] the outcome of the proceeding."
30 It is convenient to deal with these grounds together. They were concerned with Mr Pelly's records, in particular his notes of his consultations with the appellant before the 1981 procedure and in connection with the surgery.
31 As I have said, Mr Pelly died on 30 August 1982, and the proceedings were brought in 1987.
32 On the first day of the trial the appellant gave evidence that Mr Pelly had taken photographs of her at the first consultation, and the transcript records -
"ROUT: Your Honour, if I just might interpose here, the notes of Dr Pelly as far as the plaintiff is aware have been mislaid. I don't know whether my friend has any comments about this?
SHELDON: My opinion is they are no longer available, your Honour, and I don't know whether that's common ground or what particular purpose my friend wishes to make of that understanding because it can be formalised if it needs to be.
HIS HONOUR: That's in my experience of Dr Pelly's notes from other cases.
ROUT: There was correspondence in 1984 about the matter so presumably that is fairly early on. It had been a subject of correspondence and nothing's been produced. So I just didn't want any inference being made that we're not producing those photographs."
33 It seems that the appellant then retreated from acceptance that Mr Pelly's records had been mislaid. The matter was next raised before the trial judge on the last day of the trial, when the appellant referred to "the question of the status of Mr Pelly's notes of the case". The respondent "tendered" an affidavit of Richard Adrian O'Keefe sworn 11 December 1987. The appellant objected to the tender.
34 The O'Keefe affidavit annexed a file note by a solicitor formerly employed by the respondent's solicitors. The file note was dated 1 March 1984, and from surrounding correspondence was part of endeavouring to locate Mr Pelly's records following receipt of a claim by the appellant in November 1983. The file note read -
"I received a telephone call from Dr Coyne, Dr Pelly's brother-in-law who said he had checked Dr Pelly's practice records and account cards and could not find any record of the plaintiff's name.
I said that we were still awaiting the written consent of the patient to obtain the hospital records from the Hunters Hill Hospital and that until those records were obtained, in view of the lack of any records in the practice, the matter would seem to be at a standstill."
35 The affidavit also annexed a copy of a letter from the respondent's solicitors to the respondent dated 11 May 1988 asking whether any records were available concerning treatment of the appellant, and a file note of a response reading so far as is immediately relevant -
"She said that some time ago when they first heard about this they did make a search but could not find the file. She needs to know when Mrs Bridges first consulted Dr Pelly and that will then give her an indication so that she can go through the file. She has destroyed all files which are more than 10 years old."
36 Also annexed to the affidavit were letters in which the respondent's solicitors asked the appellant's then solicitor for the date when the appellant first contacted Mr Pelly and other information which might assist in searching for records. The respondent's solicitors later suggested to the appellant's then solicitor that the records might have been sent to a doctor who "conducted follow-up of your client after Mr Pelly died" and asked who the doctor might have been, and the appellant's then solicitor named Mr Rea as the follow-up doctor. The affidavit did not disclose what enquiries, if any, were made of Mr Rea.
37 The respondent put forward these documents as business records, as proof of Dr Coyne or the respondent telling the respondent's solicitors what they had done in relation to Mr Pelly's records. It was acknowledged that as proof of what they had done the documents were hearsay, and it was said -
" ... but your Honour has a discretion to admit hearsay where there would be undue expense or delay occasioned by requiring something to be strictly proved. Now your Honour this material goes only so far as to rebut a Jones v Dunkel inference against the defendant. It isn't proof in essence one way or the other as to what the contents of those notes might have contained.
The degree of proof required to rebut a Jones v Dunkel inference is not great. There is evidence over years in this affidavit of inquiry being met from two different sources refutation of the existence of such records or if they exist, there's an asserted, by two separate identities, inability to locate them. Now in my submission your Honour it would descend to the level of farce if the defendant were required to produce Dr Coyne to say that in 1984 he made a search and couldn't find the records.
It would be just as farcical to require the defendant to produce Mrs Pelly to say that in 1988 she couldn't find the records. When what is considered is that all that is required or all that this material goes to is to show that an inference ought not to be drawn that the defendant didn't produce the records and bearing in mind your Honour, and I believe that there has been a notice to produce those records, there has been a subpoena to produce those records, bearing in mind that there would be an arguable contempt on the part of my solicitors if there were such records and they had not complied with a notice to produce, it would in my submission be the most or if not the most then virtually the most appropriate case to receive, pursuant to your Honour's discretion, hearsay evidence of the absence of the records."
38 It appears from this that the respondent perceived the question not as one calling for proof of what had happened to Mr Pelly's records, but as one calling for proof of fruitless enquiry for the records in order to rebut a Jones v Dunkel inference from their non-production. The respondent seems to have had in mind s 64(2) of the Evidence Act 1995 for the admission of hearsay, although if its requirements are made out there is no super-added discretion.
39 The appellant's response, however, did not meet the basis of the respondent's tender of the document, and the appellant appears to have perceived the question as one calling for proof of what had happened to Mr Pelly's records. The response was -
"Dr Coyne seems to indicate that he looked through a lot of files and couldn't find the plaintiff's. Mrs Pelly's letter of 1988 seems to indicate something a little bit different and that is that files in quantity - she refers to files ten years old - files in quantity appear to have been disposed of. Your Honour, this is clearly an important matter for inference of the court. It is an inference that should be drawn on proper evidence from those who are in a position to say the precise situation with the notes, what happened to them, how it was that they [were] mislaid or destroyed.
Without that evidence, your Honour, we would say that this evidence, even if admissible, must be of minuscule weight. And because of that reason is probably, even if otherwise admissible, is inadmissible under section 135 or 136 of the Evidence Act.
Your Honour, there is another aspect. We're not suing the solicitors for the other side and we don't for a second say there has been any misconduct by the solicitors as far as this is concerned, and there was no suggestion, I trust, by the plaintiff. All we are saying is that this is a critical matter, it has made our case extremely difficult to run, having to be almost exclusively circumstantial, and we are entitled to know what happened to the notes from a person who can speak from a first-hand way and we're not asking for Dr Coyne or Mrs Pelly to stand up in the witness-box and be cross-examined. We just ask as a matter of normal rules of evidence that the matter in dispute be proved in the normal way."
40 The trial judge said only -
"HIS HONOUR: This affidavit has an inherent weakness but I believe it is proper that I exercise my discretion to enable it to be admitted into evidence and I propose to do that."
The O'Keefe affidavit was admitted as exhibit 6. The trial judge then added, addressing counsel for the appellant, that "that doesn't preclude you from seeking to have me draw a Jones v Dunkel inference by virtue of what you perceive to be the deficiency in that evidence".
41 After some other matters had been addressed, the respondent returned to the question of the status of Mr Pelly's records.
42 It will be recalled that the trial judge had been told that there had been a subpoena to produce the records. The respondent tendered the subpoena. It had been issued by the appellant's then solicitors, was dated 18 June 1996, was addressed to the respondent, and called for -
"All books, records, notes and other documents, including but not limited to working notes, files and clinical notes of Anthony Darcy Pelly late of Bellevue Hill relating to the abovenamed Plaintiff which are in your custody possession, or power and in particular medical records, medical notes, clinical records, clinical notes, and x-rays, results of tests relating to the Plaintiff."
43 When asked to explain the relevance of the tender, the respondent said -
"SHELDON: Well your Honour its relevance is marginal but its relevance is that it is evidence that a request was previously made by the plaintiff's solicitors to produce the doctor's records to which your Honour would be entitled to infer from my friend's complaint there was no production which gives rise to one of two inferences in company with Mr O'Keefe's affidavit. The first of those inferences is that there was [sic] no documents to be produced and the second is which is the one which in my submission your Honour wouldn't draw that the failure by the nominated second defendant, namely the executrix of Dr Pelly's estate was in contempt of court in not producing records. Now your Honour there's not much evidence of the absence of the records but it is some more evidence of it and your Honour that leads conveniently to the next problem that I need to raise and it's this - "
The subpoena was then admitted without objection.
44 Although not directly relevant to these grounds of appeal, relevantly to grounds of appeal 3.3 and 3.4 the transcript then records -
"SHELDON: The other matter is this, I would seek your Honour's leave to deal with the question of the Jones v Dunkel inference about the records in this way. It's intended that my solicitor should obtain from Dr Coyne an affidavit setting out what he did and when as the basis for that document which is exhibit B to Mr O'Keefe's affidavit. I propose that course because it seems to me that that's the most expeditious way of dealing with it on the assumption that the probabilities favour there not being much or any issue about the fact that he couldn't find the records. Now if I'm right about that that there can be some satisfaction on the plaintiff's part, on the plaintiff's side of the record with an affidavit from Dr Coyne, that would obviate the need for him to be cross-examined. If on the other hand there is contention about it, he can be cross-examined on the affidavit but I should say your Honour that I hadn't anticipated until shortly before the adjournment that there was an issue about those records, having regard to the fact that there'd been prior occasions on which a call had been made for their production. Perhaps this may be slightly off the track but there is a remedy which should have been taken when that subpoena which I've tendered was called upon and that is to require a person to appear to answer the subpoena. Now that course wasn't taken. The inference which arises from that, if not the finding which must arise from that was that the plaintiff was satisfied with the non-production of documents and I don't mean by that that the plaintiff thought it was a windfall but that the plaintiff thought or her advisers thought that there were no documents and that the subpoena had been legitimately answered so that that combination of events gave rise to a situation in which the defendant's side of the record or my submission reasonably assumed that no issue was to be taken with the fact that the records couldn't be found.
Now for that reason your Honour I'm not in a position to call Dr Coyne and necessarily there's been no attempt to ascertain his availability or his whereabouts. I understand that he is known to be alive and I understand that he lives in Sydney but more than that we don't know at this stage. Now your Honour because I didn't anticipate this was going to be an issue looming as large as it apparently does, in my submission, the appropriate course and this is the only matter which is outstanding in the defendant's case is for an affidavit to be obtained and served on the other side and then for the other side to notify the defendant whether they wish to cross-examine Dr Coyne or not and for them, if they do, time to be allocated to do that and if not, written submissions to follow accordingly."
45 The appellant's response, after some rather misdirected discussion, was that no significant reason could be put forward against the course proposed by the respondent.
46 It was common ground on appeal that the respondent did not serve an affidavit from Dr Coyne.
47 The trial judge said in his reasons -
"The are no records of Dr Pelly relating to his consultations with the plaintiff, pre-operatively nor do we have anything emmanating [sic] from Dr Pelly concerning the operation itself nor the events that transpired thereafter. So far as the absence of Dr Pelly's records are concerned, and the consequences which flow from that, the defendant says such records could not be located after Dr Pelly's death and no inference should be drawn from their absence. I did comment, at the time this issue was first raised, that my experiences in the past in other cases had shown that the whereabouts of Dr Pelly's records was apparently unknown. By contrast the plaintiff says, the defendant, despite an undertaking to the Court, has neglected to provide an innocent explanation for not providing such notes, as it is required to do to avoid some damaging inferences (Katsilis v Broken Hill Pty Co Limited (1977) 18 ALR 181). That, in my view is a very different position for the plaintiff to take, compared to what was said on the first day of the trial when, concerning such notes, the plaintiff's Counsel informed the Court `as far as the plaintiff is aware they have been mislaid'.
The plaintiff seeks to make much of the absence of these records and asserts there is no evidence before the Court on which the Court can find the absence of the notes is innocent. I must say that is not my recollection of the evidence on this issue. The plaintiff submits I should draw an inference adverse to the defendant, resulting from non-production of these records, that the notes if produced would not support the defendant's case and, if produced would have supported the plaintiff's case. The defendant's reply is that it is required to provide an adequate explanation which has been given, in the context of the affidavit of Mr O'Keefe, a solicitor employed on behalf of the defendant, who was not cross-examined on this evidence.
The defendant says it is not a question of the innocence of that explanation but its adequacy. It says that if the plaintiff had, in the course of the trial, chosen to make more of the issue the appropriate course to be taken was to issue and call on a subpoena directed to the appropriate person or persons, requiring production of the records. It was then necessary for the plaintiff to question whosoever responded but the defendant says the plaintiff did not choose that course and cannot now be heard to complain at the state of this evidence.
I believe the submissions of the defence to be correct as to the procedure available to the plaintiff and as to the consequences of the absence of Dr Pelly's records and, as a result, I will make no inference, adverse to the defendant, as a consequence of the absence of such notes. At the same time I propose to recognise there is a prejudice to the plaintiff in not having access to any such notes and, generally, flowing from an inability to cross-examine Dr Pelly. To a degree, if not entirely, that prejudice is off-set by the defendant's inability to call Mr Pelly to respond to the plaintiff's allegations. It seems to me, ultimately these matters balance out fairly evenly."
48 Going specifically to ground of appeal 3.1, I take the appellant to have meant by "the procedure in Waind v Hill" a course by which on the return of a subpoena such as the subpoena dated 18 June 1996 the person subpoenaed can be questioned in relation to the existence of documents answering the description in the subpoena. That is not in fact a procedure discussed in Waind v Hill (1978) 1 NSWLR 372 at 381-2, but was the course to which the trial judge relevantly referred.
49 The trial judge did not draw an adverse inference from the appellant's failure to take that course. The issue as it was ultimately put to the trial judge was promoted by the appellant, and was whether an inference adverse to the respondent should be drawn from the absence of Mr Pelly's records. The respondent sought to meet the contention that such an inference should be drawn inter alia by the evidence and common ground that the appellant had subpoenaed the records and they had not been produced in answer to the subpoena, which it was suggested provided in company with the O'Keefe's affidavit an inference that the records could not be found. The trial judge did no more than accept, with respect correctly, that it had been open to the appellant to explore the non-production of records in answer to the subpoena, that she had not done so, and so that the evidence was left in a state in which the respondent could rely on non-production in answer to the subpoena for such support as it gave to the respondent's position. What support it gave was not the subject of a ground of appeal.
50 Going specifically to ground of appeal 3.2, the trial judge considered that the O'Keefe affidavit provided an explanation for the non-production of Mr Pelly's records adequate to prevent, in company with the non-production in answer to the subpoena, the drawing of an inference adverse to the respondent. The issue arose through the appellant's reliance on Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181.
51 In Katsilis v Broken Hill Pty Co Ltd the worker alleged that he was injured when a fragment of a pick head being struck by a hammer flew off and entered his eye. The pick in use at the time was not produced at the trial by the employer. The worker submitted that this founded an inference adverse to the employer. Stephen, Mason, Jacobs and Murphy JJ considered it unsafe to reach any such inference because the pick "may quite well have been allowed to sink into the anonymity of [the employer's] general stock of hand tools without either design or even neglect on [the employer's] part" (at 203). Barwick CJ, who dissented in the result in the appeal, discussed the matter in more detail, including (at 197-8) -
"Ordinarily, though a case is normally better tried on the evidence which is produced than on that which is not, it can properly be said that the failure of a party to give or produce evidence which, in the circumstances of the case, that party in its own interest would be expected to give or produce, warrants the conclusion that, if given or produced, the evidence would not support that party's case. Indeed, in some circumstances it might be inferred that it would support the opponent's case; but, if so, it must depend very much on the circumstances. But, in any case, the inference would depend upon some element of conscious repression or withholding of the evidence. The warrant for the inference must depend upon the deliberation with which the evidence is withheld and the appreciation or likely appreciation of the party of its significance in the case. In my opinion, these propositions are in accord with the decided cases which I have taken occasion to examine.
A passage towards the end of their Lordships' advice in The Ophelia [1916] 2 AC 206 at 229, may call for comment in this connection. Their Lordships said: `If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which his intention to destroy evidence may fairly be conceded to be rebutted, still he has to suffer. He is in the position that he is without the consideration which might have been expected in his case.'
I would make two comments on this passage. First, the use of the word `presumption' might seem to put the matter too high. Of course, in the supposed circumstances the inference that the document, if produced, would not assist the spoliator is, in the circumstances, quite strong. But it merely becomes part of the body of evidence to be considered. Secondly, if the destruction is innocent no such inference can be drawn - that is to say, innocent because the significance of the document is not known or because the destruction was not deliberate but, for example, accidental. But bereft of the opportunity to produce the document to support him, the party who has thus innocently destroyed it is at the disadvantage of its absence. I take no more than this from the quoted passage from their Lordships' advice.
It thus seems to me that before any adverse inference is drawn, it must be possible to conclude that the failure to give evidence or to produce a piece of real evidence is deliberate and that it is likely that the party against whose interest the inference is to be drawn has or has reason to have an appreciation of the relevant nature of the evidence.
Thus, it seems to me that, having regard to what I have said already, there is no reason in this case for drawing any inference from the unavailability of the actual pick in use: ... "
52 Contrary to the submission which appears to have been made to the trial judge, unavailability of Mr Pelly's notes did not lead to an inference adverse to the respondent unless the respondent provided "an innocent explanation for not providing such notes". Before such an inference was drawn it was necessary to conclude that there had been some element of conscious repression or withholding, a conclusion to be addressed with regard to relevant evidence with common sense appreciation of the circumstances (in Katsilis v Broken Hill Pty Co Ltd, that the pick may well have fallen unidentified into the employer's general stock of hand tools without design or neglect).
53 The O'Keefe affidavit was "tendered" as part of the relevant evidence. It established that the respondent's solicitors had inquired after Mr Pelly's records from Dr Coyne and from the respondent herself, and had been told by them that the records could not be found and by the respondent that records more than ten years old had been destroyed. Destruction of records more than ten years old was not consistent with destruction of 1981 records. The responses to the inquiries themselves would arguably be material to whether there was conscious repression or withholding.
54 Implicit in the trial judge's brief ruling, in the light of the submission made to him that it would be farcical to require Dr Coyne and the respondent themselves to say they could not find the records, was that within s 64(2) of the Evidence Act it would cause undue expense or delay to call them - that must be what the trial judge meant by exercising his discretion. Indeed, the appellant had said that she did not ask for Dr Coyne or the respondent "to stand up in the witness-box and be cross-examined". It was not suggested that Mr O'Keefe's evidence should be given in person rather than by affidavit, and on that basis the affidavit was admissible to establish that Dr Coyne had checked the records and could not find any record of the appellant's name, and that the respondent had searched for and could not find "the file" and had destroyed all files more than ten years old.
55 It cannot be said that either the submissions to the trial judge or the expression of his ruling were ideal, but in my opinion the O'Keefe affidavit was admissible and could be relied on by the trial judge in declining to make an inference adverse to the respondent. His Honour's conclusion in that respect is perhaps unremarkable when the appellant had at the commencement of the trial accepted that the records had been mislaid and had thereby accounted for her failure to have the 1981 photographs.
56 The trial judge did not draw an adverse inference from the appellant's failure to cross-examine Mr O'Keefe. He noted that, as was the fact, Mr O'Keefe had not been cross-examined. This meant that the evidence was left in a state in which the respondent could rely on that evidence for such support as it gave to her position, and his Honour went no further.
57 These grounds of appeal fail.
Ground 3.3: "The judgment shows a lack of impartiality in that it is demonstrates [sic] a preconceived view of the innocence or otherwise of the defendant's failure to produce Dr Pelly's notes."
Ground 3.4: "Further, or in the alternative, the trial judge prejudged the issue of the innocence or otherwise of the defendant's failure to produce Dr Pelly's notes in such a manner as to cause `reasonable apprehension' on the part of a lay observer that the judgment itself was `in the end', affected by bias."
58 Again it is convenient to deal with these grounds together. The submissions in support of them were particularly difficult to understand. As best as I can make out, they were that there was in fact or in appearance lack of impartiality on the part of the trial judge in addressing "the innocence or otherwise of [the respondent's] failure to produce Dr Pelly's notes", to be found in his -
(a) admitting Mr O'Keefe's affidavit over objection, when it was not admissible;
(b) overlooking the respondent's failure to serve an affidavit from Dr Coyne, despite an "undertaking to the Court" to do so;
(c) observing that Mr O'Keefe was not cross-examined on his affidavit, when there was no need for cross-examination because Dr Coyne should have been available for cross-examination;
(d) using against the appellant her early acceptance that Mr Pelly's records had been mislaid, when that acceptance was "given in ignorance of the forensic situation"; and
(e) relying on his knowledge of the situation regarding Mr Pelly's records in other cases.
59 There is nothing in these grounds of appeal.
60 The O'Keefe affidavit was admissible, but even if it were not an error in that respect in the circumstances I have described would not begin to establish lack of impartiality in fact or in appearance. The respondent did not undertake to serve an affidavit of Dr Coyne, and it was quite plain that she might not serve an affidavit. The noting that Mr O'Keefe had not been cross-examined had no more significance than I have earlier described, and in any event it is not correct that there was no need for cross-examination because Dr Coyne should have been available for cross-examination - there was no undertaking to serve his affidavit whereby Dr Coyne would be available for cross-examination, so if cross-examination of Mr O'Keefe were appropriate it should have been undertaken.
61 At one point the "ignorance of the forensic situation" was said from the bar table by the appellant's counsel, who had appeared at the trial, to be that contest over what passed between the appellant and Mr Pelly and over the treatment given by Mr Pelly was not foreseen as at the first day of the trial, a remarkable assertion which I am unable to accept but which did not in any event explain the evaporation of an understanding that Mr Pelly's records had been mislaid. At another point the appellant's counsel said from the bar table that the "concession" was made "because it was not understood because of lack of s 98 notice", referring to s 98 of the Evidence Act, an equally remarkable assertion (and how s 98 could have been relevant to the acceptance was not explained).
62 The trial judge referred to his experience in other cases as a remark of accord with what was at the time the common position between the parties. There is nothing to indicate that he took his experience into account in this case, and the way he mentioned his remark in his reasons indicates that he did not.
63 Taking the matters on which the appellant relied as a whole does not provide any greater support for the grounds of appeal.
Ground 3.5: "Further, or in the alternative, the judge erred in law in failing to disclose or disqualify himself [sic]".
64 The first page of the transcript of the trial begins -
"HIS HONOUR: I haven't had a chance to read any of this. Any help you can give me about what it is all about would be appreciated.
MR ROUT OPENED.
HIS HONOUR: It wouldn't concern your client, would it, that I knew Dr Pelly or would it?
ROUT: It is a matter I would have to take instructions on, your Honour.
HIS HONOUR: I mean I didn't know him well but I have known his family and his wife.
ROUT: Does my friend want to say anything about it?
SHELDON: It is a matter for you.
ROUT: Your Honour, this matter has taken 17 years to get on in court. I think it would be an unfortunate thing if there was a problem today.
HIS HONOUR: I don't feel any problem with it. It's just that I knew -
ROUT: My client is nodding. Have you heard what his Honour has said and you are happy to proceed?
PLAINTIFF: Yes.
MR ROUT OPENED CONTINUED"
65 The appellant's written submissions said that this ground of appeal "raises the question if, and when, a judge who admits to knowing the defendant and her family should disclose, perhaps in chambers, sufficient information to permit a plaintiff to adequately assess her position on the issue of perceived or apprehended bias". In the course of the written submissions apparently in support of ground of appeal 3.3 there was reference to "circumstances that His Honour did not see fit to disclose in detail to the Appellant", citing the page of the transcript earlier set out. The appellant's written submissions did not materially further support this ground of appeal, and it received no attention in her oral submissions.
66 A submission of apprehended bias is a serious submission, and should not be made lightly; if made, it should be properly supported. This ground of appeal bordered on the irresponsible.
67 The trial judge properly drew to the attention of the parties that he knew Mr Pelly, although not well, and knew his family and his wife. There was nothing before us to indicate that there was any inadequacy in his Honour's summation or any further information as to his relationship with Mr Pelly or his family which could or should have been disclosed. Without seeking the opportunity to inquire further, the appellant was content to proceed. I do not think that the trial judge could properly have been asked to disqualify himself, but if he could have been asked there was clear waiver of any objection to his hearing the proceedings: Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 577-8,587.
Ground 4.1: "The judge's finding that there was no postoperative labial incompetence was against the evidence or the weight of the evidence to the contrary".
Ground 4.2: "The judge's finding that there was no postoperative chin ptosis was against the evidence or the weight of the evidence to the contrary".
Ground 4.3: "The judge's failure to find that there was postoperative mentalis muscle hypertrophy was against the evidence or the weight of the evidence to the contrary".
Ground 4.4: "The judge's failure to find that there was postoperative muscle spasm was against the evidence or the weight of the evidence to the contrary".
68 It is again appropriate to deal with all four grounds of appeal together. I have earlier indicated what was meant by labial incompetence and referred to chin ptosis. Mentalis muscle hypertrophy was described as a consequence of long-standing inability to close the lips or persistent forceful lip closure. It and muscle spasm appear to have been put forward as conditions suffered by the appellant supporting her complaint of the condition of labial incompetence.
69 The respondent submitted that any error in the findings as to labial incompetence, mentalis muscle hypertrophy and muscle spasm was of no consequence, because the finding of no operative negligence meant that such conditions suffered by the appellant would still not lead to success in her claim. I doubt that that is so. The grounds of appeal were in substance challenges to the findings of no operative negligence, in that suffering the conditions as a result of Mr Pelly's surgery - the last words are important - would provoke inquiry into whether and how they could have come about without negligence. It is unnecessary to explore this further, as I do not think the grounds of appeal should be upheld.
70 The misconception underlying the grounds of appeal as to labial incompetence, mentalis muscle hypertrophy and muscle spasm is that the trial judge did not find that there was no post-operative labial incompetence. He found that the condition so far as it existed pre-dated the 1981 procedure. There was medical evidence, sometimes conflicting, as to the appellant's lip closure and the operation of the mentalis muscle in relation to closure of the mouth, and reference to muscle spasm in that connection, and the appellant's written submissions went into this in some detail. But none of the doctors could from examination after 1981 express an expert opinion on whether the conditions pre-dated the 1981 procedure - they were dependent on what the appellant told them.
71 The trial judge made no findings as to post-operative mentalis muscle hypertrophy or muscle spasm, whether as to their existence or non-existence. A failure to find in the sense of no finding at all would not normally be said to be "against the evidence or the weight of the evidence to the contrary". I take grounds of appeal 4.3 and 4.4 to mean that the trial judge should have found that there were post-operative mentalis muscle hypertrophy and muscle spasm, presumably as a step to finding post-operative labial incompetence. However, having found as he did in relation to labial incompetence, there was no occasion for the trial judge to make a finding as to post-operative mentalis muscle hypertrophy or muscle spasm.
72 The trial judge's reason for the finding as to labial incompetence has been described in relation to ground of appeal 1. Inherent in it was that the trial judge did not accept the appellant's evidence so far as she said that Mr Pelly's surgery left her with inability to close her mouth. As will particularly appear from the matters considered in relation to grounds of appeal 8.1 and 8.2, and there were other matters, it was well open to the trial judge not to accept her in that respect, and I do not think that his assessment of the appellant's credibility can be overturned or modified on appeal. The relevant finding as to labial incompetence should stand.
73 It may be added that, although the trial judge did not refer to it, a report of Dr Parker, one of the psychiatrists consulted by the appellant, recorded that the appellant told her orthodontist in 1980 "that she wanted to be able to close her mouth properly and he suggested that she should consult a plastic surgeon as she appeared to have a short upper lip". This could only have come from the appellant, and was telling evidence of labial incompetence (as defined in the glossary) prior to Mr Pelly's surgery. According to the report, "By the time she got to Mr Pelly she had decided that she should have something done to her nose ... ".
74 As to chin ptosis, the trial judge said (in this and later extracts from his Honour's judgment the misspelling of Mr Rea's name has been retained) -
"The plaintiff has failed to satisfy me there is any evidence of lip ptosis particularly given the views of Dr Anstee on that issue and, equally, has failed to satisfy me concerning the allegations she makes about the existence of chin ptosis. As the defendant says, there is no suggestion of a chin ptosis on examination by Dr Rae and he was not called to make good this allegation. I think it proper to infer that if he had been called his evidence would not have assisted the plaintiff on this issue. The absence of reference to that, in his reports, is important."
75 The trial judge's inference that Mr Rea's evidence would not have assisted the appellant on this issue if he had been called is a subject of ground of appeal 5. For the reasons there given his Honour was not in error in this respect, but the inference only enabled greater comfort in the conclusion he otherwise reached by regard to the apparent absence of chin ptosis on examination by Mr Rea. In my opinion the conclusion was well founded quite apart from the inference.
76 Mr Rea had had immediate and close professional dealings with the appellant in the period from April 1982 to early 1984. He performed a genioplasty in September 1982. Reference to the appellant having or complaining of chin ptosis (not necessarily by that name) in his clinical notes and his reports would be expected, if it existed or were the subject of complaint. No such reference is to be found.
77 We were referred to evidence of the appellant that her chin had "gone pointy", but as has already been indicated that encounters the trial judge's assessment of her credibility. We were referred to evidence of Professor de Burgh Norman and Mr Anstee said to support chin ptosis, most of which was not directed to that condition. Professor Norman did say that a February 1982 photograph of the appellant showed a chin "which is a little ptotic or undergoing ptosis", but this was not by way of comparison with the appellant's chin prior to the 1981 procedure. Mr Anstee did not see it the same way - he said that it was hard to compare the photograph with a pre-operative photograph, "certainly the labial incompetence doesn't look worse in that picture but whether or not the chin's lower or further forward you'd have to ask yourself". It should be noted that the true question was whether the appellant suffered chin ptosis as a result of Mr Pelly's surgery, on the appellant's case because a post-operative haematoma was not properly treated (the post-operative negligence). Again a misconception underlay the ground of appeal as to chin ptosis, because it was necessary to consider whether whatever conditon was suffered by the appellant pre-dated the 1981 procedure.
78 There was but little support outside the evidence of the appellant for chin ptosis, and effectively none for chin ptosis after but not before Mr Pelly's surgery. The absence of reference to chin ptosis in Mr Rea's clinical notes and his reports in those circumstances was of particular significance. In my opinion the trial judge's conclusion was open to him and a proper conclusion on the evidence,
79 In saying that no reference to the appellant having or complaining of chin ptosis is to be found in Mr Rea's clinical notes and his reports, I have not overlooked the appellant's submission that Mr Rea referred to chin ptosis in his report dated 10 December 1997.
80 Mr Rea provided a report to the appellant's then solicitors dated 6 June 1983 in which he described the consultations and treatment given to the appellant to that time. He then provided to the solicitors a report dated 6 October 1983 in which he addressed specific questions asked of him. They principally concerned whether damage to a nerve connoted negligence by Mr Pelly and the prognosis for recovery from consequent numbness.
81 Mr Rea then provided the report of 10 December 1997 to the appellant's (different) solicitors at the time of the trial. In the first sentence he said, "This is a further clarification and supplementary report following further analysis to my previous report on the above patient". He said that he had "carefully read all of the articles given to me in relation to genioplasty and surgery of the lower jaw". He went on to comment on a number of articles, drawing attention to pages and paragraphs. As to one of the articles he said -
"Long face deformity is noted on page 35. See under complications page 143 an analysis of possible nerve damage. Then page 144 "Chin ptosis" which can result from mentoplasty."
82 Mr Rea did refer to chin ptosis, but only as a subject in the article. It remains that, as the trial judge said, there was no suggestion of chin ptosis on examination.
83 These grounds of appeal fail.
Ground 5: "The trial judge erred in law by drawing an inference adverse to the plaintiff from her failure to call Dr Rea".
84 It will be recalled that Mr Rea was the plastic and reconstructive surgeon first consulted by the appellant after the 1981 procedure. Mr Rea's clinical notes were in evidence, as were his reports of 16 June 1983, 6 October 1983 and 10 December 1997. He did not give oral evidence.
85 The appellant gave evidence that Mr Rea raised with her the condition of her nose and the possible reduction of her chin. The respondent submitted at the trial that Mr Rea's report of 16 June 1983 was to the contrary, and indicated that the appellant had raised these matters. It was also suggested in the respondent's written submissions before the trial judge that if the appellant was incorrect in saying that Mr Rea had raised chin reduction rather than the appellant, that assisted the conclusion that the appellant was incorrect in saying that Mr Pelly had raised chin reduction rather than herself. In that connection the respondent submitted that it could be inferred that, if called, Mr Rea "would not have assisted the Plaintiff's case as to the sequence of events".
86 This brought a lengthy response in the appellant's written submissions at the trial, in which it was said that inferences adverse to the respondent should be drawn from her failure to call or obtain an affidavit from Mr Rea or to require him for cross-examination. It was said that the court could be comfortable drawing inferences that evidence from Mr Rea in the respondent's case or cross-examination by the respondent of Mr Rea would not have assisted the respondent's case. The matter or matters on which Mr Rea might have given evidence or been cross-examined was or were not detailed.
87 The trial judge said -
"The plaintiff made detailed submissions suggesting that the Court should draw an inference adverse to the defendant from the defendant's failure to call, or obtain an affidavit from, Dr Rae and as a consequence of the failure on the part of the defendant to require Dr Rae for cross-examination. The plaintiff said Dr Rae was a subsequent treating doctor whose notes were subpoenaed by the defendant. The defendant, therefore, was free to obtain an affidavit from Dr Rae which confirmed his notes as a true and complete record of his consultations with the plaintiff and/or had specific recollections of the consultations outside the notes. The plaintiff said Dr Rae was the defendants witness given
`i. The nature of the defendant's submissions (Payne v Parker (1976) 1 NSWLR 191)
ii Dr Rae's report dated 6th October 1983 was served back on the plaintiff by the defendant
iii As the defendant served one of Dr Rae's reports
iv The plaintiff requested the defendant have Dr Rea available for cross-examination.'
The evidence shows the first two reports of Dr Rae of 16th June 1983 and 6th October 1983 were addressed to solicitors McDonald Splatt & Co of Franksten [sic] Victoria whilst Dr Rae's report of 10th December 1997 was directed to the plaintiff's present solicitor Dennis & Company. All three reports were served by the plaintiff, tendered by the plaintiff in evidence in these proceedings and the tender was also accompanied by Dr Rae's notes. In the course of the trial the plaintiff indicated the difficulty in calling Dr Rae to give evidence and, ultimately, the defendant indicated it would not require Dr Rae for cross-examination. Clearly the defendant made a decision, for whatever reason, to rely on Dr Rae's reports. Now the plaintiff seeks to have adverse inferences drawn from that, so far as the defendant is concerned. I am unable to understand the basis for the plaintiff's submissions and I reject them."
88 It will be seen that the trial judge did not draw an inference adverse to the appellant from the appellant's failure to call Mr Rea. Rather, he correctly declined to draw inferences adverse to the respondent. Notwithstanding this, in her written submissions on appeal the appellant cited the passage set out above as the source for the assertion that the trial judge "had not [sic] difficulty whatsoever drawing serious adverse inferences against the appellant ... from the plaintiff's failure to call Mr Rea in her case".
89 As has been seen, the trial judge did infer in relation to chin ptosis that Mr Rea's evidence would not have assisted the appellant if he had been called. I have said that in my opinion the trial judge's conclusion was well founded quite apart from the inference. But a Jones v Dunkel inference was in my view available. Mr Rea had been the appellant's treating surgeon. The appellant tendered Mr Rea's reports. In her written submissions on appeal the appellant described Mr Rea as her "main expert" before Professor Norman was briefed, and when tendering his clinical notes told the trial judge that he was "going to be here"; later she indicated quite clearly that she would be calling him. When the respondent said that Mr Rea was not required for cross-examination, the appellant apparently decided not to call him.
90 There was no error as propounded in the ground of appeal, which fails.
Ground 6: "The trial judge erred in law in requiring evidence to the effect that `what occurred to the plaintiff could ONLY have occurred as a consequence of negligence on Dr Pelly's part'."
91 In the course of his reasons dealing with negligence the trial judge recorded that the appellant relied primarily on the evidence of Professor Norman. He said -
"However, as I have already noted, Dr Norman's evidence suffers to a marked degree because by the time he came to consider this issue a period of some 17 years had passed since the surgery of Dr Pelly. The plaintiff had, thereafter undergone many other operative procedure. Accordingly, I find that where Dr Norman's views conflict with the evidence of Dr Rae or Dr Carlisle, in particular, it is preferable to accept their views given they were formed much closer to the event with which we are concerned. Otherwise Dr Norman's views have to be considered in light of that history of further treatment and in light of his statement that he `cannot be precise'."
92 After referring to a number of aspects in which the appellant alleged that Mr Pelly had been negligent, the trial judge said -
"The defendant submits, the plaintiff's case on surgical misadventure relies on Dr Norman's views but his reports and evidence do not assert that what occurred to the plaintiff could only have occurred as a consequence of negligence on Dr Pelly's part. Dr Norman said the incident could have occurred for a number of reasons but he was unable to be specific in attaching cause in this case."
93 No intelligible submissions were made in support of this ground of appeal, but presumably it was intended to take up what was said in the first sentence of the passage last set out. It is not entirely clear whether the trial judge was recording the respondent's submission or stating his own view. Assuming the latter, he was saying only that on Professor Norman's evidence "what occurred to the plaintiff" was not necessarily referable to operative negligence, but could have come about consistently with the exercise of due care and skill. That is unexceptional, and it should be noted that the trial judge went on to refer to and accept the opinion of Mr Dey in a medico-legal report that he could not regard the outcome as indicative of a want of care on Mr Pelly's part, and to refer with apparent acceptance to the opinion of Mr Miller that "the original operation was probably performed with due care and skill, but complications can always occur". The trial judge was not stating a legally impermissible test of proof of negligence. The ground of appeal is misconceived.
Ground 7: "The trial judge erred in failing to conclude that on the totality of the evidence led by the parties that [sic] Dr Pelly failed in his duty as a reasonable cosmetic surgeon ...
(a) to elicit a reliable history which would have revealed to any reasonable cosmetic surgeon that the plaintiff was unsuitable for the surgery contemplated on the chin
(b) to conduct a throrough [sic] clinical examination which would have revealed to any reasonable cosmetic surgeon that shave mentoplasty was inappropriate but in any event any surgery to the chin required further investigation by means of a full oral examination, examination by an orthodontist and/or performance of an X-ray
(c) to have diagnose [sic] and treat a postoperative haematoma.
(d) Alternatively or in addition conduct the surgery with appropriate level of care" [sic].
94 It is convenient to deal with the sub-grounds of this ground of appeal in reverse order of their statement.
95 As to operative negligence, in dealing with ground of appeal 6 I have indicated that Professor Norman was unable positively to support failure to conduct the surgery with an appropriate level of care, and that the trial judge accepted the opinions of Mr Dey and Mr Miller to the effect that the injury to the appellant as found did not bespeak negligence in the surgery. The trial judge had noted that the appellant relied primarily on the evidence of Professor Norman, and had said that Professor Norman's evidence -
" ... suffers to a marked degree because by the time he came to consider this issue a period of some 17 years had passed since the surgery by Dr Pelly. The plaintiff had, thereafter, undergone many other operative procedures."
The trial judge said that the appellant had "failed to discharge the onus of proof she bears in demonstrating there was negligence on the part of Dr Pelly in the context of the performance of the surgery".
96 The appellant's submissions on appeal in relation to this were quite unfocussed, and did not address the trial judge's reasons for his conclusion. They appeared to rest on, or at least very much involve, the contention that the appellant had suffered labial incompetence as a result of Mr Pelly's surgery, therefore there must have been operative negligence. When the appellant has not successfully challenged the finding as to labial incompetence, such a challenge to the finding as to operative negligence can not succeed.
97 In that part of her written submissions most specifically directed to operative negligence the following matters seem to have been raised.
(a) That the trial judge should have drawn a Jones v Dunkel inference adverse to the respondent from her failure to call Dr Singer, Sister Gaymore and Nurse Finn. This was ground of appeal 2.2, and should not be accepted.
(b) That there was negligence in the form of procedure used, or the equipment, see the passage from the written submissions cited when dealing with ground of appeal 2.2. Having considered the evidence cited in support of that passage, I do not think it approaches establishing operative negligence on the part of Mr Pelly or controverts the trial judge's path to his finding as to operative negligence.
(c) That there was negligence in performing the surgery without assistance. It was not established that Mr Pelly was without an assistant. At one point Professor Norman described Sister Gaymore as acting as assistant. There was no expert evidence that performing the surgery without an assistant was departure from normal or proper practice of the time. Mr Anstee said that he performed surgery routinely without a surgical assistant, usually having the assistance of a nursing sister, and that operating without a surgically trained assistant was in 1981 "consistent with the practice of a responsible body of plastic and reconstructive surgeons". The evidence of lack of an assistant adding to the risk of the surgery was weak - Professor Norman said that lack of an assistant plus other matters were "additive factors", but no evidence specifically linked lack of an assistant with causation of injury. Although perhaps he could have (see Rogers v Whitaker at 487), I see no reason why the trial judge should have held on this state of the evidence that there was a failure to exercise due care and skill, see Lowns v Woods (1996) Aust Torts Rep 81-376 at 63,160-1.
(d) That there was negligence in failure to control bleeding prior to closure, thereby allowing a post-operative haematoma to develop. The evidence cited in support of negligence in this respect does not support a failure to control bleeding prior to closure, but even if it did the only relevance would be to possible chin ptosis from the inadequately treated haematoma. It was found that there was no chin ptosis: the negligence would lead nowhere.
98 I do not think there was error in failing to conclude that Mr Pelly did not conduct the surgery with an appropriate level of care.
99 As to post-operative negligence, that is, failure to diagnose and treat a post-operative haematoma, as I have already said it was unnecessary for the trial judge to make a finding because he was not satisfied that the appellant was left with chin ptosis. Since that remains the position, there is no point in the sub-ground of this ground of appeal.
100 However, it should be said that, although there was amendment to the course of the trial to allege post-operative negligence, the sole reference to it in the appellant's submissions to the trial judge was in a response to the respondent's summary of the appellant's cause of action, the response being -
"With respect to Defendant's submission 1 (The Pleadings), the Plaintiff respectfully points out :-
· The plaintiff's case is pleaded in contract as well as negligence.
· Negligence in post-operative care is also alleged."
Nowhere were submissions made in support of an allegation of negligence in post-operative care. In those circumstances I do not think the appellant should be heard to say on appeal that the trial judge erred in failing to find post-operative negligence.
101 As to conduct of a clinical examination, the following matters appear to have been raised in the appellant's submissions.
(a) That there was negligence in failing to x-ray the appellant before undertaking the 1981 surgery. The evidence cited in support of that proposition does not support it. The need for an x-ray was said in the submissions to be to exclude vertical maxillary excess as the cause of a long face or short upper lip, but it is necessary to consider the evidence addressing the procedure undertaken by Mr Pelly. There was no evidence that failure to x-ray was negligent in relation to that procedure, and the evidence of Professor Norman was plainly that it was not a departure from the appropriate standard of care in 1981. Dr Anstee said that he would not have had an x-ray for a mandibular shave, contrasting that with alteration of vertical maxillary height. Again I see no reason why the trial judge should have held that there was nonetheless a failure in the standard of care.
(b) That there was negligence in failing to obtain the opinion of an orthodontist and/or to perform a full oral examination. Once more the evidence cited in support of negligence in this respect does not support it, and other evidence is against it. Professor Norman's evidence was to the effect that consultation with an orthodontist was not standard practice: although for his part he would have called for a consultation, failure to do so "was not a departure from accepted practice at the time". There was in my view nothing in the particular circumstances to warrant holding that there was nonetheless a failure in the standard of care. There was reference in a 1993 text in evidence to intra-oral examination, but otherwise nothing to establish that failure to perform a full intra-oral examination was contrary to proper practice in 1981: nor, indeed, was there evidence that Mr Pelly had not sufficiently conducted an intra-oral examination.
(c) That there was negligence in failing to assess the appellant's suitability for the surgery "from a psychological point of view". It is sufficient to note that the many procedures conducted in and after 1982 by plastic and reconstructive surgeons who must be taken to have considered the appellant psychologically suitable for the surgery provide ample grounds for the conclusion that, assuming Mr Pelly failed adequately to address her psychological suitability for the 1981 procedure (which I do not think was established on the evidence), had he done so he would properly have gone ahead with the surgery.
102 This ground of appeal fails.
Ground 8.1: "The trial judge erred in fact and law in failing to conclude on the totality of the evidence Dr Pelly initiated the question of chin reduction surgery."
Ground 8.2: "The trial judge erred in fact and law in in [sic] finding the plaintiff requested a chin procedure from Dr Pelly."
103 These were different expressions of the same matter, and should be considered together. The appellant did not satisfactorily explain how their acceptance could lead to upholding the appeal. Whether the appellant or Mr Pelly had initiated discussion about chin reduction surgery did not go directly to advice negligence, or at all to operative negligence or post-operative negligence. However, the trial judge's path to the finding that the appellant would have proceeded to the surgery even if she had been given a full and detailed explanation of the risks included that the appellant had requested the chin reduction surgery, part of what the trial judge referred to as the frame of mind in which she approached Mr Pelly and "made a conscious decision to embark upon `a more improved better life' an essential ingredient of which to undertake the surgery she had decided was necessary". I take the appellant to have intended that acceptance of this ground of appeal would undermine the finding on causation in relation to advice negligence.
104 The trial judge observed that "much argument is advanced by both parties on the issue of the plaintiff's credit as a witness". As I have said, according to the appellant's evidence when she approached Mr Pelly her purpose was to alter the shape of her nose but Mr Pelly said that he would also alter the shape of her chin. Mr Pelly was dead and could not give evidence. This was therefore a question on which the plaintiff's credit was important.
105 In addressing the plaintiff's credit the trial judge noted a number of matters on which the respondent relied as showing the unreliability of her evidence. The principal such matters were the divergence between the appellant's evidence of events and the events as recorded in the notes of a number of medical practitioners; the photographs showing that, contrary to her evidence, there was no difference between the appellant's lip closure before and after the 1981 procedure; and the contrast between the appellant's clear recollection in her evidence in chief and her inability to recall even the simplest details when taken beyond that evidence. The trial judge said that "the evidence in these proceedings provides much to support the submissions made by the defendant and set out above".
106 A particular instance of the divergence first mentioned was that the appellant maintained that Mr Rea had raised with her the condition of her nose and the possible reduction of her chin, which the trial judge said was inconsistent with "a proper understanding of Dr Rea's report [of 16 June 1993]". The trial judge noted that the respondent "points to the similarity of the plaintiff's evidence with regard to Dr Rae, with her evidence in regard to Dr Pelly so far as suggestion for surgery is concerned."
107 The trial judge then said that in assessing the plaintiff's credit on the issues in the proceedings it was necessary to have regard to "her pre-operative circumstances and personality, their influences on her thought process and the influence on her of events which have subsequently transpired."
108 He went in some detail into these matters, and then after referring to psychiatric evidence said -
"Accepting those views, as I do, and having regard to the plaintiff's history as I have recorded it, I find that at the time the plaintiff consulted Dr Pelly she was already suffering a personality disorder. She had already experienced a number of personal setbacks and appears as a vulnerable person, probably as a consequence of the many personal traumas she had experienced to that time. She appears to have decided on one further major course in an attempt to completely alter her past lifestyle and experiences.
Nowhere is it suggested that situation improved with the passage of time. Rather, the medical evidence suggests the plaintiff has become obsessed with problems she perceives to be associated with her chin. As Dr Chester says `she would not be dissuaded to the contrary by rational arguments'.
I accept that is the condition of the plaintiff at the time she gave evidence in these proceedings and, therefore, I am of the view one has to be more than usually careful in assessing the weight to be given to her evidence on each and every issue.
She said in evidence -
`I saw having the operation as the beginning of a more improved better life and I'd finished the real estate course and I'd had the two years registration and I was going to get rid of the jealous boyfriend and that was a milestone date, a time for me'.
I find that attitude persists and clouds or influences aspects of her recollection and evidence. That fact has to be at the forefront of one's mind in considering her evidence and, to a large degree, supports the defendant's assertion that her account of events must be closely examined in any circumstances where it is not supported by independent corroborative evidence.
It is fair to say the history of events after surgery includes a number of failures on the part of the plaintiff to achieve her personal and professional endeavours and I find that fact has been a major influence in the plaintiff's continued pursuit of treatment and in her recollections of events associated with the initial surgery and beyond.
I think it is fair to say the plaintiff has given her evidence according to the best of her present recollection of events which occurred long ago but I am not satisfied that recollection is accurate in many instances. That is not to imply that I find the plaintiff deliberately untruthful. Rather I find her pre-existing condition coupled with the passage of time and this litigation which itself commenced 10 years ago have come to consume the plaintiff so that she is no longer able to distinguish between her precise recollection of events on a particular day and what she has come to understand, later, to have been the likely events of that day. I am certain there is an element of embellishment and that the plaintiff has given self-serving evidence but, in saying all of that, I have not come to the view it is necessary to reject her evidence in its entirety. The difficulties in assessing the plaintiff's evidence are, as I have already said, considerable, and need to be weighed very carefully."
109 Specifically as to the issue of who initiated the discussion of chin reduction surgery, the trial judge said -
"The plaintiff forcefully put that it was Dr Pelly who originated the suggestion for chin reduction surgery. However I find the plaintiff's evidence on this issue to be inconsistent with other evidence.
The plaintiff admitted in evidence she was carefully considering the extent of the proposed chin reduction surgery between her first and second consultations with Dr Pelly. She told Dr Rae, at her first consultation with him
`she had an operation carried out also in September 1980 to reduce the prominence of the point of her chin.'
That terminology used by Dr Rae suggests to me he understood it was the plaintiff who originated the idea of chin reduction surgery with Dr Pelly and his report also, certainly, suggests the plaintiff was seeking further chin reduction surgery by him, despite and not because of `persistent numbness' since the earlier operation.
As Dr Rae records
`She was still concerned about the projection of this.'
His terminology suggests the plaintiff had, from the start a concern about the projection of her chin. Dr Rae records that he advised her he would remove further bone from the chin `about 6 mm in thickness' but, ultimately, on operation, bone was removed `to a thickness of .6 centimetres and a length of .4 centimetres.' Despite the fact that procedure was carried out on 29th September 1982 the plaintiff was still complaining about the condition of her chin when she saw Dr Carlisle in October and November 1984 and requesting further chin surgery.
Contrary to what the plaintiff asserts I find the plaintiff is contradicted, in her evidence, by the records and reports of Dr Rae in so far as they relate to who initiated discussion about chin reduction surgery and also in so far as they relate to the complaints made by the plaintiff on admission to the Royal South Sydney Hospital, and to Dr Carlisle.
There are other inconsistencies in the plaintiff's evidence, to which I have already referred, which require me to closely consider the plaintiff's evidence on this issue. I find a proper assessment of the total evidence on this issue requires me to reject the plaintiff's assertions.
I find, on a balance of probabilities, it was the plaintiff and not Dr Pelly who initiated discussion about chin reduction surgery. The plaintiff then, and thereafter, pressed Dr Pelly and the later plastic surgeons to deal with that aspect of her concern."
110 The principal submission made by the appellant was that the trial judge had offended the coincidence rule in s 98 of the Evidence Act, by using against her Mr Rea's report of 16 June 1993 insofar as it indicated that the appellant had initiated discussion about chin reduction surgery with Mr Rea. Section 98 provides -
"98(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) For the purpose of subsection (1), 2 or more events are taken to be related events if and only if:
(a) they are substantially and relevantly similar, and
(b) the circumstances in which they occurred are substantially similar.
(3) Subsection (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100, or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party."
111 Mr Rea's report had been tendered by the appellant, but it was said that the relevant offending of the coincidence rule was not in relation to admissibility of the report but in relation to its use as constrained by s 95 of the Evidence Act -
"95(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose."
112 I will assume that no notice of the kind referred to in s 98(1)(a) was given, so far as that may be material. It is unnecessary to go into the operation of ss 98 and 95 when the party now complaining of admissability to prove a particular matter was the party who adduced the evidence. Section 98 did not stand in the way of the use made by the trial judge of the report so far as it indicated that the appellant had initiated the discussion about chin reduction surgery with Mr Rea. There was no question of evidence of two or more related events in order to prove that, because of the improbability of the events occurring coincidentally, the appellant had initiated discussion about chin reduction surgery with Mr Pelly. The trial judge did not take up in his reasoning the similarity to which the respondent pointed. Rather, the fact that the appellant had initiated discussion about chin reduction surgery with Mr Rea told against her credit, because she had said to the contrary, and so could be used as relevant to the reliability of her evidence that Mr Pelly had initiated discussion about chin reduction surgery; and it contributed to the view that the appellant had, prior to consulting Mr Pelly, been concerned about the projection of her chin, with its correction part of the course of changing her past lifestyle and experiences.
113 A further submission made by the appellant was that Mr Rea's report of 16 June 1993 was not, on a proper understanding, inconsistent with Mr Rea raising with the appellant the condition of her nose or the possible reduction of her chin.
114 The trial judge had quoted more full extracts from the report, of which the few lines in the passage from his Honour's reasons last set out were part. The report read -
"I first saw this patient on 21st April 1982 at which time she was aged 32 years. She came to have a discussion regarding her nose and her chin which she was concerned about. She had had a rhinoplasty and reduction mentoplasty carried out by Dr Pelly in September 1980 so she advised me.
Regarding her nose, she was concerned that there was still a prominence on the bony part of the bridge line and what she expressed a wish for was to have this more appropriately retrouss. I advised her what could be achieved by further rhinoplasty operation at this time.
She was also concerned about the prominence of her chin. She stated that she had had an operation carried out, also in September 1980 to reduce the prominence of the point of her chin or symphysis menti of the mandible by Dr Pelly in order to reduce the prominence of this. However, she stated she had persistent numbness since that procedure. Briefly I advised her at that time that I would prefer to wait some months to pass to see if sensation in her lower lip returned to normal before I did any further procedure in that area.
...
I did carry out a rhinoplasty operation on 24th August 1982. This was quite a straight forward procedure and the Plaintiff had an uneventful recovery and appeared then and still to be satisfied with the appearance of her nose now.
...
She returned for a discussion regarding her chin. She was still concerned about this projection of this. ... "
115 In my opinion the trial judge was not in error in reading the report as he did.
116 A further submission was that the complaints made by the appellant on admission to the Royal South Sydney Hospital did not relevantly contradict the appellant, but rather supported her. The language used by the trial judge was not that the complaints contradicted the appellant, but that the records and reports of Mr Rea insofar as they related to the complaints contradicted the appellant. However, the further reference to Mr Carlisle suggests that the trial judge meant that the complaints contradicted the appellant.
117 The appellant was admitted to the Royal South Sydney Hospital for chin reduction surgery to be performed by Mr Rea. The discharge summary read -
"This 32 year old lady was admitted for a chin reduction.
Previous medical surgery to nose and chin, in 1981. She is now complaining of deviation of the lip towards the left while talking. She is unable to close the mouth with lips opposed. Present admission for revision of chin reduction."
118 The appellant submitted that this supported her because it spoke of "revision" of chin reduction, apparently on the basis that revision meant that the previous chin reduction had been badly performed. I am unable to see that in the word, but in any event there is no support for Mr Pelly suggesting chin reduction to the appellant.
119 The appellant's evidence was that her lips deviated to the right, and she said that she had never told anyone that they deviated to the left. She agreed in cross-examination that a video showed her lips going both to the left and to the right. The respondent made much in her submissions to the trial judge of the contradictions with her telling the Royal South Sydney Hospital that her lips deviated to the left (and the notes taken on admission recorded this, so the discharge summary was correct). The trial judge was clearly referring to this part of the hospital records, and there was a contradiction. It is difficult to see how the appellant could have misunderstood his reasons in this respect.
120 Some other matters are to be found in the appellant's written and oral submissions purportedly in relation to these grounds of appeal. I confess to particular difficulty in understanding how they could support them; so far as I understand the other matters, I do not think that any error in the trial judge's finding about initiation of discussion of chin reduction surgery has been shown.
121 There is no doubt that after the 1981 procedure, in the words of the trial judge to which I will return in relation to the next ground of appeal -
" ... the plaintiff embarked upon a regime of approaching other plastic surgeons, seeking not only some remedial work in relation to her perceived injuries stemming from Dr Pelly's surgery but, as well, a more significant chin reduction and further improvement of her nose. She consulted at least seven plastic surgeons. She sought other elective surgery to her breasts and eye lids. The plaintiff had a perceived view her appearance required remedial surgery."
122 It was well open to the trial judge to conclude that, even in 1981, the appellant had a perceived view that her appearance required remedial surgery, including in relation to her chin. If the appellant was not believed in her evidence that Mr Pelly initiated the discussion of chin reduction surgery, in my view it was open to the trial judge to conclude that she had done so. She was not believed, not only by regard to Mr Rea's report and the hospital records but because, for reasons earlier given, the reliability of her evidence was seriously to be questioned. The trial judge's assessment of her evidence on this matter was, properly, in the light of the appellant's evidence as a whole. It is not, in my view, an assessment which should be displaced on appeal. These grounds of appeal fail.
Ground 8.3: "The trial judge erred in fact and law in failing to conclude on the totality of the evidence the plaintiff would not have proceeded to have the surgery if warned of the material risks."
Ground 8.4: "The trial judge erred in law and in fact in failing to find that Dr Pelly's negligent failure to warn caused the plaintiff damage."
123 These grounds were again different expressions of the same matter, and should be considered together. They challenged the trial judge's finding that the appellant would have proceeded to the surgery even if she had been given a full and detailed explanation of the risks.
124 The appellant signed a form of consent to the 1981 procedure which included the words, "the effect and nature of which has been explained to me by the above named doctor". She was asked whether she would have signed it if Mr Pelly had in fact explained the risks, and said -
"I would probably still would [sic] have signed it because I didn't think that there would be risks especially when he'd suggested to do something himself. I mean a person doesn't go and suggest to do something to someone and then harm then [sic: them]."
The appellant did not otherwise give evidence in chief as to whether she would have proceeded to the surgery if she had been given a full and detailed explanation of the risks.
125 In cross-examination the appellant said that she did not think about the risks generally associated with surgery, for example, the risks involved in general anaesthesia, because she had confidence in the medical profession -
"I suppose that I thought that - I looked on the positive side of it and thought that modern day medicine could do things to help people, and so therefore I would take advantage of that if I could."
126 The appellant agreed that she was told by Mr Rea of a risk of damage to nerves in her chin. She denied that she would have undergone the chin surgery if the warnings as to risk given to her by Mr Rea had been given to her by Mr Pelly, saying that the circumstances were different, but she also agreed that the only purpose of the chin surgery undertaken by Mr Rea was improvement in her appearance: that was the purpose of the surgery undertaken by Mr Pelly. There was much more cross-examination to the effect that risks of the later cosmetic procedures were explained to the appellant, and that the appellant proceeded with the surgery because she wanted the cosmetic result in spite of the risks. There was some prevarication by the appellant, but it was well open to the trial judge to accept that the cross-examiner established that position.
127 The trial judge said -
"In considering the plaintiff's evidence on this issue one must again bear in mind the factors to which I referred earlier which limit unqualified acceptance of what she says. In considering whether the plaintiff would have proceeded if properly warned of the material risks it is important to recognise the frame of mind in which she approached Dr Pelly. I have already found that approach involved a direct request for both the rhinoplasty and the chin reduction surgery. At that time the plaintiff, with a long history of failed relationships and employment difficulties was involved in a relationship she perceived to be unsatisfactory. She made a conscious decision to embark upon `a more improved better life' an essential ingredient of which was to undertake the surgery she had decided was necessary. The medical evidence suggests that decision was made in less than logical circumstances.
I believe it is also relevant, in considering this issue, to consider what transpired after the surgery with Dr Pelly. That was that the plaintiff embarked upon a regime of approaching other plastic surgeons, seeking not only some remedial work in relation to her perceived injuries stemming from Dr Pelly's surgery but, as well, a more significant chin reduction and further improvement of her nose. She consulted at least seven plastic surgeons. She sought other elective surgery to her breasts and eye lids. The plaintiff had a perceived view her appearance required remedial surgery. I believe she saw the surgery as the trigger to a total life change. The evidence of Dr Rae, and indeed the plaintiff herself makes it clear that when told of the risks associated with surgery the plaintiff willingly accepted such risks and proceeded to surgery.
I find the plaintiff has failed to discharge the onus of proof she carries on this issue. I am satisfied that if she had been given a full and detailed explanation of the risks she would still have proceeded to the surgery. The risks were, in statistical terms, fairly minor and I am of the view the plaintiff's course of conduct both before and after the surgery establishes on a balance of probabilities that she would have proceeded to surgery come what may."
128 The reference to medical evidence suggesting a decision made in less than logical circumstances was to the evidence of the appellant's personality disorder. The trial judge's path to his conclusion was rational and well founded in the evidence. Once the challenge to the finding as to initiation of discussion of chin reduction surgery is not accepted, I can see nothing in the appellant's submissions - which again were not easy to understand - whereby his Honour's conclusion should be disturbed.
Ground 9: "The trial judge's errors of fact and law as set out above or any of them caused a significant underestimation in the assessment of the plaintiff's damage such that a new trial on that issue before another judge is required".
129 This ground of appeal was concerned with assessment of damages. It follows from what I have said thus far that the verdict and judgment for the respondent should stand, and it is unnecessary to deal with the ground of appeal.
Further grounds of appeal?
130 In her oral submissions the appellant took up a matter which had not appeared, or had not appeared clearly, in her written submissions. It was to the effect that the trial judge had failed to include in his reasons reference to some reports and other documents and some parts of reports from which he took extracts, which other materials it was said supported that the appellant truly suffered from labial incompetence in and after 1982 and was not obsessed with problems she perceived were associated with her chin. Sentences and words were appealed to (on which the appellant put glosses), and it was said the trial judge had "lifted selectively from the reports ... in such a way as to paint a picture of a person who has base motives" when in truth, as I understand the substance of the submission, the picture was that of a genuinely afflicted person whose condition was taken seriously by those she consulted.
131 It is not clear to which ground or grounds of appeal this matter was directed - at one point it seemed to extend to further reason for apprehended bias (ground of appeal 3.4). Detailed references were given to reports, documents and parts of reports said to reveal that the trial judge has mis-presented the effect of the evidence. It has been necessary to consider them all, but it is not necessary to set out seriatim each item in the materials to which the appellant referred and the response to it.
132 The trial judge was not obliged to refer to all the evidence in the proceedings, or to refer to every detail of the relevant evidence. The appellant's submissions as to this matter again proceeded, at least in part, on the misconception that the trial judge found that there was no post-operative labial incompetence, when in fact he found that the condition so far as it existed pre-dated the 1981 procedure. I do not think that any material deficiency in the "selection" by the trial judge of reports, documents or parts of reports has been shown, the other material to which the appellant referred being of little or no significance: indeed, in many instances the point sought to be made by the appellant is unintelligible or patently of no relevance to the outcome of the appeal.
133 In her oral submissions the appellant took up another matter which had not appeared clearly in her written submissions. It was to the effect that it should be found on appeal that the judgment had been written in two parts, the pages up to page 25 when he had the exhibits and the pages thereafter when the trial judge did not have the exhibits because they had been mislaid. It was initially said that this went to grounds of appeal 8.1 and 8.2 -
" ... and the reason for that is that his Honour makes an incorrect observation about one of the exhibits in the context of ground 8 which is the opposite to what the exhibit actually says, and we will ask your Honours to draw an inference from that that he didn't have the exhibit in front of him, otherwise he could not have possibly have said what he said in his judgment if he actually had the exhibit in front of him to read."
134 The Court rejected evidence of certain letters on which the appellant relied for the finding. They were irrelevant. If the trial judge made an observation about one of the exhibits which was the opposite of what the exhibit actually said, it did not matter whether he came to make the error because the exhibits had been mislaid.
135 The error was said to be that, whereas the trial judge had said that the appellant was contradicted in her evidence inter alia by the complaints made on admission to the Royal South Sydney Hospital, the complaints made on admission were consistent with her evidence. This was considered when dealing with grounds of appeal 8.1 and 8.2. As there demonstrated, there was no error.
136 In supplementary written submissions in the appeal delivered after judgment was reserved the appellant put this matter in a different way, not as going to grounds of appeal 8.1 and 8.2 but as raising a concern that the trial judge did not specifically consider a number of reports. A handful of reports were identified as reports "suffering relative or absolute neglect despite their importance to the appellant's case at first instance".
137 It does not seem that this fell within any of the grounds of appeal, but there is nothing in it. The report of Dr Hjorth dated 30 June 1997 was referred to by the trial judge. The report of Professor Morrison dated 4th August 1997 was not, but his contemporaneous reports dated 12 June 1985 and 22 October 1987 were and provided the best assistance to the trial judge; I see no reason for him to have specifically referred to the later report, or to conclude that he failed to pay regard to it. Contrary to the appellant's submissions, the reports of Professor Norman were referred to. Professor Norman gave extensive oral evidence, and his evidence was undoubtedly considered by the trial judge. The report of Mr Rea dated 10 December 1997 was not specifically referred to, but his clinical notes and contemporaneous reports dated 16 June 1983 and 6 October 1983 were; in any event, the report of 10 December 1997 contained no more than comment on articles (see earlier in these reasons). The remaining report was of Dr Moon: she was an ophthalmic surgeon, and presumably the appellant thought assistance could be gained from her statement that the appellant had spasm of her chin, but as appears from earlier in these reasons there was no occasion for a finding as to muscle spasm. I do not think failure on the part of the trial judge properly to address the evidence has been shown.
Costs
138 The respondent closed her submissions with the submission that -
" ... the appellant's case is thoroughly unmeritorious and has been prosecuted, throughout the appeal process, in a manner which does neither the appellant or those representing her any credit."
She requested that -
"if the appellant's appeal is dismissed, [she] ... be given an opportunity to be heard in respect of a costs order other than the usual costs order including a costs order pursuant to section 76C of the Supreme Court Act."
139 I propose the following orders -
(1) Appeal dismissed.
(2) Reserve the question of the costs of the appeal.
(3) Direct the respondent to file and serve by 4pm on 12 March 2001 written submissions in which she states -
(a) the order or orders she seeks as to the costs of the appeal;
(b) the grounds on which she seeks the order or orders; and
(c) her argument in support of those grounds.
(4) List the appeal on 16 March 2001 for further directions in the light of the respondent's written submissions.
140 BROWNIE AJA: I agree with Giles JA.
LAST UPDATED: 02/03/2001
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