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District CourtNew South WalesCase Name: Lee (a pseudonym) v DhuparMedium Neutral Citation: [2020] NSWDC 717Hearing Date(s): 16, 17, 18, 26 April; 3, 4, 27, 28 June; 1 July and 30 August 2019, 14 August and 17 November 2020Date of Orders:19 November 2020Decision Date: 19 November 2020Jurisdiction: CivilBefore: Judge Levy SCDecision: 1. Verdict and judgment for the plaintiff in the sum of $408,700;?2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;?3. The exhibits may be returned;?4. Liberty to apply on 7 days’ notice if further or other orders are required.Catchwords: TORTS – professional negligence – gynaecological surgery for elective sterilisation – failed Filshie clip tubal ligation leading to unwanted pregnancy – rejection of defence of inherent risk pursuant to s 5I of the Civil Liability Act 2002 – rejection of defence of peer professional practice pursuant to s 5O of the Civil Liability Act 2002 – findings of negligence and causation of harm; DAMAGES – assessment of claimed heads of damage – whether plaintiff’s claimed economic loss was incurred as a result of psychiatric illness due to conception, pregnancy and birth or whether economic loss was due to the plaintiff rearing or maintaining her child – construction of s 71(1)(b) of the Civil Liability Act 2002Legislation Cited: Civil Liability Act 2002 (NSW), s 5B, s 5C, s 5D, s 5E, s 5I, s 5O, s 12(1), s 17A, s 27, s 70, s 71, Pt 11Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 and s 8(1)(a), (c), (e)Evidence Act 1995 (NSW), s 60, s 136, s 140(1)UCPR r 31.27(1)(c), Sch 7, cl 3(e), r 31.20(2)(j)Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1Amaca Pty Ltd v Ellis [2010] HCA 5Amadio Pty Ltd v Henderson (1998) FCR 1490; [1998] FAC 823Angel v Hawkesbury Council [2008] NSWCA 130Blacktown City Council v Hocking [2008] NSWCA 144Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29Browne v Dunn (1893) 6 R 67Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38CGU Insurance Ltd v Porthouse (2008) 235 CLR 103, [2008] HCA 30Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1, [1981] HCA 40Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25Dobler v Halvorsen (2007) 70 NSWLR 151; [2007] NSWCA 335Elayoubi v Zipser [2008] NSWCA 335Fox v Percy [2003] HCA 22; 214 CLR 118Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159Goode v Angland [2017] NSWCA 311Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187Graham v Baker (1961) 106 CLR 340; [1961] HCA 48HG v The Queen (1999) 197 CLR 414; [1999] HCA 2Inside Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137Kocis v SE Dickens Pty Ltd [1998] 3 VR 408Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 50; [1991] HCA 12Mason v Demasi [2009] NSWCA 227McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; [1979] HCA 19Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22Neal v Ambulance Service of NSW [2008] NSWCA 346Neville v Lam (No 3) [2014] NSWSC 607Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58Paul v Cooke (2013) 85 NSWLR 167, [2013] NSWCA 311Penrith City Council v Parks [2004] NSWCA 201Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18Schultz v McCormack [2015] NSWCA 330Sibley v Kais (1967) 118 CLR 424, [1967] HCA 43South Western Sydney Local Health District v Gould [2018] NSWCA 69Sparks v Hobson; Gray v Hobson [2018] NSWCA 29SRA v Earthline Constructions Pty Ltd (in liquidation) [1999] HCA 3State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536Strinic v Singh [2009] NSWCA 15Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12The Nominal Defendant v Buck Cooper [2017] NSWCA 280Teubner v Humble (1963) 108 CLR 491; [1963] HCA 11Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62Varga v Galea [2011] NSWCA 76Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19Walter v James [2015] NSWCA 232Warren v Gittoes [2009] NSWCA 24Waverley Council v Ferreira [2005] NSWCA 418Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85Texts Cited: Leeming M, The Statutory Foundations of Negligence (2019, The Federation Press)Penfield AJ, “The Filshie clip for female sterilization : a review of world experience”, AMJ Obstet Gynecol 2000; 183(3): 485-489Peterson HB et al, “The risk of pregnancy after tubal sterilisation : Findings from the US Collaborative Review of Sterilization” (April 1996), American Journal of Obstetrics and Gynecology, pp 1161-1170Varma R, Gupta JK “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, pp 1322-1332Varma, R & Anor, “Precluding negligence in female sterilization failure : analysis of 131 cases”; Human Reproduction; 22(a); 2437-2443Hansard, Second Reading Speech, Parliamentary Debates, New South Wales Legislative Assembly, 13 November 2003Hansard, Second Reading Speech, Parliamentary Debates, New South Wales Legislative Assembly, 4 December 2003Category: Principal judgmentParties: Jodie Lee (a pseudonym) (Plaintiff)Nita Dhupar (Defendant)Representation: Counsel:Mr R O’Keefe (Plaintiff)Mr Cummings (Solicitor - 14 August 2020) (Plaintiff)Ms E Elbourne (16, 17, 18, 26 April 2019) (Defendant)Mr S Kalfas SC with Ms E Elbourne (from 3 June 2019) (Defendant)Solicitors:Slater & Gordon (Plaintiff)Avant Law (Defendant)File Number(s): 2017/284433Publication Restriction: Order prohibiting the publication or other disclosure of any information tending to reveal the identity of the child named in the evidence in this case, the child’s mother, other family members of that child and the plaintiff’s employer.JudgmentTable of ContentsNon-publication order and litigation pseudonyms [1]Nature of case and structure of reasons[2] – [6]PART A - INTRODUCTION?Factual background[8] – [16]Claim and defences[17] – [21]Submissions of the parties[22] – [32]Filshie clips – mechanism, application and intended effect[33] – [55]PART B – ISSUES AND EVIDENCE OVERVIEW?Substantive issues for determination[56] – [69]Summary of findings on credit and reliability of factual testimony[70] – [79]Plaintiff’s evidence [74] Mother-in-law’s evidence [75]Former employer’s evidence [76]Dr Jeri’s evidence [77] Dr Dhupar’s evidence[78] Ms Dassayanake’s evidence – Dr Dhupar’s solicitor[79] Summary of conclusions as to reliability of expert evidence[80] – [84]Dr Jones’ evidence [81] Professor O’Connor’s evidence [82] Associate Professor Cooper’s evidence[83] – [13]PART C – MEDICAL RECORDS AND DOCUMENTS?(1) Filshie Tubal Ligation System product brochure[87] – [88](2) Exhibit “J” – Health Care Records – Documentation[89] – [93](3) Dr Jeri’s patient history records[94] – [96](4) Dr Dhupar’s consultation notes dated 9 May 2014[97] – [111](5) RANZCOG patient information pamphlet[112] – [123](6) RANZCOG statement on Filshie clip tubal occlusion[124] – [130](7) Riverina Day Surgery Centre – The tubal ligation procedure[131] – [145](8) Intra-operative images taken on 26 August 2014[146] – [147](9) Wagga Wagga Referral Hospital[148] – [156](10) Dr Jeri’s correspondence to plaintiff’s solicitor[157] – [158](11) Anatomical and histological examination of fallopian tubes[159] – [160](12) Hysterosalpingogram on 20 August 2018[161] – [164](13) Medico-legal article on ramifications of failed sterilisation[165] – [169]PART D – CREDIBILITY AND RELIABILITY OF EVIDENCE?Evidence of the plaintiff’s mother-in-law[173] Evidence of the plaintiff’s former employer [174]Evidence of the plaintiff [175] – [226](1) Challenges concerning plaintiff’s previous health history [178] – [190](2) Ill-founded attack on plaintiff’s credit as to health history[191] – [195](3) Asserted need for corroboration of plaintiff’s evidence[196] – [199](4) Challenges asserting conflicts within medical histories [200] – [202](5) Challenges concerning pre-operative discussions[203] – [216](6) Challenges to content of plaintiff’s job application form[217] – [225](7) Conclusions on credit challenges to the plaintiff[226]Evidence of Dr Arturo Jeri[227] – [300](1) Dr Jeri’s qualifications and experience[236] – [249](2) Dr Jeri’s explanation of anatomical structures[250] (3) Dr Jeri’s referral of the plaintiff to Dr Dhupar[151] – [256](4) Diagnosis of pregnancy and antenatal care[257] – [265](5) Unexpected labour and emergency caesarean section[266] – [278](6) Bilateral salpingectomies[279] – [281](7) Hysterosalpingogram investigation of left Filshie clip[282] – [286](8) Dr Jeri’s evidence on the plaintiff’s history of anxiety[287] – [290](9) Submissions critical of Dr Jeri’s modified operation report[291] – [296](10) Assertion that Dr Jeri was partisan[297] – [299](11) Conclusions on reliability of Dr Jeri’s evidence[300] Evidence of Dr Dhupar, the defendant[301] – [375]Summary of plaintiff’s submissions as to non-reliability [303] – [312]Particular topics within Dr Dhupar’s evidence[314] – [374]Conclusions on reliability of Dr Dhupar’s evidence[375]Evidence of Ms Dassayanake[376] – [378]PART E – REVIEW OF EXPERT OPINIONS?Evidence of Dr Michael Jones, radiologist[380] – [394]Primary opinions of Professor Michael O’Connor[395] – [408]First report of Professor O’Connor – 20 July 2017[396] – [400]Second report of Professor O’Connor – 10 May 2018[401] – [402]Third report of Professor O’Connor – 6 August 2018[403] – [405]Fourth report of Professor O’Connor – 27 September 2018[406] – [407]Fifth report of Professor O’Connor – 2 October 2018[408]Primary opinions of A/Professor Michael Cooper [410] – [424]First report of A/Professor Cooper – 17 November 2017[410] – [418]Second report of A/Professor Cooper – 13 June 2018[419] – [423]Third report of A/Professor Cooper – 29 January 2019[424]Two joint expert reports [425] – [439]First joint expert report – 13 August 2018[428] – [431]Second joint expert report – 28 March 2019[432] – [439]Concurrent expert gynaecological evidence[440] – [443]Oral evidence of Professor O’Connor[441] Oral evidence of A/Professor Cooper[442] – [443]PART F – RELIABILITY OF EXPERT MEDICAL OPINIONS ?Assessment of reliability of Dr Jeri’s factual evidence [451] – [468]Reliability of the evidence of Dr Jones [469] – [493]Assessment of reliability of Professor O’Connor’s evidence[494] Assessment of reliability of A/Professor Cooper’s evidence[495] – [561]Factual misapprehension over tube transection[497] – [499]Speculative criticisms of Dr Jeri’s observations[500] – [505]Criticism asserting an unbalanced analysis[506] – [509]Reluctant concessions[510] – [514]Obfuscatory answers to questions[515] – [518]Explanations invoking dismissive hyperbole[519] – [522]Evidence shift: clip closed; clip locked; clip “sort of closed”[523] – [548]Reiteration of untenable views[549] – [554]Reference to literature of “low-ish” epidemiological level[555] – [560]Conclusion on reliability of evidence of A/Professor Cooper[561] PART G – FINDINGS ON ISSUES CALLING FOR DECISION?Issue 1 – Findings on factual matters[563] – [859](1) Plaintiff’s personal and family history[564] (2) Plaintiff’s work history[565] – [570](3) Plaintiff’s previous health[571] – [575](4) Plaintiff’s family planning intentions[576] (5) Referral of plaintiff to Dr Dhupar[577] (6) Plaintiff’s prior knowledge of risk of possible pregnancy[578] – [579](7) Pre-operative consultation with Dr Dhupar on 9 May 2014[580] – [589](8) Bilateral tubal ligation surgery on 26 August 2014[590] – [686](9) Unwellness and gradual awareness of further pregnancy[687] – [688](10) Dr Dhupar’s claimed unawareness of the pregnancy[689] – [692](11) The most probable cause of the plaintiff’s pregnancy[692] – [768](12) Plaintiff’s initial reaction to pregnancy with fourth child[769] – [770](13) Plaintiff’s negative feelings to the pregnancy[771] – [784](14) Onset of labour and travel to Wagga Wagga[785] – [789](15) Caesarean section delivery of fourth child[790] – [792](16) Intra-operative observations and communications[793] – [801](17) Discharge from hospital following birth of fourth child[802] – [803](18) Events between birth of fourth child and the trial[804] – [819](19) Expert medical assessments relating to damages[820] – [839](20) Effects of the events on the plaintiff’s work[840] – [847](21) Relevant observations of plaintiff’s mother-in-law[848] – [859]Issue 2 – Relevant risk of harm [860] – [870]Issue 3 – Duty of care, scope and content[871] – [877]Issue 4 – Inherent risk : s 5I of the CL Act[878] – [896]Issue 5 – Defence of peer opinion: s 5O of CL Act[897] – [923]Issue 6 – Breach of duty of care and negligence [924] – [984]Identification of standard of care[925] – [931]Incorrect location[932] Extraneous tissue incorporated[933] – [935]Clip not fully closed and locked[936] Incomplete check for correct closure and locking[937]Absence of unusual features[938] – [940]Late application to amend particulars of negligence[941] – [945]Particulars of negligence relied upon by plaintiff[946] – [948]Dr Dhupar’s initial response to negligence allegations[949] – [955]Factual inter-relationship of particulars of negligence and the standard of care[956] – [960]Applicable legislation[961] – [963]General consideration of the claim of negligence[964] – [965]Consideration of s 5B(1) of the CL Act[966] – [971]Consideration of s 5B(2) of the CL Act[972] – [976]Consideration of s 5C of the CL Act[977] – [984]Conclusion on breach of duty of care and negligence[985]Issue 7 – Causation of harm [986] – [1002]Legislation[987] Approach to causation analysis[988] – [989] Precise identification of the harm incurred[990] – [995]Factual causation – s 5D(1)(a) of CL Act[996] – [998]Scope of liability – s 5D(1)(b) of CLWA[999] – [1001]Conclusion on causation[1002] Issue 8 – Assessment of damages[1003] – [1040]Non-economic loss [1005] – [1024]Past economic loss [1025] – [1067]Future loss of earning capacity[1068] – [1079]Future treatment expenses[1080] – [1082]Past out-of-pocket expenses[1083] Summary of damages assessment[1084] PART H – DISPOSITION, COSTS, ORDERS?Disposition[1085]Costs[1086]Orders[1087]Non-publication order and litigation pseudonymsPursuant to s 7 and s 8(1)(a), (c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), an order has been made prohibiting the publication or other disclosure of any information tending to reveal the identity of the child named in the evidence in this case, the child’s mother, other family members of that child and the plaintiff’s employers. Accordingly, in these reasons, the child is referred as the child, the plaintiff is referred to by the litigation pseudonym Jodie Lee, and the plaintiff’s mother-in-law and the plaintiff’s employers are respectively referred to by their described status. Nature of the case and structure of reasonsThe plaintiff, Mrs Jodie Lee (a pseudonym), brings these proceedings against the defendant, Dr Nita Dhupar, an obstetrician and gynaecologist, claiming damages for alleged professional negligence in relation to failed tubal ligation surgery Dr Dhupar performed on 26 August 2014. The plaintiff claims she suffered avoidable harm from conception, pregnancy and childbirth, which she alleges was due to a negligent breach of the duty of care that Dr Dhupar owed to her when Dr Dhupar performed an elective tubal ligation procedure on her, where the aim of that procedure was to achieve permanent occlusion of her fallopian tubes because she wanted to prevent future pregnancy. Following that procedure, within twelve months, the plaintiff unexpectedly conceived her fourth child.Although this type of claim has been characterised in some jurisdictions, and in some medico-legal literature cited by an expert qualified by the defendant as a wrongful birth claim, such shorthand terminology tends to confuse the issues concerning the true cause of action. Therefore, that nomenclature has not found favour in this jurisdiction: Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38, at [4], [9], [188]-[193], [300]. These proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”).A glossary of relevant terms and anatomical structures appears in the Appendix. The parties are familiar with those terms. These reasons assume an understanding of, and familiarity with, those terms. These reasons for decision are structured as follows:PART A???Introduction, comprising a brief summary of the factual background, a brief description of the basis of the claim and the defences, identification of the submissions of the parties, and an explanation and description of the purpose and the manner of application of Filshie clips: Paragraphs [8] to [55]PART B???Evidence overview, the identification of the factual and legal issues requiring determination in the proceedings, and a summary of the conclusions reached on the credibility and reliability of the oral evidence given in the proceedings on factual matters and on matters of expert evidence: Paragraphs [56] to [84]PART C???Review of 13?identified categories of documents comprising documentation in medical records, patient and hospital records relating to the plaintiff, relevant pathological and other investigatory test results, and relevant RANZCOG and other literature: Paragraphs [85] to [169]PART D???Findings on credibility and reliability of evidence on factual matters raised in the evidence of the plaintiff, and the lay witnesses who gave evidence in her case, the factual evidence of her treating general practitioner obstetrician, and the factual evidence given by Dr Dhupar: Paragraphs [170] to [375]PART E???Review of expert opinion evidence from the respective consultant obstetricians and gynaecologists and a radiologist who gave evidence on the liability and causation issues in the proceedings: Paragraphs [379] to [443]PART F???Findings and conclusions reached concerning the reliability of expert medical opinions following review of the opinions of the expert obstetricians and gynaecologists and the expert radiologist: Paragraphs [444] to [561]PART G???Findings on the issues calling for decision, namely on relevant matters of fact, identification of the relevant risk of harm, whether there was a materialisation of an inherent risk within the meaning of s 5I of the CL Act, the scope and content of the duty of care owed, whether a defence has been made good pursuant to s 5O of the CL Act, whether a breach of duty of care occurred, whether causation of harm has been established, and the assessment of the plaintiff’s damages: Paragraphs [562] to [1084]PART H???Disposition, costs considerations and orders: Paragraphs [1085] to [1087]PART A – INTRODUCTIONThe factual background to the proceedings is as follows.Factual backgroundAt trial, the plaintiff was aged 39 years. She is the mother of four healthy children. On 1 March 2016, her fourth child, who is the subject of these proceedings, was born by means of an uncomplicated emergency caesarean section delivery at the Wagga Wagga Referral Hospital, a public hospital in New South Wales.Beforehand, on 22 April 2014, when the plaintiff was aged 33 years, Dr Arturo Jeri, the plaintiff’s family doctor who was also her longstanding treating general practitioner obstetrician, referred her to Dr Dhupar in Wagga Wagga for an elective tubal ligation procedure to occlude her fallopian tubes with the aim of preventing further pregnancies. The plaintiff had initially requested of Dr Jeri that he perform the tubal ligation procedure at the local regional hospital near her home. Although he was qualified to do so, it was not possible for him to do so laparoscopically at the local hospital because that hospital was not sufficiently equipped for that purpose. Furthermore, he considered that an alternative procedure, a tubal ligation performed by way of a mini-laparotomy as distinct from laparoscopically, if it was to be performed at the local hospital, was out of the question for the plaintiff. This was due to the presence of scar tissue from the plaintiff’s previous three caesarean sections which Dr Jeri had performed.Consequently, on 9 May 2014, pursuant to Dr Jeri’s referral, the plaintiff consulted Dr Dhupar, who obtained the plaintiff’s consent for the laparoscopic tubal ligation. Dr Dhupar then made arrangements for that procedure to be performed at Wagga Wagga on 26 August 2014.The objective of that procedure was for clips using the Filshie Tubal Ligation System (“Filshie clips”), a trademarked product, intended to be applied bilaterally to each of the plaintiff’s fallopian tubes. The aim was to occlude the lumen of each of those tubes by force of mechanical pressure to induce ischaemia, consequential avascular necrosis over a 4mm length of the fallopian tube, fallopian tube atrophy, and resultant transection. The intended outcome of that procedure was that the resultant scar tissue would create a seal of each of the transected ends of the fallopian tubes. The intention was to block and prevent the future passage of oocytes and spermatozoa along the lumen of those structures to prevent fertilisation and pregnancy. Subsequently, on 21 July 2015, after the plaintiff experienced upsetting symptoms of nausea, vomiting, and sensitivity to food smells, she was tested and found to have conceived her fourth child. Her fourth child was later delivered by Dr Jeri on 1 March 2016. This was an emergency caesarean section delivery in circumstances that were very stressful for the plaintiff. A natural vaginal delivery was contraindicated in the plaintiff’s circumstances. Although there is no doubt that the plaintiff’s fourth child is loved and cherished by the plaintiff, her husband and her family, the pregnancy and the subsequent birth of that child has had significant adverse effects on the plaintiff’s life, on the amenity of her life, on her emotional wellbeing, and on her capacity to work. Following the events complained of, the plaintiff not only developed mixed feelings about the birth of the fourth child, but she also developed a major depressive disorder on learning of and then experiencing the progress of her pregnancy, and all that this entailed for her. That psychological disorder continues to affect all aspects of the plaintiff’s life. She has also experienced the unnecessary trauma of emergency surgery, following which she developed an unfortunate post-operative wound infection. She also experienced untoward personal and parenting difficulties as a consequence of the birth of her fourth child, which was very much contrary to her plans.Claim and defencesThe first version of the plaintiff’s statement of claim was filed on 19 September 2017. In essence, it was claimed that Dr Dhupar had failed to properly engage a calibrating instrument to ensure the Filshie clips were properly applied so as to properly occlude the plaintiff’s left fallopian tube. The basis of that particular claim ultimately proved to be an inaccurate formulation after it was disclosed that a calibrating instrument was not included as part of the equipment Dr Dhupar had used in the procedure.In the plaintiff’s amended statement of claim filed on 24 August 2018, the claim as originally pleaded was expanded upon so as to include an allegation that Dr Dhupar applied the left Filshie clip incorrectly, that is, that she had applied it to an area other than to the tissue comprising the isthmus of the left fallopian tube, along with further alleged failures to undertake proper intra-operative inspection, which if performed properly, would have revealed a potential for a failure of occlusion of that tube. The plaintiff also relied upon an alleged failure to inform her of a significant aspect of the procedure and a failure to undertake a subsequent test for determining whether fallopian tube occlusion had been successfully achieved.The plaintiff claims that if Dr Dhupar had duly exercised reasonable care in carrying out tubal ligation surgery on her, the subject pregnancy would have been avoided. She therefore seeks damages in respect of non-economic loss, past economic loss, future loss of earning capacity, future treatment expenses, and past out-of-pocket expenses. Dr Dhupar disputes all of the plaintiff’s allegations of negligence. In her defence, she claims that the plaintiff’s pregnancy was the result of the materialisation of an inherent risk of failure associated with tubal ligation utilising Filshie clips: s 5I of the CL Act. Dr Dhupar further claims the plaintiff had been appropriately informed beforehand that there was a chance the procedure may not prevent pregnancy. On Dr Dhupar’s behalf, it was submitted that the plaintiff’s claim does not rise above an attempt to draw an inference of a breach of duty of care based upon the proposition that pregnancy had simply followed the application of Filshie clips. Dr Dhupar also claims the benefit of the sheltering effect of a defence articulated pursuant to s 5O of the CL Act, by which she claims that in carrying out the tubal ligation procedure on the plaintiff, she had acted in a manner that was widely accepted by peers in Australia as competent professional practice, which if accepted, should operate as a complete answer to the plaintiff’s claim against her.Submissions of the partiesThe parties provided extensive primary written submissions followed by extensive responsive written submissions in reply. The plaintiff’s written submissions were marked MFI “18”, paragraphs 1 – 331. The defendant’s written submissions were marked MFI “19”, paragraphs 1 – 163. The plaintiff’s written submissions in reply were marked MFI “20”, paragraphs 1 – 130. The defendant’s submissions in reply were marked MFI “21”, paragraphs 1 – 60. The written submissions of the parties were of considerable density and compressed content. The parties made additional oral submissions on the tenth day of the hearing (T524 – T548), following which several further listings occurred to deal with incidental matters including the making of a non-publication order and transcript errata.Many matters of fact remained in contest in these proceedings. At paragraph 18 of the defendant’s primary written submissions, some 54 points of factual narrative were identified, including sub-points. In the plaintiff’s primary written submissions, between paragraphs 22 and 133, some 134 points of factual narrative were identified, including sub-points. Many points were in outright contention and some aspects of contention were of a more subtle nature. The principal issue of contention in the proceedings concerned what aggregation of factors had caused the plaintiff to conceive her fourth child. The determination of the pivotal points in contention by reasoned factual findings requires a detailed consideration in the context of the evidence as a whole, rather than cherry-picking particular points for consideration in isolation. That process, along with the detailed bulk of the evidence, has necessarily resulted in lengthy reasons for decision.The essential elements of the respective submissions will be evaluated in conjunction with the consideration of the issues to which they relate. Having regard to the extent of the respective submissions, in making findings on matters in dispute, I will confine my reasons to the essentially significant and consequential matters: Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd [2000] FCA 1159, at [101]; Amadio Pty Ltd v Henderson (1998) FCR 1490, at [4]; [1998] FCA 1069.The plaintiff submitted that she has made good her circumstantial case against Dr Dhupar both in respect of a claimed breach of duty of care and in respect of claimed causation of harm. She also submitted that the content of Dr Dhupar’s evidence warranted close examination in terms of its reliability. It was submitted that Dr Dhupar’s evidence should be rejected where it was not corroborated by other reliable evidence. The submissions made on behalf of Dr Dhupar raised criticisms of the reliability of the plaintiff’s evidence on factual matters, including as to the extent of her pre-operative understanding as to whether there was a risk she could become pregnant notwithstanding tubal ligation surgery. Those submissions also made criticisms of the plaintiff’s evidence concerning her previous health and medical history, and in respect of particular elements of her claim for damages.Apart from a defence claimed pursuant to s 5O of the CL Act asserting that Dr Dhupar had acted in conformity with what peer professional opinion in Australia considered to be competent practice, a focal point of the defendant’s submissions was that the plaintiff’s claim should be seen as not rising above an attempt to draw an unwarranted inference of negligence from the fact of her pregnancy simply because that pregnancy had followed the tubal ligation procedure. The defendant’s submissions were also to the effect that the plaintiff has failed to establish that the pregnancy in question was anything other than an instance comprising the materialisation of pregnancy arising from an inherent risk of a failure of tubal ligation: s 5I of the CL Act.The defendant’s submissions included criticisms concerning the reliability and applicability of the expert evidence that was adduced in support of the plaintiff’s case. Similarly, the submissions on behalf of the plaintiff argued that there were critical flaws in both the factual and the expert evidence relied upon for the defence case.In final submissions (at T534.35 – T535.3), counsel for the defendant took particular care to draw attention to a journal article that analysed historical studies of failed tubal ligation. That article was attached to the report of the defendant’s liability expert, Associate Professor Michael Cooper: Exhibit “1”, Tab 3, pp 28 – 38. Having analysed that article, and for reasons that will be made plain, I consider that the article in question does not assist the defendant’s case.The respective submissions of the parties will be considered in appropriate detail in the course of the consideration that is required for the determination of the multiple matters of dispute raised in these proceedings.Filshie clips – mechanism, application and intended effectIt is convenient at this point to identify the mechanism, application and intended effect of Filshie clips.Filshie clips are patented medical devices designed for the mechanical prevention of conception. A sample clip was tendered as Exhibit “2”. The following extracted photographic representation of a pair of Filshie clips appears in the manufacturer’s Filshie Tubal Ligation System product brochure.[Exhibit “C”, Vol 2, Tab 6.5, p 594]A Filshie clip, in its open state, has two articulated component jaws or arms that are connected at the base by means of a concealed riveted hinge. The upper jaw has a slightly convex curve which, at a point a few millimetres from the end, turns into an upturned open concave curled lip. Once closed, the dimensions of a Filshie clip are about 14mms in length and about 3.5mms in width. The lower jaw of the clip, which comprises the base, is straight, but it incorporates a half return lip or locking latch, that is about 2mms in height, which is designed to receive the upturned or convex curled lip of the upper jaw during the locking process after achieving initial apposition and closure. Before closure, the open portion of that latch faces towards the internal hinged portion. Both jaws have a thick clear flexible silastic lining which is designed to squeeze and place pressure on and around a fallopian tube when the clip is closed and left in the locked position.In this case, the laparoscopic application of an open Filshie clip to a fallopian tube involved a touch-free process, that is, hands-free. That process commences with the clip being loaded into a pistol-like Sterishot applicator device in readiness for placement onto a fallopian tube. Increasing mechanical pressure is then progressively applied to a trigger located on the applicator handle in order to transmit pressure onto the concave curve of the upper jaw, which then progressively straightens as more pressure is applied through the operation of the applicator device. The curve of the upper jaw of the clip then proceeds to progressively flatten. It then becomes locked into place as further and continued mechanical pressure is applied so as to push and advance the curled metal lip at the end of the upper jaw further forward and into final locked engagement with the return lip or latch of the lower jaw. In that process, the upper and lower silastic linings are then brought together in closer apposition under pressure so that the fallopian tube is squeezed flat between those linings. For good reason, the recommended location for the application of Filshie clips is for a clip to be placed over the muscular isthmic portion of a fallopian tube at a point located 1cm to 2cm from the cornu of the uterus, and then finally locked after closure. In the context of this case, the undisputed evidence is that the mechanical action of the applicator of the type used by Dr Dhupar in the plaintiff’s procedure for locking a Filshie clip, is an inaudible process that does not produce any sound of a click. This has been identified as a relevant consideration for the assessment of the reliability of an aspect of Dr Dhupar’s evidence. As will be explained in more detail in the context of findings on the credibility and reliability of testimony, the undisputed inaudibility of that action takes on some significance because in her statement, Dr Dhupar claimed that she had heard such a click when closing the Filshie clip on the plaintiff’s left fallopian tube and had relied upon that sound as an indication of clip closure.The Filshie clip manufacturer’s product description includes the following statement:“The Filshie Clip is manufactured from titanium and is lined on the innersurface with silicone rubber (both materials are implantable grade). Atone end there is a hinge and at the other a latch. The Filshie Clip is appliedacross the entire diameter of the isthmic segment of the Fallopian tube.When the Clip is fully closed by the Sterishot II applicator, the upper jaw isflattened and is securely latched under the front end of the lower jaw. Thisacts as a clasp, securing the upper jaw of the Clip. The silicone rubber is indirect contact with the tissues and both are compressed under the force applied by the titanium. When avascular necrosis of the Fallopian tube occurs, the compressed silicone expands to maintain complete occlusion of the lumen. This prevents re-canalization and destroys approximately 4mm of the Fallopian tube.”[Exhibit “C”, Vol 1, Tab 3.7, pp 157 – 158]The following extract from the defendant’s expert evidence that draws upon the above description and describes the operative mechanism for achieving Filshie clip sterilisation as follows: “Filshie clips are titanium with a silastic insert. The devices have been designed so that constant pressure from the expanding silastic is placed over the muscular portion of the fallopian tube and with time the silastic areas join together resulting in complete transection of the tube. This process takes some time to occur and following this there is usually a defect between the proximal and distal ends of the fallopian tube as has been described in this particular case. The filshie (sic) clip may then migrate to virtually any area within the abdominal cavity. Despite appropriate placement of clips with transection of the tubes, it is reasonably well accepted that the proximal and distal ends may ultimately recanalise allowing transmission of oocytes and sperm and thus pregnancy.”[Exhibit “1”, Tab 2, p 8] There is an apparent tension between the manufacturer’s product description that the process prevents recanalisation and the possibility of an ultimate recanalisation of a fallopian tube.The process which describes the possibility of a migration of a Filshie clip from its intended placement location, is enabled once the adjoining edge or edges of the clipped parts of the flattened or compressed fallopian tube undergo ischaemic atrophy and transection over an area of 4mm of damage or interruption to its patency, following which the lumen of the tube no longer remains continuous, and no longer remains attached to adjacent tube tissue. As a result, a gap of about 4mm is created by the operational presence of the Filshie clip, thereby permitting the clip to fall away from where it was initially placed. This allows the clip to then move around within the pelvic cavity. At that stage, it becomes redundant, having achieved its objective of occluding the transected fallopian tube with ischaemic scar tissue. An emergent and significantly determinative factual issue in this case is whether the plaintiff’s left fallopian tube was transected as a result of the procedure performed by Dr Dhupar.The following uncontroversial extract from the evidence shows in diagrammatic form, the two-stepped sequential process of locating and applying a Filshie clip to a fallopian tube: [Exhibit “C”, Vol 1, Tab 3.3, p 111]The individual steps in the application of a Filshie clip from the time of its removal from the supplied packet to closure into the locked position on the fallopian tube are represented in the following series of five diagrams contained in the manufacturer’s product information material:[Exhibit “C”, Vol 1, Tab 3.7, p 158]The product information sheet sets out the manufacturer’s instructions for applying a Filshie clip once the required instrumentation has been positioned in the patient’s abdomen, as follows:“It is possible to manipulate the Fallopian tube for identification purposes gently using the loaded applicator as a pair of soft forceps being careful not to take the trigger past the 'half closed' position. Only use the applicator as a manipulator in the 'half closed' position to avoid the possibility of dislodging the Filshie Clip from the applicator jaw. Heavy handed manipulation must be avoided as this could result in the Clip being dislodged from the applicator. The use of a uterine manipulator may be helpful in exposing the tube, particularly in the case of retroverted uteri. To identify the Fallopian tube, pick the tube up with the applicator and track along towards the fimbria at the distal end. Once the fimbria is visualized, track back towards the cornu to locate the application site of the Filshie Clip at the isthmus, 1-2cm from the cornu.Important: The Filshie Clip is not designed to be removed once it is in place. The physician should be certain of the exact placement prior to closing the Filshie Clip.Note: Digital, photography and video recording of the closure process are encouraged to support the patient record case file.????Identify and inspect the fallopian tube thoroughly.????Ensure that the Filshie Clip can accommodate the whole diameter of the Fallopian tube.????Locate the Filshie Clip over the isthmic portion of the Fallopian tube, 1-2cm from the cornu.????Having established the best location for the Filshie Clip, the applicator should be re-opened and advanced a few millimeters to move the Fallopian tube gently to the back of the Filshie Clip, close to the hinge.????Close the Filshie Clip into position by applying firm, but gentle pressure on the trigger in a smooth action until the trigger reaches its mechanical stop.????When the Filshie Clip is secured in position, gently release the trigger and the Filshie Clip will automatically free itself from the applicator.????Do not use an abrupt action or the tube may be transected. Should this occur, apply a second Filshie Clip on the proximal (uterine) side of the transection.????If there is any doubt about the placement or performance of the Filshie Clip, it is strongly recommended that a second Filshie Clip is applied correctly, immediately adjacent to the first on the uterine side.ALWAYS CHECK THAT THE FILSHIE CLIP HAS BEEN PLACED ON THE RIGHT STRUCTURE AND IN THE CORRECT POSITION.Important: It is quite noticeable, but quite normal, for the muscle of the tube to 'give' during Filshie Clip application.Important: For your convenience, enclosed within each box of Filshie Clips is a Patient LOT Label to be incorporated in the patient's records as required for traceability purposes.… Warning: In the unlikely event of the tube being too large for the Filshie Clip, use an alternative method of tubal occlusion.Warning: When placing the Filshie Clip on a larger tube, this should be done very slowly to allow oedema to be milked away. Once the Filshie Clip has been closed, check to ensure the whole Fallopian tube has been encapsulated. If the surgeon is unsure, a second Filshie Clip should be placed.”The Filshie clip product information sheet also sets out the manufacturer’s instructions for intra-operative inspection of a closed clip, as follows:“7.4.2 Inspection of a Closed ClipInspect the secured Filshie Clip both front and back to confirm that:????The entire Fallopian tube has been captured (upper image, right).????The upper jaw has keen compressed and is securely latched under the nose of the lower jaw:????The Filshie Clip is in the correct position on the Fallopian tube (isthmic portion, 1-2cm from the cornu) (lower image, right).????The Fallopian tube has not been partially or fully transected.Once the first clip is placed correctly in position withdraw the applicator, load a second Filshie Clip and repeat the procedure on the other Fallopian tube. Once both clips have been applied, ALWAYS check that they have both been placed on the isthmic portion (1-2cm from the cornu) of each Fallopian tube and not on either the round or ovarian ligaments, or a fold in the mesosalpinx.”[The associated photographic images, which describe the above process have been too poorly photocopied in producing the Exhibit, and they have not been reproduced here]In diagrammatic form, by the juxtaposition of respective tick and cross symbols, the Filshie clip product information sheet identifies both the correct and the correct compression and secure latching and also the incorrect compression and latching of the upper jaw or arm, as follows:[Exhibit “C”, Vol 1, Tab 3.7, p 157]The following annotated diagrams, as extracted from the manufacturer’s product information guide for the use of Filshie clips uncontroversially and differentially describes both the correct method of Filshie clip closure, this being shown in the diagram on the left, and what is considered and described as being an incorrect method of under-closure of a Filshie clip due to operator fault, this being shown in the diagram on the right.[Exhibit “1”, Tab 3, p 32]When a Filshie clip is placed into the locked position, it becomes permanently closed and it cannot be opened. However, whilst the clip remains in a half-closed or under-closed state, the grip of the clip on the fallopian tube remains temporary. In that state, it may be re-opened if such a course is required. If a Filshie clip is left in a half-closed or under-closed state, it might move from the position from where it was originally placed onto other structures, such as onto the broad ligament, thereby possibly leaving that particular fallopian tube either wholly or partly unoccluded, so as to permit fertilisation to occur: Exhibit “C”, Vol 1, Tab 3.7, pp 157 – 158.The copy of the manufacturer’s product information brochure that was tendered in evidence appears to be dated March 2017. Although that document on its face it appears to be anomalous to this case as it post-dates the events in question by three years, no point was raised by the parties or in the expert evidence to that effect. Therefore, it can be assumed that the parties were aware of the apparent anomaly as to the date but are content that the descriptions nevertheless apply to the procedure Dr Dhupar carried out on the plaintiff. The manufacturer’s product information brochure sets out some figures concerning failure rates. Those figures do not ascribe specific causes of failure, whether these be inherent, or otherwise identifiable. The content of that document refers to a range of reported adverse events associated with Filshie clips, including the following:Uterine pregnancy (0.46%);Ectopic pregnancy (0.16%);Clip migration or expulsion (0.13%);Misapplication of clips to other tissues, namely ovarian ligaments, broad ligaments, omentum, bowel, tubal serosa, and cornual or broad ligaments (0.05%).The cited percentage incidences of Filshie clip failure as referred to in the manufacturer’s product information brochure do not appear to identify the sample sizes from which those percentages have been drawn. The sources of the data for those cited failure rates were not specifically stated, but they appear to originate from material identified in general terms as: a series of six identified protocols; a data file kept by the manufacturer, Femcare – Nikomed Ltd; and an article on contraceptive efficacy published in 2011: Exhibit “C”, Vol 2, Tab 6.2, p 582. Those source materials were not the subject of detailed analysis in the expert evidence.PART B – EVIDENCE OVERVIEW AND IDENTIFICATION OF ISSUESThe parties relied upon voluminous documentary materials and medical records which will be referred to in these reasons where it becomes relevant to do so. Amongst those records, the reliability of aspects of Dr Dhupar’s notes and the undated statement proposed by her solicitor on her instructions, and the interpretation of those documents in conjunction with her oral evidence, take on a central importance to the task of assessing the reliability of her evidence.The plaintiff’s documentary evidence was largely contained in three multi-tabbed volumes comprising a Court Book: Exhibit “C”, Volumes 1, 2 and 3, pp 1 – 726. The defendant’s documentary evidence also comprised a multi-tabbed volume: Exhibit “1”, pp 1 – 212.The oral evidence called in the case for the plaintiff comprised evidence from the plaintiff, her mother-in-law, her former employer, Dr Arturo Jeri who is her family doctor and treating general practitioner obstetrician, and Professor Michael O’Connor, an expert obstetrician and gynaecologist who was retained by the solicitor for the plaintiff.In the defendant’s case, oral evidence was given by the defendant Dr Dhupar, Dr Michael Jones, a consultant radiologist, and Associate Professor Michael Cooper, a consultant gynaecologist and endoscopic surgeon. Those experts were retained by the solicitor for the defendant.The content and the detail of the expert gynaecological opinions evolved into a series of reports over the period between the time when the respective experts provided their initial reports and when they gave their oral evidence concurrently at the hearing.Professor O’Connor provided five sequential reports to the plaintiff’s solicitor, respectively dated 20 June 2017, 10 May 2018, 6 August 2018, 27 September 2018 and 2 October 2018: Exhibit “C”, Tabs 3.1 to 3.5, pp 24 – 118.Associate Professor Cooper issued a series of three reports to the solicitor for the defendant, respectively dated 17 November 2017, 13 June 2018 and 29 January 2019: Exhibit “1”, Tab 2, pp 7 – 52.Professor O’Connor and Associate Professor Cooper met in a conclave and produced two joint reports which were respectively dated 13 August 2018 and 28 March 2019. The second of those reports was in the form of a transcript setting out the matters upon which they respectively agreed and disagreed in their consideration of the liability issues: Exhibit “C”, pp 136 – 190.In my opinion, if the length and complexity of those reports had been drawn to the attention of the Court at the case management stage of the proceedings, when matters such as the complexity of the proceedings and the estimate of time needed for the hearing were being canvassed, an order would most probably have been made for the respective experts who prepared successive reports to each reduce their consecutive and cumulative opinions into two single condensed reports: UCPR r 31.20(2)(j). The failure of the parties to draw the nature and the extent of those evolved reports and opinions to the attention of the Judicial Registrar at the case management stage of the proceedings has resulted in the need for a more burdensome analysis, which is reflected in the length of these reasons.At the hearing both Professor O’Connor and Associate Professor Cooper gave concurrent explanatory oral evidence on matters of dispute within their respective opinions: T454 – T506.The resolution of this case requires the determination of a series of inter-related factual and legal issues. The submissions of the parties contended that differing factual narratives should be found to prevail. The evaluation of those narratives and the related issues will be necessarily influenced by findings to be made concerning the credibility and reliability of crucial aspects of the factual testimony. That evaluation will also be guided in part by the aspects of the expert evidence that are considered to be reliable.Following my review of the pleadings, the evidence as a whole, and the submissions made by the parties, I consider that the central issues to be determined in this case can be fairly distilled into the respective factual and legal categories, as follows.Substantive issues for determinationApart from matters concerning the credibility and reliability of testimony, including the reliability of aspects of the disputed expert evidence, the substantive issues calling for decision in this case, and the appropriate order in which that consideration should proceed, may be conveniently identified as follows:Findings on relevant factual matters are required as such findings will be influential on the assessment of aspects of the expert evidence. My findings on this issue, including findings as to the probable cause of the tubal ligation surgery and the resultant pregnancy, appear in paragraphs [562] to [859] of these reasons;Identification of the relevant risk of harm pursuant to s 5B of the Civil Liability Act 2002 (NSW) (“CL Act”). My findings on this issue appear in paragraphs [860] to [870] of these reasons;The definition of the scope and content of the duty of care owed by Dr Dhupar. My findings on this issue appear in paragraphs [871] to [877] of these reasons;Whether, within the meaning of s 5I of the CL Act, the subject pregnancy was due to the non-negligent materialisation of an inherent risk of failed sterilisation associated with the application of Filshie clips. My findings on this issue appear in paragraphs [878] to [896] of these reasons;Whether Dr Dhupar had acted in a manner that was at the time consistent with widely accepted peer professional opinion in Australia as competent professional practice within the meaning of s 5O of the CL Act. My findings on this issue appear in paragraphs [897] to [923] of these reasons;Whether, according to the analysis required by s 5B and s 5C of the CL Act, Dr Dhupar was relevantly in breach of the duty of care she owed to the plaintiff, and if so, whether such breach justified a finding of negligence on her part. My findings on this issue appear in paragraphs [924] to [985] of these reasons;Whether, in terms of s 5D of the CL Act, any found breach of the duty of care owed by Dr Dhupar had relevantly caused the plaintiff to suffer the harm claimed. My findings on this issue appear in paragraphs [986] to [1002] of these reasons;The assessment of the plaintiff’s claim for damages. That assessment involves the construction of s 71(1)(b) of the CL Act in relation to the plaintiff’s claims for economic loss. My findings on this issue and those matters appear in paragraphs [1003] to [1084] of these reasons.As earlier stated, there were many matters in factual dispute. These centred around the issues of pre-operative information provided to the plaintiff by Dr Dhupar as to the risk of a failed tubal ligation, the reliability and chronological integrity of aspects of Dr Dhupar’s patient records, the reliability of Dr Dhupar’s operation records and her evidence which described her intra-operative actions, the operative findings and observations made by Dr Jeri at the caesarean section and salpingectomy procedures that he performed, the significance of the results of a subsequent hysterosalpingogram test, the conclusions to be drawn as to Dr Dhupar’s chosen location for placement of the left Filshie clip, and the most probable explanation for the fact that the plaintiff conceived her fourth child following the tubal ligation procedure.In the course of final submissions, for the purpose of focussing those submissions, I indicated to the parties that the pivotal points upon which the determination of these proceedings was dependant seemed to be the assessment of the credibility and the reliability of the factual observations made by Dr Jeri at the time he carried out a bilateral salpingectomy procedure on the plaintiff’s fallopian tubes on 1 March 2016, at which time he described the plaintiff’s left fallopian tube as having been intact and undamaged along its entire length, which was inconsistent with the (proper) application of a Filshie clip: T525.9 – T529.22. It is relevant to observe at this point that the plaintiff argued that such a finding was inconsistent with a transection of that fallopian tube having occurred as a result of an application of a Filshie clip by Dr Dhupar.Summary as to credit and reliability of oral testimony on factual mattersAs identified in the preceding paragraph, the issues calling for determination in this case necessarily require a consideration of the factual evidence as a whole for the purpose of assessing the credibility and reliability of testimony. In the paragraphs that follow I set out a series of short summaries identifying the conclusions I have reached on the reliability of the testimony of the respective witnesses who gave evidence on factual matters. The detailed reasons that underpin those summaries will appear in the appropriate context.Plaintiff’s evidenceContrary to the submissions made on behalf of Dr Dhupar, I have found the plaintiff to be a credible and reliable witness on all material matters of fact in dispute. Her evidence was capable of acceptance. My reasons for that conclusion appear in paragraphs [175] to [226] below.Mother-in-law’s evidenceI have found the plaintiff’s mother-in-law to be a credible and reliable witness on all of the topics that were canvassed in her evidence. Her evidence was capable of acceptance. My reasons for that conclusion appear at paragraph [173] below.Former employer’s evidenceI have found the plaintiff’s former employer to be a credible and reliable witness on all of the topics that were canvassed in his evidence. His evidence was capable of acceptance. My reasons for that conclusion appear at paragraph [174] below.Dr Jeri’s evidenceContrary to the submissions made on Dr Dhupar’s behalf, I have found Dr Jeri to be a credible and reliable witness on material matters of disputed fact. I have found that the defendant’s attack raised in submissions concerning his professional standing, his expertise, and concerning the reliability of his evidence, and alleged partisanship on his part, has failed. I have concluded that his evidence was capable of acceptance. My reasons for that conclusion appear in paragraphs [451] to [468] below.Dr Dhupar’s evidenceContrary to the submissions made on Dr Dhupar’s behalf, I have found that she gave what should be seen as being unreliable evidence on a number of significant and material factual matters in dispute. I found myself unable to accept aspects of Dr Dhupar’s evidence on a number of identified key factual matters in dispute. My reasons for that conclusion appear in paragraphs [301] to [375] below.Ms Dassayanake’s evidenceThe defendant’s solicitor, Ms Hishani Dassayanake, gave affidavit and oral evidence on procedural matters including concerning the manner in which Dr Dhupar’s records and intra-operative photographs relating to the plaintiff’s operation had been accessed and obtained. That evidence does not require further consideration: T310 – T315. Other aspects of the evidence of Ms Dassayanake will be referred to in connection with the consideration of the evidence of Dr Dhupar on particular matters. No credibility or reliability of testimony issues arose from the evidence of Ms Dassayanake. My review of her evidence on those matters will appear in these reasons at paragraphs [376] to [378] below.Summary of conclusions as to reliability of expert evidenceThe approach to the analysis of the reliability of the expert opinions on liability and causation issues must be guided by the degree to which those opinions are compliant with the requirement that such opinions should be appropriately reasoned: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [60], [82], [85]; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, at [41]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, at [93].Dr Jones’ evidenceI have found Dr Jones’ evidence to be of limited reliability and assistance on a number of key matters in dispute concerning the conclusions he drew from the result of a hysterosalpingogram study the plaintiff underwent on 20 August 2018. My reasons for that conclusion appear in paragraphs [380] to [394] below.Professor O’Connor’s evidenceI have found Professor O’Connor’s evidence to be entirely reliable on all matters in material dispute. I consider that his evidence was capable of acceptance without reservations. My reasons for that conclusion appear in paragraph [494] below.Associate Professor Cooper’s evidenceI have found Associate Professor Cooper’s evidence to be of doubtful and lesser reliability compared to the evidence of Professor O’Connor on a number of identified matters in material dispute. My reasons for that conclusion will be identified in detail and will appear in paragraphs [495] to [561] below.Before proceeding to outline my review of the oral evidence it is necessary to identify and review in more detail, the relevant documentary evidence.PART C – REVIEW OF MEDICAL RECORDS AND OTHER DOCUMENTSThe relevant medical records and the related documentary evidence requiring consideration in this case are identified in the following thirteen categories: The Filshie Tubal Ligation System product brochure, described as “The Most Effective and Patient-Friendly Long Term Solution for Permanent Female Sterilization”: Exhibit “C”, Vol 2, Tab 6.5, pp 591 – 594. My review of that material is summarised at paragraphs [87] to [88] below;Exhibit “J” – Health Care Records – Documentation and Management. My review of that material is summarised at paragraphs [89] to [93] below;Dr Jeri’s patient history records and correspondence relating to the plaintiff. My review of that material is summarised at paragraphs [94] to [96] below; Dr Dhupar’s consultation notes relating to her consultation with the plaintiff on 9 May 2014. My review of that material is summarised at paragraphs [97] to [111] below; The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) patient information pamphlet for tubal occlusion procedures as referred to by Dr Dhupar. My review of that material is summarised at paragraphs [112] to [123] below;A statement of the RANZCOG entitled: Female Sterilisation by Filshie clip tubal occlusion. My review of that material is summarised at paragraphs [124] to [130] below;Dr Dhupar’s operation notes concerning the tubal ligation procedure that she carried out on the plaintiff at the Riverina Day Surgery Centre on 26 August 2014. My review of that material is summarised at paragraphs [131] to [145] below;A set of nine contemporaneous intra-operative laparoscopic images taken by an un-named member of the operating theatre staff at the request of Dr Dhupar, on 26 August 2014, and numbered in the series IMG001 – IMG009: Exhibit “5”. My review of that material is summarised at paragraphs [146] to [147] below;The in-patient records of the plaintiff’s admission to the Wagga Wagga Referral Hospital where the caesarean section delivery and subsequent bilateral salpingectomy procedures took place on 1 March 2016. My review of that material is summarised at paragraphs [148] to [156] below; Dr Jeri’s correspondence dated 26 September 2016 addressed to the plaintiff’s solicitor. My review of that material is summarised at paragraphs [157] to [158] below;The anatomical and histological report on the examination of portions of the plaintiff’s fallopian tubes removed at bilateral salpingectomy. My review of that material is summarised at paragraphs [159] to [160] below; The report of a hysterosalpingogram dye imaging test the plaintiff underwent at the request of Dr Jeri by Dr Nick Stephenson on 20 August 2018. My review of that material is summarised at paragraphs [161] to [164] below;An article by Varma R, Gupta JK, entitled “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, at 1322-1332: Exhibit “1”, Tab 3, pp 28 – 38. My review of that material is summarised at paragraphs [165] to [169] below.My consideration and analysis of the evidentiary and probative value of those records and documents now follows.(1) Filshie Tubal Ligation System product brochure The Filshie Tubal Ligation System product brochure from the manufacturer of Filshie clips contains a number of descriptive statements of relevance. Those statements describe Filshie clips as: “The choice of leading surgeons around the world”: Exhibit “C”, Vol 2, Tab 6.5, p 593. That document contains some further descriptions as cited below, and which I have assembled and enumerated in the series (1) to (6) below:(1)???“Excellent Clinical EfficacyIn hundreds of published studies the Filshie System demonstrates an exemplary ‘typical use’ success rate. The recognized 99.76% effectiveness is superior to all methods studies in the CREST trials. Filshie Clips also have a very low rate of ectopic pregnancy.…(2)???Quick and Easy to ApplyLaparoscopic application of Filshie Clips requires basic laparoscopic skills and takes just a few minutes. Compared to salpingectomy, the surgery is easier. There is no sharp dissection or excision of tissue that increases surgical risks, and operating room costs are lower.…(3)???Permanent, Yet ReversibleBecause Filshie Clips preserve almost the entire fallopian tube, reversal via reanastomosis is highly successful.…(4)???Well Known Long-Term EffectivenessSince introduction in 1982, with over 13 million clips applied, knowledgeable gynecologists have relied on the Filshie Clip System for high effectiveness and limited complications, whereas the long-term benefits versus complications of prophylactic salpingectomy are not established. ‘The risks of decreased ovarian function and/or premature surgical menopause [due to prophylactic salpingectomy] may outweigh the benefit of decreased ovarian cancer incidence.’ ‘Studies investigating patient-based outcomes [of prophylactic salpingectomy] are lacking.’…(5)???Globally Recognized and RecommendedThe proven success of the Filshie Clip is the reason that the UK Royal College of Obstetricians and Gynaecologists, in conjunction with the National health Service, continues to recommend Filshie Clips as the preferred method for laparoscopic female sterilization. The Filshie System is the most common tubal occlusion method in Australia and New Zealand, and is one of the most popular permanent sterilization methods in the United States, Canada, and a significant number of other countries worldwide.…(6)???Achieving consistent Filshie Clip application: ???The Sterishot II series of single patient use applicatorsConsistently effective results are obtained with a calibrated Filshie Clip closure mechanism confirmed for each application. Since 2008, the Sterishot II single patient use Filshie Clip applicator has been providing precise closure pressure and reliable locking of the clip. Compared to a reusable applicator, Sterishot II applicatorseliminate potential for patient infection due to cross-contamination,eliminate annual calibration requirements,eliminate the risk of damage from handling and storage, andeliminate resources required for post-surgical cleaning, sterile processing and tracking between procedures.The Filshie System containing the Filshie Clips and Sterishot II applicator are immediately available and provide reliable results in every procedure.…”[Exhibit “C”, Vol 2, Tab 6.5, pp 591 - 594 – Footnotes removed. Emphasis as in the original text](2) Exhibit “J” – Health Care Records – Documentation and ManagementOn 21 December 2012, NSW Health issued a Policy Statement on the documentation and management of health care records. That policy applied to all Local Health Districts in NSW, including the one where Dr Dhupar performed the tubal ligation procedure on the plaintiff: Exhibit “J”.That policy required that medical practitioners document details of treatment in clear and accurate terms, in English, and the records created should contain accurate statements written and structured sufficiently clearly to enable others to assume the treatment and care of the patient, including a record of the particular procedure performed, along with completion of all required procedural checklists: Exhibit “J”, pp 5 – 6.That Policy Statement included a requirement that notes written in error or requiring amendment be legibly identified as such with suitable identifying details without obliteration of any altered text: Exhibit “J”, p 6.Paragraph 2.13 of that Policy Statement, at Exhibit “J”, pp 10 – 11, stated:“2.13???Operation / procedure reportsOperation / procedure reports must include the following:a)???Date of operation / procedure.b)???Pre-operative and post-operative diagnosis.c)???Indication for operation / procedure.d)???Procedure safety checklist.e)???Surgical operation / procedure performed.f)???Personnel involved in performing the operation / procedure.g)???Outline of the method of surgery / procedure,h)???Product / device inserted and batch number.i)???Changes to, or deviations from, the planned operation / procedure, including any adverse events that occurred.j)???Operative / procedural findings.k)???Tissue removed.I)???Pathology ordered on specimens.m)???Post-operative orders.”Aspects of those policy requirements will be referred to in my reasons that evaluate the documentary evidence and the evidence of Dr Dhupar and Dr Jeri where it becomes necessary to do so on the question of the reliability of their respective records.(3) Dr Jeri’s patient history recordsDr Jeri’s patient history records relating to the plaintiff contain details of her historical consultations with him, and also contain relevant clinical correspondence. Those records will be referred to on factual matters relating to damages where it becomes relevant to do so. The defendant sought to establish from the content of Dr Jeri’s records that the plaintiff had understood there was a risk of failure of sterilisation and resultant pregnancy associated with surgery for tubal ligation. However, his records are of limited utility to the defendant on that question. That is because the contextual reference to risk in Dr Jeri’s records was in general terms not specifically referenced to a particular cause. Furthermore, it was the responsibility of the operating surgeon who performed the tubal ligation procedure, namely, Dr Dhupar, to provide the plaintiff with relevant, sufficient and specific information on such matters by reference to the particular method of tubal ligation that she intended to perform on the plaintiff. The defendant bears the onus of proof for its claim for a defence pursuant to s 5I of the CL Act; s 5E of the CL Act.(4) Dr Dhupar’s consultation notes dated 9 May 2014The original handwritten clinical notes that Dr Dhupar made relating to her consultation with the plaintiff on 9 May 2014, which were written in blue ink, occupy a prominent focus in the analysis: Exhibit “4”. The following description refers to the original document written in blue ink as was produced at the trial, and not the incompletely photocopied monochrome version that had been provided to the plaintiff’s solicitor at the informal discovery stage of the proceedings. That incomplete copy had also been provided by Dr Dhupar’s solicitors to the defendant’s expert witnesses.A fair reading of the original of Dr Dhupar’s notes is required in recognition of the fact that those notes were not intended to represent a transcript of her consultation with the plaintiff, and also because they incorporate some abbreviated expressions that were obviously handwritten by Dr Dhupar as an aide memoire: T265.33 – T268.36. Some allowance must also be made for the fact that English is not Dr Dhupar’s first language. In due course, that allowance must also carry over into the consideration of Dr Dhupar’s oral evidence, where at times, she did not express herself with clarity. Such allowances are also required because Dr Dhupar’s operation notes and her oral evidence, as distinct from the typed statement prepared by her solicitors for her to sign (Exhibit “6”), and her handwritten clinical notes (Exhibit “4), which conveyed differing levels of clarity. In my view, the evidentiary weight to be given to those documents varies according to the chronological order in which they were created, as well as according to the prevailing circumstances in which they were created. On first examination, the format and content of Dr Dhupar’s handwritten consultation notes dated 9 May 2014, despite abbreviations, appeared neat and pristine. Those notes appear to follow an orderly and logical course as would be expected according to the content of a doctor and patient consultation at which birth control issues and related surgery were discussed: The first page of those notes identified the plaintiff, her age, the purpose of the consultation, the plaintiff’s contraceptive history, as well as her obstetric and gynaecological history. The notes also record that on Dr Dhupar’s examination, the plaintiff appeared, on her assessment, to be well and stable;The second page of those notes made reference to the surgical risk factor that the plaintiff had already undergone three lower segment caesarean section operations. The notes then went on to record that an explanation had been given to the plaintiff about the details of the proposed tubal ligation procedure and its benefits in terms of there being no hormonal or bleeding effects; The second page of those notes also went on to explain that there was a failure rate of 1:200 to 1:300 associated with laparoscopic tubal ligation, including the possible risk of an ectopic pregnancy, and anaesthetic risks, the latter including nausea and vomiting, as well as other risks, such as infection, bleeding, possible collateral damage including the possibility of a need to convert from laparoscopy to laparotomy during the procedure, and the risk of a possible deep venous thrombosis. The identified reference to the failure rate of tubal ligation was not stratified as to cause. It was in non-specific terms. The notes also made mention of limited scope for reversibility of tubal ligation, and the fact that there was limited scope of cost reimbursement from Medicare. At this point it should be noted that the photocopied or faxed version of those notes that were supplied to the plaintiff’s solicitor, and it appears to the defendant’s experts entirely omitted any reference to the possible failure rate figure of 1:300. That omission was most likely due to a copying or a faxing defect;The third page of the notes recorded that there had been a discussion with the plaintiff about other and alternative forms of contraception, and some related discussion about success rates versus failure rates. Dr Dhupar’s notes recorded that in light of that discussion the plaintiff had stated that she wanted to undergo tubal ligation, and that “College” or Royal Australian College of Obstetricians and Gynaecologists (RANZCOG) “info” on tubal occlusion had been “provided” to her (that claimed provision being a matter in contention in these proceedings), and the notes recorded that the plaintiff’s consent had been obtained for the proposed procedure; The third page of the notes concluded with a note which recorded that in the meantime, whilst the plaintiff was waiting for the procedure, she had been advised to continue to take the oral contraceptive pill, to have a pregnancy test before the procedure, and that she should have pre-operative blood tests;Finally Dr Dhupar recorded that the plaintiff had been counselled regarding matters to do with “failure” and “risk”, the details of which were not further explained in the notes. Mention was also made of the possibility of an intra-operative need for “conversion to laparotomy” during the contemplated laparoscopic procedure.Dr Dhupar’s original notes also contained an affixed adhesive sticker that was printed in colour. That sticker had been peeled off a RANZCOG information pamphlet and then affixed to the foot of the last page of Dr Dhupar’s notes. That sticker had been filled in with Dr Dhupar’s handwriting to identify the proposed procedure as “Laparoscopic Filshie”. It identified the plaintiff by name and it had Dr Dhupar’s name written on it. Those entries appeared in blue ink. The sticker also bore the date of 9 May 2014, but that latter date had been written in black ink. This was in contradistinction to the rest of her notes, which were written in blue ink. Those descriptive differences were not apparent in the monochrome copy that had been disclosed to the plaintiff’s solicitor prior to the commencement of litigation.Initially, during the course of Dr Dhupar’s evidence-in-chief, when the distinction between the different coloured inks was identified, counsel for the defendant was informed of the initial impression I formed at that time, to the effect that no adverse inference or comment would appear to arise from Dr Dhupar’s use of different coloured pens in writing those notes. This was because it was recognised as not uncommon for professionals to work with different coloured pens on the desk: T261.16 – T261.30. In that context, the topic of the use of different coloured inks on the sticker was given no further attention in Dr Dhupar’s evidence-in-chief. However, the topic was later revisited in the cross-examination of Dr Dhupar, at which time the initial impression gained on that matter, as identified above, took on a very different complexion and significance.Ultimately, in cross-examination Dr Dhupar conceded that the date of 9 May 2014 on the sticker had not been written by her contemporaneously at the time of the consultation on 9 May 2014. Instead, she acknowledged that such notation was added on an unspecified date some two years after that 9 May 2014 consultation.Dr Dhupar also acknowledged the fact that her addition of that date to the sticker was un-minuted in her notes. She also acknowledged that the subject addition to her notes occurred in the context of her knowledge of the existence of the plaintiff’s present claim against her. That matter will be taken up for a more detailed consideration concerning her reasons for making that late addition to her records, and concerning the status of Dr Dhupar’s records as a reliable source of refreshment of her memory or as a reliable source for a reconstruction of events concerning key particular matters of fact in dispute in these proceedings.I infer from the structure and content of Dr Dhupar’s notes, that they were composed, or largely composed, in retrospect, that is, quite possibly after the discussion with the plaintiff had concluded, as a summation of the matters discussed in consultation with the plaintiff, probably after she had substantially completed her discussions with the plaintiff. It is not possible to reliably determine whether those notes were written in the plaintiff’s presence. Nevertheless, they may be taken to be reasonably contemporaneous with Dr Dhupar’s discussions in consultation with the plaintiff.I draw the above inference as it seems unlikely that Dr Dhupar would have written those notes in such an order and in such detail whilst simultaneously speaking to the plaintiff on the many matters of detail that were raised in the consultation. In identifying those matters I do not completely discount an alternative possibility, namely that the notes were written by Dr Dhupar during pauses in the consultation, for that purpose. That said, nothing of particular significance turns on those alternative interpretations.Other than in relation to the date added to the sticker some two years after the event, and the reference to the provision of RANZCOG information, my reading of Dr Dhupar’s notes as summarised above, leads me to the view that they appear to be an uncontroversial albeit necessarily abbreviated account of her discussions in the clinical consultation she had with the plaintiff on 9 May 2014, and except on the issue of what if any printed material had been provided to the plaintiff at that time. (5) RANZCOG patient information pamphletDr Dhupar relied upon the content of a copy of a RANZCOG patient information pamphlet on “Tubal Occlusion and Vasectomy; a Guide about Female and Male Sterilisation”: Exhibit “C”, Vol 1, Tab 4.1, pp 200 – 203. She relied upon that document as evidence to support her contention that appropriate information had been given to the plaintiff concerning the possibility of failure of tubal ligation.That document was tendered in a copied form which identified the fact that Dr Dhupar had faxed a copy of the document to the plaintiff’s solicitor on 12 September 2016. That document comprised four pages, namely pages 9, 10, 11 and 12, of a 12 page facsimile transmission sent at that time.The foot of the front page of that photocopied pamphlet contains the following statement:“IMPORTANT: Fill in all details on the sticker belowDear Doctor: When you discuss this pamphlet with your patient, remove the sticker and put it on the patient’s medical history or card. This will remind you and the patient that this pamphlet has been provided. Some doctors ask their patients to sign the sticker to confirm receipt of the pamphlet.”It is plain that although Dr Dhupar placed the sticker referred to at paragraph [104] above, onto her patient consultation notes relating to the plaintiff, she did not at that time fill in all of the details suggested by the format of that sticker. It is not clear from that sticker, which did not at all refer to the edition number of the pamphlet, or as to whether that sticker came from a pamphlet that comprised Edition 3, or whether it came from some other edition of the pamphlet, and whether there were relevant variations in any of the other separate editions that may have applied as at 9 May 2014 or 26 August 2014 when compared to any edition of that document which might have applied as at 12 September 2016. The defendant bore the evidentiary onus on that question and the matter has been left unclarified in the evidence: s 5E of the CL Act.In any event, in summary, the copy of the third edition of the RANZCOG information pamphlet which is in evidence, described the intended procedure of elective tubal occlusion as an intended permanent method of birth control for women by preventing contact between oocytes and spermatozoa. The pamphlet described the procedure as being a more reliable and permanent method than other methods, and that it was free from some identified disadvantages compared to some other methods.Significantly, the RANZCOG patient information pamphlet states that a successful tubal occlusion will prevent pregnancy. The form of the pamphlet invites the reader to read page 4 of the document which contained text “about some of the risks of tubal occlusion”.The information pamphlet describes the procedure of laparoscopic tubal ligation as comprising clamping of the fallopian tubes with a titanium clip. The information was in the following terms:“The gynaecologist makes a small incision close to the lower edge of the navel and inserts a long, thin instrument with a light and viewing lens called a laparoscope. The laparoscope allows the gynaecologist to see inside the abdomen. This is often called "key-hole surgery". The bladder may be emptied with a urinary catheter placed in the urethra.Carbon dioxide gas is passed into the abdominal cavity to slightly inflate the abdomen. This lifts the abdominal wall so the fallopian tubes, uterus, ovaries and other organs can be seen clearly. An instrument is usually placed in the uterus, through the vagina, so pelvic organs can be manipulated during the procedure.Your gynaecologist may insert an instrument for closing the tubes, usually through a second small incision near the pubic hairline. Several methods may be used to block both fallopian tubes during laparoscopy:clamping each with a clipapplying plastic rings around the tubesusing diathermy to burn the full thickness of the tubes and close them. After removing the laparoscope and any other instruments, the gynaecologist may close the skin incisions with a few stitches or clips. Because the incisions are small, the scars will be hardly noticeable.Laparoscopic tubal occlusion usually takes about 30 minutes.”Of the methods of tubal ligation variously listed in that pamphlet, only the method of sterilisation involving clamping with a clip has any relevance to the present case.The suggestion made in the RANZCOG information pamphlet for the reader to read about the risks of tubal ligation as set out on page 4, refers to a section entitled “Possible Complications of Surgery”. Relevantly, amongst the risks there mentioned, is the risk of pregnancy. The information provided as to that risk was in the following general terms:“? Pregnancy. For every 1,000 women who have had a tubal occlusion, about one or two may become pregnant over the next year. Regardless of the method used to block the tubes (clamps, plastic rings, diathermy, or tying and cutting), the failure rate for each method is about the same. The risk of failure is higher if the surgery is done soon after childbirth or at the same time as a termination of pregnancy. The risk of failure is higher in women who were younger than 30 at the time of the tubal occlusion. About one out of three of these pregnancies is “ectopic”, that is, the pregnancy develops in a fallopian tube rather than in the uterus. An ectopic pregnancy may require emergency surgery.”Three matters of particular relevance seem to emerge from the RANZCOG information pamphlet:First, the pamphlet appears to be a generic document that has not been tailored to provide specific patient information intrinsic to the use of Filshie clips. It does not mention the possibility of failure of Filshie clips, or how any such failure of Filshie clips might possibly occur;Secondly, whilst clips are referred to generically in several places in the document, there is no specific mention of Filshie clips. Whilst there is a specific mention of a titanium clip, there is no mention of titanium clips lined with silastic material, this being the construction of Filshie clips. The pamphlet does not make it clear to the reader as to whether the clips referred to in the pamphlet are Filshie clips or Hulka clips, where Hulka clips are referred to elsewhere in the evidence. That seems to be a material matter in view of references within the expert evidence which cite an article by Peterson et al concerning failure rates for non-Filshie clips;Thirdly, the pamphlet does not contain any information or details as to how clips, whether Filshie or otherwise, might fail to prevent a pregnancy, irrespective of whether that might be due to either inherent or avoidable factors, including the factor of operator error, despite the intended objective of preventing a pregnancy.No evidence was called by the defendant to seek to clarify or to stratify any different categories of potential risk as contemplated in the RANZCOG pamphlet as associated with Filshie clips. This has some relevance to a determination of the issue of whether in the present case, there was a materialisation of an inherent risk of which the plaintiff had been made aware.(6) RANZCOG statement on Filshie clip tubal occlusionThe plaintiff tendered an advisory statement by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists on female sterilisation by means of Filshie clip tubal occlusion: Exhibit “C”, Vol 3, Tab 6.1, pp 574 – 580. The target audience for that particular RANZCOG publication included all healthcare professionals providing gynaecological care, as well as patients. The stated aim of the publication was to provide advice on methods available for permanent female sterilisation, particularly on sterilisation by Filshie clip tubal occlusion.The statement describes the Filshie clip system as the most common method of female tubal occlusion used in Australia since 1982. The statement also identifies and lists a series of discussion points on what constitutes good practice when using Filshie clips.The standout points which emerged from that statement are: The important task of differential identification of the ovarian and round ligaments, and the identification of the fallopian tubes by visualising the fimbrial ends of those tubes;The importance of applying the clip to the tube and ensuring that the jaws of the clip completely enclose the tube;In respect of (2) above, importantly, the statement notes that the manufacturer’s guidelines recommend placement of the clip on the isthmic portion of the tube;After releasing the clip, an important intra-operative step to be taken is to ensure that the tube has not been transected and that the upper arm of the clip is flat and locked under the nose of the lower jaw, as well as ensuring that the tube is still completely enclosed;Repeating the above sequence for the fallopian tube on the opposing side;The importance of documenting the correct application of the Filshie clip by means of an image capture device, if available, this being referred to as an advisable and useful step to take.The RANZCOG statement also suggested noting any intra-operative difficulties that might emerge during the procedure, and applying a second clip if the initial application is not ideal, as well as taking adequate photographs to show that the clip has been correctly applied.The RANZCOG statement also suggested that if there was any doubt about a particular clip application, that situation should be discussed with the patient post-operatively, along with advice to the patient as to the use of alternative means of contraception until effective tubal occlusion has been confirmed by means of either a hysterosalpingogram or a hysterosalpingo contrast sonogram.There were a number of suggested reading references and links identified at the end of the RANZCOG statement, none of which featured in the evidence that was tendered, except perhaps the reference to a version of the RANZCOG patient information pamphlet, which Dr Dhupar claims to have given to the plaintiff, and which the plaintiff disputes. The edition number for any such pamphlet was not identified in this context.(7) Riverina Day Surgery Centre – The tubal ligation procedureOn 26 August 2014, Dr Dhupar carried out the tubal ligation procedure on the plaintiff at the Riverina Day Surgery Centre: Exhibit “1”, Tab C, pp 80 – 111. At this point, it is appropriate that I identify my initial view that Dr Dhupar’s contemporaneous operation note of that procedure was very brief and was to some extent problematic in its terms, notwithstanding her submissions to the contrary.On the face of Dr Dhupar’s note, as extracted from that exhibit, the note seems to be incomplete as to its factual content because, whereas the procedure performed on the plaintiff was for bilateral tubal ligation, Dr Dhupar’s note only referred to a singular Filshie clip on a single identified tube when this was not the case, and it only refers to a single intra-operative photograph having been taken during that procedure when nine such photographs were taken: Exhibit “1”, Tab C, p 88. Dr Dhupar’s note is in the following terms:Later, on 26 August 2014, either between other operations that Dr Dhupar carried out during her operating list that day, or at the end of that operating day, she used her laptop computer to type her own record of the procedure she had performed on the plaintiff. The terms of that record are as follows:[Name and other personal details redacted]A standout feature of both of those records is that on the face of each record, there was no assistant surgeon identified in the template field for that purpose.The typed record was also very brief, and in my view, similarly problematic to the handwritten record. The material difference between the two records was that in the contemporaneous record the operative intent was identified as being “for laparoscopic Filshie clip” in the singular, whereas in the typed version Dr Dhupar initially referred to “Filshie Clips” in the plural, but all other references were to a single tube, the application of a singular clip and the taking of a singular photograph. On any reasonable view, the records, although contemporaneous, were not factually accurate.As appears from the evidence of the facsimile header sheet in respect of that extract, the typed version of Dr Dhupar’s operation record comprised page 8 of the 12 pages that Dr Dhupar had faxed to the plaintiff’s solicitor on 12 September 2016: Exhibit “C”, Vol 1, Tab 4.1, p 199.In comparing the respective content of the handwritten and the typed versions of the operation record a discrepancy between the two documents is apparent. Whilst the handwritten record referred to the procedure as being “for laparoscopic Filshie clip” in the singular, the typed version identified the operation as being for “Laparoscopic Filshie Clips” in the plural. However, the common element in both versions of the operation record inaccurately described the procedure and technique performed as involving the identification of a single tube, with the taking of a single intra-operative photograph.That brief and inaccurate description of a singular Filshie clip was consistent with the content of Dr Dhupar’s signed pre-operative checklist, in which, she also inaccurately referred to an intended single Filshie clip, and not two Filshie clips: Exhibit “1”, Tab C, p 98. Whilst such inaccuracies may have been a function of the limited way in which Dr Dhupar had expressed herself in writing or speaking in English, as was submitted on her behalf, nevertheless, it remains a problematic record as it does not accurately reflect the detail of what was actually done in the course of the procedure. In that sense, her record of the procedure did not conform with the documentation and record keeping requirements of Exhibit “J”, which identified documentation standards for inclusion of relevant information in health care records, as cited at paragraph [92] above.A further inaccuracy or insufficiency in the records created by Dr Dhupar is that whilst the handwritten record identifies the name of the attending anaesthetist, the typed record does not identify that anaesthetist whereas her handwritten record identifies that person. Neither version of the operation record identifies the surgical assistant. In her oral evidence, Dr Dhupar stated that the assistant was a nurse: T446.38. This raises an unanswered question as to what assistive tasks were carried out by that un-named person. It also raises the question as to whether, given Dr Dhupar’s evidence as to her limited recollection of the procedure, she could reliably say she had an assistant.Dr Dhupar’s contemporaneous notes of the tubal ligation procedure must also be seen to be inaccurate because it has been established by other apparently reliable and unchallenged contemporaneous evidence in the form of the operating theatre nurse’s contemporaneous operation report, which referred to Dr Dhupar having applied two Filshie clips, as opposed to Dr Dhupar’s written reference to a single clip: Exhibit “1”, Tab C, p 90. Another inaccuracy is Dr Dhupar’s contemporaneous note of a single intra-operative photograph having been taken during the tubal ligation procedure. Dr Dhupar’s factual description within that record did not sit at all well with the bundle of nine intra-operative photographic images that she produced in her evidence, and which comprised Exhibit “5”: T279.37; T301.9. Those images were taken of the two Filshie clips that she said she had placed on each of the plaintiff’s fallopian tubes. Therefore, that aspect of the operation records she created must also be seen to be problematic due to inaccuracy.At this point I record the fact that, according to the expert evidence, the photographs of the left and right tubes with clips did not show those structures to the same extent as recommended by the manufacturer’s instructions. In her oral evidence, Dr Dhupar sought to shift the responsibility for that shortcoming or deficiency to the un-named hospital staff member who she said took the photographs when it appears, that she was the operating surgeon, the responsibility for that task was hers.The parties made disparately polarised submissions on the significance of the brevity of expression and content of Dr Dhupar’s operation notes on the question of adequacy of her record of the procedure that was undertaken. Those submissions will be considered in relation to the assessment of the reliability of Dr Dhupar’s evidence.(8) Intra-operative images taken on 26 August 2014A series of nine intra-operative images showing certain sequences or aspects of the laparoscopic tubal ligation performed on the plaintiff on 26 August 2014 were tendered in Dr Dhupar’s case: Exhibit “5”. Dr Dhupar said in her evidence that she did not take those photographs herself. She said that they were taken by a theatre nurse or some other hospital staff member, whom she did not identify: T279.17.Absent expert interpretation, not all of those images are clear or capable of interpretation by the untrained eye. They have been considered in detail by Dr Jeri, Dr Dhupar, Professor O’Connor and Associate Professor Cooper. Subject to the required and well-understood caveats concerning the interpretation of photographs on contentious matters of fact, they will be referred to in the analysis and findings that arise from the expert evidence and in relation to the findings of fact that are guided by the expert evidence.(9) Wagga Wagga Referral HospitalOn 1 March 2016, after the plaintiff unexpectedly went into spontaneous labour before her due date, she had to be rushed by ambulance to the Wagga Wagga Referral Hospital at Wagga Wagga. This admission and the consequential caesarean section procedure performed at that time was classed as a medical emergency because a natural vaginal delivery was contra-indicated for the plaintiff in the circumstances of her three previous caesarean deliveries. On 1 March 2016, the plaintiff was distressed and in pain when she was admitted to hospital in early labour, with moderately strong contractions being detected at that time: Exhibit “C”, Vol 2, Tab 4.3, p 379. At 19:11 hours on that day, the plaintiff was admitted to hospital and she remained there as an inpatient until 12:20 hours on 3 March 2016: Exhibit “C”, Vol 2, Tab 4.3, p 379. That admission occurred earlier than the due date that had been planned: Exhibit “C”, Vol 2, Tab 4.3, p 417, p 422.Following admission and after a CTG trace of the foetal heart was taken, the plaintiff was immediately transferred to the operating theatre for an emergency caesarean section delivery whilst she was conscious, with the administration of regional or spinal anaesthesia: Exhibit “C”, Vol 2, Tab 4.3, pp 428 – 429; pp 485 – 488. The anaesthetic record for the caesarean section delivery indicated that there were no complications relating to the regional anaesthesia given to the plaintiff: Exhibit “C”, Vol 2, Tab 4.3, pp 448 – 449. The nature of that anaesthesia meant that the plaintiff was conscious and aware of the circumstances, albeit without experiencing intra-operative pain.The caesarean section procedure was by way of a Pfannensteil incision involving a low transverse supra-pubic incision, and immediately after the plaintiff’s fourth child was delivered by those means, Dr Jeri undertook an investigative exploration of the plaintiff’s fallopian tubes and then performed a bilateral salpingectomy procedure: Exhibit “C”, Vol 2, Tab 4.3, pp 493 – 494.Following the caesarean section delivery, the plaintiff required pain relieving medication. The hospital notes recorded that on the third post-operative day, absent the availability of hospital transportation, the plaintiff had discharged herself against medical advice, but with a plan for her care to be continued at the local hospital near her home. Dr Jeri was made aware of the plan for management there: Exhibit “C”, Vol 2, Tab 4.3, p 433. Her reason for taking that course was so that she could be close to her family. She obviously felt a compelling need in that regard. Nothing turns on the fact of her early discharge from hospital other than it has some influence on the assessment of damages because of the associated stressful circumstances.Despite the defendant’s critical attack on Dr Jeri’s operation record for the caesarean section and subsequent bilateral salpingectomy, a matter that will be analysed with reasons at a later point, I consider that his very detailed, sequential, and comprehensively set out contemporaneous operation record contained in the hospital records, constitutes a reliable record of his observations of the events that occurred at the time of the caesarean section delivery and at the time of the subsequent bilateral salpingectomy surgery that immediately followed: Exhibit “C”, Vol 2, Tab 4.3, pp 493 – 498.Dr Jeri’s record of his findings at caesarean and salpingectomy require analysis and interpretation in conjunction with his oral evidence. Relevant to the issues in these proceedings, in the ultimate revision of his operation report, he stated the following:“It is noted that the right Filshie clip is in the right Fallopian tube (clamping adequately) however the left Filshie clip is out of the right [meaning correct] place, it is located in the broad ligament.”[Exhibit “C”, Vol 2, Tab 4.3, p 493][Interpolated text added]Interpretation of Dr Jeri’s stated finding concerning the left Filshie clip is required insofar as he had described it to be located in the broad ligament which indicated an incorrect location. It is plain that he arrived at that conclusion by means of a process of inference, as appears in the following paragraph. That matter will be taken up in the consideration for my findings on disputed matters of fact at a later point in these reasons after a consideration of matters relevant to the defendant’s attack on the reliability of the evidence of Dr Jeri.(10) Dr Jeri’s correspondence to plaintiff’s solicitorOn 26 September 2016, Dr Jeri wrote to the plaintiff’s solicitor in the following terms:“1.???I confirm I authenticated and approved the operations performed on 1st March 2016 at Wagga Wagga Rural Referral Hospital.2.???I confirm the operation report is accurate to the best of my recollection.3.???The left Filshie clip was not clipping the left fallopian tube. It was located somewhere in the broad ligament. It was noted significant scarring tissue around this area.4.???The left Filshie clip was not located on the left fallopian tube. Instead it was located around the area of the broad ligament. However I cannot attest to your statement that the "Filshie clip had been applied to the broad ligament".5.???According to my observation the left Filshie clip (sic for fallopian tube) appeared to be intact.6.???Again I cannot attest to your "statement" that the left Filshie clip had not been closed fully in the same manner that the right Filshie clip had been closed.Due to the location of the left Filshie clip I was unable to determine whether the clip was fully closed in the same manner that the right Filshie clip had been closed.7.???I did observe that the left fallopian tube was absolutely patent and was of normal appearance prior to performing salpingectomy.8.???I did not observe any fistula or additional passage between the left ovary and some part of the left fallopian tube.9.???I did make Dr Dhupar aware that the left fallopian tube was patent.”[Exhibit “C”, Vol 2, Tab 5.3, pp 548 – 549]The question arising from the ninth paragraph of that letter will be taken up again in the consideration of the evidence of Dr Jeri and Dr Dhupar.(11) Anatomical and histological examination of fallopian tube samplesAfter Dr Jeri had completed the bilateral salpingectomy procedures, anatomical specimens comprising portions of the plaintiff’s left and right fallopian tubes were sent for pathological examination. The macroscopic descriptions of those specimens obtained at salpingectomy were to some extent unclear. They were described as specimens “A” and “B”, as follows:“Macroscopic DescriptionA. LEFT FALLOPIAN TUBE: A defective segment of fallopian tube with attached fimbria, 40x15x7mm. Representative sections in A1.A1. TS of proximal end of fallopian tube and 2LS from fimbria including a ?hydatid of Morgagni.B. RIGHT FALLOPIAN TUBE: A fallopian tube, 40mm x a diameter ranging 10mm proximally to 15mm distally. No mass lesions seen.B1. TS of proximal fallopian tube and two longitudinal sections from fimbria. Representative sections in B1. About 60% of both fallopian tube are submitted.Macro Description by: Noori Sarnie, KianooshMicroscopic DescriptionA. Sections demonstrate histologically unremarkable fallopian tube. Full face sections show complete tube transection. An small incidental benign parasalpingeal cyst is noted.B. Full face sections demonstrate completely transected histologically normal fallopian tube. Small benign parasalpingeal cysts are noted.DiagnosisA. LEFT FALLOPIAN TUBE: Normal fallopian tube confirmed./B. RIGHT FALLOPIAN TUBE: Normal fallopian tube confirmed”The reference in that histology report to complete tube transection has given rise to a distraction in the debate within the expert evidence because of what was ultimately revealed to be a material misinterpretation of that report by the defendant’s medico-legal expert, Associate Professor Cooper. As a consequence, a significant modification of his initial opinions became necessary in order to correct what turned out to be an important misapprehension on his part. This will be identified in relevant detail in the appropriate context in my assessment of the reliability of his evidence on matters of dispute in the expert evidence.(12) Hysterosalpingogram on 20 August 2018After the commencement of these proceedings, in the course of a medico-legal consideration of the plaintiff’s circumstances, it was thought necessary for the purpose of analysis, for the plaintiff to undergo an elective hysterosalpingogram dye test to clarify the state of her fallopian tubes and to seek to discern the likely location and placement of the left Filshie clip, and in order to clarify some of the factual aspects of the case she was seeking to make in light of the content of certain medico-legal opinions that existed at that time.Accordingly, Dr Jeri referred the plaintiff to Dr Nick Stephenson for that purpose. The hysterosalpingogram dye test was carried out by him on 20 August 2018, and he issued his report on 21 August 2018. This was almost two and-a-half years after the plaintiff’s caesarean section delivery and the related bilateral salpingectomy: Exhibit “C”, Vol 1, Tab 5.1, p 539; Tab 5.2, pp 540 – 547. The results of that hysterosalpingogram study appear to have led to the amendment of the plaintiff’s statement of claim.Dr Stephenson’s hysterosalpingogram images have given rise to differing interpretations, and some material misinterpretations. This concerns whether those images reliably show that a Filshie clip had been located appropriately on the left fallopian tube, and whether that clip was in the closed and locked position as Associate Professor Cooper and Dr Jones had initially interpreted it to be, or whether that clip had coincidentally migrated to that position near the vestigial end-point of the left fallopian tube that had been surgically truncated or transected at salpingectomy by Dr Jeri, some two and-a-half years earlier.The resolution of that particular area of factual dispute is dependent upon the analysis of the reliability of the respective testimonies of Dr Jeri, Dr Dhupar, Dr Jones, Professor O’Connor and Associate Professor Cooper on factual matters. The resolution of those matters will be identified in my findings on the reliability of aspects of the expert evidence and concerning disputed matters of fact.(13) BJOG Article on medico-legal ramifications of failed sterilisationThe defendant relied upon the content of an article identified as an annexure to the 13 June 2018 report of Associate Professor Cooper: Varma R, Gupta JK, “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, at 1322-1332: Exhibit “1”, Tab 3, pp 28 – 38. Associate Professor Cooper cited that article as being supportive of the proposition that a short interval from clip application to failure of sterilisation was suggestive of a negligent event. He qualified that reference as being “only a general suggestion [which] is not [necessarily] indicative of [a] negligent event”. The cited article bears close analysis.At this point, it should be noted that articles of this kind are generally not of themselves determinative of contested issues in cases such as this one. The relevance of such articles is that they may form part of, or the support for, aspects of the expert evidence. As such, they may serve as guidance for the process of determining issues in dispute, depending upon the relevance and probative value of the content.The analytic framework of the article is anchored in the year 2004, and in the years in which the underlying data was collected which preceded its publication. It surveys an extensive field of potential complications related to tubal ligation, including some that may be related to the deployment of Filshie clips.The matters of note which emerged from within the article were as follows:The authors of the article recognised the scope for the occurrence of wrongful conception due to negligent acts or omissions that could occur before and during sterilisation procedures;It was written against a background understanding that litigation (as at 1988), had often arisen from psychological and physical morbidity following failed sterilisation: Exhibit “1”, Tab 3, p 28.The majority of the underlying publications reviewed for the article were retrospective observational studies, case reports and reviews, with a paucity of prospectively controlled trials or meta-analysis: Exhibit “1”, Tab 3, p 28. The epidemiological power, coherence, plausibility and analogous factual applicability or relevance of the data analysed compared to the present case was left largely undefined by the expert evidence that was introduced in this case;Sterilisation failure rates were stated to be subject to variation according to the patient’s characteristics, operator experience, and the sterilisation method and technique chosen: Exhibit “1”, Tab 3, p 29. To those factors, I would add one obvious further factor, namely operator adherence to the manufacturer’s recommendations and the standard of reasonable care;Filshie clips were only one of the four techniques which were the subject of the study, with the inherent stated qualification that one of the two prospective multi-centre studies involving 10,685 women in the USA between 1978 and 1987, did not include Filshie clips because those clips were not licensed by the US FDA until 1996, and therefore, they had been excluded: Exhibit “1”, Tab 3, p 29;The Canadian study referred to in the article, which involved 311,960 female sterilisations between 1980 and 1999, did involve Filshie clips. That study revealed a 10 year probability of pregnancy of 8.4 per 1000 procedures (0.84 per cent): Exhibit “1”, Tab 3, p 29;Information on the time interval from sterilisation to pregnancy, and information as to the precise mechanism of failure was absent from most publications: Exhibit “1”, Tab 3, p 29;It would appear that accurate collation of the type of information referred to in (7) above, would be useful in assisting to distinguish between negligent from non-negligent cases: Exhibit “1”, Tab 3, p 29;A confounding analytical factor “of significance” seemed to be that in one of the studies reviewed, the factor of operator error was excluded. That study, which was identified in footnote (4) to the articles, was a reference to Penfield AJ. “The Filshie clip for female sterilization : a review of world experience”. AMJ Obstet Gynecol 2000; 183(3): 485-489. The Varma article cited the following passage from the Penfield article:“Of significance, an early study showed that the overall 10 year failure rate for Filshie clip sterilisations was 0.56% in 10,000 women, but fell significantly to 0.2% when cases of operator error were excluded.”[Exhibit “1”, Tab 3, p 29]It follows that possible operator error could be a significant factor in the occurrence of failed tubal ligation;Regarding the combined category of Hulka clips and Filshie clips, there were 3 cases in 17 of “Incomplete tubal occlusion and / or patent lumen” which arose in a period of less than 2 years “despite locked-in-place and correctly applied clips”, and 1 case arose in less than 1 year: Exhibit “1”, Tab 3, p 30. The distinction within that data between Filshie clips and Hulka clips was therefore opaque to analysis;In contrast to (10) above, in that same category, failure due to “Wrong structure sterilised” saw a much higher level of data, for example, 6/7 cases in less than one year, 1/3 cases in 9 months, 5/30 cases in 6 months, with a mean of 14.6 months: Exhibit “1”, Tab 3, p 30;Significantly, in identifying the factors of failure relating to operator error, which most commonly arises through operator error at the time of initial sterilisation, six relevant factors were identified; namely:fault in locating the correct sterilisation site;deviation from the recommended technique for each sterilisation method;failure in the systemic approach to check the sterilisation method; complete or partial tubal transection through luminal regeneration whether by fistula or recanalisation, in which case, salpingectomy is required, as correct use of the clip is unlikely to transect the tube; applying the clips too close to each other on the same tube; and improper maintenance of mechanical occlusion device applicator: Exhibit “1”, Tab 3, pp 31 – 32;Also identified as factors independent of operator error, were the possibility of spontaneous tubal lumen regeneration and mechanical failure of the occlusion device, the latter being described as a theoretical possibility, were described, in that context, “none have been reported following Filshie or Hulka clips” Exhibit “1”, Tab 3, pp 32 – 33;The article also identified some indirect factors predisposing to sterilisation failure, in the context of three reported cases using Filshie clips within two years of application, where the possible mechanisms were identified as being the inclusion of a partially non-occluded segment of tubal lumen, or where a “tubal knuckle” has formed within the clip, only identifiable microscopically (an analysis that is not available in this case), and pre-existing utero-tubal abnormalities, such as a utero-tubal fistula (not identified in the evidence in this case), the age of the woman undergoing sterilisation (a matter not referred to in argument), inadequate practitioner or operating centre experience (resulting in substantial variation in failed sterilisation), and pre-existing gynaecological pathology (not shown to be present in this case): Exhibit “1”, Tab 3, pp 33 - 35;The authors suggested that the causes of failed tubal ligation be investigated. Of the investigations identified, two avenues of investigation stand out. First, the carrying out of a perpendicular lateral end-on x-ray view of a Filshie clip, best achieved with an image intensifier, where open clips would be easily identifiable, and in the case of clips that appear locked, precise measurements of the clip jaws can be made to determine whether the clip was correctly closed at the time of the initial application. Secondly, at laparotomy (or, I interpolate, caesarean section and salpingectomy, which Dr Jeri carried out in the present case), clinical inspection of uterine-tubal anatomy should be undertaken to exclude wrong structures being clipped or open clips or tubal lumen regeneration. Thirdly, hysterosalpingectomy, or tubal dye insufflation could be undertaken to test tubal patency. Fourthly, tubal histopathology, ideally with clip preserved in situ: Exhibit “1”, Tab 3, p 34;The article identifies that it would be good clinical practice to undertake hysterosalpingectomy once the fact of missing clips are identified as a finding, noting however, that the fact of a missing clip does not necessarily indicate the failed application of a clip: Exhibit “1”, Tab 3, p 34;The article identifies a trend for operator error as the most common method of failure, with a greater proportion of early failure (within one year of operation) being due to initial tubal non-occlusion, with failure after one year being thought to be due to lumen regeneration either through fistula formation or tubal recanalisation: Exhibit “1”, Tab 3, p 35;The article referred to some RCOG-based medico-legal recommendations and considerations. The article contained the following conclusion:“… Current evidence suggests that if sterilisation failure occurs before one year, pregnancy is due to operator fault because of tubal non-occlusion, and the pregnancy is more likely to be intra-uterine. Conversely, sterilisation after one year is more likely to be due to natural lumen regeneration through tubal recanalisation or fistula formation, and the pregnancy is more likely to be an ectopic pregnancy …”[Exhibit “1”, Tab 3, p 36][Emphasis added]The above article must be read in the context that the plaintiff’s estimated due date for delivery for the subject pregnancy was mid-March 2016. As a matter of common human experience, without attempting precision, on a rough back calculation of 9 months to allow for a full-term gestation (the actual delivery date having been brought forward by the onset of labour two weeks early on 1 March 2016), it appears the plaintiff would most probably have conceived in about June 2015, that is, within about ten months of the tubal ligation on 26 April 2014. This is consistent with the plaintiff’s evidence of the timing of resumed sexual activity: T52.50.PART D – FINDINGS ON CREDIBILITY AND RELIABILITY OF ORAL EVIDENCEIn the paragraphs that immediately follow, I set out my review of the oral evidence. In that review, I identify my conclusions concerning the credibility and the reliability of the oral evidence on factual matters that arose within the evidence given by the plaintiff, her mother-in-law, her former employer, Dr Jeri, and Dr Dhupar. My conclusions concerning the credibility and the reliability of the oral evidence of Dr Jeri and Dr Dhupar also includes a consideration of relevant documents.The assessment of the reliability of the evidence given by the expert witnesses, Dr Jones, Professor O’Connor and Associate Professor Cooper, and the acceptance or non-acceptance of particular aspects of their opinions, will be identified at a later point in these reasons. Those assessments will be guided by the content of the reasons for their respective opinions concerning particular matters in dispute: UCPR r 31.27(1)(c), Sch 7 cl 3(1)(e).It is convenient to first identify my credit conclusions concerning the oral evidence in respect of which there was little or no controversy before proceeding to review the evidence of the plaintiff, Dr Jeri, Dr Dhupar, followed by the expert witnesses.Evidence of the plaintiff’s mother-in-lawI considered the plaintiff’s mother-in-law to be a truthful witness who gave her evidence with careful responsive attention to the questions that were asked of her. Her evidence was not the subject of material challenge. I accept her evidence in its entirety as being reliable: T143 – T146. That evidence will be referred to where it becomes relevant to do so.Evidence of the plaintiff’s former employerThere were no credit or reliability of testimony issues that emerged from within the factual evidence of the plaintiff’s former employer as to the facts relating to the plaintiff’s economic loss claim. I accept his evidence in its entirety. He was not cross-examined on that or any other matter at all: T94 – T98. His evidence will be referred to in my reasons dealing with the assessment of damages where it becomes relevant to do so.Evidence of the plaintiff In summary, I considered the plaintiff to be an impressive and reliable witness. In the face of persistent testing challenges, she gave her evidence carefully and in a dignified manner. On matters of specific challenge, she explained her position with cogent and acceptable reasons, without being argumentative in her resistance to the assertion of contrary factual matters that were put to her in the course of cross-examination. She made fair and appropriate concessions when those concessions were due. In respect of some matters of historical detail, she candidly acknowledged that she had a limited recall for some events. For reasons that will shortly be identified concerning what I have identified as topic (2) in the next paragraph, I have rejected what I have determined to have been an ill-founded submission made on behalf of Dr Dhupar concerning an assertion that the plaintiff had failed to disclose an aspect of her medical history. That submission was misconceived and was without persuasive substance.The defendant’s specific challenges to the plaintiff’s evidence were essentially concerned with the following topics:The plaintiff’s previous health history, including her history of anxiety;Defendant’s ill-founded attack on the plaintiff’s credit as to her health;The assertion of relevant conflicts in the recorded medical histories;An asserted need for corroboration of the plaintiff’s evidence;The content of the plaintiff’s discussions with Dr Dhupar;The content of the plaintiff’s job application form;Conclusions on the credibility and reliability of the plaintiff’s testimony.In the paragraphs that immediately follow, in conformity with the above enumeration, I set out my analysis and reasons for rejection of the defendant’s challenges to the credibility and reliability of the plaintiff’s testimony.(1) Challenges concerning plaintiff’s previous health history, including anxietyThe defendant challenged the plaintiff’s evidence that she had been in previous good health between 2011 and 2014: T49.50; T102.10. This was in the context where the plaintiff had stated she was quite fit and healthy in those years. Before her tubal ligation, and after the birth of her third child, she was engaged in regular daily intensive physical training to participate in triathlons. This involved her running, swimming, cycling, and weight training at a gymnasium. She said that she weighed 65kgs at that time: T50.1 – T50.21.The plaintiff had a history of meningitis during childhood, which occasionally caused her to suffer severe migraine headaches for which she had a CT brain scan in 2013: T103.43 – T104.14. The migraines were of a character that on occasions had caused her difficulty sleeping, distress, severe eye pain, intense headache, and photophobia, for which at times she needed medication: T103.10 – T105.34. Whilst those problems may have affected the plaintiff on particular days without a defined pattern, I do not read that evidence, and the other instances that the cross-examiner extracted from the medical records, as being relevantly or materially contradictory of the plaintiff’s general statement that she had been in good health before the tubal ligation performed by Dr Dhupar.Other examples of such matters which I considered to be of remote relevance or significance included the plaintiff’s transient experiences of stress and poor sleep at a time in 2013 when she was changing jobs (T106.5 – T106.40), or on the occasion when she experienced a sore throat (T106), or when she experienced a single episode of chest pain which lasted five minutes (T108), or when she had her gallbladder removed in 2014 after experiencing abdominal pain and related gastro-intestinal symptoms (T112.50 – T113.22), or her occasional visits to a naturopath as her preferred method of health maintenance: T107.9.I accept the plaintiff’s evidence to the effect that, notwithstanding the transient or temporary effect of such matters, she was in quite good health, and was trying, with a significant measure of success, to achieve a balance between work, family responsibilities and exercise: T110.36 – T111.40. The defendant raised with the plaintiff some historical matters from within her medical records to suggest that she had experienced a prior history of anxiety, as well as other historical items of ill-health for which she had on occasions sought medical advice. In cross-examination the plaintiff was taken to a number of historical occasions being the dates on which she had consulted her general practitioners, at which times they had made notes relating to either a history of, or a clinical impression that involved matters such as anxiety, tiredness, or where the possibility of depression was queried: T75 – T80.Prior to the subject tubal ligation procedure, the plaintiff had on occasions suffered anxiety, as is evident in her medical records. This related to specific matters in the past, such as a historical concern over wanting to fall pregnant, as distinct from a specific concern or anxiety about a possible and unwanted pregnancy before she had the tubal ligation, being stressed about getting pregnant after having experienced a miscarriage, or feeling tired during pregnancy, or being stressed or exhausted due to her work, or in relation to her earlier pregnancies, being prospectively concerned or worried about her fertility when wanting to conceive: T81.14 – T81.24. I accept the plaintiff’s explanations on those matters as reasonable and reliable.In my assessment, the plaintiff reasonably and satisfactorily explained the distinction between the episodic instances of anxiety and the like that she experienced in her concerns over becoming pregnant when she wanted to become pregnant, and her anxiety over not wanting to become pregnant after the birth of her third child, and the stress she experienced over a past miscarriage, and the specific form of anxiety of an entirely different character, which she experienced following the advent of the pregnancy with her fourth child, where that latter source of anxiety had caused her to suffer significant psychological problems.I accept the plaintiff’s explanations, as cited above. I do not regard those matters as being relevantly contradictory of her evidence. In my assessment the only significance of those matters is that if the plaintiff had a tendency or a susceptibility to circumstantial or situational anxiety, that is a matter in respect of which the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at p 406.The difficulty with interpreting the plaintiff’s medical notes along the lines sought by the defendant in a way to suggest they reflected adversely on the credibility of the plaintiff’s answers as to an absence of a prior history of relevant psychological problems is well understood, and is problematic: Mason v Demasi [2009] NSWCA 227, at [2]; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320, at [8]. Those notes were plainly not intended to be a transcript of the relevant interchanges during clinical consultations. They were written on isolated occasions in a summary form as an aide memoire for the medical practitioners who made those records. The makers of those notes were not called to give explanatory evidence concerning the manner in which those records had been constructed or as to a focus of the medical significance of some of the items noted therein.In that latter regard, the context in which the notes were made by the plaintiff’s treating medical practitioners is important when considering the otherwise unexplained historical record as appearing in the notes. I consider that the plaintiff gave satisfactory explanations on those matters and I am satisfied that those explanations did not relevantly reflect adversely on her credit or on the acceptability of her evidence. Similarly, as will be explained on a review of Dr Jeri’s evidence, nothing emerged from his evidence that adversely impacted on the plaintiff’s credit or on the reliability of her testimony concerning her pre-existing health history.(2) Defendant’s ill-founded attack on plaintiff’s credit as to her health historyA submission was made on behalf of Dr Dhupar that the plaintiff gave evasive answers when challenged on matters that may not have assisted her case. That submission did not coincide with my impression of the plaintiff’s evidence and I do not accept that submission. Similarly, nor do I consider as implausible the instances where the plaintiff was unable to recall some matters on which she was cross-examined. An inability of a witness to recall a matter of detail in litigation is a not a unique phenomenon, especially where the plaintiff takes psychotropic medication, a factor which the defendant’s submission did not take into account. I did not get the impression that the plaintiff had a convenient lack of recall on matters raised in cross-examination. The position may have been different if she claimed an improbable recollection, but that was not the case.In submissions made on behalf of Dr Dhupar, spuriously in my view, the plaintiff’s credit was the subject of an attack made on the asserted basis that she had failed to disclose a matter relevant to the assessment of damages, namely, that in May 2019, she had suffered seizures which required that she take medication, the submission being that this was a matter that may have some impact on her earning capacity.The ill-founded nature of that attack is evident from the following circumstances:The initial phase of the hearing took place between 16 and 26 April 2019. At that time, the plaintiff’s evidence-in-chief and cross-examination on all matters, except her economic loss evidence had been completed;The seizures referred to in the submissions by Dr Dhupar’s legal representatives occurred in May 2019, after the plaintiff had completed her evidence-in-chief and was still under cross-examination;Dr Dhupar’s legal representatives acquired knowledge of those seizures when updated treating records were produced to the court on the resumed hearing date in June 2019. This occurred pursuant to a subpoena issued by the defendant’s solicitor. The plaintiff played no role in the production of those documents;At the time the intra-trial seizures occurred, these being a possible residual effect of the plaintiff’s childhood meningitis, this was a vicissitude the plaintiff faced. In that regard, the defendant takes the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18];At the time the seizures occurred, the plaintiff’s cross-examination was not complete. There is no sound evidentiary basis to suggest she was aware of a potential impact of those seizures on her economic loss claim.On the first day of the trial, counsel appearing for the defendant cross-examined the plaintiff on her history of post-viral meningitis-related headaches she experienced since the age of 9 years. The plaintiff gave unchallenged evidence at that time, in which she described having not had such headaches for years until in either 2017 or 2018, but not recently since then, and since taking anti-migraine medication prophylactically and changing her lifestyle: T81.35 – T82.1.On the fifth day of the trial, on 3 June 2019, the part-heard cross-examination of the plaintiff continued. This was after the plaintiff’s seizures in May 2019 had occurred. There was no occasion during that cross-examination for the plaintiff to volunteer the fact of those most recent seizures. At no stage after that point did counsel for the defendant seek leave to have the plaintiff recalled for further cross-examination on that point. The attack in question was without substance.(3) Asserted need for corroboration of plaintiff’s evidenceA submission was made on behalf of Dr Dhupar in effect seeking adverse credit inferences because the plaintiff’s husband was not called to give evidence to corroborate “her pre-accident or post-accident” (sic) psychiatric state or to corroborate her reasons for leaving her employment, or to correlate her claim of non-receipt of a RANZCOG pamphlet from Dr Dhupar, as well as matters of a personal nature which she described in her evidence.In my view, that submission proceeded on the incorrect premise of a requirement that the plaintiff’s evidence on those matters must be corroborated. There was no such legal requirement in this case. The plaintiff’s evidence on those matters was capable of acceptance without a requirement that her evidence needed corroboration. I reject the submission that the plaintiff’s husband would have been expected to be called to give evidence on those matters. The plaintiff’s legal representatives obviously made the forensic decision not to call him despite giving an earlier indication that he might be called. That earlier indication was not an undertaking to do so. Given the state of the plaintiff’s evidence-in-chief and the nature and the content of the challenges to that evidence by defence counsel’s cross-examination of the plaintiff on the completion of her evidence-in-chief, the need for corroboration of her evidence did not relevantly arise. Her evidence was capable of acceptance on its face. In particular, insofar as it was submitted the plaintiff did not have an adverse psychological reaction to the events, it was not put to the plaintiff that she had given factually incorrect accounts of her situation to the medical experts who had undertaken assessments of her for the purpose of the proceedings. The reports which came from those assessments were admitted into evidence without objection. There was no requirement for the plaintiff’s medico-legal assessor to be called to give oral evidence where his opinion was not the subject of challenge. In those circumstances the submitted need for corroboration of her testimony has not been shown to have been necessary. In my view, the defendant’s submission to the contrary is misconceived.(4) Challenges relating to specific conflicts within the medical historiesThe plaintiff’s evidence was to the effect that she sought out tubal ligation as a means of preventing conception because she did not want to use the other methods that had been prescribed for her. In 2015, she was anxious, but not to a disabling degree, and she was panicky and not sleeping because she did not want to have more children and she felt “up and down” in that time and wanted something done as soon as possible to ensure she would have no further children: T114.10 – T114.29. She said she was not keen to further pursue other methods which she had previously tried: T127.1 – T127.5. She said that she specifically wanted a tubal ligation: T127.18.In my view, the cross-examiner’s attempt to impugn the reliability of the plaintiff’s testimony by reference to the recorded histories relating to psychological matters that she provided to the various medical experts who examined her was unsuccessful: T75.24 – T76.39; T110.18 – T110.25. I do not regard any of those matters as having an adverse impact on the credibility or the reliability of the plaintiff’s evidence.I considered that in this case the medial histories provided to the medical experts who examined and assessed the plaintiff are a reliable source of evidence from which to draw conclusions as to the plaintiff’s ongoing disabilities which have arisen as a consequence of the pregnancy the subject of the proceedings: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, s 60 of the Evidence Act 1995 (NSW).(5) Challenges relating to plaintiff’s pre-operative discussions with Dr DhuparSpecific challenges were made to the plaintiff’s evidence concerning her pre-operative discussions with Dr Dhupar on the topic of the risks of pregnancy occurring notwithstanding tubal ligation with Filshie Clips. The plaintiff fairly conceded that she could not recall some of the aspects of her pre-operative discussions with Dr Dhupar and she did not otherwise seek to claim a recollection of those matters that could have been convenient to her case.The plaintiff said she had told Dr Dhupar that she did not want to continue to take the oral contraceptive pill: T121.44. She agreed that Dr Dhupar took a history, examined her and explained risk factors relating to the requested surgery, namely, laparoscopic or keyhole surgery under general anaesthetic where the fallopian tubes would be closed by clips: T122.49 – T123.26.The plaintiff could not recall Dr Dhupar mentioning a specific figure to her as representing a failure rate of 1 in 200 as was put in cross-examination: T123.45 – T124.23. In any event, that question, as asked in cross-examination, was based on a premise that was in part incomplete. This was because it was plain that counsel for the defendant had been briefed with an incompletely photocopied document which raised that topic, as was earlier explained. In those circumstances, the plaintiff’s answer should not be taken to have had an adverse impact on the credibility or the reliability of her testimony.It was put to the plaintiff that at her initial consultation with Dr Dhupar, she had been provided with a RANZCOG information pamphlet concerning tubal ligation. The plaintiff said that she did not recall getting a pamphlet of that kind, or of having left Dr Dhupar’s consultation with one, but she acknowledged having seen one since. The plaintiff said that she did not think she had received such a document: T127.20 – T127.48. On considering the question and reflecting on it, she rejected the specific proposition that she had been given such a document, and she stated that she did not leave Dr Dhupar’s consultation with such a document in her possession: T128.3 – T128.12.The plaintiff stated that, in response to a specific proposition put to her, namely, that in her presence, Dr Dhupar had peeled a sticker from the pamphlet and had placed it onto a page comprising her patient record, she could not recall such an event: T128.35. She later agreed that whilst she may have seen the pamphlet in Dr Dhupar’s office, she did not take a pamphlet with her when she left at the end of the consultation: T132.22.When pressed on the issue, the plaintiff again said that she could not recall the pamphlet in question being given to her on the date of her consultation with Dr Dhupar (T129.20), however, she acknowledged that Dr Dhupar had asked her to sign a consent form (Exhibit “1”, p 98) and that Dr Dhupar then gave her the opportunity to make further contact if necessary to ask questions if she had any, which she did not: T129.34 – T139.50.That evidence related to a portion of the consent form which was cited (at T129.36 – T129.41) in the following terms:“Consent form. If you decide to have a tubal occlusion your gynaecologist will ask you to sign a consent form. Before signing, read it carefully. If you have any questions about it, ask your gynaecologist.”When the topic of the RANZCOG pamphlet was further explored with the plaintiff, she denied a series of propositions to the effect that Dr Dhupar had given her the document, that Dr Dhupar suggested she read it, and that she did in fact read it: T132.24 – T132.34. Given the dense content of that document, I consider that it was very doubtful and unlikely that the plaintiff would have been able to read such a document in its entirety in the context of a standard professional consultation with Dr Dhupar.The plaintiff specifically denied that, from her reading of the document, which was put as having occurred at her consultation with Dr Dhupar, that she was aware that in cases of tubal ligation for every 1000 women who have had a tubal occlusion, one to two of such women may become pregnant over the course of the ensuing year despite the tubal ligation: T132.36 – T136.42.Specifically, the plaintiff denied that after her consultation with Dr Dhupar she knew that there was a risk of becoming pregnant from (sic for following) tubal ligation: T135.4 – T135.6.In considering the challenges made on behalf of Dr Dhupar to the plaintiff’s evidence on the topic of her pre-operative discussion with Dr Dhupar, I consider that no adverse credit implications arose concerning that evidence given by the plaintiff.The material questions concerning whether or not the plaintiff was given a RANZCOG patient information pamphlet and whether she knew of a risk of becoming pregnant even after a tubal ligation, will be taken up in my assessment of the reliability of the evidence of Dr Dhupar, and in my findings on matters of fact in connection with Issue 1.(6) Challenges based on content of the plaintiff’s job application formThe plaintiff was cross-examined as to the truthfulness of the answers she gave in her application for employment with the local shire council with specific focus on her prior work history and on aspects of her claim for economic loss: T245.22 – T254.50. The point of challenge was an apparent difference between the content of the application form, in which she had stated “Had children and wanted to try something different” and the reasons she gave in evidence for having left her former employment in a financial planning business (cited in her evidence at T71.1 and T245.23), where she stated that she left that employment because she felt that she could not fulfil her role there, as was required: T245.25. The plaintiff stated, and I accept, that she had not lied about such matters: T246.34. It was true that she wanted to do something different: T246.38. I do not accept that her answers were inconsistent, or were in material conflict, as was suggested by counsel for Dr Dhupar: T246.42 – T247.15. I accept the plaintiff’s explanation that she had been truthful in that she felt she could not go back to perform the requirements of her former job. I also accept her evidence that her answer to the question posed on the application form was determined by the limited line space available to be filled in on that form, which in turn determined her choice of words and the number of words she used to answer the question: T247.15. Her answer was also limited to the relevant context, namely that she was wanting to secure a job, and she was obviously presenting herself in a favourable light. The context of that job application form did not require that she identify or emphasise points that could be considered by a prospective employer to be reasons for not employing her. I do not consider those circumstances to have involved misleading conduct on her part.An attempt was made to seek to create a credit issue out of the mitigatory employment the plaintiff had on 16 January 2017 with a local medical practice, in that she had answered “No” in her application for that job in relation to the question as to whether there was any medical issue or other reason that might affect her ability to attend an carry out her duties in that job. I do not consider the evidence suggests that she answered that question untruthfully. The question called for a subjective answer that involved her expressing a subjective opinion on what she thought the work entailed. In those circumstances, I do not regard her answer as being misleading in any material way.An attempt was also made to seek to create a credit issue over what turned out to be a subtle difference between the plaintiff’s answer in evidence on 16 April 2019 when she was seeking more hours of work (T249.7) and, as it was put, she had already resigned by that time, a proposition she denied (at T249.9 – T251.11) even though she had signed a letter dated 5 April 2019 in which she indicated her resignation would be effective from 26 April 2019. I considered that evidence did not raise any adverse credit implications against the plaintiff.The final and unsubstantiated element of the defendant’s attack on the plaintiff’s credit was that in relation to the plaintiff’s letter of resignation effective from 26 April 2019, it was asserted that she was “making up excuses” on the run in explaining the circumstances of that letter, an assertion that the plaintiff vehemently denied: T252.25. In my assessment, that challenge made by Dr Dhupar’s counsel amounted to no more than a hollow assertion which was then followed up with some confusing questions. When the proposition was ultimately put clearly, the plaintiff denied it convincingly: T252.43 – T253.29. I accept her denial as truthful: T254.24.In re-examination, her explanation regarding that issue was as follows:“Q. Why did you resign from [Xxxxxx] Shire Council at the end of April 2019? A. The role that I had taken on, I was feeling I wasn’t fulfilling. I wasn’t, at this point in my life, able to, to do the best I could. Q. You were asked some questions about your reasons given for leasing [XXX Xxxxxxxx], the financial management business that you were involved in, and applying for work at the council. You agree that you did want to do something different. Why did you want to do something different at that time? A. I was looking for something in my life that I could do well, that I thought I would be good at, that I thought I would be able to, probably, boost the way I was feeling about myself. Q. What were the things that you weren’t doing well? If you thought you could do something that you might be able to do well, you must have obviously had some things that you couldn’t do well, or you thought you couldn’t do well. What were those things?A. I didn’t want to deal directly with the public anymore. Q. Why was that? Why did you not want to deal with the public?A. It was very widely known that I didn’t want--ELBOURNE: I object. O’KEEFE Q. Why did you not wish to deal with the public? A. I didn’t want - I still felt that I would be judged on my reaction to having [the child]. “[T254.23 – T254.49][Employer’s name and the child’s name have been redacted](7) Conclusion on the challenges to the plaintiff’s credit as a witnessI considered the plaintiff to be a credible and reliable witness. In my view the defendant’s attack on the credibility and the reliability of her evidence has failed to reveal any sound reason for doubting the credibility or the reliability of her evidence on critical matters of fact in dispute in these proceedings.Evidence of Dr Arturo JeriOn 26 September 2018, Dr Jeri provided the solicitor for the plaintiff with a letter in which he confirmed the factual accuracy of the operation record dated 1 March 2016. He also clarified the factual observations that he made at the time of the operation and he also attached some product information relating to Filshie clips: Exhibit “C”, Vol 2, Tab 5.4, pp 548 – 553.Dr Jeri’s factual observations relating to the caesarean section delivery and salpingectomy procedures (at Exhibit “C”, Vol 2, Tab 5.4, pp 548 – 549) have already been described at paragraph [157] above.The reference in point 5 of Dr Jeri’s letter to the left Filshie clip describing it as appearing to be intact appears from the context to be a mistaken reference to the left fallopian tube, as observed at paragraph [157] above. The Filshie clip product information that Dr Jeri had identified in an annexure to his letter dated 26 September 2016 (at Exhibit “C”, Vol 2, Tab 5.4, p 551) was as follows: “Guidelines for the correct application of the FILSHIE Clip in either laparoscopic or L&D settings????Be sure the applicator has been properly maintained, is calibrated with the gauge and both parts have matching serial numbers every time????It is possible to manipulate the fallopian tube for identification purposes by gently using the loaded applicator as a pair of soft forceps to ‘milk’ the tube.????The use of a uterine manipulator may be helpful in exposing the tube, particularly in the case of retroverted uteri.????To identify the tube, pick the tube up with the applicator and track along towards the fimbria at the distal end. Once you have visualized the fimbria, track back along the isthmus towards the cornua to locate the application site.????Verify you have the fallopian tube, and not the round or ovarian ligament or a fold in the mesosalpinx.????If you are unsure of translumenal placement, an additional Filshie Clip can be placed in an adjacent section of the tube.????In the unlikely event of the tube being too large for the Clip, use an alternative method of tubal occlusion.”The reference to calibration of the Filshie clip applicator in the first item of the list cited above ultimately became an irrelevant consideration in this case because it did not apply to the type of disposable Sterishot applicator that was used by Dr Dhupar on 26 August 2014.The annexures to Dr Jeri’s letter dated 26 September 2018 also included some literature which referred to potential complications generically associated with any method of tubal ligation. One of those complications was: “Incomplete closing of a fallopian tube that results in pregnancy”: Exhibit “C”, Vol 2, Tab 5.3, p 552.The annexures to Dr Jeri’s letter also included a reference to an adverse Filshie clip event logged with the FDA in the USA which referred to a recorded instance of a clip sitting on the mesosalpinx rather than being attached to the fallopian tube. That event, which occurred in February 2016, and which referred to a right fallopian tube, was not a reference to the factual circumstances of the present case, and my only purpose in referring to it in these reasons is to make it clear that it has not been influential in the analysis and consideration required in this case.Dr Jeri’s evidence was the subject of extensive cross-examination by Dr Dhupar’s counsel. Not all of the bases of those challenges, as they related to factual matters, were reflected in the evidence on factual matters subsequently given by Dr Dhupar. In the paragraphs that now follow, I set out a summary of the evidence of Dr Jeri before identifying my conclusion as to the reliability of his evidence. That evidence relevantly focussed upon the following matters:Dr Jeri’s qualifications and experience;Dr Jeri’s explanation of relevant anatomical structures;Dr Jeri’s referral of the plaintiff to Dr Dhupar for tubal ligation in 2014;Dr Jeri’s subsequent diagnosis of the plaintiff’s pregnancy in 2015;The details of the caesarean section delivery performed by Dr Jeri, and his intra-operative observations on that occasion;The bilateral salpingectomy procedures performed by Dr Jeri;Dr Jeri’s referral of the plaintiff for an hysterosalpingogram procedure in August 2018;Dr Jeri’s consideration of the plaintiff’s previous and subsequent medical history, especially on the nature of her history of anxiety;Dr Jeri’s operation report;The assertion that Dr Jeri’s evidence was a partisan witness who was not independent;Conclusions concerning Dr Jeri’s evidence.Those matters are the subject of the consideration, findings and summaries identified in the commensurate sub-headings appearing below.(1) Dr Jeri’s qualifications and experienceDr Jeri is a registered medical practitioner with extensive experience in medical practice. He is, and he was at the time of the events in question, licensed to practise as a general practitioner obstetrician. After obtaining his primary medical qualifications in Peru, he also qualified in Peru as a specialist obstetrician and gynaecologist. He arrived in Australia in 2001 and undertook a requalification accreditation process that was finalised in 2002. This enabled him to practise as a general practitioner obstetrician. He has practised in that capacity since 2003, in rural NSW. His CV was tendered as Exhibit “E”. Dr Jeri is a member of the Royal College of Obstetricians and Gynaecologists in the UK. He holds an advanced diploma in obstetrics from the Royal Australian and New Zealand College of Obstetricians. The list of his memberships of professional societies is extensive. Previously, in Peru, he had practised for 12 years as a specialist obstetrician and gynaecologist. In my view there can be no question or doubt as to Dr Jeri’s professional skill and acumen in his chosen fields of practise.Dr Jeri has delivered each of the plaintiff’s four children by means of caesarean section. On 1 March 2016, he delivered the plaintiff’s fourth child by emergency caesarean section.In light of the submissions made on behalf of Dr Dhupar which sought to downplay Dr Jeri’s expertise, qualifications and experience, and in light of my assessment that those submissions lacked substance, I set out below my assessment of Dr Jeri’s professional standing because it has assumed some particular relevance to certain factual issues in this case. I consider that as a matter of fundamental principle, the submissions made on behalf of Dr Dhupar that were critical of Dr Jeri’s standing and expertise should be discounted and rejected. There was no evidence to support those criticisms. The substance of those criticisms were not put to Dr Jeri at the time when he gave his evidence so that he could have been afforded the fair opportunity as required by the principles of procedural fairness to enable him to consider, address and answer such assertions: Browne v Dunn (1893) 6 R 67.In my view the evidence satisfactorily and overwhelmingly shows that Dr Jeri was familiar with and was well placed to be able to intra-operatively recognise the location, the juxtaposition and structures comprising the plaintiff’s female reproductive anatomy. This included the fallopian tubes, particularly the structures comprising the cornu of the uterus, the broad ligament, the ampulla, and the isthmus of the fallopian tubes and surrounding structures, as well as the presence of scar tissue from the previous caesarean section deliveries that he had performed when he delivered the plaintiff’s children: T167 – T168.Similarly, I am satisfied that Dr Jeri was also sufficiently familiar with how a Filshie clip was to be properly applied to a fallopian tube with an applicator device in order to achieve effective occlusion of the lumen of a fallopian tube with the aim of preventing fertilisation of ova and resultant pregnancy. He has carried out many such procedures himself, although he had not undertaken that procedure laparoscopically until 2017: T208.27. I find that the belated attack made in submissions on behalf of the defendant on the reliability of Dr Jeri’s qualifications and expertise, was unfounded.In my view, it would be extremely unlikely that someone in the position of Dr Jeri, having the specialist qualifications that originated in Peru, and which were later expanded upon by further qualifications obtained in the UK and in Australia, including a further process of obstetric accreditation qualification in Australia comprising an advanced diploma from the RANZCOG, would be unable to intra-operatively visually recognise and manually palpate the patency or otherwise of a fallopian tube when approaching a salpingectomy procedure, especially when at the time, the specific factual background to that procedure was a known concern over a possible failed tubal ligation where a Filshie clip had been used, where there was a concomitant need to investigate the basis for that failure: T224.10 – T224.17. I reject the attack on Dr Jeri’s professional standing and expertise in that regard.At the time that Dr Jeri gave his evidence on factual matters, I formed the impression that he did so in measured and modest terms. My subsequent readings of his evidence, in the context of the evidence as a whole, have not altered that view. Dr Jeri did not claim to be an expert on Filshie clips, however, in my view, his evidence indicates he was sufficiently familiar with them on account of his operative experience and use of them: T208.18. The evidence did not suggest that there was a material or effective difference in the action of actually applying, closing and locking Filshie clips onto fallopian tubes when comparing a laparoscopic approach to an approach involving laparotomy. He was qualified to use Filshie clips in Australia when such clips were to be applied following caesarean section. This position continued until those responsible for the running of the local hospital, where he practised, made a policy decision to cancel or discontinue their use in that context because of cost considerations: T209.38 – T210.44.Dr Jeri stated that the usual and recommended application of such clips was to place them on the fallopian tubes at a location of about one to two centimetres away from the cornu, or horn of the uterus, in the isthmic area of the tubes, noting that a fallopian tube is generally of the order of up to ten centimetres in length. He marked an approximation of the recommended position for the application of a Filshie clip on Exhibits “F” and “G”: T168 – T172. That evidence remained unchallenged.Dr Jeri was asked questions about the method of applying a Filshie clip based on a review article by Varma R, “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, at 1322-1332: Exhibit “1”, p 32 and in the following pages: T228. Aspects of that article will be referred to in the context of whether or not a breach of duty of care has been established in this case.(2) Dr Jeri’s explanation of anatomical structuresIn his evidence Dr Jeri explained the relevant anatomical structures. Some of those explanations also appear in the Glossary in the Appendix to these reasons.(3) Dr Jeri’s referral of the plaintiff to Dr Dhupar for tubal ligationOn 19 February 2014, the plaintiff first consulted Dr Jeri about tubal ligation. On 22 April 2014, he referred the plaintiff to Dr Dhupar for that procedure to be performed laparoscopically: T173.19 – T173.28; T192.35 – T192.45; T198.10; Exhibit “C”, Tab 4.2, p 297. The plaintiff had sought advice from Dr Jeri about tubal ligation because she had been experiencing untoward side-effects from taking the oral contraceptive pill. In those circumstances, and in view of the plaintiff’s three previous caesarean section deliveries, Dr Jeri advised her to seek a second opinion with regard to his recommendation for a laparoscopic tubal ligation, which in any event he would have had to decline to carry out at the local hospital because that hospital was not relevantly equipped for that procedure: T193.8 – T194.1. Dr Jeri also explained that he had declined to undertake tubal ligation on the plaintiff by means of a mini-laparotomy procedure in light of the plaintiff’s three previous caesarean sections, and in light of adhesions or internal scar tissue that he thought would be likely to have resulted from those earlier procedures. He considered that carrying out a tubal ligation by means of a mini-laparotomy would be very difficult, and it would pose risks to other internal organs, such as to the bladder and to the bowel because of adhesions. He therefore referred the plaintiff to Dr Dhupar at Wagga Wagga, for the procedure to be carried out at a larger and better equipped centre: T197.5 – T197.22.Dr Jeri said that because he was not going to perform the tubal ligation procedure himself, it was up to Dr Dhupar, as the operating surgeon, to decide which particular procedure she thought was appropriate for the plaintiff, and to advise the plaintiff according to that opinion: T196.15 – T196.32. Nevertheless, Dr Jeri confirmed that he had informed the plaintiff that there was a potential or a risk of a pregnancy following tubal ligation surgery: T196.40. His advice in that regard was not described in more detail. He explained that as he had referred the plaintiff to Dr Dhupar for consideration of that procedure, he had left it to Dr Dhupar to explain to her the risks and benefits of that procedure: T194.39 – T195.3; T195.40 – T197.15. That was plainly a reasonable, correct, and principled approach.Dr Jeri said he had understood that Dr Dhupar had obtained formal consent from the plaintiff for the procedure of laparoscopic tubal ligation using Filshie clips. He therefore assumed, reasonably, that Dr Dhupar would explain to the plaintiff the risk of pregnancy following that procedure: T199.8 – T199.44. He understood from Dr Dhupar, when she wrote to him on 5 September 2014, that the tubal ligation had proceeded uneventfully, that is, until the plaintiff was later confirmed to be pregnant despite the fact that Dr Dhupar had performed the procedure which was aimed at successfully preventing such an occurrence: Exhibit “C”, p 197.(4) Dr Jeri’s diagnosis of the pregnancy and his related antenatal careOn 20 July 2015 the plaintiff consulted Dr Jeri. His records show that this was for symptoms that included nausea and feeling sick. Initially, he thought, consistent with the plaintiff’s past medical history of chronic persistent migraine, and a past history of pre-menstrual syndrome in 2009, that the plaintiff may have had pre-menstrual syndrome, and he referred her for specialist neurological investigation in view of her previous history of migraines: Exhibit “C”, Tab 4.3, p 298. However, Dr Jeri soon excluded that working diagnosis following the results of routine blood tests that were confirmatory for pregnancy. That test returned a positive pregnancy result at an estimated gestation of six weeks and four days. He advised the plaintiff of that fact and he thereafter continued to manage her pregnancy himself until he made a further referral at 32 weeks gestation. On 21 July 2015, Dr Jeri saw the plaintiff and her husband in consultation to discuss the pregnancy. In his clinical progress notes he summarised the effect of the consultation as follows: “Presented with husband and they are keen to continue with her pregnancy”: T204.19. In his oral evidence, he explained that the word “keen” may have been his interpretation of what was discussed rather than it being a direct quote of what had been said by the plaintiff. He also explained the context, namely, that the plaintiff was not enthusiastic about the pregnancy, and that his use of the work “keen” meant they were not going to terminate the pregnancy, and that instead, they had made a decision to accept and keep the pregnancy: T204.21 – T205.5.Whilst Dr Jeri noted that, at the time of that consultation, the plaintiff did not appear “extremely distressed”, he said that she was concerned, disappointed, and that she had a mixture of conflicting thoughts as to what was happening to her because she had not expected to become pregnant: T204.50.At some stage after the plaintiff’s pregnancy was confirmed, Dr Jeri said that he rang Dr Dhupar to inform her that the plaintiff was pregnant: T174.35. He said that in the ensuing discussion, in response Dr Dhupar had said to him that it happens: T208.13. That particular aspect of the evidence given by Dr Jeri was not specifically challenged.In her evidence, Dr Dhupar said that Dr Jeri had not informed her that the plaintiff had become pregnant, and claimed that the first she knew of this was at the time the plaintiff was being prepared for caesarean section delivery at Wagga Wagga Referral Hospital on 1 March 2016. That divergence in the evidence is a matter that stands to be resolved on the basis of findings as to the reliability or otherwise of the evidence of Dr Jeri and Dr Dhupar on that particular factual matter in dispute.Dr Jeri explained that the applicable health care system protocols that prevailed and applied in the Murrumbidgee Area Health Service at the time, and which delineated professional service roles in that area, mandated that the plaintiff should not undergo a fourth caesarean section at her local hospital due to the high risks involved: T206.25 – T207.2. The assessment of high risk related to the fact the plaintiff has had three previous caesarean section deliveries.It was for those reasons that at 32 weeks gestation, Dr Jeri referred the plaintiff to the Wagga Wagga Referral Hospital for what appeared to be shared antenatal nursing care with the intention that in due course he would carry out a caesarean section delivery on the plaintiff at an appointed time. A part of that plan was for him to be assisted in that procedure by Dr Mohamed Foda, a consultant at the Wagga Wagga High Risk Clinic. A suitable time for that procedure was to be arranged before the estimated due date of the plaintiff’s confinement, which was calculated to be 15 March 2016: T205 – T206; Exhibit “C”, Tab 4.2, p 293.(5) Unexpected labour followed by emergency caesarean sectionOn 1 March 2016, Dr Jeri was contacted by the local hospital and asked to see the plaintiff. He made the observation that the plaintiff had commenced spontaneous active labour before the due date that had been set for caesarean section delivery. In the plaintiff’s particular case, this development was considered to be an indication for an emergency caesarean section requiring a rushed urgent presentation to a suitable hospital to carry out that surgical procedure before a potential and foreseeable uterine rupture could occur in light of the plaintiff’s three previous caesarean section deliveries: T207.25 – T207.28. I reject as baseless the defendant’s submission that sought to downplay that emergent sense of urgency and rush.The plaintiff was transported with some sense of urgency by ambulance to ensure a timely arrival at the Wagga Wagga Referral Hospital. This involved a 45 minute road journey. Dr Jeri had rushed to accompany her there: T174.20. The early onset of the plaintiff’s labour from the obstetric perspective, was without doubt a medical emergency which needed to be managed appropriately, and Dr Jeri properly provided that management with appropriate urgency. Arrangements were made for caesarean section to be performed promptly. On that date, Dr Dhupar happened to be the duty obstetric consultant on call at the hospital. She was called upon to assist Dr Jeri at the delivery. Dr Jeri was the operating proceduralist surgeon and Dr Dhupar was noted as being the assistant.In the caesarean section procedure that followed, Dr Jeri uneventfully delivered the plaintiff’s fourth child, assisted by Dr Dhupar. At that time, and before proceeding to then carry out bilateral salpingectomy, as had been requested by the plaintiff, and as suggested in the literature, he then proceeded to examine and review a number of the plaintiff’s relevant intra-abdominal anatomical structures to investigate and seek a cause for the plaintiff’s pregnancy: T174.40 – T175.38.In that review he first examined the plaintiff’s right fallopian tube and noted that the Filshie clip was present on that tube, and that the tube had been properly clipped and that it was fully occluded: T174.49; T175.14 – T175.19.Dr Jeri then proceeded to examine the plaintiff’s left fallopian tube. He said that at that time he observed the presence of a lot of scar tissue located near the uterine end of the tube, near the cornu of the uterus. He said that at that time, he also determined that the rest of the left fallopian tube was intact, and he could not find a Filshie clip on that tube: T176.3 – T176.13. That finding was not challenged. Nevertheless, in final submissions, counsel for the defendant sought to criticise that unchallenged finding: T541.32.Dr Jeri stated that the scar tissue, which he had observed to comprise a lot of adhesions and related tissues, was due to the plaintiff’s three previous caesarean sections. He described that scarring as uterine scarring including scarring on the surface of the uterus, and around the fallopian tubes. Despite palpating the area and dissecting the adhesions and tissues in the area of the isthmus, he could not see a Filshie clip in that area. He explained that if there had been a clip in that area then he would have seen it: T176.16 – T177.2.After Dr Jeri found that he had been unable to see or locate a Filshie clip on the plaintiff’s left fallopian tube, he dissected and undertook a further exploration of that area to identify the broad ligament, but he still was unable to see a left-sided Filshie clip: T177.19 – T177.38. In the presence of the described scar tissue, he made the assumption that the left Filshie clip was located on the broad ligament but he could not see it: T179.20; T179.46; T214.49; T215.22. He also said that he could not feel or see the fallopian tubes around that area: T180.11. He said he did not see any Filshie clip on the left fallopian tube: T215.41.At the time of that exploratory examination Dr Jeri did not see any evidence suggesting the presence of a fistula: T187.28. He said he observed the left fallopian tube to be absolutely patent, and not blocked or occluded: T223.17. He confirmed that observation both visually and by palpation, and in that process, he said that he had not detected any blockage, flattening, or scar tissue affecting the left fallopian tube along its entire length: T223.24; T224.3 – T224.17.A challenge was made to Dr Jeri’s evidence that, intra-operatively, he had made Dr Dhupar aware that the plaintiff’s left fallopian tube was patent without a clip on it, and that was the reason the plaintiff was pregnant: T226.18. That challenge occurred in the following context of Dr Jeri’s intra-operative discussions with Dr Dhupar:“HIS HONOURQ. Just a moment, when you made this observation to her during the surgery, did she have the opportunity of observing and palpating what it is that you saw and palpated?A. I can't, I, I can't remember if she - but she, she was, she was, she was aware and I let her know that - when I mention patent, it's because she - the patient, she was - she, she fell pregnant. And the only way that she may fall pregnant is because the fallopian tube or the Filshie clips wasn’t there, and the fallopian tube was patent. Like--ELBOURNEQ. I put to you that in fact you had no such conversation with Dr Dhupar at all at the time of this operation?A. Yes, we have a very short conversation about - because she, she left the operating room before I finished. So, I, I stitch the rest of the skin with the nurse. She - it's - that's what happened.”[T226.34 – T227.1]In Dr Jeri’s evidence given in re-examination, the topic of the truncated discussion cited above was revisited. In that regard, the following exchange occurred:“Q. You were just asked some questions about what you said to Dr Dhupar when you observed that the left fallopian tube appeared normal, you agree it did appear normal and that there was no clip attached to it. Did Dr Dhupar say anything to you at all in response to what you said to her?A. She didn’t reply, she didn’t comment. Q. She didn’t make any comment?A. No, no, no, she didn’t comment.”[T227.36 – T227.43]It is relevant at this point to note that when Dr Dhupar subsequently gave her evidence, she did not contradict Dr Jeri’s evidence as cited above. Dr Jeri’s evidence in that regard did not appear to be unlikely, nor did it appear to be glaringly improbable.(6) Bilateral salpingectomiesDr Jeri’s description of his operative findings as set out in his operation report of the caesarean section and bilateral salpingectomy procedures performed on 1 March 2016 stated that there were no operative complications. The hospital clinical notes state that after Dr Jeri carried out the caesarean section delivery on 1 March 2016, the plaintiff’s left and the right fallopian tubes were sent for histopathology examination: Exhibit “C”, Vol 2, Tab 4.3, p 498; p 515. The clinical results of that examination appear at Exhibit “1”, p 112.The result of macro-histopathology results have been replicated at paragraph [159] above. The specimens did not include the right Filshie clip or its point of attachment and the portion of the left tube that was examined was not informative of whether a Filshie clip had been closed and locked at any point on that specimen. It was described as normal.(7) Hysterosalpingogram investigation to locate left Filshie clipOn 20 August 2018, Dr Jeri referred the plaintiff to Dr Nick Stephenson for a hysterosalpingogram, which is a radiological test performed with the introduction of contrast dye to determine if the Filshie clip that Dr Dhupar had sought to apply to the plaintiff’s left fallopian tube could be seen anywhere within the plaintiff’s pelvic cavity. The hysterosalpingogram located the clip, which was radio-opaque. Dr Jeri considered that it had not been conclusively shown that the clip identified in those circumstances was located on any fallopian tube or on any remnant of a fallopian tube: T180.37 – T181.3.Dr Jeri said that the result of that hysterosalpingogram test revealed that the dye had not only reached into the left cornu of the plaintiff’s uterus, but that it had also reached into the area of the isthmus where there should have been a clip: T183.46 – T183.50. Dr Jeri concluded from the result of that test that the Filshie clip had not been in place in the part of the isthmic area of the left fallopian tube where it was expected to have been seen: T184.5. This was in the context where he had performed a partial salpingectomy on 1 March 2016, and where, on the basis of the successive procedures he had performed on that day, he concluded that the Filshie clip was not attached to any part of the plaintiff’s left fallopian tube. As the operating surgeon, and as the practitioner who had ordered the hysterosalpingogram, those observations and conclusions, were properly within Dr Jeri’s remit as the plaintiff’s treating doctor.In cross-examination, Dr Jeri was taken to the hysterosalpingogram images taken by Dr Stephenson on 20 August 2018, and in particular to the image appearing at page 540 of Exhibit “C”, Vol 2, at Tab 5.2. Dr Jeri stated that image did not assist him to determine whether the left Filshie clip shown in that image was either in the open, closed or clamped position. He said this was due to the differing viewing planes that were sampled in those radiological views. He said that the images from that test only show that the Filshie clip is somewhere in the pelvic area: T189.16 – T189.38.Dr Jeri explained that the hysterosalpingogram images appearing between pages 542 and 547 of Exhibit “C”, Vol 2, at Tab 5.2 show that the left fallopian tube was patent in the isthmic area and that the terminal end of that tube had been pumped full of dye for that particular test. He said that the interpretation or approximation of precisely where in the abdomen the Filshie clip was located as shown in that image, would be dependent upon the observational plane that had been adopted for that radiological test: T191.44 – T192.6.In considering the mechanism of a fistula as a possible explanation for the plaintiff’s pregnancy, Dr Jeri discounted that possibility by observing that if there had been a fistula present, the dye would have passed through the fistula as would an ova: T186.50. That matter was the subject of discussion in the concurrent expert evidence.(8) Dr Jeri’s evidence on the plaintiff’s medical history relating to anxietyThe defendant sought, through the cross-examination of Dr Jeri on the content of his own clinical records that related to the plaintiff, to establish that, contrary to the plaintiff’s self-perception of having been in good health but for the subject pregnancy, the plaintiff suffered from anxiety. The focus of the cross-examination of Dr Jeri on that topic concerned the specific content of his own and the other clinical progress records and on the notes that he kept in his practice as they related to the plaintiff. Those matters were as follows:On 29 April 2015, at a consultation with the plaintiff, and at a time when the plaintiff was not pregnant, Dr Jeri made the following note about the plaintiff: “Reports feeling very anxious, not coping well at night time, feels panicky, not during the day. She also reports mild dizziness on and off over the past few days or so, in particular when she moves her head down”. Dr Jeri confirmed that he prescribed the anxiolytic medication Serepax 15mg for the plaintiff to take at night to help her control her anxiety or panicky feelings: T203.23: Exhibit “C”, Vol 1, Tab 4.2, p 242. He interpreted that portion of the notes as meaning the plaintiff had an anxiety disorder in general, namely that she has had past episodes of anxiety: T202.14. He noted that the plaintiff was nevertheless able to function despite those episodes of anxiety: T202.36. He specifically noted that the anxiety became worse after the plaintiff had become pregnant: T202.23. In that regard, the significance of that evidence is that the defendant must take the plaintiff as she is found: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at p 406; Dr Jeri thought the plaintiff’s presentation as described above, with dizziness, headaches, some type of photophobia, and episodes of migraine, was a function of her childhood illness of viral meningitis at the age of 9 years: T202.40 – T203.14;Dr Jeri was taken to his notes for a consultation on 29 July 2015. On that occasion, Dr Jeri had written in his notes: “Reports 2 days of feeling unwell, nauseous, missed her period for 3 weeks, feeling hot and cold, not able to work”. His clinical impression queried the possibility that the plaintiff had Premenstrual Syndrome. However, test results subsequently revealed that at that time the plaintiff was pregnant with the subject pregnancy, and he later advised her of that fact, urgently, by telephone, when he received the test results: T203.25 – T204.5. With respect to the Serepax prescription written on 29 April 2015, Dr Jeri noted that the plaintiff had ceased taking that medication when the 29 April 2015 prescription had run out, which was well before the consultation on 20 July 2015: Exhibit “C”, Vol 1, Tab 4.2, p 243;On 20 July 2015, Dr Jeri saw the plaintiff and her husband together to discuss the pregnancy, at which time she indicated that she had accepted the fact of her pregnancy, but not with enthusiasm, and that her intention was to continue with the pregnancy without termination: T204.10 – T205.5: Exhibit “C”, Vol 1, Tab 4.2, p 244;Dr Jeri was cross-examined about a referral letter he wrote on 20 January 2016 by which he referred the plaintiff to Antenatal Clinic at Wagga Wagga Rural Referral Hospital: T206.13. The point of the questioning on this matter was that he had recorded in that letter, that the plaintiff’s pregnancy had been progressing uneventfully. In my view, on a fair reading of that letter, this was obviously a reference to physical progress of the plaintiff’s pregnancy at that time. In my view, nothing emerges from that letter to serve as a reasonable source of contradiction of the plaintiff’s evidence about her adverse emotional reaction to that pregnancy: Exhibit “C”, Vol 1, Tab 4.2, p 291; T206.19;Dr Jeri was asked questions about his letter dated 20 January 2016 to the Deputy Nurse Manager at the local hospital, in which he described the plaintiff’s antenatal care as being “satisfactory so far”. He agreed that if he had held a clinical concern about the plaintiff’s mental health at that stage (at 32 weeks gestation) he would have included a reference to such matters in that letter. He agreed that he did not think she was depressed although he allowed for the possibility that some sort of mild depression might be present, but not to the extent that it prevented her from functioning. He nevertheless noted that she was upset because of the pregnancy: Exhibit “C”, Vol 1, Tab 4.2, p 293. As observed in the immediately preceding sub-paragraph above, I do not read that evidence as being necessarily contradictory of the plaintiff’s evidence of her adverse emotional reaction to the pregnancy.Dr Jeri stated that his note dated 29 April 2015, which was after Dr Dhupar’s tubal ligation procedure, and before the subject pregnancy, the plaintiff had consulted him, at which time he recorded her symptoms as being anxious, not coping well at night time, panicky at night, and mild dizziness, which he summarised as “anxiety social” or an anxiety disorder in general in light of her past episodes of anxiety, but he noted that she was nevertheless still able to function. He also stated the episodes of anxiety were worse when the plaintiff became pregnant with her fourth child: T201.20 – T202.36; Exhibit “C”, Vol 1, p 242.Dr Jeri was asked if he could explain or interpret a portion of Dr Dhupar’s operation record dated 26 August 2014. The explanations sought by those questions related to the logical order of the process of preparation and draping the plaintiff for the tubal ligation procedure. Ultimately, nothing turned on the content of that evidence.(9) Submissions critical of Dr Jeri’s modified operation reportIn final submissions made on behalf of Dr Dhupar, a critical comment was made to the effect that Dr Jeri had made an alteration to his operation report without providing an explanation of why this had occurred.In my view, nothing turns on that submission, which I consider to have been misconceived. The modifications in question were made transparently on the face of the document, and were easily recognisable as such. There was no need for Dr Jeri to provide an explanation, as was asserted by counsel for Dr Dhupar. The modifications were of a different character compared to the non-transparent manner in which Dr Dhupar had altered her patient records that related to her consultation with the plaintiff on 9 May 2014. That was a matter that was not disclosed by her in her evidence-in-chief. It only emerged in the course of cross-examination.The submission made on Dr Dhupar’s behalf concerning Dr Jeri’s modified operation records have to be read in the following light:At the hearing, counsel for Dr Dhupar did not address any critical questions to Dr Jeri concerning his modified operation record. In those circumstances, where Dr Jeri was not afforded a procedurally fair opportunity to address such a criticism, that submission should be given diminished, if any, weight: Browne v Dunn (1893) 6 R 67. In final submissions on behalf of the defendant, senior counsel for the defendant, who had not been the cross-examiner, acknowledged that no such question had been put to Dr Jeri for his comment: T543.1;The submission critical of Dr Jeri’s addition to his operation record is misconceived as the context makes clear. The first version of the record was entitled “Discharge Summary” which incorporated an operation record for the procedures of emergency caesarean section and bilateral salpingectomy, appearing at Exhibit “C”, Volume 1, commencing at page 179. In that context, a copy of that document was incorporated in Dr Jeri’s private patient records at Tab 3.7 of that volume. The second version of the record was entitled “Operation Reports”, appearing at Exhibit “C”, Volume 2, commencing at page 493. In that context, it formed part of a more extensive hospital records file that was in more expansive terms than a discharge summary;The hospital file version shows that Dr Jeri documented the procedure at hospital at 21:53 hours AEDT on 1 March 2016: Exhibit “C”, Vol 2, pp 493 and 496. That same record shows that Dr Jeri revised the operation reports two months later, at 19:28 hours AEST on 4 May 2016: Exhibit “C”, Vol 2, p 495;When a comparison is made of the two documents it is clear that the changes he made were identified in compliance with the applicable protocol for records documentation by identifying changes by overstriking text without obliteration so that it may still be read: Exhibit “J”. The defendant directed no cross-examination to Dr Jeri on the question of why he had made modifications to the records;When a more detailed comparative examination of the two documents is undertaken, with one exception that will shortly be identified at (10) below, it is plain the changes involve matters of form;The first change that is apparent, is an administrative record which, in a field of a few lines, identifies the fact that the document has been modified from “Discharge Summary” (as seen in Exhibit “C”, Vol 1, p 179) to “Operation Reports” (as seen in Exhibit “C”, Vol 2, p 493);The second change that is apparent, simply appears to be a word processing addition. In the first document, entitled “Discharge Summary”, where Dr Jeri set out the details of his operative procedure in a series of paragraphs numbered 1 to 21, followed by an un-enumerated line which stated “Sterile dressing is applied”. In the second document, entitled “Operation Reports”, Dr Jeri simply added the formatting number 22 before the words “Sterile dressing applied”, which had previously not been numbered;The third change that is apparent, is what appears to be a word processing error due to an irrelevant inclusion of a continuation of the numbers “3” and “4” without other text. Clearly this is an artefactual addition of no substantive relevance: Exhibit “C”, Vol 3, p 493;The fourth change that is apparent is at paragraph 18 of the operation note (at Exhibit “C”, Vol 3, p 494), where, after reference to haemostasis, the following additional text has been added:“Thereafter, a bilateral salpingectomy was performed stitched with vicryl 2(0)Description of the location of the Filshie clips is already mentioned in the findings”;That addition appears to be nothing more than just an explanatory detail in the note of the procedure and the method of the procedure, in compliance with the requirements of Exhibit “J”, cl 2.13(e) and (g). Nothing turns on that modification;The fifth change is that under the heading of FINDINGS, the following words were added:“It is noted that the right Filshie clip is in the right Fallopian tube (clamping adequately) however the left Filshie clip is out of the right place, it is located in the broad ligament”.In respect of the modification identified at (10) above, Dr Jeri was cross-examined on that finding, which was also mentioned in his letter dated 26 September 2016: Exhibit “C”, Vol 3, Tab 5.4, at pp 548 – 549. The document comprising the modified operation report in which that finding also appeared, was not the subject of criticism put to Dr Jeri in cross-examination. Plainly, the modification was simply a record of Dr Jeri’s opinion arrived at following the described procedures, in compliance with the requirements of Exhibit “J”, cl 2.13(j). The opinion in question involved the assumption that the left Filshie clip was located somewhere on the broad ligament.The criticism of Dr Jeri’s apparently unexplained modification to the records goes nowhere. It was a time-wasting distraction without substance. It was of a different character to Dr Dhupar’s non-transparent actions in the alteration of her records relating to the plaintiff.Insofar as an explanation for Dr Jeri’s modification of the operation record was required, that explanation may reside in his letter dated 26 September 2016, which is extracted at paragraph [157] above, in which he refers to the fact that he authenticated and approved the operations performed on 1 March 2016 and confirmed the accuracy of the report, including making a reference to the left Filshie clip being located “somewhere in the broad ligament” in conjunction with “significant scarring tissue”: Exhibit “C”, Vol 3, Tab 5.3, pp 548 – 549.(10) The assertion that Dr Jeri was a partisan witness and not independentIn the final oral submissions made on behalf of Dr Dhupar, it was submitted that Dr Jeri was a partisan witness because, it was suggested, as the treating doctor, he was close, and arguably aligned to the interest of the plaintiff, his patient: T541.35 – T541.39; T543.3. Senior counsel for the defendant maintained that submission notwithstanding having acknowledged that critical assertion had not been put to Dr Jeri for his comment: T543.2. Given that acknowledgment, it is puzzling that the submission was made at all.The requirements of procedural fairness necessitate that such an assertion be put to the witness in order to fairly base a criticism of the kind articulated on behalf of Dr Dhupar: Browne v Dunn (1893) 6 R 67; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1, at p 16.I do not accept the defendant’s submission as to Dr Jeri’s alleged partisanship. On the contrary, my impression was that Dr Jeri gave his evidence professionally, in a measured, reasoned and independent manner. Accordingly, nor do I accept the defendant’s unsubstantiated submission (at T538.14), that Dr Jeri had given “cavalier” evidence.(11) Conclusions on reliability and credibility of Dr Jeri’s evidenceI was left in no doubt about the credibility or the reliability of Dr Jeri’s evidence. I considered him to be an impressive witness. He made fair concessions when such concessions were due. When his evidence was tested, he identified the limits of his knowledge and expertise and he properly identified the assumptions that he had made in giving his evidence. I considered his factual accounts were reasonably based on the clinical opportunities that were available for him to make such observations. I considered his evidence to have been given fairly, in a balanced, non-partisan manner. I concluded that his evidence was reliable and capable of acceptance.Evidence of Dr Dhupar, the defendant Dr Dhupar’s documentary and oral evidence covered a range of relevant topics. She gave her oral evidence over the course of the fifth and the seventh days of the hearing. Dr Dhupar’s evidence included an examination on the voire dire concerning some intra-operative photographs that she said had been taken by operating theatre staff at her request at the time she performed the tubal ligation procedure on the plaintiff on 26 August 2014. Her evidence on the voire dire was subsequently tendered as evidence in the proceedings: T328.30 – T328.40.Summary of plaintiff’s submissions as to reliability of Dr Dhupar’s evidenceA focal point of the submissions made on behalf of the plaintiff was that Dr Dhupar’s evidence was not reliable, and that it should therefore be treated with extreme caution before acceptance on contentious questions concerning whether or not in the circumstances, she had complied with the requisite standard of reasonable care when she operated upon the plaintiff.The plaintiff submitted that the above criticism of Dr Dhupar’s evidence was justified because Dr Dhupar had made a significant after-the-event alteration to her clinical records in an argued attempt to seek exculpation from criticism, and in doing so, she had contravened her own understanding of the appropriate standards to be observed with respect to making and keeping healthcare records, and that she had refused to make the appropriate concession that much of her evidence had been reconstructed, when plainly that was so.The plaintiff also submitted that valid criticisms of the reliability of Dr Dhupar’s evidence remained, even after making due allowances for possible language and cultural considerations, including as to demeanour, as suggested in the submissions made on behalf of Dr Dhupar, as English was not her first language. Those criticisms concerned Dr Dhupar’s apparent reluctance to answer important questions directly without evasion; her argued lax or “sloppy approach to instructing her solicitors in defence of the plaintiff’s claim” resulting in errors appearing in her statement that was tendered in evidence; and because of a significant omission of a matter of fact from her statement, where that statement was intended to be used as the basis to instruct expert witnesses who provided evidence to support her defence, and where that statement was based on her claim of having adhered to a usual practice rather than on an actual factual recollection of key events. That matter of fact, which was raised for the first time during Dr Dhupar’s oral evidence, concerned a claimed and undocumented recollection of a significant and relevant intra-operative finding of a large varicose vein that had influenced her decision as to the placement of the left Filshie clip in a location different to that which was recommended for the placement of such clips, and where that matter had not been previously recorded anywhere in any note made by her, nor had it been included in the statement she had signed at the request of her solicitor in preparation for her defence of these proceedings.The baseline from which the reliability of Dr Dhupar’s evidence stands to be assessed was her evidence-in-chief of a lack of an actual recollection of the pre-operative consultation she had with the plaintiff and her lack of recollection of the tubal ligation procedure that she performed on the plaintiff: T280.45 – T280.48; T281.19 – T281.27. In those circumstances, the reliability of the content of her evidence was reliant on her notes and her understanding of her usual practice in similar clinical circumstances: T249.45 – T260.10; T341.35 – T341.50.Four consequential questions therefore arise. First, whether or not there was satisfactory evidence upon which to base a finding that in those two identified clinical settings, Dr Dhupar had in fact adhered to her usual practice. Secondly, if so, what was the relevant practice. Thirdly, whether or not sound reasons emerge from the evidence to raise material doubt that she had in fact adhered to a usual practice. Fourthly, against that background, a question arises as to the reliability of her evidence of a claimed reason for placing the left Filshie clip distal to the recommended location on the muscular isthmus due to the alleged presence of a large varicose vein on the isthmus of the left fallopian tube.That latter explanation only emerged when Dr Dhupar gave oral evidence at the trial. This was in circumstances where she had no contemporaneous record of that claimed intra-operative finding, and it was not mentioned in the written statement that she signed as part of her preparation for defending these proceedings where it was intended that the experts retained on her behalf would rely upon that statement for the formulation of their opinions in her defence.Those questions will be taken into account and considered at various points within the array of topics covered by Dr Dhupar’s evidence.In essence, the credit-related criticisms directed at Dr Dhupar’s evidence, as was submitted on behalf of the plaintiff, concerned criticisms that her manner of giving evidence was dissembling and was evasive in the way she answered questions (T541.43 – T541.49), when taken together with an erroneous aspect of the content of her statement which formed the pillar of her defence of the proceedings (T532.17 – T532.30), the non-disclosure in her evidence-in-chief of a material alteration to her clinical records so as to suggest contemporaneity (T533.40 – T533.50), an argued invention that arose during cross-examination, namely a claimed reason for placing the left Filshie clip in a different position to that which was recommended by the manufacturer and by RANZCOG, a matter that was submitted to defy credulity (T533.17 – T533.24), based a submission that her evidence on matters in contention, should not be accepted unless supported by other acceptable evidence: T532.14.In evaluating Dr Dhupar’s evidence, in fairness, I consider that little if anything should be dependent upon an assessment of her demeanour during the course of her evidence. Undoubtedly, the proceedings, the subject matter of the proceedings, and the nature of the allegations of professional negligence with which she had to deal, at times caused stress, hesitancy, and nervousness. Added to those factors, it must be recognised that Dr Dhupar’s first language was obviously not English. In combination, factors such as those are commonly seen as having an impact on witnesses when giving oral evidence, and they do not necessarily mandate an adverse credit assessment. Instead, I base my findings on the credibility and the reliability of the evidence of Dr Dhupar on the content of her evidence when viewed in the context of the evidence as a whole.Particular topics within Dr Dhupar’s evidenceThe paragraphs that now follow identify the topics that encompassed the substance of Dr Dhupar’s evidence, as follows:Her CV, qualifications and experience;Her clinical records and her recollection of her pre-operative clinical contact with the plaintiff;The laparoscopic tubal ligation procedure performed on 26 August 2014;Her claim of unawareness of the plaintiff’s pregnancy until 1 March 2016;The undated statement prepared by her solicitors (Exhibit “6”);Conclusions concerning the reliability of her evidence.As explained in the paragraphs that follow, my review of Dr Dhupar’s evidence on those topics has given rise to concerns over the reliability of her evidence on initial matters of fact and as to whether some material aspects of her evidence should be accepted. Those matters will be reflected in my findings of fact which will be identified in my reasons for decision relating to Issue 1. (1) Dr Dhupar’s CV, qualifications and experienceIt is necessary to frame the consideration of Dr Dhupar’s evidence by reference to her professional background. She commenced practising as a specialist obstetrician and gynaecologist in Wagga Wagga in 2003: T270.3. Her CV set out the details of her qualifications and experience. Her primary medical qualifications were attained in India, in 1991. In 2000, in India she obtained her diploma from the National Board in Obstetrics and Gynaecology. In 2010 she was admitted as a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. She holds a range of relevant professional affiliations. At the time of the events in question she was, and still remains, a visiting obstetrician and gynaecologist at Wagga Wagga Base Referral Hospital: Exhibit “3”. No credit issues arise concerning Dr Dhupar’s professional background, qualifications and experience.(2) Dr Dhupar’s pre-operative clinical contact with the plaintiffAn overview of the content of Dr Dhupar’s handwritten clinical notes taken on 9 May 2014 has already been set out in detail at paragraphs [97] to [111] above. Dr Dhupar first saw the plaintiff in consultation on 9 May 2014 at the request of Dr Jeri: T256.32. The referral letter to Dr Dhupar was dated 22 April 2014: Exhibit “C”, Vol 1, Tab 4.2, p 297. The purpose of that referral was for advice and for proposed tubal ligation surgery: Exhibit “C”, Vol 1, Tab 4.2, p 239.In surveying Dr Dhupar’s evidence dealing with her recollection of her dealings with the plaintiff, it must be borne in mind that prior to the hearing, Dr Dhupar had stated to her solicitor that she had a recollection of the plaintiff “to some extent”: Exhibit “6”. That extent was not explored or identified in her evidence.Dr Dhupar’s oral evidence concerning her pre-operative consultation with the plaintiff was based upon the contemporaneous record she had made of that consultation on 9 May 2014: T256.30 – T257.12. She fairly stated that her evidence of her pre-operative clinical interaction with the plaintiff was based on what she regarded as being her normal procedure because, as she understandably stated: “you can’t remember every single person”: T259.45 – T260.10.Dr Dhupar further explained, as I understood her evidence, that her recollection of her clinical contact with the plaintiff was based on her reading her notes of the history she had recorded. In that regard, she had to rely upon her notes. She said that “otherwise I don’t remember”: T341.35 – T341.50. When that matter was further explored in cross-examination, she acknowledged that she had no independent memory of having seen the plaintiff in May 2014, and that also, understandably, she therefore relied upon her records for the purpose of giving her evidence on matters that may have occurred at that consultation: T342.26 – T343.34.In the course of evidence, questions arose as to the reliability of certain aspects of Dr Dhupar’s notes which comprised her handwritten patient records relating to the plaintiff. The resolution of such questions is influential on the assessment of the reliability of her recollections of her clinical interactions with the plaintiff. In that regard, the key question is whether Dr Dhupar’s evidentiary recollections, as based on those records, were reliable.In that regard, a key question that emerged concerned what, if any, written information or reading material Dr Dhupar had given to the plaintiff in the consultation on 9 May 2014, in respect of the proposed tubal ligation procedure. In particular, the issue was whether Dr Dhupar had given the plaintiff a copy of a printed RANZCOG information pamphlet to keep as she has claimed, in circumstances where the plaintiff said that she had not left that consultation with a pamphlet of that nature in her possession: T128.3 – T128.12. Dr Dhupar’s evidence on that question centred around a RANZCOG sticker which, she said, until detached from an information pamphlet, had formed a part of the pamphlet she said she had given to the plaintiff. The sticker bore the title heading “Treatment Information Pamphlet”. Dr Dhupar said that she had herself applied that sticker to her consultation notes relating to the plaintiff, and that it had been filled out in her handwriting: T257.26 – T257.41. Dr Dhupar described the RANZCOG pamphlet as a procedural explanation template aimed at providing a patient with an understanding of the proposed procedure. She said that the sticker located on the pamphlet was to enable it to be peeled off and placed into the patient’s records as an indication that the information in the pamphlet had been provided to the patient. The purpose of the pamphlet was to not only provide relevant information, but if need be, to assist the patient to ask any relevant questions that might arise concerning the procedure: T257.29 – T257.31; T258.10. Dr Dhupar identified a copy of that template as part of Exhibit “C”, Vol 1, at p 200. At that point in Dr Dhupar’s oral evidence, counsel for the plaintiff objected to senior counsel for the defendant asking Dr Dhupar leading questions in her evidence-in-chief on those matters: T259.35.In the questions and answers that then followed, in her evidence-in-chief, Dr Dhupar proceeded to give her explanations according to what normally occurs in the clinical consultation setting in her practice with regard to such pamphlets and stickers: T259.47. When Dr Dhupar was asked for clarification as to whether she had an actual recollection of what occurred at the consultation on 9 May 2014, she gave a somewhat rambling answer, during which she ultimately answered that question in the negative: T260.8.Thereafter, Dr Dhupar fairly conceded that, due to the lengthy interval of time that had elapsed since the consultation in question, she could not actually recall whether she had given the plaintiff the pamphlet in accordance with her standard practice: T260.16 – T260.46. She later conceded that she did not have a memory of providing a copy of the pamphlet to the plaintiff: T369.25 – T369.33.That question took on some importance in this case because Dr Dhupar said of her practice, that the sticker in question, which was removable from the pamphlet by peeling it off, was removed and placed in the patient’s notes “most of the time”: T260.22. This must therefore mean that she did not have an invariable normal practice in that regard as “most of the time” is not an expression of invariability. She assumed from the fact that her patient notes relating to the plaintiff had such a sticker attached to them, and which had been filled in by her, that on 9 May 2014, she had given the plaintiff the RANZCOG information pamphlet at that consultation: Exhibit “4”, p 3.In my assessment, on the question of whether Dr Dhupar had conducted the consultation with the plaintiff according to a normal or usual practice she had at the time, it is of determinative significance that, in giving that evidence-in-chief, Dr Dhupar did not volunteer an important fact, which, in my view, must have been within her knowledge at that time, namely, that the RANZCOG sticker in question had been left only partly completed by her following the consultation on 9 May 2014, and that, 2 years later, on 12 September 2016, she then proceeded to fill in the date on that sticker as being 9 May 2014. That evidence takes on a highly relevant significance to the question of whether Dr Dhupar had in fact followed her normal practice in this instance.That matter only came to light when it was drawn to the attention of Dr Dhupar that she only added that date to the sticker after she had received notice that a claim might be made against her on the plaintiff’s behalf, and where the discrepancy in question was detected when a comparison was made of her records which had incorporated that date, and an earlier faxed copy of those records that had been sent to the solicitor for the plaintiff at an earlier time, before she had added the date of 9 May 2014: T363.25 – T363.50. When Dr Dhupar was questioned about those circumstances, she explained that she had added the date two years later because at that time she had noticed that it was not there and she felt that she needed to add the date: T364.2. The critical questions that then followed, which were answered with some hesitancy, appear in the following extract of her evidence;“O’KEEFEQ. What I’m going to suggest to you is that you added that date when you sent that material off because you wanted to make your records look as though you had done the right thing and provided a pamphlet to this patient on the date of the consultation when you could not be sure that you had in fact done so.A. No, I don’t think so.Q. You were trying to cover up as it were a potential deficiency in your clinical notes, weren’t you?A. I don’t think, no.”[T364.5 – T364.15]I find Dr Dhupar’s qualified denial of the proposition put to her in cross-examination, namely, that she was trying to cover up a potential deficiency in her clinical records, to be unconvincing. The context of the alteration was that she had already received notice of the present claim, in circumstances where she must have known that the chronological integrity of the content and the appearance of her clinical notes was important, and where she agreed that she knew that alterations to her notes, if deemed necessary, were required to be identified or minuted in a transparent manner (Exhibit “J”, cl 2.1), a requirement that she understood applied, irrespective of whether the records comprised hospital notes or comprised private practice records: T367.14 – T367.39; T376.2 – T377.1.Dr Dhupar was adamant that the photocopy of the RANZCOG pamphlet that she had provided to the plaintiff’s solicitor in the course of pre-litigation correspondence, was a copy of the document that she had given to the plaintiff. However, in giving that answer, she acknowledged that she was reliant on her notes rather than being able to call upon an actual recollection of the events in question: T369.2 – T369.33. In my assessment this raised another difficulty in relying on Dr Dhupar’s evidence to the effect that she had relevantly provided the plaintiff with a copy of the RANZCOG pamphlet as she claimed. The difficulty was that Dr Dhupar acknowledged that she was unable to clarify or identify which edition of the RANZCOG pamphlet she had provided to the plaintiff as she had claimed, explaining that she had not concentrated on which edition number had been provided to the plaintiff: T364.35 – T365.37.The evidence referred to above raised a matter of some curiosity in that it was not Dr Dhupar’s usual practice to photocopy a pamphlet that was to be given to the patient: T369.49. That curiosity arises because when she said she had provided a copy of the pamphlet to the plaintiff’s solicitor, at that time she realised that a date was omitted from the sticker she had placed in her notes. She said that she then added the date to the sticker and she then photocopied or faxed her notes to provide the requested copy to the plaintiff’s solicitor on 12 September 2016: T361.44 – T362.2; T370.10 – T370.17. When questions were asked to seek to clarify those matters, Dr Dhupar gave the following evidence, which in my assessment, appeared to be a little confused and vacillatory:“Q. What Mr O'Keefe is asking you is whether you intended to give Slater and Gordon the impression that the pamphlet you provided to them in answer to the request was the same as what was given to Mrs [Xxxxxxxx] in consultation. Was that the impression you were seeking to give?A. No. I don’t - yeah, that was impression what information I have given to her. I’m giving you that pamphlet to you also.Q. Do you understand the difference between an exact copy and a sample copy, don't you?A. Yeah, yeah, I can understand it. That’s a sample copy.Q. The way I’m interpreting your evidence, this copy in your records that we’re now looking at is a sample copy and not an actual--A. It’s a sample copy.Q. What Mr O'Keefe was asking you is whether, by providing this sample copy, you were intending to convey the impression that this was an actual copy of what you had actually given the patient. What’s your answer to that proposition?A. I can say is the actual copy has been given to her, so that’s a sample copy.”[T370.50 – T371.19][Plaintiff’s name redacted]That evidence from Dr Dhupar as to the sample copy of the pamphlet led to a further evidentiary discussion about Dr Dhupar’s usual practice concerning the provision of RANZCOG pamphlet information to patients. That discussion revealed that Dr Dhupar followed her usual practice “most of the time” which, as has already been observed, must necessarily mean that she did not follow her usual practice all of the time, or invariably, as the following extract of her evidence amply demonstrates:“Q. I’m just puzzled about this process that we’re now discussing. If you were providing the lawyers with a sample copy of a RANZCOG pamphlet, I’m assuming that you would have got a copy of a shelf or out of a drawer--A. Yeah, yeah. Yeah, possibly.Q. --or wherever you keep them, in order to get it photocopied. If that was the case, then why doesn’t the sticker appear on the copy?A. Maybe could possibly be they have taken photocopy, my receptionist people, and put it into the folder. That’s one scenario. Another scenario, maybe is the photocopy from the original one they have done that way.Q. What original one?A. Means either when, you know, when you’re providing information to the woman, when they do photocopy, must be the photocopy was done at the same time and the second one maybe the photocopy from the original one.Q. You’re raising these maybes, but I suppose we need to go back to what your usual practice was at the time so I can understand what the variations mean. What was the usual practice when you gave a patient--A. Most of the time we do - sorry.Q. --a copy of pamphlet or the pamphlet?A. Most of the time we do photocopy at the same time. All operative notes, all consent paper we do photocopy, which we will be providing to the woman.Q. Didn't you just tell me a bit earlier that this document that’s now in the copied records is a sample copy rather than an actual copy?A. That’s what I’m saying. This is the sample because the original one has been given.”[T371.34 – T372.12]I found Dr Dhupar’s evidence of having provided the plaintiff with a copy of the RANZCOG pamphlet to be unconvincing. The evidence on those matters led to Dr Dhupar being asked questions as to her recordkeeping practice in light of the requirements of the New South Wales Health Policy Directive: Health Care Records Documentation and Management, which comprised: Exhibit “J”: T372.45 – T375.12. In her answers to those questions, Dr Dhupar stated that sometimes there were variations in her usual practice in that correspondence about patient care would be sent out without her signature or without it being checked beforehand: T374.41 – T375.12. In my assessment, that evidence cast significant doubt upon an asserted reliance on an invariable usual practice.The question of Dr Dhupar’s compliance with that recordkeeping and documentation policy was followed-up by further questions. In her answers to those questions, Dr Dhupar acknowledged that her non-compliance with the record-keeping standard referred to, namely by not minuting or making an addendum note in her records about having written a date on the RANZCOG sticker in her notes some two years after the event, was an error. She sought to downplay the significance of that error, characterising it as a “small error”, which she then sought to excuse by saying that such errors are possible in a busy heavy private practice as well as in the context of a hospital practice: T376.2 – T377.1.In respect of that evidence, counsel for the plaintiff ultimately and specifically put to Dr Dhupar the proposition that, by altering the sticker in her notes, that is by the addition of the date 9 May 2014, she had wished to mislead the plaintiff’s lawyers about the matter of whether, or if and when, the RANZCOG pamphlet had been given to the plaintiff. Dr Dhupar denied the force of that proposition as being incorrect: T377.31.I observe at this point of the consideration that although the evidence does not go so far as to establish that Dr Dhupar intended to mislead the plaintiff’s lawyers by altering her records two years after the event, it is nevertheless disquieting that she took the step of altering her records without taking the additional step of transparently recording or minuting the fact that her notes had been altered in a material respect, thus creating a misleading impression as to the integrity, authenticity and contemporaneity of that aspect of the content of those notes on what has turned out to be an important factual issue in this case.In my assessment, Dr Dhupar’s failure in that regard cannot be ignored, dismissed or overlooked as being a minor matter or a small error as she has suggested. This was in the circumstances where she could not call upon an actual recollection of the events and where she therefore had to rely upon the accuracy of her notes on that matter, which required an assumption that she had followed a usual practise in circumstances which revealed that her usual practice was at times the subject of undefined variation. This matter had some relevance to the question of whether the plaintiff had been provided with relevant information as to the risk of pregnancy associated with the laparoscopic Filshie clip procedure that she had agreed to undergo. Whereas the original document, comprising Dr Dhupar’s patient history notes, referred to Dr Dhupar having explained to the plaintiff that the tubal ligation procedure was associated with a failure rate of 1:200 to 1:300, and that anaesthetic risks included nausea and vomiting, not all of the content of those particular statistical matters were replicated in the typed transcription version of that document that comprises pages 1 and 2 of Exhibit “6”. That discrepancy gives rise to the question of what should be made of it, and as to which version of it had been provided to expert witnesses. In that regard, the expert witnesses retained both on behalf of the plaintiff and the defendant had each been briefed with a typed version of Dr Dhupar’s handwritten clinical consultation notes in which the risk of failure of tubal ligation was stated to be 1:200, whereas in the original document, as well as other words appearing in relation to risks generally, the failure rate was identified as being within a range, namely 1:200 to 1:300. The difference is a 50 per cent reduction in risk. Given that latter observation, nothing seems to turn on that copying omission. This is because the second ratio, 1:300, involves a lesser risk than 1:200. Whilst perhaps nothing may turn on that error of replication, it is surprising that on checking her draft statement, Dr Dhupar did not identify that discrepant detail and correct it, either at that time, or when she was preparing to give evidence, or in her evidence-in-chief.On the question of risk, Dr Dhupar stated that the 1:200 risk she discussed, was a reproductive lifetime risk: T266.21. Without explanatory evidence, it is difficult to discern what that means, for example, in terms of a whole reproductive lifetime or a remaining reproductive lifetime. The matter was left unexplained. In any event, the plaintiff did not ask Dr Dhupar any questions following that consultation: T269.9.On considering Dr Dhupar’s clinical records, the circumstances of the alteration of those records, and her explanation of those records in terms of whether she followed her usual practice as to the provision of written information to the plaintiff at the consultation on 9 May 2014, I am not persuaded that she gave the plaintiff a copy of the RANZCOG pamphlet for her to take away and consider. That said, on the basis of Dr Dhupar’s handwritten notes, I am satisfied that she informed the plaintiff of matters that were in the nature of “College info” as to the intended procedure, and that a risk of failure of tubal occlusion was mentioned. The level of detail of that information remains unclear. That said, I am not persuaded that she gave the plaintiff a take-away copy of the RANZCOG pamphlet comprising Exhibit “4”. Nor am I persuaded that the plaintiff read the document whilst in Dr Dhupar’s consulting room.(3) Laparoscopic tubal ligation procedure performed on 26 August 2014Dr Dhupar said that on 26 August 2014, she carried out the tubal ligation procedure that the plaintiff had requested at the Riverina Day Surgery centre with a nurse as her assistant: Exhibit “6”, p 3. Her operation report does not confirm that she had an assistant of any status or qualification.Dr Dhupar has had more than 15 years’ experience in performing such procedures: T270.21. She said that she had been performing such procedures in Wagga Wagga about 5 times per year: T270.36. In Dr Dhupar’s evidence-in-chief, she did not claim to have recalled the detail of the tubal ligation operation that she had carried out on the plaintiff on 26 August 2014. In that regard, she fairly acknowledged that she had performed the same operation many times. The effect of her evidence was that there was nothing outstanding or abnormal about this particular operation on the plaintiff that had caused her to separately remember such details other than her usual procedure: T280.45 – T280.48; T281.19 – T281.27. In my view, she based that evidence on the limited content of her operation records.Accordingly, Dr Dhupar’s evidence-in-chief proceeded upon the basis that she had assumed she had carried out the laparoscopic tubal ligation surgery on the plaintiff on 26 August 2014 in accordance with her usual practice, which she proceeded to describe in some detail: T272.29 – T281.27.Dr Dhupar’s usual technique was to use the disposable applicator for applying Filshie clips: T271.46 – T272.8. Dr Dhupar’s description of the operation on 26 August 2014 was based on a general understanding of the approach to the procedure: T272.45 – T280.30. That description did not appear to have been based on an actual recollection of the events, details or observations concerning that operation: T280.45 – T280.48. In particular, Dr Dhupar stated that at that time, if anything abnormal had stood out as having occurred or having been observed in the course of that operation, it would have been a matter which she would have noted: T281.24. It was in this context that the credibility of Dr Dhupar’s later testimony was called into question concerning her evidence of the un-minuted claim of the presence of a large varicose vein on the left fallopian tube being the reason for the lateral placement of the left Filshie clip.Given that Dr Dhupar did not recall the detail of the procedure she performed on the plaintiff, a curiosity arises as to Dr Dhupar’s undated statement prepared for this case, in which she stated (at p 4 of Exhibit “6”): “However, on commencing the surgery I noted there were no adhesions blocking the tubes, the tubes and the ovaries were visualised and they were free and mobile”. The basis of that recollection was not made clear, especially since Dr Dhupar’s operation record was sparse in its content. Dr Dhupar’s mention of the absence of adhesions was at odds with Dr Jeri’s assessment as this related to the three prior caesarean sections, as was variously recorded at paragraphs [10], [157], [253] and [273] above.In light of some ambiguities or anomalies contained in Dr Dhupar’s operation record, which comprised a note that she had typed herself on her laptop computer not long after she had completed the procedure on the plaintiff before going on to carry out the next procedure (T283.22 – T283.45), a substantive factual question arises as to whether Dr Dhupar’s evidence of what was her usual procedure for carrying out laparoscopic Filshie clip tubal ligation had actually been followed by her when she operated on the plaintiff on 26 August 2014.That question, which involved singular rather than plural references to structures, was said by Dr Dhupar to be a function of a mistake with English grammar: T283.25. This will be further examined in connection with my findings of fact on that matter.Dr Dhupar said that despite the fact that her operation report stated that a single intra-operative photo of the tubal ligation procedure had been taken (T284.31), a number of intra-operative photographs had in fact been taken. This further demonstrates the sparseness and the very limited reliability of her contemporaneous notes.On 26 August 2014, Dr Dhupar wrote to Dr Jeri to advise that laparoscopic Filshie clip surgery was performed on the plaintiff on that day “with good result”. She also wrote that there “was no obvious operative complication”. A follow-up appointment in two weeks’ time was arranged at that time: Exhibit “C”, Vol 1, Tab 4.1, p 198. No mention was made of an intra-operative finding of a large varicose vein on the left fallopian tube as a reason for a placement of the left Filshie clip more laterally than the position 1cm to 2cm from the cornu.After the tubal ligation, Dr Dhupar had the follow-up consultation with the plaintiff on 5 September 2014 and at that time she then discharged the plaintiff from her care without the need for further follow-up: Exhibit “C”, Vol 1, Tab 4.1, p 197; Exhibit “6”, p 4.At no time before the commencement of cross-examination did Dr Dhupar mention an intra-operative observation of a varicose vein which she claimed had influenced the placement of the left Filshie clip. In that regard, if there had been an intra-operative finding of a significant tubal varicose vein as she claimed, and which influenced placing the Filshie clip at a location different to that recommended, it is puzzling as to why this was not noted by her as an obvious operative complication or variant. This is a matter that will be revisited in my findings of fact.There were internal discrepancies in Dr Dhupar’s oral evidence-in-chief concerning her operation note relating to the 26 August 2014 tubal ligation procedure she carried out on the plaintiff.In that regard, in answer to two leading questions asked in her evidence-in-chief, and not objected to, she gave the impression that she had written her notes at the time of the operation, or more particularly, after finishing her operation, but before proceeding to the next operation: T282.14 – T282.17. That impression was affirmatively clarified by further questioning: T282.10 – T283. 17.The matter of Dr Dhupar’s operation report was taken up again by senior counsel in Dr Dhupar’s evidence-in-chief, as follows:“Q. You were always intending to apply two clips?A. Always.Q. Is there a reason why you wrote clip, singular?A. I think it’s just maybe the English grammar mistake.Q. And when you say - I’m sorry to be pedantic about this - but further down the page when you say “clip” singular, or “clip applied,” you’re not suggesting, are you, one clip was applied?A. No, no. Clips applied.Q. I think you still have in front of you the thicker volume? Exhibit C. Can I ask you to go to page 199? Do you have that page? That’s also an operation report, record of the same operation?A. Mm-hmm, yep.Q. Was that prepared by you?A. Yeah, I think so. After.Q. When would that have been prepared?A. Maybe a couple of days. That was 26th, I need to look at the date. It’s maybe same day or maybe next day or something like that. No, I think, no, normally I take computer - sorry, I’m just going to change my wording. Because it’s very difficult to remember sometimes. I take my laptop, so it’s very easy to do on your laptop also.HIS HONOURQ. So do you type or dictate?A. I type.[T283.21 – T283.50]That last answer, as to the notes being typed, takes on some significance concerning the interpretation of Dr Dhupar’s operation record. This is because in answer to the criticism that the record and the reference to intra-operative photographs, counsel for Dr Dhupar submitted that the singular rather than plural reference to those matters was simply an artefact of Dr Dhupar’s manner of speaking. In my view, that submission must carry diminished weight because the records in question, which refer to the singular and not the plural, were typed by Dr Dhupar, and did not involve her dictated spoken words.(4) Claimed unawareness of plaintiff’s pregnancy until 1 March 2016Dr Dhupar claimed that she had not been made aware of the plaintiff’s pregnancy until 1 March 2016. In her undated statement that had been prepared for her by her solicitor, and which she had signed, she adopted the following explanation that seems to have been prepared by her solicitor based on her instructions:“I reviewed the claimant on 5 September 2014 and reported back to Dr Jeri on that date noting that the claimant had done remarkably well in the postoperative period. I discharged the claimant from my care as she did not require further follow up, but said that I would be happy to see her in the future should the need arise.The next thing I knew about the claimant was on 1 March 2016. I was on call at Wagga Wagga Base Hospital on 1 March 2016 when the claimant happened to be booked in for an elective Caesarean section. I was not aware of this beforehand. Dr Jeri, who was the GP/Obstetrician delivering the baby, asked me to assist given that this was the patient's fourth caesarean section and he was not qualified to do the procedure alone. I therefore agreed to assist.In the premed room, when talking to the patient, I did not recognise her and I am not sure if she recognised me, but no comment was made by her or her husband prior to the surgery.The way I found out was when Dr Jeri told me after the claimant had gone into the operating theatre. I remembered her after I had gone through the notes.I recall being surprised that I was never contacted by Dr Jeri, or the claimant at any time before this, to advise that the tubal ligation had failed.”[Exhibit “6”, pp 4 – 5]The reliability of the above account by Dr Dhupar must be considered in conjunction with the unchallenged evidence to the contrary from Dr Jeri, who gave specific evidence to the contrary, in which he said he had made Dr Dhupar aware of the plaintiff’s pregnancy following the tubal ligation procedure that Dr Dhupar had performed, both by contacting her shortly after the diagnosis of the pregnancy, and at the time of the caesarean section delivery. Dr Dhupar did not contradict Dr Jeri’s account of that conversation in which he said she told him in response, that such things happen: T208.13.(6) Undated statement of Dr Dhupar prepared by her solicitorAs already identified, Dr Dhupar’s undated statement comprising Exhibit “6” had been prepared by her solicitors. It included an incomplete transcription of her handwritten notes. It also included other comments about her discussions with, and her treatment of the plaintiff, and her comments on the allegations of negligence made on behalf of the plaintiff’s claim: Exhibit “6”. That statement bears some analysis.Dr Dhupar’s statement was on its face, obviously prepared on her behalf by her solicitors. It is not necessary to delve into why or how that occurred, other than to record the following matters:On the critical question of whether Dr Dhupar had given the plaintiff a copy of the RANZCOG pamphlet, at p 3, the typed text appears: “???/to her”, this being a reference to “College info”. The typing of the query using the symbols “???” has been struck through with the stroke of an ink pen, and the handwritten word “given” was inserted beside those overstruck symbols. Since Dr Dhupar has signed that undated statement, I infer that the overstriking and the added handwritten word had been added to the document by her when she reviewed it before signing. A comparison of the content of Exhibit “4” (Dr Dhupar’s handwritten consultation notes) and Exhibit “6”, reveals that the proper correction was the word “provided” rather than “given”. That said, nothing turns on that difference in terminology;Dr Dhupar adopted, without further alteration, the statement comprising Exhibit “6” when it was provided to her by her solicitor. Her adoption of it is evidenced by her signature on page 5. The only handwritten change that she made to the statement appears on page 3, as cited above;Dr Dhupar’s statement refers to her having “noted and stamped on the records” that she had given the plaintiff the RANZCOG treatment information pamphlet. The reference to having stamped the records was obviously a mistaken reference to the sticker applied to Exhibit “6”. It is unlikely that Dr Dhupar would have made such a basic mistake as referring to a stamp rather than to a sticker, if she had prepared that statement herself. The mistake may have arisen in the course of her solicitor’s preparation of the statement from a photocopy or a faxed copy of Dr Dhupar’s clinical records, where the copy may have given the reader the incorrect impression that the attached sticker was an inked stamp. Ms Dassayanake was not asked any questions on that subject. Other than noting the inaccuracy in the description, nothing else turns on that apparent error in Dr Dhupar’s statement, except to confirm that she did not prepare it herself and she did not make a correction concerning the mistaken reference to a stamp. It appears that either she did not read it carefully before adopting the content of the draft statement as being correct, or she had no reliable memory of the events to reliably make factual changes to the content of the statement;In the commentary section on p 5 of the statement, the following text appears:“Comments on the allegationsMy response to the claim is that there is clearly a failure rate with tubal ligations which the patient was warned about. Also pregnancy can cause clips to move. This is because the tubes can stretch and the clip/s could relocate to the broad ligament or other areas due to the growth of the tubes.Although this is the first case of this happening to me, I have known cases where this has happened. I have attached some articles/reports of other cases (Dr Dhupar please attach if you have any)I therefore do not agree that I:failed to properly identify the fallopian tubes;failed to engage the clip to adequately clamp the tubes;failed to ensure that the clip contained the entire circumference of the fallopian tubes;applied the clip to the broad ligament; andfailed to recognise the incorrect placement of the clip as I do not accept that this was incorrectly placed.”The reference in the document to the text “Dr Dhupar please attach if you have any” referred to the possibility that Dr Dhupar might have had some relevant articles for attachment to her statement. No such articles were attached;The reference in the document to tubes stretching or growing did not feature elsewhere in Dr Dhupar’s oral evidence. In this context, it is interesting to note that whilst Associate Professor Cooper’s evidence did make reference to cellular growth around a portion of a tube that had been damaged by a clip, this did not appear to refer to tubes regenerating: T487.46 – T488.6;In examining the text of the statement it appears to have been written as if the document was speaking in Dr Dhupar’s voice (“I have attached some articles/reports of other cases”) as well as in part in the voice of her solicitor (“Dr Dhupar please attach if you have any”). From those facts I infer that the statement was presented to Dr Dhupar in draft form, which she then modified only slightly and incompletely, before adopting it as identified in the preceding sub-paragraphs.On a consideration of both the handwritten and typed versions of Dr Dhupar’s brief operation notes of the tubal ligation procedure, I have concluded that those notes do not represent a full or an accurate account of the sequence of events that took place at the operation on 26 August 2014. That conclusion reasonably arises because on the face of the notes, they seem to have been written in a different logical sequence compared to the description of how the procedure would have been performed. The apparent non-logical sequence of the operation note concerns the mention of the two-port entry procedure before the patient had been prepared and draped for the procedure. Dr Dhupar acknowledged this aspect of incorrectness in her oral evidence: T381.43 – T382.9.The notes also refer to items in the singular rather than in the plural, and in my view, they form a very flimsy basis for Dr Dhupar to have refreshed or reconstructed her memory of any relevant event that had occurred at that time, so as to reliably distinguish such events from any number of similar events in which she was involved in the clinical setting, although the notes do record that an operation took place, albeit in mis-described terms, if not inadequately described terms. Those observations are relevant to the question of whether, absent an independent recollection, Dr Dhupar’s records should be seen as providing a reliable basis for her evidence that she had adhered to a particular, usual, or normal clinical practice, when she operated upon the plaintiff.Conclusions on reliability of Dr Dhupar’s evidenceThe abovementioned problematic aspects of the evidence of Dr Dhupar have caused me to doubt the factual accuracy and reliability of her evidence on contentious matters of fact. On reviewing the evidence as a whole, I find myself unable to accept the evidence of Dr Dhupar on critical matters in dispute unless that evidence is supported by other credible and acceptable evidence.Evidence of Ms DassayanakeMs Dassayanake’s evidence confirmed that in February 2017, following conferences that were held between herself and Dr Dhupar, she prepared a statement of assumptions that were to be provided to the defendant’s expert witnesses. Ms Dassayanake stated that she had prepared those assumptions based upon the matters contained in Dr Dhupar’s statement comprising Exhibit “6” where Dr Dhupar had beforehand approved that content: T312.20 – T312.47. In the course of that conference with Dr Dhupar, Ms Dassayanake had made a file note that referred to the intra-operative photographs tendered in evidence as Exhibit “5”. After consulting that file note for the purpose of informing the content of her evidence, Ms Dassayanake said that the file note recorded Dr Dhupar as having stated: “Photos taken as evidence it was done correctly”: T314.5. Given the passage of time since that file note was made, and given the limited terms of that file note as recounted in evidence, understandably, Ms Dassayanake could not recall having asked Dr Dhupar how those photographs had been taken and stored: T314.14.On another issue, the portion of Exhibit “6” that represents a transcription of Dr Dhupar’s handwritten clinical consultation notes (Exhibit “4”) raised a minor anomaly in that it became apparent the transcription had been prepared on Dr Dhupar’s behalf, apparently from an incomplete photocopy or faxed copy of Dr Dhupar’s original notes. That appeared to be so because when the typed text of Exhibit “6” is compared with the original document containing Dr Dhupar’s handwriting (Exhibit “4”), the typed version appears to be incompletely transcribed. This discrepancy did not become apparent until Exhibit “6” was tendered in its original handwritten form. That said, ultimately, nothing turned on that anomaly.PART E – REVIEW OF EXPERT LIABILITY AND CAUSATION OPINIONSDifferences of opinion arose and remained within the body of expert evidence. In those circumstances, I am required to wrestle and grapple with the differing aspects of the respective expert opinions of Dr Jones, Professor O’Connor and Associate Professor Cooper in order to identify, on the basis of reasons, the preferred views on those aspects of their opinions on the disputed liability and causation issues in this case: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66]. As a prelude to that task, my review of the substantive content of the evidence respectively given by those experts now follows.Evidence of Dr Michael Jones, radiologistThe evidence of Dr Michael Jones, a consultant radiologist, comprised two parts, first, his undated report, which he provided at the request of the solicitor for Dr Dhupar, and secondly, the oral evidence he gave at the hearing.Dr Jones was retained by the defendant’s solicitor to provide an expert opinion concerning the medico-legal interpretation of a number of images that were taken during an hysterosalpingogram imaging test undertaken of the plaintiff’s uterus and vestigial fallopian tubes. That test was undertaken by Dr Stephenson on 20 August 2018, some four years after Dr Dhupar performed tubal ligation on the plaintiff: Exhibit “1”, Tab F, p 165 and following. That test took place some two and-a-half years after Dr Jeri carried out the bilateral salpingectomy procedure. There was no dispute about Dr Jones’ qualifications or expertise as a radiologist entitling him to interpret that test.When the extent of the plaintiff’s hysterosalpingogram scans were explored in cross-examination, Dr Jones was unable to recall how many images had been briefed to him for his review: T413.38 – T414.4. The letter of instruction to him, dated 1 May 2019, was in evidence: Exhibit “1”, pp 169 – 171. It referred to images, both in hard copy and in electronic form generally, but it did not identify the number of images. In his response to those instructions, he decided to annex a selection of only two of those images to his undated report, which formed part of Exhibit “1”: T413.39.When briefing Dr Jones to provide an expert opinion, the solicitor for the defendant did not provide him with information to the effect that, on 1 March 2016, Dr Jeri had inspected the entire course of the plaintiff’s left fallopian tube and at that time found there was no Filshie clip attached: T414.39. This was understandable as that fact only emerged in Dr Jeri’s oral evidence at trial. When that matter was canvassed with Dr Jones he said that any such information would not have affected his opinion: T414.49. I infer from Dr Jones’ answer to that effect, that he was concerned only with what he saw on the images, and any attempt to co-relate what he saw on the images with other assumed clinical information was outwith the terms of the set task for which he had been briefed.From the content of the letter of instruction that the solicitor for the defendant sent to Dr Jones, it is clear that he had been informed the plaintiff had undergone bilateral salpingectomy at the time of the caesarean section delivery on 1 March 2016. The two questions Dr Jones was asked to address were whether he was able to see a Filshie clip in the images that were provided to him, and if so, whether the clip was depicted on the left or the right side of the plaintiff’s abdomen. He was also asked to explain the basis for his answer.Dr Jones’ responses to those questions were set out in his report in the following terms:“Am I able to see a Filshie clip in the images contained in annexure 1 (b)?Yes. A single Filshie clip is visible in the left side of the pelvis. It is obstructing contrast flow down the left fallopian tube. Contrast flows to the Filshie clip, but not beyond it, and the clip is placed across the fallopian tube.If yes, is the clip depicted on the left or right side of the plaintiff? Please explain the basis of my answer.The clip is depicted on the left side of Ms [Xxxxxxxx].The hysterosalpingography is performed with the woman supine initially, and subsequently oblique images are obtained to better visualise the uterus and fallopian tubes. The person's head is placed at the head end of the table, and their feet at the feet end. The feet end has a step to enable images to be obtained with a person standing. This would usually be removed to allow access to perform a hysterosalpingography.The supine position means the left side of the person is on the left side of the x-ray table, and the right side is on the right side of the x-ray table.When viewed from the foot of the x-ray table, the left side of the person lying on the x-ray table will be on the observer's right side, and vice versa.Radiographic images are depicted as if the observer is looking at the person from the front. Therefore the person's right hand side lies on the left side of the viewed image, while the person's left hand side lies on the right side of the viewed image. This is exactly the same as when facing a person....”[Exhibit “1”, Tab F, pp 165 - 166]The above extract from the report of Dr Jones omits the text of a five paragraph discussion on whether radiographic images can be transposed from left to right and vice-versa as that discussion was ultimately shown to be no longer relevant to the issues to be decided.The particular component within the opinions of Dr Jones that attracted controversy, concerned his statement that the Filshie clip was placed across the (left) fallopian tube. In undertaking the task for which he had been retained, Dr Jones undertook what he described as a blind reading of the imaging: T415.13. I took his use of that expression to mean that he had simply examined the visual images to seek to interpret what was shown on them without regard to the opinions of other reviewers, that is, he remained blind to their opinions. In self-selecting those parameters for his analysis, his interpretation of the images was necessarily limited.In my assessment, Dr Jones’ opinion involved an incomplete process of analysis in that he had either overlooked or had chosen to put to one side and not take into account, the very particular factual assumption that he had been asked to make, namely, that before the plaintiff underwent the hysterosalpingogram test on 20 August 2018, she had undergone bilateral salpingectomy on 1 March 2016: Exhibit “1”, p 170. Therefore, it appears that his opinion was not co-related to the clinical information that had been provided to him, hence his expression of a “blind reading”.In my view, Dr Jones’ opinion that the images he had selected to include in his report showed that a Filshie clip was obstructing the flow of contrast down the left fallopian tube (an opinion he reiterated in his oral evidence at T455.15), and his opinion that any interpretation to the effect that there was a Filshie clip on the left fallopian tube was an incorrect interpretation: T415.13.On the question of whether the Filshie clip was on the left or the right side, Dr Jones conceded that for viewing purposes, it was possible to deliberately change the orientation and digital parameters of the images of a hysterosalpingogram: T417.28 – T417.38. However, he discounted that such a process had occurred in creating or calibrating the transposition of the images in question: T417.16 – T417.27. He doubted that the operator had reversed or electronically transposed the images in question but he conceded that such an event was nevertheless possible: T418.41 – T419.5. Ultimately, that particular issue concerning the interpretation of Dr Stephenson’s hysterosalpingogram scans receded as being no longer relevant.The evidence of Dr Jones will be revisited in PART F of these reasons in terms of the reliability of his evidence for drawing conclusions on the liability issues in this case.Primary opinions of Professor Michael O’ConnorProfessor O’Connor provided the plaintiff’s solicitor with a series of five reports that were respectively dated 20 July 2017, 10 May 2018, 8 August 2018, 27 September 2018 and 2 October 2018. The effect of those reports is summarised in the paragraphs that now follow.First report of Professor O’Connor – 20 July 2017Professor O’Connor’s first report, dated 20 July 2017 addressed five questions identified by the plaintiff’s solicitor. It appears that Professor O’Connor had been provided with an incompletely photocopied version of Dr Dhupar’s notes as prepared by the defendant’s solicitor. I infer this to be so because, as also explained elsewhere, in citing Dr Dhupar’s notes, he referred to Dr Dhupar’s advice as to the risk of failure as being 1:200 rather than 1:200 to 1:300 as identified in Exhibit “6”: Exhibit “C”, Vol 1, Tab 3.1, p 25. That said, nothing turns on that fact with regard to the analysis of the expert evidence.Professor O’Connor stated that sterilisation with a Filshie clip is a relatively safe and effective procedure, and that the rare failure of that procedure has different causes, which he identified as follows:“1.???Incomplete locking of the tube by placing the clip on the widened distal or ampullary portion or on a thickened oedematous tube as may occur in pregnancy.2.???Oblique or half clipping of the tube, especially when the visual field is impaired as in obesity, in case of adhesions or in using one-puncture technique.3.???Application on a wrong structure as the round ligament or a distended meso-salpingal vein.4.???Tubal-peritoneal re-canalisation, especially if the clip dislodges itself later on because of the avascular necrosis after the crushing.5.???Mechanical failure by manufacturing trouble has not been published but remains always a possibility.”[Exhibit “C”, Vol 1, Tab 3.1, p 30]Professor O’Connor considered that Dr Dhupar’s intra-operative photographs indicated that both clips were applied across each fallopian tube, but on the left side, some additional adjacent tissue had been included in the bite of the clip. He also noted that it was not possible to determine from the photographs that the clips had completely occluded the tubes: Exhibit “C”, Vol 1, Tab 3.1, p 32.In identifying that latter view, Professor O’Connor stated that if there had been under-closure of the clip, or incomplete tubal lumen occlusion, this would have been due to operator fault: Exhibit “C”, Vol 1, Tab 3.1, p 32.Professor O’Connor considered the content of the post-operative anatomical pathology report dated 1 March 2016 and stated that it did not provide definitive evidence of a successful occlusion of the fallopian tubes on 26 August 2014. He concluded, on the balance of probabilities, that it was more probable than not the left fallopian tube was not occluded at the time of the tubal ligation procedure because on anatomical pathology examination on 1 March 2016, there was no gap described as being present between the proximal and distal segments of that tube: Exhibit “C”, Vol 1, Tab 3.1, pp 34 – 35. In my view, that observation is of considerable significance to the determination of the issues calling for decision in this case.Second report of Professor O’Connor – 10 May 2018Professor O’Connor’s second report, dated 10 May 2018, was prepared at the request of the plaintiff’s solicitor in response to service by the defendant of the first report from the defendant’s expert, Associate Professor Cooper: Exhibit “C”, Vol 1, Tab 3.2, pp 83 – 109.Professor O’Connor took issue with Associate Professor Cooper’s opinion that the likely mechanism of the plaintiff’s pregnancy was recanalisation of a fallopian tube rather than the failure of a Filshie clip: Exhibit “C”, Vol 1, Tab 3.2, pp 90 – 91. That difference of opinion required careful analysis, the result of which later led to a discrediting of the factual basis for his recanalisation theory, namely an earlier transection of the left fallopian tube, which did not occur.Third report of Professor O’Connor – 6 August 2018Professor O’Connor’s third report, dated 6 August 2018, considered the significance of the intra-operative photographs taken during the procedure carried out on the plaintiff by Dr Dhupar on 26 August 2014: Exhibit “C”, Vol 1, Tab 3.3, pp 110 – 113. In essence, Professor O’Connor identified the fact that a Filshie clip had been applied to the mid-portion of the plaintiff’s left fallopian tube rather than on the isthmus portion of the tube, which in his opinion, was an incorrect application that included adjacent anatomical structures, the bulky inclusion of which reduced the likelihood of a correct occlusion. He said this explained the failed tubal ligation. That observation is of considerable significance.Professor O’Connor again considered the histology report and noted the specimens from each tube taken on 1 March 2016 were 4cm in length, including the fimbria. He pointed out that the specimens did not include the left utero-tubal junction. He concluded that when the histology report and the photographic evidence were compared, it is apparent that the Filshie clips were applied to a different portion of the fallopian tube to that which had been excised and sent for histopathology examination. In making that statement he did not distinguish between the left and the right fallopian tubes, meaning the comment applied to both: Exhibit “C”, Vol 1, Tab 3.3, pp 112 – 113.Fourth report of Professor O’Connor – 27 September 2018Professor O’Connor’s fourth report, dated 27 September 2018, commented on the results of the hysterosalpingogram images taken on 20 August 2018: Exhibit “C”, Vol 1, Tab 3.4, pp 114 – 117.Professor O’Connor concluded from those images that the hysterosalpingogram test result showed both fallopian tubes to be blocked by bilateral fimbriectomies. He considered that if there had been a tubal fistula close to the junction of the tube with the uterus, and which was instrumental to the plaintiff’s conception, then it would still have been demonstrable as the fimbriectomies did not include the proximal third of each tube. In his view, this observation disproved the theory propounded on behalf of the defendant of a tubal fistula, and he considered that a “recanalisation” of a tube was most unlikely given it had never been reported in association with Filshie clips: Exhibit “C”, Vol 1, Tab 3.4, p 115.Fifth report of Professor O’Connor – 2 October 2018Professor O’Connor’s fifth report, dated 2 October 2018, commented upon Dr Jeri’s observations that, at caesarean section delivery, prior to salpingectomy, he had observed the plaintiff’s left fallopian tube to be absolutely patent and of normal appearance. On the basis of that evidence, Professor O’Connor adhered to his earlier rejection of the defendant’s recanalisation theory as advanced by Associate Professor Cooper as a possible explanation for the plaintiff’s pregnancy post-tubal ligation: Exhibit “C”, Vol 1, Tab 3.5, pp 118 – 119.Primary opinions of Associate Professor Michael CooperAssociate Professor Cooper provided the defendant’s solicitor with a series of three reports that were respectively dated 17 November 2017, 13 June 2018 and 29 January 2019. Those reports are summarised in the paragraphs that now follow.First report of Associate Professor Cooper – 17 November 2017Associate Professor Cooper’s first report was issued on 17 November 2017: Exhibit “1”, Tab 2, pp 7 – 25. That report was prepared on the basis of a statement of assumptions prepared by the solicitor for the defendant and copied at pages 22 – 25 of that exhibit. Those assumptions included the truncated or incomplete transcription version of Dr Dhupar’s handwritten notes. The terms of those assumptions represented a considerable expansion of the more limited terms of the content of Dr Dhupar’s statement: Exhibit “6”.At this point, it is important to note, as Dr Dhupar’s evidence has disclosed, that the identified assumptions in relation to the tubal ligation procedure performed by her on 26 August 2014 (at p 24), were based on Dr Dhupar’s usual practice. They were not based on Dr Dhupar’s actual recollection of the events.Associate Professor Cooper was asked to address the question of whether, in her treatment of the plaintiff, Dr Dhupar had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice at that time.In his ensuing commentary, Associate Professor Cooper expressed the opinion that the histology relating to both fallopian tubes revealed that the tubes had been completely transected, indicating to him that the clips had been appropriately applied. In that regard, it must be borne in mind that he later retracted that opinion in his subsequent reports and in his oral evidence as he had misunderstood the meaning of the histology report.In my view, that misunderstanding operates as a significant discounting factor when considering the reliability of Associate Professor Cooper’s opinions.Before correcting his erroneous interpretation, Associate Professor Cooper had stated that the histology indicated that there had been appropriate placement and complete “transgression” (sic for transection) of the tube, presumably the left tube, although that was not specifically stated. Again, it should be clearly understood that Associate Professor Cooper later modified that view and stated that he no longer held that view based on a transection.In his first report, Associate Professor Cooper was of the view that the likely mechanism of the plaintiff’s pregnancy was recanalisation of a transected fallopian tube because it is reasonably well accepted that proximal and distal ends of transected fallopian tubes may ultimately recanalise, and because Filshie clips may, after tube transection, migrate to any area in the abdominal cavity. He considered this to be a more likely explanation than that of an argued failure of correct application of the clips. His reasons for that view invite close examination.On those premises, Associate Professor Cooper therefore concluded that Dr Dhupar had acted in a manner that was widely accepted by peer professional opinion in Australia as competent professional practice. That conclusion must be examined in light of his earlier misinterpretation of the pathologist’s use of the term transection.Associate Professor Cooper attached an explanatory paper by Peterson HB et al, “The risk of pregnancy after tubal sterilisation : Findings from the US Collaborative Review of Sterilization”, American Journal of Obstetrics and Gynecology, April 1996, 1161-1170. Reference will be made to that article in the course of analysis of the first joint expert report and in the exposition of Associate Professor Cooper’s oral evidence.Second report of Associate Professor Cooper – 13 June 2018On 13 June 2018, Associate Professor Cooper issued his second report: Exhibit “1”, Tab 3, pp 26 – 41. He again reiterated his view that following transection there had been tubal lumen regeneration as a highly suggestive theory for explaining the plaintiff’s pregnancy. Again, significantly, it should be noted that he later recanted that view which was based on a particular interpretation of what constituted a transection.Associate Professor Cooper stated that because Dr Dhupar had used a disposable Filshie clip applicator and had checked it before it was used, the possibility of an applicator calibration error, a matter raised as a medico-legal question, was no longer a relevant consideration in this case. This proved to be common ground in the expert evidence.Associate Professor Cooper acknowledged that whilst there had been a relatively short interval of time between tubal ligation and a failure of sterilisation, which was suggestive of a negligent event, that was only a general proposition, and it was not necessarily indicative of negligence. In that regard, he cited a paper by Varma, R & Anor, “Precluding negligence in female sterilization failure : analysis of 131 cases”; Human Reproduction; 22(a); 2437-2443.Associate Professor Cooper was dismissive of Professor O’Connor’s view that location of the Filshie clip on the broad ligament, or anywhere else in the plaintiff’s abdominal cavity, represented a failure of technique or an appropriate placement of the Filshie clip. His reasoning for that rejection requires analysis.Associate Professor Cooper’s second report had attached to it, a paper that was not the subject of any reference or comment in his report: Varma R, “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, at 1322-1332. This was a different article to that cited at paragraph [421] above, but it was by the same principal author.Third report of Associate Professor Cooper – 29 January 2019Associate Professor Cooper’s third report was issued on 29 January 2019. It was obtained at the request of the solicitor for the defendant, seeking clarificatory comments on a number of questions: Exhibit “1”, Tab 4, pp 42 – 52. Insofar as was relevant, Associate Professor Cooper addressed those questions with the following commentary:The hysterosalpingogram dye test conducted on 20 August 2018 showed that the flow of the dye demonstrated the tubes were not patent, but on the left there was only a partial filling of the tube to the level of the clip. Later, in his oral evidence he accepted the hysterosalpingogram images did not support that stated view: T470.21; T479.10; T479.30; T479.44 – T479.50; He concluded that the various hysterosalpingogram images showed the left Filshie clip to be closed, indicating that it had not failed. That view requires careful evaluation in light of his oral evidence;He considered that the fact that there had been surgery in the area with scarring and fibrosis, presumably distal to the clip, meant that the hysterosalpingogram was not likely to reveal the existence of a fistula or recanalisation. That view must be considered in light of Professor O’Connor’s contrary view on the recanalisation theory;At that stage, he did not change his earlier expressed view about the possibility that a recanalisation had occurred, and he maintained that proposed mechanism was the most likely explanation for the plaintiff’s fourth pregnancy;He commented critically in response to Professor O’Connor’s view, that the absence of the proximal third of each tube meant that no tubal fistula was disclosed, by stating his disagreement with that view. His reasons for disagreement were that a small fistula can be difficult to demonstrate; any fistula or recanalisation associated with a fallopian tube is likely to be exceedingly small; further surgery to the area is likely to have caused fibrosis and scarring at the site of the fistula; and it is unlikely that a fistula would have been demonstrated “via any conventional technique”: Exhibit “1”, Tab 4, p 44;He therefore maintained his previously expressed view that both the left and the right Filshie clips had been properly applied and that they were closed properly at the time of tubal ligation and he did not agree that at least one fallopian tube had remained unblocked by a Filshie clip, so as to result in pregnancy.Two joint reports by Professor O’Connor and Associate Professor Cooper On 13 August 2018, Professor O’Connor and Associate Professor Cooper met in an expert witness conclave. On the following day they completed their joint expert report of that meeting: Exhibit “C”, Vol 1, Tab 3.7, pp 136 – 184.On 28 March 2019, Professor O’Connor and Associate Professor Cooper had a second expert conclave meeting. This was conducted by telephone, with the assistance of a facilitator. This resulted in their second joint expert report which took the form of an edited transcript: Exhibit “C”, Vol 1, Tab 3.8, pp 185 – 190. As a result of those meetings, and having regard to the matters explored in their oral evidence given concurrently, the areas of dispute within the opinions of those experts became narrowed to a degree.First joint expert report – 13 August 2018In their first meeting the experts were asked to consider a series of 14 questions which involved some related sub-questions. In the report of that meeting the experts recorded their agreement on many matters but remained divided in their opinions on a series of matters of significance.Matters upon which the experts agreedIn their first joint report, the experts agreed on the following matters:They agreed on the correct manner of application of Filshie clips using disposable applicators not requiring calibration; the manner of equipment checking before use; loading the clip; and checking for correct positioning before fully compressing the trigger on the applicator to close and lock the clip into its final position: Q1; Exhibit “C”, Tab 3.7, pp 139 – 140;They agreed that the process by which Filshie clips are intended to prevent pregnancy was to apply mechanical pressure to completely occlude the fallopian tubes to prevent any communication with the uterus. The mechanism involves the clip, once fully closed, maintaining constant pressure of the silastic clip surfaces over the muscular portion of the fallopian tube to bring the silastic surfaces closer together to block or occlude the lumen and to eventually completely transect the tube to leave a scarred defect or disruption in tube continuity between the proximal and distal ends: Q2; Exhibit “C”, Tab 3.7, p 140;They agreed that after a Filshie clip has been correctly applied, it can either remain adjacent to the point of application or (after a transection) it can become detached and migrate to anywhere within the abdominal cavity: Q3; Exhibit “C”, Tab 3.7, p 140;They agreed that after correct application of a Filshie clip, the fallopian tube becomes occluded and completely transected. However, although not reported in the scientific literature for Filshie clips, it is “reasonably well accepted” that the proximal and distal ends may re-join spontaneously by a process of recanalisation to allow transmission of oocytes and sperm: Q4; Exhibit “C”, Tab 3.7, pp 140 – 141;The experts non-exhaustively identified the possible reasons for the occurrence of a pregnancy following a tubal ligation using Filshie clips, as follows:A pregnancy may have existed at the time the clips were applied, a possibility that may be safely disregarded in this case;Subsequent assisted conception by invitro fertilisation (IVF) may have taken place, a possibility that can also be safely disregarded in this case;Failure of either the clip applicator or the clip itself could have occurred, a matter that requires consideration;Recanalisation could have occurred through a tubal fistula, or less commonly, a natural rejoining of the fallopian tubes could have occurred, albeit not reported in the scientific literature: Q5; Exhibit “C”, Tab 3.7, p 141, also a matter that requires consideration;Only a partial tube occlusion may have been achieved, an outcome that is considered to be quite difficult to obtain in practice, and which was considered to be unlikely because of the nature of the anatomy, a matter that requires consideration;Application of a clip to the wrong structure may have occurred, a matter that also requires consideration;The experts agreed, on the basis of a previously cited 14 year follow-up study published in 1996 in the US by Peterson HB et al, which followed 10,685 females who underwent tubal ligation, 143 failures were identified, which equated to a 5 per cent risk of failure in the age group 33 years or younger, and that rate became higher as time goes on. That agreement should be seen to have been qualified by the fact that the study included “a variety of sterilisation methods” of which 1595 involved a “spring clip” method that recorded a failure rate of 36.5 per 1000, but this involved the use of Hulka clips, not Filshie clips. No Filshie clips were included in the study by Peterson et al: Q6; Exhibit “C”, Vol 1, Tab 3.7, pp 142. The applicability of the study in terms of relevant strength of association, biological plausibility and specificity of association to this case is of unexplained and therefore doubtful relevance since it did not involve Filshie clips: T473.12 – T474.13;The experts agreed that the process of natural recanalisation is difficult to explain authoritatively as it has not been examined in the literature, and no-one has ever been able to pathologically demonstrate the argued mechanism of a recanalisation. However, it is agreed between the experts that recanalisation could possibly occur by means of two alternative processes, first a naturally occurring fistula that had either occurred before the application of a Filshie clip by traumatising the tube in the process of transection, or secondly, by an actual reconnection that could have occurred by two transected ends of a fallopian tube somehow spontaneously reconnecting naturally in the area where the clip was applied. Given the absence of literature on this latter postulated mechanism, it is difficult to identify the rational basis of the statement that “it is widely accepted that recanalisation of the fallopian tubes does occur”: Q7; Exhibit “C”, Tab 3.7, p 143;In the answer to the question of whether, in the opinion of the experts, recanalisation occurred in this case, the experts agreed that as the plaintiff’s pregnancy occurred within 12 months of the placement of Filshie clips, this was statistically associated with a higher rate of clip failure. However, the experts also agreed that it was “difficult to base too much on” Dr Dhupar’s intra-operative images (numbered 007, 008, 009). The experts remained in disagreement as to their reasons on whether, on the balance of probabilities, recanalisation occurred. That disagreement will be the subject of later analysis: Q8; Exhibit “C”, Tab 3.7, pp 143 – 144;The experts agreed that, as at 26 August 2014, it was widely accepted in Australia by peer professional opinion as competent practice by an obstetrician gynaecologist that: (a) a check of the disposable Filshie clip applicator should occur prior to its use; (b) the Filshie clips should be applied during surgery; and (c) a check should be made that the clips were correctly applied. In stating their agreement to that effect, the experts drew upon the details within the manufacturer’s instructions which have already been analysed. Those details are uncontroversial, and will be referred to in the analysis in due course: Q9; Exhibit “C”, Tab 3.7, pp 145 – 147;The experts were asked to look at Dr Dhupar’s intra-operative photographs that were taken of the procedure she performed on 26 August 2019. They were asked to consider, with explanatory reasons, whether the photographs indicated correct placement of the Filshie clip on each of the plaintiff’s fallopian tubes. The experts agreed that images 007 and 009 showed that the right fallopian tube had been viewed from appropriate vantage points all around the right tube, thus indicating that the right clip had been correctly applied. However, in respect of the image 008 that had been taken of the left tube, the experts asked whether further intra-operative images or other footage was available in respect of that tube as such images may prove influential to their respective opinions. No further images or footage of the left tube were provided to them. The experts also agreed that their ability to opine with certainty as to whether the Filshie clips were placed appropriately was affected by the unavailability of images from under the clips on either fallopian tube as to whether the clips were in fact locked in place. The experts remained in disagreement on whether the clip on the left had been correctly applied. That disagreement will be the subject of later analysis: Q10; Exhibit “C”, Tab 3.7, pp 147 – 148;The experts were asked to explain, with reasons, and with reference to any literature, the process by which a Filshie clip may migrate to a location other than to where it had been applied. They agreed that there were three relevant processes: (a) a complete compression resulting in transection due to ischaemia, which may result in the clip remaining adjacent or migrating anywhere in the abdominal cavity over time; (b) migration may occur because a clip has been placed on an incorrect structure; (c) migration may occur because a clip has not been applied securely; where the most common explanation was as in (a) above. The experts accepted that the left clip had migrated in this case as it was found to be located on the broad ligament at caesarean section on 1 March 2016. That assumption, which was plainly based on Dr Jeri’s conclusion to that effect, will be the subject of further analysis. The experts referred to the literature they had previously cited in their respective reports: Q11; Exhibit “C”, Tab 3.7, p 149;The experts were asked to consider the implications of the pathology report that followed the successive procedures of caesarean section delivery and salpingectomy on 1 March 2016 from the perspective of: (a) identifying the sections of fallopian tube provided to the pathologist (where it was agreed that in respect of both tubes, the specimen was distal, or comprised the outside portion of the tube); (b) whether it was possible to identify if the specimens included the sections to which Filshie clips had been applied (where it was agreed those sections were not included); and (c), whether it was possible to assess any pathological changes caused by the application of Filshie clips in the absence of the clipped sections (where it was agreed this was not possible). In that context, Associate Professor Cooper indicated (at 12.8 – 12.9), that on reflection, he may have misinterpreted the intended meaning of the histology report when he prepared his initial opinion, that is, he had incorrectly assumed the segments of the tube sent for histology were the portions that had been clipped at tubal ligation. The experts went on to state that the histology report was misleading because the measurements of the portions referred to in the report suggested these portions did not comprise the areas where the clips were applied and therefore the parts of the fallopian tubes that were supposed to have been occluded by the Filshie clips had not been made available to be examined. The relevant parts of the tubes requiring examination would have been at the location of 1 – 2 cm from the junction of the uterus. Neither those sections, nor the clips, had been included with the histology specimens: Q12; Exhibit “C”, Tab 3.7, pp 149 – 150;The experts were asked, by reference to the materials with which they were briefed, whether they were able to identify the cause of the plaintiff’s pregnancy following tubal ligation. They agreed that despite the placement of the Filshie clips, the cause could not be identified with certainty because the images taken during the procedure were not definitive, there were no records and there was no evidence as to whether the clips or a clip was found to be open, and the segments of the fallopian tubes where the clips had been placed had not been sent for histological reporting. In those circumstances, they referred to the possible causes for the pregnancy as set out in their answers to questions addressed in (5) above: Q13; Exhibit “C”, Tab 3.7, pp 150 – 151;The experts were asked to provide an opinion, on the balance of probabilities, as to which potential cause for the plaintiff’s pregnancy was the more likely. They reiterated their answers as summarised in (13) above, but they identified some additional matters for the assistance of the Court, relevant to the most likely explanation for the plaintiff’s pregnancy, as follows:A further study or test, with contrast dye, could be undertaken to ascertain if there was a fistula, and if such a fistula was present, this would be the most likely explanation for the pregnancy. No such further testing has occurred;If there was a fistula as postulated, then notwithstanding bilateral salpingectomy on 1 March 2016, the plaintiff would still be at risk of a further pregnancy, including an ectopic pregnancy: Q14; Exhibit “C”, Tab 3.7, p 152.Matters upon which the experts disagreedIn their first joint report, the experts disagreed on the following three matters:Whereas Professor O’Connor considered that, on the balance of probabilities, a recanalisation process had not occurred, and that the most likely explanation for the plaintiff’s pregnancy was a failure of the Filshie clip either by reason of a surgical error or a failure of the clip itself, in contrast, Associate Professor Cooper considered that on the balance of probabilities, the pregnancy was due to a recanalisation as a consequence of a fistula of unknown timing and origin. Associate Professor Cooper was of the view that the histology evidence offered no guidance because it did not examine the relevant parts of the tubes that were supposed to have been occluded. Associate Professor Cooper also considered that, in his viewing of Dr Dhupar’s intra-operative images (007, 008, 009), the Filshie clips appeared to be placed on the correct structures and appeared to be closed. He also came to the view that if there had been a clip failure, this was more likely to be due to a failure of the device itself rather than being due to operator error because the images appear to show that sufficient pressure had been applied for the clip to have been closed. Associate Professor Cooper then postulated that if the clip had fallen apart, this was more likely to be a clip-related problem. He then concluded, on the balance of probabilities, that a recanalisation had occurred: Q8; Exhibit “C”, Tab 3.7, pp 143 – 144 [Emphasis added]. The rational basis for inferring a clip failure was difficult to discern from Associate Professor Cooper’s reasoning;Professor O’Connor considered that Dr Dhupar’s intra-operative images did not indicate correct placement of the Filshie clip on the left fallopian tube. This was because image 008 appeared to him to show that additional vessels had been picked up in addition to the fallopian tube, where that tube should have been the only structure on which the clip had been applied, as was the case with regard to the appearance of the Filshie clip on the right fallopian tube. In contrast, Associate Professor Cooper considered that image 008 “appears to show sufficient pressure for the clip to be closed” and “appropriately applied” but he conceded that the images had not captured a view of both sides of the clip: Q10; Exhibit “C”, Tab 3.7, p 148. On first analysis, it is difficult to identify the rational basis for Associate Professor Cooper’s view that sufficient pressure had been applied. [Emphasis added]; Whereas Professor O’Connor considered that the most likely explanation for the plaintiff’s pregnancy was that the left Filshie clip had been improperly applied due to an incorrect anchoring of the Filshie clip, particularly since the pregnancy had occurred in the first 12 months, and because there was an absence of evidence that tubal ligation had been achieved in the procedure performed by Dr Dhupar, in contrast, Associate Professor Cooper maintained that the most likely explanation was the occurrence of recanalisation. In particular, he stated:“13.7???From the evidence that is available I am satisfied on the balance of probabilities that the clips were appropriately placed and therefore it is more likely than not that pregnancy occurred via recanalisation.13.8???That is, from the images of the procedure it looks like appropriate pressure had been applied in placement and closure of the clips; and I regard the plaintiff’s age of 33 as “younger” and therefore recanalisation is more likely.”[Q13, p 151]The logic of the reasoning cited in the preceding three sub-paragraphs merits closer examination particularly in light of Associate Professor Cooper’s oral evidence in which he later distanced himself from the transection-based recanalisation theory, and the assumption that Dr Jeri’s observations and findings on 1 March 2016 were correct.Second joint expert report – 28 March 2019The experts issued their second joint expert report following a facilitated teleconference that was convened on 28 March 2019. The agenda of that teleconference addressed a series of supplementary questions that emerged following the issue of their first joint report: Exhibit “C”, Tab 3.8, pp 185 – 190.Those supplementary questions related to the following topics:The appearances and inferences concerning the left Filshie clip from the hysterosalpingogram dye images taken by Dr Stephenson on 20 August 2018;Whether the hysterosalpingogram dye images depict the Filshie clips, and if so, what inferences may be drawn from any such appearances;Whether the imaging taken at the time of the hysterosalpingogram dye test demonstrated a fistula or other recanalisation;The most likely explanation for the plaintiff’s pregnancy;Whether it is possible to determine which fallopian tube was likely to be responsible for the plaintiff’s pregnancy;Whether it is possible to determine the patency of a fallopian tube by observing it with the naked eye.As to (1) above, the experts agreed that at the time of the hysterosalpingogram on 20 August 2018, both fallopian tubes (that is, the remnants of them) appeared to be non-patent, in that no filling was seen on the right side, and only partial filling was seen on the left side: Exhibit “C”, Tab 3.8, p 186.As to (2) above, the experts agreed that the dye showed filling to the level of the clip on the left side. The experts disagreed on the inferences to be drawn from the hysterosalpingogram images. Whereas Associate Professor Cooper thought that the image of what was presumed to be the left clip showed that it was actually closed, and that the likelihood of it being open was “exceedingly slim”, in contrast, Professor O’Connor considered it to be “a bit of an assumption to say it’s closed”, and that it was difficult to say that clip was “locked in”: Exhibit “C”, Tab 3.8, p 187. That analysis left open the question of whether the clip could have been left unlocked, and therefore not completely occluding the lumen of the left fallopian tube.As to (3) above, the experts agreed that the dye test did not demonstrate any current fistula or recanalisation, but they were unable to exclude the possibility that such structures could have existed at some earlier time. Associate Professor Cooper considered that it was a theoretical possibility a fistula could have existed at another time: Exhibit “C”, Tab 3.8, p 188.As to (4) above, based on the intra-operative images produced by Dr Dhupar, the experts agreed the clip on the right side appeared to be both appropriately placed and closed, but the imaging of the left side was not so clear. However, Associate Professor Cooper’s view remained that the left clip was appropriately sited and closed, leaving recanalisation as the only other “real theoretical possibility”, whereas Professor O’Connor proposed a “clip failure of some sort” as the explanation for the plaintiff’s pregnancy, either due to incomplete locking of the clip under its lip, or a mechanical clip failure. Professor O’Connor said of Associate Professor Cooper’s recanalisation theory that it was impossible to prove, and it was difficult to simply say that there must have been a fistula: Exhibit “C”, Tab 3.8, p 188.As to (5) above, the experts were unable to determine which fallopian tube was responsible for the plaintiff’s pregnancy. Professor O’Connor stated that given the radiological imaging, the left tube was more likely to be responsible. Associate Professor Cooper conceded that a fistula had not been shown. They remained in disagreement on the likely cause of the plaintiff’s pregnancy: Exhibit “C”, Tab 3.8, p 189.As to (6) above, the experts agreed that one “can’t really tell” whether a tube is patent or not by the naked eye, and the issue is to be discerned by dye studies looking at patency: Exhibit “C”, Tab 3.8, p 190. In that regard, they did not directly address an issue that emerged in the evidence of Dr Jeri where he stated he had visualised and palpated the plaintiff’s left fallopian tube along its length and concluded from that palpation that the tube was patent without evidence of a fistula or damage.Concurrent evidence given by Professor O’Connor and Professor CooperProfessor O’Connor and Associate Professor Cooper gave their evidence concurrently on the eighth day of the hearing: T454 – T506. In that evidence their earlier expressed opinions, and the rational basis for those opinions, was further explored.Oral evidence of Professor O’ConnorProfessor O’Connor essentially adhered to his earlier expressed views as set out in his reports and in the two joint reports. The elements that emerged from his oral evidence are distilled into the following statements:His interpretation of the hysterosalpingogram dye images, which showed the uterus, a portion of the left fallopian tube and a Filshie clip in the pelvic cavity, was that the clip was not attached to the left fallopian tube but was instead located in a position that was adjacent to the tube. This was an important distinction. In that regard, he said that the viewing plane of a two-dimensional image in respect of a three-dimensional structure was a relevant consideration to bear in mind in explaining that view: T456.16 – T457.1; He stated that the hysterosalpingogram dye images of the left Filshie clip do not enable the viewer to tell whether that clip, which is assumed to be the clip that was intended to occlude the left fallopian tube, was locked or unlocked: T457.6;He considered the key issue to be whether the left Filshie clip was in the locked or unlocked position in the context where it is possible for the Filshie clip to be applied so that the applicator straightens the bent top arm of the clip, but in the case of an incomplete deployment, the closed clip may nevertheless be left unlocked: T461.6 – T461.19. He identified the issue of locking as opposed to closure, saying that if it was merely closed and not anchored by locking, the opportunity for displacement of the clip arose: T464.27; T465.35 – T465.42;He noted that the hysterosalpingogram dye test was carried out subsequent to the removal of the distal ends of both fallopian tubes, and therefore, the anatomy of that area would have been distorted by that process, so looking at the vestigial remnants of the tubes as seen on the hysterosalpingogram would not be the same view as was seen by Dr Jeri when he saw and palpated them immediately prior to carrying out the bilateral salpingectomy where that procedure would necessarily change the anatomy a good deal: T463.10 – T463.26; T465.6. That observation was very relevant to the evaluation of the reliability of the opinions of Dr Jones;He drew attention to the manufacturer’s recommendation for Filshie clips to be applied on the isthmus in a position very close to the junction of the tube and the uterus. He said that the comparative observations available in this case were that the left clip was applied considerably distant from the uterus than is recommended, and that the intra-operative images indicate the clipped portion incorporates a part of the mesosalpinx or tubo-ovarian pedicle, which incorporates more tissue than just the tube. He said that if the clip was placed close to the junction of the tube and the uterus then there is much less chance of incorporating other extraneous tissues when applying the clip: T466.30 – T466.49. The inference which follows is that this also involves a much lesser chance of pregnancy occurring;His viewing of the intra-operative images of the left clip did not reveal the presence of a varicose vein in the area that could have been influential in the placing of the clip in a position that was more distal to the uterus: T466.42 – T466.49;He said that the intra-operative images, which only became available at a fairly late stage, showed the left Filshie clip sitting right over the ovary, which was quite distant from the uterus. He said that to his mind, this reinforced the idea that extra tissue had been incorporated when that left Filshie clip was applied: T467.25;He said that if there had been a good intra-operative reason for not placing the Filshie clip in the recommended position, most gynaecologists would explain or identify that reason in their operation report: T475.15;He stated that when using a single-use Sterishot applicator, as was deployed by Dr Dhupar on 26 August 2014, there would be no audible clicking sound to be heard at the time of application and locking, contrary to that which was stated in Dr Dhupar’s statement of assumptions: T475.31 – T475.42; T476.3 – T476.6. In that specific regard, Associate Professor Cooper agreed that if Dr Dhupar had been relying on an aural clicking sound to verify proper closure of the clip this would be an error on her part: T476.38 – T477.1. It follows that it was improbable that she would have heard the sound of a click whilst using the disposable applicator which she did;He did not reject out-of-hand the possibility that if the left Filshie clip had been closed but not “blocked” (sic for locked), then pressure from adjacent organs could dislodge the clip if it had been left in that state once the insufflating gas was removed: T486.26 – T486.42;He explained that the more lateral the Filshie clip is placed, because the muscular component of the tube becomes lessened, it is possible that one could occlude half of, or only a portion of the tube, whereas if it was placed in the recommended muscular isthmic portion where the tube is more muscular, it is almost impossible to compress only a portion of the tube: T494.32 – T494.36;He said that the real issue here is the locking of the clip. He said that it is not possible to determine or confirm from the intra-operative images, that the left clip had been locked: T497.40 – T497.43. He developed his evidence to that effect in more detail by identifying the fact that there may be degrees of lack of closure of a clip, and that this could occur where the gynaecologist incompletely deployed the piston of the Sterishot applicator device so that a degree of closure that was incomplete could have been achieved by straightening the top arm of the clip without the end of that arm necessarily going underneath the lip of the clip and placing it into the locked position: T499.7 – T499.32;He stated that the images attached to the radiological report of Dr Jones do not provide a basis for discounting a possible conclusion that the Filshie clip was loosely attached or not completely closed: T499.48 – T500.1;He explained that in looking for a probable cause for the plaintiff’s pregnancy, he was intimating by his use in his report, of the expression “the elephant in the room”, that at the time of delivery, the left Filshie clip was not seen to be applied to the left fallopian tube. He said that once the right clip was seen to be correctly occluded, one would be looking at the contralateral or left tube to see if the tube had been correctly occluded. In that regard, he stated that Dr Jeri’s obligation at the time of caesarean section delivery was to carefully examine and assess whether there had been any damage to the left tube. He said that in looking back over the intra-operative images, they do not provide proof that the left clip had been fully closed or locked: T502.39 – T503.24;He described the process of closure of the Filshie clip as indicating that once the operation of the Sterishot piston of the applicator pistol had partially straightened the titanium arm of the clip, it would not have appeared to gape in an open state, and at that stage of the sequences, the next step, according to the manufacturer’s instructions, was to attend to the need to lock the titanium arm under the lip of the posterior arm. He said that if this did not occur, it certainly raised a concern that failure will be more likely: T504.22 – T504.28.Oral evidence of Associate Professor CooperIn his oral evidence, with one notable exception, Associate Professor Cooper essentially adhered to his earlier expressed views, as set out in his reports and in the two joint expert reports. The elements of analysis and opinion that emerged from within his oral evidence are distilled as follows:He resiled from his earlier incorrect assumption that the histology report indicated the tubes had been transected by the Filshie clips (T458.5 – T458.14; T471.46 – T472.30; T479.44 – T479.50; T480.23 – T481.16), but otherwise his opinions had not changed: T458.27. That said, the fact that he ultimately conceded that the transection assumption should be discarded based on an acceptance of Dr Jeri’s finding, which he had not previously considered, has some relevance to the consideration of his earlier described recanalisation theory, which was subsequently undermined;He stated that to his eyes, the intra-operative images taken at the time of tubal ligation showed that both Filshie clips had been appropriately placed on the required structures. He went on to state that the right clip was clearly closed, and that in respect of the left tube, he inferred from an apparent degree of expansion of the fallopian tube lateral to the clip, that the left clip had been closed: T458.30 – T458.39. The basis for the view that the clip had been closed requires evaluation in light of the usual cautions to be kept in mind when interpreting photographic images;He stated that despite allowing for the fact that the hysterosalpingogram result has a number of viewing planes, due to the apparent perfect alignment of the left tube and the Filshie clip as they were apparently seen by him to abut in an apparent juxtaposition on hysterosalpingogram, he considered it was clear to him that the clip in question was closed. He said it “defies imagination” that the clip could not be over the tube and not be closed: T460.43 – T461.2. That view requires close consideration;He believed, based on what was shown on the hysterosalpingogram, that Dr Jeri was “incorrect in what he was feeling” at the time he palpated the left tube, and he stated “I don’t believe that Dr Jeri felt the, the tube all the way along”. It should be here noted that there is no dispute that counsel for the defendant had not, put that view to Dr Jeri for his comment: T531.32. Associate Professor Cooper based that view on his interpretation of the hysterosalpingogram result which showed that the dye did not flow all the way along the left tube and that the clip would not be adjacent to that point where the flow of the dye was seen to stop. He said of Dr Jeri’s evidence and the hysterosalpingogram result that “Both can’t be right”: T461.1 – T462.34. That view also requires close consideration;Whilst he accepted that the anatomical tissues within the abdominal cavity would have been distorted as a consequence of the salpingectomy surgery, which he described as the subsequent surgery, he said that he struggled to understand how the left Filshie clip could appear to be perfectly aligned with the tube: T463.22 – T463.33;When Associate Professor Cooper was invited to identify the rational basis for his difference of opinion with Professor O’Connor’s view interpreting what Dr Jeri had seen of the tube at caesarean section and salpingectomy, and what was seen of the left Filshie clip on hysterosalpingogram, he simply stated: “I believe the clip was appropriately placed and closed and the subsequent HSG shown there (sic)”: T463.30 – T463.40;In elaboration, of that latter point he later stated that to his eye, the hysterosalpingogram, with its differing angles indicated that the left clip appears closed and perfectly aligned with the dye, and for him, it was hard to get around that notion: T465.48 – T466.2. After he reiterated that view, he was asked whether there was anything in particular about the photographic evidence, or about the way it was taken, that identifies the structures in a way that enabled a reasoned conclusion that the left Filshie clip was locked closed: T466.5 – T466.10. Associate Professor Cooper’s answer did not directly address the question, as the following extract of his evidence demonstrates:“WITNESS COOPER: On the original, as I've indicated, on the original photos at the time of the placement of the clips both Professor O'Connor and myself agree that on the left - on the right side that the clip is appropriately placed and closed and there's views of that. On the left side it may be that it's a little bit further lateral but I don't think that's necessarily a major deal and, to my eye, the muscular component of the, of, of the tube adjacent to the clip is slightly swollen, inferring that there's some pressure at that point and I'm, I'm reasonably convinced that that clip was closed.”[T466.12 – T466.19]In my assessment, the unexplained qualifying loosely reasoned comment cited in the above extract to the effect that he thought that the more lateral positioning of the clip was not “necessarily a major deal” detracts from the cogency of that opinion.He had not previously heard of, or considered Dr Dhupar’s explanation which she gave for the first time in her oral evidence, for the positioning of the left clip, namely placing the left Filshie clip more lateral than the recommended position on account of a varicose vein having been identified in that area. However, he considered that if that was her view, it made sense, although in his inspection of the intra-operative images he did not identify any such varicose vein, either very large or otherwise, on the left fallopian tube at or about the isthmus: T466.42 – T467.11;When he was asked to review his interpretation of the hysterosalpingogram test images he conceded that there was an apparent gap or space that was seen to exist between the distal end of the remnant portion of the fallopian tube and the Filshie clip (T468.6), and he further conceded that the photograph (an apparent mistaken reference to the hysterosalpingogram image) cannot show that the clip is unequivocally attached to the fallopian tube, although he reiterated that its location at that site was an extraordinary circumstance: T468.12 – T468.17;He also conceded that the above image did not permit him to express an opinion with certainty that the Filshie clip seen in the hysterosalpingogram was attached to the left fallopian tube: T468.19 – T468.22. This represented a shift in his earlier evidence as referred to at sub-paragraph (3) of paragraph [442] above: T460.43 – T461.2;He conceded that his viewing of the intra-operative image of the left Filshie clip indicated that it had been placed lateral to the preferred position on the isthmus: T469.6 – T469.30;Although he sought to infer that the jaws of the left Filshie clip had been locked in that placement, he conceded that the intra-operative images do not show both sides of the left Filshie clip, and do not show that the jaws of that clip had been locked: T469.31 – T469.45; He conceded that it was entirely possible, but unlikely, that when Dr Dhupar attached the Filshie clip to the left fallopian tube, there could have been an underclosure of the clip identified on the image (T470.45), although he said that he struggled to see how that could be so in light of the subsequent hysterosalpingogram image: T470.29 – T470.46;When he was asked to identify the precise argument in support of the conceded possibility outlined in sub-paragraph (13) above being unlikely given the hysterosalpingogram result, he explained that if the proposition was assumed to be correct, then he would have expected the dye to flow further, that is past the clip. That explanation must be considered as requiring discount in the context of the hysterosalpingogram which took place after the bilateral salpingectomies, where the result of that procedure would have prevented the dye from flowing further. When asked whether his view about the dye flow was subject to a consideration of a possible variation due to the anatomical plane of the image, he answered: “It’s, I mean, it’s hard to know. I can’t, can’t be certain about that”: T471.6;His opinions on the failure rates for tubal sterilisations did not seem to have been stratified according to the particular method of sterilisation. In that regard, he relied on a 1996 study of 10,685 tubal ligations involving “multiple forms of sterilisation” to argue, dismissively in my view, it “demonstrates that sterilisations fail no matter what you do”. The correctness of that view was questionable in its application to this case as that study did not at all refer to the use of Filshie clips. He did not answer the question as to whether the study was specific to Filshie clips: T472.31 – T473.10. Significantly, he ultimately agreed that his opinions based on that study were based on a false premise because it did not include any data involving Filshie clips: T473.37 – T474.14;He acknowledged that, in forming his opinions, he had not been asked to assume that Dr Dhupar had identified a large varicose vein on or about, or in proximity to the isthmus of the left fallopian tube. In contradistinction to Professor O’Connor’s comment that if there had been such an observation this would have been a reason for most gynaecologists to include a note to that effect in an operation report to explain the siting of a Filshie clip, he gave an equivocal answer as to whether a departure from the expected placement across the isthmus should have been mentioned. In giving his answer he did not address the substance of the question which was “a large varicose vein”. His answer “I guess it depended on the size”, gave the impression the force of the question was being deflected by an incomplete, if not, inadequate answer: T474.46 – T475.10;He did not initially identify an anomalous assumption he had been asked to make that when Dr Dhupar checked the clip for closure she had ensured there was an audible click sound. This assumption was anomalous because the equipment she had used was known not to produce a clicking sound, and it was not until he was cross-examined on the point that he agreed that in such circumstances an approach to checking the clip for proper closure by relying on an aural or audible click would have involved an error on Dr Dhupar’s part: T475.26 – T477.1;His opinion that placement of the Filshie clip on a part other than the preferred location of the isthmus did not necessarily fall outside what would be accepted clinical practice, was based on “various reasons” that were not fully identified in his evidence, and where he considered that if a clip had been placed “a centimetre or so lateral to where it perhaps should have been”, he would be surprised if Dr Dhupar had mentioned this to the patient: T477.7 – T477.49. His reasoning for that opinion expressed in somewhat anecdotal terms was not identified. Absent the provision of cogent reasons, it is difficult to accept that view as a rational and widely accepted professional practice or opinion amongst peers in Australia. The contrary would seem more appropriate as, consistent with the manufacturer’s instructions, the patient would be entitled to be told if the clip was placed laterally where it should have been, as this would have influenced the success of the procedure in terms of preventing fertilisation. That was a matter about which an affected patient was entitled to be informed;He agreed that the intra-operative images did not show the jaws of the left clip on the left tube. In giving his opinion to the effect that the clip appeared to him to be closed because there appeared to be a dilated area of tissue on the proximal side of the “tube” (sic for clip) he said it appeared to him to look as if the area had been compressed, which led him to infer the clip was in fact closed. A significant feature of that evidence was that he did not initially say the clip was locked in addition to being closed, and he agreed that the impression he was conveying was a qualified view, and not a definitive view: T478.1 – T478.35. That evidence must be read in light of the usual caution to be followed when attempting to interpret photographs, particularly poorly copied photographs, or photographs that showed those structures either incompletely or inconclusively. Furthermore, that evidence by Associate Professor Cooper did not deal with the simple possibility that the clip could have been placed on a wrong structure in view of the fact that it was not placed on the recommended muscular part of the isthmus;He agreed that an under-closed clip would not exert as much compression (as would a fully closed clip), and he agreed that the intra-operative images did not enable him to tell whether there had been an under-closure of the left clip: T478.36 – T478.47;Although he maintained the view that the intra-operative images appeared to reveal that both Filshie clips were appropriately placed and closed, he conceded what he described as being the “small” possibility that an incorrectly applied clip had resulted in under-closure of the clip, but in giving that evidence, he said that if there had been under-closure, he would have expected the hysterosalpingogram to show something different to what was reported: T478.49 – T479.30. The basis for that view in which he thought the hysterosalpingogram showed the clip to be closed (T485.47), appeared to involve unsupported speculation. That view must be read in light of the well-understood cautions required to be observed when interpreting photographic evidence. The cited view also requires analysis and reconciliation with other evidence; He said that movement of a clip was not a matter that was a necessary condition for a pregnancy to occur following tubal ligation as recanalisation was a recognised possible mechanism: T481.35 – T481.45;He conceded that there was no report in medical literature of any instance of tubal lumen regeneration following application of Filshie clip, and as I read that concession, it should be read as extending to a concession that the absence of such literature was “squarely against the evidence [that he had just] given saying it’s widely reported in the literature”: T481.47 – T482.18. The literature in question was to the effect that tubal lumen regeneration has not ever been reported following the use of Filshie or Hulka clips, although there have been numerous reports of regeneration following other methods, such as electrocautery and fallopian rings: Exhibit “1”, Tab 3, p 32. The article in question was annexed to Associate Professor Cooper’s report of 13 June 2018. He appears to have conflated the reported occurrence of tubal lumen regeneration across all methods of occlusion when an aspect of the literature he had cited, specifically excluded Filshie clips from that category;He conceded that his interpretation of the hysterosalpingogram, at page 42 of his 29 January 2019 report (which is part of Exhibit “1”, Tab 4), namely only a partial filling of the left tube “to the level of the clip” was not correct because there was a gap between the end of the filled tube and the position of the clip as seen in the image, and in that evidence, he also conceded that the hysterosalpingogram images did not demonstrate the presence of any fistula or recanalisation: T482.20 – T482.37;His justification for maintaining his view that a recanalisation had occurred was based on his interpretation of what was shown on the hysterosalpingogram. This raised a question as to whether he had given due regard to changes in the anatomical appearances following Dr Jeri’s bilateral salpingectomy performed on 1 March 2016, when considering the interpretation of the hysterosalpingogram performed on 20 August 2018. In that regard, he ultimately conceded that the hysterosalpingogram showed the dye to cease to flow to a point which comprised a gap before the proximate location of the Filshie clip: T482.39 – T483.29. This represented a shift in his earlier expressed views: T460.43 – T461.2, T463.22 – T463.40;His evidence as to the possibility of a recanalisation was based on the assumption that the left Filshie clip was locked and closed, and if it had been open it would have been very obvious on the images. He later appeared to qualify that view (at T485.47) by saying “the HSG appears to reveal [the clip] to be closed”: T483.44 – T484.44; T485.5 – T485.8. That evidence which involved his interpretation of the hysterosalpingogram test, must be analysed and reconciled with other evidence. [Emphasis added];He described the phenomenon of pregnancy occurring as a result of fistulas or recanalisation as rare, and he agreed that it has never been demonstrated or the subject of a publication in the literature: T487.13 – T487.26;He explained that even if a [4mm] section of ischaemic tube resulted in that piece being missing from the whole length, such ischaemia does not prevent recanalisation although the tubes do not regenerate, but in theory, apposition can occur with cellular growth: T487.46 – T488.20; He considered that Dr Jeri’s view to the effect that the left fallopian tube was morphologically normal at the time of caesarean section was tainted by the result of the hysterosalpingogram, which he found otherwise difficult to explain: T489.13 – T489.30. Significantly, however, when Dr Jeri’s evidence on that matter was summarised to him, he agreed that if Dr Jeri’s unchallenged observations were in fact correct, recanalisation was not a possibility. That evidence was as follows:“O'KEEFE: He was engaged in dissecting away scar tissue and actively looking for the Filshie clip on the left fallopian tube. He palpated the left fallopian tube. Then at transcript 223 he stated that if the fallopian tube was not patent you could usually feel some sort of blockage along the fallopian tube and there was no such appearance or feeling of the tube when he inspected it. He expressed the opinion, at transcript 224, that he would expect to see and feel an area of damage to the tube if there had been previous occlusion of the tubes by a Filshie clip. Do you accept his evidence about those matters?WITNESS COOPER: I, I haven't, I, I don't, I don't think I've ever seen that.O'KEEFE: If you accept his evidence as to what he did, namely, palpated the fallopian tube and dissected away scar tissue in order to do so, and that the tube looked entirely normal and did not have any palpable abnormalities, that would counter against your proposition that there had been either spontaneous recanalisation or fistula formulation, wouldn't it?WITNESS COOPER: Correct, if he said that tube was completely normal, sure.HIS HONOUR: Can I just add another assumption to that? I'm looking at Professor O'Connor's report of 2 October 2018 which is replicated in exhibit C page 119, and Professor O'Connor has harvested this aspect of Dr Jeri's observation, "I did not observe any fistula or additional passage between the left ovary and some part of the left fallopian tube," and he then added the comment that this adds support to his denial that some sort of recanalisation occurred. Do you accept that explanation or do you argue with it?WITNESS COOPER: If the tube appeared normal then recanalisation is not a possibility.”[T491.31 – T492.11]He conceded that if Dr Jeri’s observation of the left fallopian tube being intact was accepted as correct, then he would agree with Professor O’Connor as to the cause of the plaintiff’s pregnancy: T492.42 – T492.49;He conceded that if the clip was placed in a position more lateral to the isthmus, as shown at page 32 (that is, on a more muscular portion of the tube), there could be an under-closure of the clip and the clip could be around a portion of the tube but not the whole tube, resulting in only a partial occlusion, with the result that some area of lumen would be available for oocytes to make the journey towards fertilisation, which would mean the clip would not then perform its designated task: T494.38 – T494.11. In making that concession, he did not interpret the intra-operative images to mean that the tube was not completely occluded: T495.15 – T495.18;In re-examination, he reiterated that in his view, the hysterosalpingogram images indicated the left Filshie clip looked closed: T495.45. That view, which was simply a restatement of his original opinion, must be read in light of the concessions he had made against that view in his earlier oral evidence;He discounted a possible mechanism of a closed and locked clip opening and then not reclosing, and then migrating to another place, as being an almost zero prospect: T496.28 – T496.43;He stated that on the hysterosalpingogram images all one could see was the titanium metal component, which “appears as though it’s been sort of locked”, or “appears closed”: T497.36; T501.1. I considered that interpretative opinion to be expressed in equivocal terms unsupported by adequate reasons. That evidence also must be read in light of the cautions to be followed in the interpretation of photographic images;He raised a possible explanation that a closed but not locked clip would presumably spring open again: T501.10 – T501.26. He further qualified that view by saying it would be exceedingly unlikely for the clip to be open: T502.10;In addressing Professor O’Connor’s opinion, on the possibility of a partially closed titanium arm, but not gapingly open because of the applicator device having only partially straightened that arm, so that where the titanium arm has not been locked under the lip, there is a concern that failure to occlude the tube is more likely, in large measure he agreed with the possibility that there would not have been a wide open clip, but he said that between them, he would expect the silastic lining to still occlude something, although it was impossible to tell whether that was so. In further clarification on this point, he said that he suspected or presumed that there are differing stages of incomplete closure, depending upon the force that had been applied to the upper arm, so that the silastic material could create compression of the tube to a degree: T504.33 – T504.49. In my view those concessions indicated a significant shift in his earlier opinions;He maintained to the end, his view that if the left tube had been incompletely occluded, then the hysterosalpingogram dye test would show dye flowing beyond where it was seen, that is, through the clip shown on that image: T505.20 – T505.29. This was despite the earlier cited concessions he had made on that point, as identified at sub-paragraph (25) above;He said it was possible that if there was a fistula, it may have been so small, like a crack, that it may not be readily apparent with the dye test: T505.35 – T505.37;He rejected the proposition put to him in cross-examination that he had been unwilling to adopt a balanced approach, including by taking all other information into consideration in expressing his opinion on the cause of the plaintiff’s pregnancy, and in that regard, in answer, he said that he had been trying to reconcile the different portions of the evidence he had seen: T492.30 – T492.36.It is apparent from the above survey of the array of expert evidence that some divergent and significantly controversial aspects of the expert opinions remained in conflict. The extent to which those parts of the evidence were either reliable or unreliable, and persuasive or unpersuasive, will, for reasons that will be identified, guide my findings on material matters of fact in dispute.PART F – CONCLUSIONS ON RELIABILITY OF EXPERT MEDICAL EVIDENCE In deliberating on matters of disputed expert opinion I am mindful that the function of expert evidence is to guide the Court in its consideration and evaluation of the factual evidence in light of the facility experts have for applying their knowledge, training, skill and experience to the analysis of matters within their expertise when evaluating the factual basis of the case. In that regard, the Court and the experts must observe the usual caution when drawing factual conclusions from what is shown in photographs, a matter to which I shall return in the appropriate context on the question of whether the left Filshie clip applied by Dr Dhupar was closed and locked.There is no requirement that a court must accept as determinative, expert evidence, which on analysis and testing, is revealed to be unconvincing, and with a form and content that amounts to no more than an ipse dixit, or no more than an oracular pronouncement that does not identify how the expert’s specialised knowledge leads to the conclusion that is expressed by the expert: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [87]-[89]; HG v The Queen (1999) 197 CLR 414; [1999] HCA 2, at [41]; Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, at 306; Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) CLR 512; [2001] HCA 29.In the present case, the scope for obtaining guidance from the expert evidence relates not only to the task of assisting the process of fact finding on competing matters of possibility, likelihood or probability, as potential explanations for the plaintiff’s pregnancy by reference to accepted knowledge, training, skill and experience, but also in relation to the task of evaluating whether or not particular aspects of Dr Dhupar’s clinical actions under present consideration fall either within or outwith rational peer professional practice that is widely accepted as competent practice in Australia: s 5O of the CL Act.The reliability of the factual evidence given by Dr Dhupar is the subject of the analysis set out at paragraphs [301] to [375] above. As her evidence was factual in its content, it does not require an analysis as if it was expert opinion evidence.The evidence of Dr Cooper and Professor O’Connor did not raise any credit issues. Instead, the reliability of their evidence stands to be determined by reference to findings that must be made on disputed matters of fact and by an analysis of the reasons they have each provided for holding their respective opinions.Although Dr Jeri’s evidence was not introduced as expert evidence per se, his qualifications and experience in obstetrics, gynaecology and surgery cannot be ignored on factual matters that he had observed and described. In my view, Dr Jeri’s qualifications and background experience in medical practice sufficiently placed him in a special position of advantage for being able to intra-operatively recognise and describe relevant sentinel facts as well as relevant physical and anatomical structures that relate to factual matters in dispute in this case.Assessment of reliability of Dr Jeri’s factual evidenceAccordingly, at this point, it is convenient to evaluate the reliability of the evidence Dr Jeri gave on factual matters. For the reasons that now follow, that evaluation proceeds on the basis that I have rejected the criticisms made on behalf of Dr Dhupar as to the reliability of his evidence.I have no doubt that Dr Jeri’s medical qualifications and experience enabled him to recognise and to make reliable intra-operative assessments of the general appearance, state, and apparent patency, or otherwise, of the plaintiff’s fallopian tubes. His assessments of those matters proceeded against the background of the three previous caesarean section procedures that he had personally performed on the plaintiff. His assessment also proceeded having regard to his background knowledge of the nature of the tubal ligation procedure which he understood Dr Dhupar to have earlier performed on the plaintiff using Filshie clips.The factual question standing at the forefront of the analysis of the evidence given by Dr Jeri concerns the reliability of his intra-operative observation, on 1 March 2016, where on his investigation at that time, by both visual examination and by means of palpation, that the plaintiff’s left fallopian tube was recognised and assessed by him as being intact along its length, without signs of damage and without apparent occlusion or blockage of its patency: T223.17.At this point, from my review of the evidence as a whole, it is relevant to observe that those findings made by Dr Jeri on that factual question seemed neither unlikely nor inherently improbable. The only potential source of direct contradictory evidence that might have suggested unlikelihood or inherent improbability concerning Dr Jeri’s observation that the plaintiff’s left fallopian tube was seen by him to be undamaged along its length would have been from Dr Dhupar, who was present at the time Dr Jeri made those observations.Neither Dr Jones, Professor O’Connor nor Associate Professor Cooper were in a position to give contemporaneously-based factual evidence on that question.In that regard, on 1 March 2016, Dr Dhupar, in her role as Dr Jeri’s surgical assistant at the caesarean section delivery and salpingectomy, had ample intra-operative opportunity to observe the successive exploratory surgical steps taken by Dr Jeri after he had performed the caesarean section delivery, and before he proceeded to perform bilateral salpingectomy. I consider that to have been so because on that occasion, Dr Dhupar said she had remained in the operating theatre up until the time of the suturing and closure of the plaintiff’s surgical wound. She said that she had left the operating theatre just before that process was completed: T226.49 – T227.1. Against such background, Dr Dhupar did not provide any evidence, either oral or in writing, to suggest that Dr Jeri’s cited observations and findings were incorrect, unlikely, or inherently improbable. In that regard, there is nothing that emerges from within Dr Dhupar’s evidence to support Associate Professor Cooper’s expressions of doubt to the effect that Dr Jeri had been incorrect in his observations and intra-operative findings as to fallopian tube continuity and apparent patency.I am satisfied that if Dr Dhupar held a relevant contrary view of the facts compared to those identified by Dr Jeri in his evidence on such matters, she would have been in a good position to provide evidence to contradict Dr Jeri’s stated findings, but she did not do so. This is in the context that whilst Dr Jeri was exploring those structures, intra-operatively, Dr Dhupar would have known that the plaintiff’s situation comprised an instance of a failed sterilisation procedure in circumstances where she had earlier performed that procedure. In those circumstances, Dr Dhupar would most likely have had a professional interest in an intra-operative investigation of a possible cause of such failure.Professor O’Connor was asked to consider Dr Jeri’s evidence concerning his intra-operative examination of the plaintiff’s left fallopian tube for apparent patency. He offered no critical comment along the lines that might have suggested incorrectness, unlikelihood, or any inherent improbability, arising from the content of that aspect of Dr Jeri’s evidence.Associate Professor Cooper’s initial reaction to Dr Jeri’s described intra-operative observations of an apparent patency of the plaintiff’s left fallopian tube was an emphatic expression of disbelief, which he reiterated on a number of occasions. Associate Professor Cooper’s expressions of disbelief arose from his stated inability and struggle to reconcile Dr Jeri’s finding as to the continuity and apparent patency of the plaintiff’s left fallopian tube on 1 March 2016 with the results of the hysterosalpingogram dye test carried out on the plaintiff on 20 August 2018 by Dr Stephenson. In that regard, he said both scenarios could not stand together as being correct: T461.1 – T462.34.For reasons that will be explained when assessing the reliability of the evidence of Associate Professor Cooper, I considered that his statements of disbelief directed at Dr Jeri’s findings were themselves unsound and unreliable. I do not consider those statements by Associate Professor Cooper to provide a sound basis for not accepting Dr Jeri’s described observations concerning left tube patency. As a consequence, I discount and read down the weight and applicability of those critical comments by Associate Professor Cooper.Associate Professor Cooper’s stated belief, or more accurately, his disbelief, as to the relevance of the 2018 hysterosalpingogram test result stands to be evaluated in the context that test was carried out some two and-a-half years after Dr Jeri had made his described intra-operative findings. This was also in the context that the salpingectomy surgery carried out by Dr Jeri immediately following his observations of left tube patency, would most likely have had the effect of subsequently altering the anatomical appearances of the plaintiff’s intra-pelvic structures in that region, including as seen on radiological examination. On that account, I consider that Associate Professor Cooper’s views which were critical of the validity of Dr Jeri’s intra-operative factual observations are based on an invalid analytical comparison.For the above reasons, I consider that no sound reasons emerged from within the evidence of the expert gynaecologists and obstetricians who gave evidence to contradict the intra-operative factual findings made by Dr Jeri. This is a matter that will be revisited in my findings on the disputed matters in issue as identified at paragraph [70] above.Reliability of the evidence of Dr JonesThe above analysis concerning the interpretation of the hysterosalpingogram dye test result leads conveniently to a consideration of whether the opinion of Dr Jones provides a reliable evidentiary basis for contradicting the factual correctness of Dr Jeri’s cited findings.For the reasons that now follow, I consider that Dr Jones’ opinion is an unreliable basis upon which to contradict Dr Jeri’s intra-operative clinical observations and findings. I do not accept Dr Jones’ opinions as being a reliable source of expert guidance in determining the issues to be decided in this case.In considering the radiological opinion evidence of Dr Jones, it must be borne in mind that at the hearing a limiting order was made concerning the evidentiary value of his evidence by reason of his qualifications. This was because he is a radiologist and not a gynaecologist or an obstetrician, and it has not been shown that he has a relevant expertise in the placement of Filshie clips: s 136 of the Evidence Act 1995 (NSW): T419.40 – T419.45.In my view, Dr Jones’ opinions on the x-ray appearances of relevant intra-pelvic structures must also be given limited weight in recognition of, first, the fact that he ultimately conceded there was an appearance of a gap between the vestigial or terminal end of the plaintiff’s left fallopian tube post-salpingectomy surgery and the apparent location of the Filshie clip on the hysterosalpingogram, and secondly, on account of the undisputed fact that there was post-operative alteration to the relevant anatomical structures. I consider that Dr Jones’ evidence to the effect that the Filshie clip was located on the fallopian tube in a closed state must be discounted in light of the limits of his own expertise, and in light of Professor O’Connor’s evidence which I accept, to the effect that it is not possible from the hysterosalpingogram images to determine whether that clip is seen to be on the fallopian tube, or if that the clip is seen to be closed and locked.The aspects of the opinions of Dr Jones that attracted controversy concerned his statement that the Filshie clip was placed across the (left) fallopian tube so as to obstruct contrast flow. Dr Jones’ opinions to the above effect demonstrate that he had not relevantly engaged with a specific, relevant and indisputable factual assumption that was made available to him for his consideration. This concerned the fact that the plaintiff’s bilateral salpingectomy had preceded the hysterosalpingogram by a considerable period of time. In my view, by reason of Dr Jones having failed to consider the co-relative importance and relevance of that important assumption when viewing the images, and when setting out his opinion, his cited opinion should be seen to be unreliably skewed on account of the fact that it has not taken into account that crucial piece of clinical information. Dr Jones has not explained why he did not consider that information which had been provided to him in circumstances where he had been specifically asked to assume its correctness. The defendant has not called any evidence that would explain or provide a reasonable basis for him to not take that information into account.Curiously, when that matter was explored in Dr Jones’ oral evidence, he said, incorrectly, he was not informed that there had been a partial left salpingectomy before the hysterosalpingogram images had been taken: T415.20. He conceded that absent information to that effect could be very relevant to the task he had undertaken: T415.25. His evidence that he had not been informed on that matter of fact did not sit at all well with the content of the letter of instruction provided to Dr Jones by the solicitor for the defendant in which it was clearly stated that on 1 March 2016, at “the same time [as the delivery] the plaintiff underwent bilateral salpingectomy”: Exhibit “1”, p 170. That anomaly in the evidence of Dr Jones remained unexplained.Although Dr Jones’ evidence was focused on his opinion that the Filshie clip he saw had obstructed the tube in the location between the uterus and the clip (T415.31), ultimately, he fairly acknowledged the force of an alternative explanation to the one which he had initially offered, namely, that the flow of the hysterosalpingogram dye was blocked and had ceased to flow beyond the terminal point at which the fallopian tube had been removed. That ultimate concession materially differed from the opinion he had originally expressed in his report, where beforehand, he had not identified any such alternative views.Of critical evaluative relevance, in Dr Jones’ oral evidence, he was specifically asked to consider that the Filshie clip he had focussed upon in the imaging could have been viewed from a different plane in juxtaposition to the fallopian tube: T416.3. In answer to that question, controversially, he considered that in the images he saw, the clip had the same relationship to the end of the fallopian tube so that his interpretation was that they were sitting next to each other: T416.11. In my view, that evidence should be read down as having little weight in light of the fact that there was altered anatomy present in that region which resulted from the salpingectomy, which Dr Jones did not take into account in his initial analysis. When Dr Jones’ assumption as to the positional relationship between the clip and the tube was explored in cross-examination, he ultimately conceded that there appeared to be a gap or a space between the distal end of the contrast filled terminal end of the left fallopian tube, and the clip which appeared to be located nearby: T416.19. In answer to a specific question, he ultimately said that latter observation was consistent with the clip not having been placed upon the fallopian tube: T416.25 – T416.34. It is of considerable significance to the assessment of the reliability of the evidence of Dr Jones that a discussion to the above effect had not been included in his initial analysis for the purpose of exclusion. The concession cited in the preceding paragraph was contrary to his primary opinion, in which, he had simply interpreted the image to show that the clip had been placed on the tube to create a blockage: T416.32.In keeping with his acknowledgment of his obligations pursuant to the Expert Witness Code, Dr Jones conceded that there was an alternative explanation to his primary opinion as cited in the preceding paragraph, namely that, if there was no tube present to occlude in that location after it had been removed, then the terminal end of the tube as shown by contrast dye just happened to be lying close to the position of the clip without an actual physical connection between them. This was consistent with the known phenomenon that Filshie clips had the potential to move about in the abdominal cavity after becoming detached.The divergent analysis identified in the preceding paragraphs seemed to be the basis for the expressed “struggle” by Associate Professor Cooper which he recurrently stated in his evidence. It seems that struggle may be resolved by having regard to the anatomical viewing planes in which the images were taken.Of relevance to the assessment of the reliability of the evidence of Dr Jones, when he initially viewed the hysterosalpingogram imaging, he said he was unable to discern the difference between those two alternative interpretations: T416.44. When the latter dichotomy was explored with Dr Jones in his oral evidence, he ultimately adopted the interpretation that the clubbed or bulbous shaped appearance of the terminal end of the left fallopian tube was shown on the hysterosalpingogram to be filled or expanded with contrast dye. This was consistent with the process of a slow injection of contrast dye into the uterus resulting in a flow down into the tubes, in a balloon-like filling process at the surgically terminated ends, leading to the inference that the image of the left Filshie clip was located close to, but distal to, the surgically terminated end of that fallopian tube: T146.45 – T417.9.Significantly, and ultimately supportive of the factual case that was argued by the plaintiff, Dr Jones identified the left Filshie clip as seen on the hysterosalpingogram images appeared not to be on the muscular isthmus portion of the fallopian tube, but instead, he said it was located closer to the uterine cavity: T419.29. That observation will be revisited on the assessment of whether a breach of the duty of care owed has been established.In giving that evidence, Dr Jones said the position described in the preceding paragraph was where Filshie clips were normally placed, that is, in the middle of the fallopian tube: T419.33. The latter aspect of that answer involved controversy that resulted in an objection.In those circumstances, where Dr Jones did not profess obstetric or gynaecological expertise on what may or may not have constituted a correct location for Filshie clip placement, and given that his cited answer was not a matter that he had included in his written report, an order was made limiting the use of that answer as it was unresponsive to the question that had been asked. Dr Jones had not been trained in the application of such clips, his answer was gratuitous to the question, and it was therefore determined to be unreliable as it was apt to confuse or mislead the analysis so as to give rise to evidentiary prejudice to the plaintiff: s 136 of the Evidence Act 1995 (NSW): T419.40 – T420.5.For the reasons stated above, I conclude that the evidence of Dr Jones does not serve as a reliable basis for contradicting the factual findings and observations made by Dr Jeri on 1 March 2016 concerning the apparent state of patency of the plaintiff’s left fallopian tube prior to salpingectomy.Assessment of reliability of Professor O’Connor’s evidenceOn my consideration of Professor O’Connor’s evidence as a whole, I conclude that his evidence was given in measured terms, with supporting cogent reasons, and with appropriate qualifying remarks. He appropriately identified the process of reasoning he employed to support his opinions. In those reasons he avoided unwarranted speculation. He made appropriate concessions where they were due. His evidence did not contain any inherent or internal inconsistencies. There were no troubling aspects to his evidence. I found him to be an impressive witness. I considered that his evidence was entirely reliable in all respects and was capable of acceptance.Assessment of reliability of Associate Professor Cooper’s evidenceIn assessing the evidence of Associate Professor Cooper, on account of an aggregation of factors, I have concluded that his evidence is generally less reliable than that of Professor O’Connor. My reasons for that conclusion, are set out in the topic headings and the related explanations identified in the paragraphs that will shortly follow, concerning his misapprehension that there had been left fallopian tube transection, the speculative basis of his critique of Dr Jeri’s observations, a question as to whether his analysis was balanced, reluctant concessions, some obfuscatory answers, use of dismissive hyperbole in his explanations, a significant shift in the basis for his interpretation as to whether Dr Dhupar had achieved clip closure, a reiteration of concededly incorrect views, and reference to journal literature of “low-ish” evidence.It will be observed that my reasons for assessment of the reliability of the evidence of Associate Professor Cooper are more extensive than those identified at paragraph [494] above concerning the evidence of Professor O’Connor. This necessarily arises from the content of Associate Professor Cooper’s evidence which in my assessment calls for such an analysis.Factual misapprehension over tube transection In his first report, Associate Professor Cooper misapprehended the significance of the histology evidence which referred to transection of the fallopian tubes on 1 March 2016. He conceded that he had wrongly assumed that the fallopian tubes had been transected by the application of Filshie clips: T458.13. Although Associate Professor Cooper later conceded and corrected that misapprehension, as chronicled between paragraphs [413] to [424] above, as he confirmed in his oral evidence (T458.13), this nevertheless raised the distinct possibility that an initial error of that kind had the potential to influence his approach to his subsequent analysis. This became apparent because that misapprehension led to, and formed a basis for, his recanalisation theory as a possible explanation for the plaintiff’s pregnancy rather than error on the part of Dr Dhupar.In my view, the infiltrating effect of Associate Professor Cooper’s initial misapprehension is not readily isolable and not readily capable of exfiltration by definitive reasoned analysis. It is for that reason, I consider the opinion evidence of Associate Professor Cooper should be viewed with considerable caution and reserve before acceptance because of scope for the identified misapprehension on his part to subtly infiltrate into other aspects of his opinions, including with regard to his recanalisation theory.Speculative criticisms of Dr Jeri’s observationsAssociate Professor Cooper was critical of Dr Jeri’s factual evidence in which Dr Jeri stated that he had visualised and palpated the plaintiff’s left fallopian tube along its length and at that time he said he saw no signs of damage or interruption to its patency.Associate Professor Cooper raised speculative arguments to the effect that he believed Dr Jeri was “incorrect in what he was feeling” (T462.5), and he stated “I don’t believe that Jeri felt the, the tube all the way along”: T462.23. I am satisfied that ultimately, no sound evidentiary basis for those critical statements has been demonstrated.Those views were problematic. First, they were gratuitous and not representative of the defendant’s case. In that regard, they had not been put to Dr Jeri for his consideration and comment in accordance with the requirement of procedural fairness. Secondly, as Associate Professor Cooper acknowledged when rejecting Dr Jeri’s findings, he had based those comments on his preferred interpretation of the hysterosalpingogram images (T462.38), where his interpretation was ultimately shown to have been plainly erroneous, as is explained elsewhere in these reasons.Furthermore, it appeared that Associate Professor Cooper’s cited criticisms of Dr Jeri’s findings were based on an incomplete and therefore inadequate evaluation of Dr Jeri’s described findings. For example, in his reasoning, Associate Professor Cooper had only considered the detail of Dr Jeri’s conclusions based on an assumed palpation of the left fallopian tube. Significantly, he did not include in his consideration the results of Dr Jeri’s visual inspection of the plaintiff’s left fallopian tube. Those two bases for Dr Jeri’s stated conclusion as to the apparently patent state of the plaintiff’s fallopian tubes were inter-linked and needed to be considered in tandem.Whilst I am mindful of the existence of expert evidence to the effect that it is not possible to reliably determine fallopian tube patency from a visual inspection alone, it is the combination of visual and palpation inspections that based Dr Jeri’s findings of no apparent damage to the left fallopian tube. Associate Professor Cooper’s evidence in which he expressed his disbelief concerning Dr Jeri’s findings, did not appear to consider or address the combined source of clinical information which also included the anatomically altering effects of the history of bilateral salpingectomy, a matter that had been made known to him. I therefore consider the identified criticism of Dr Jeri’s findings to be an unreliable source upon which to seek a rejection of Dr Jeri’s stated findings, as was argued on behalf of Dr Dhupar.Criticism asserting an unbalanced analysis In cross-examination it was put to Associate Professor Cooper that despite all the additional information that had been made available to him (since preparing his initial opinions) he has been unwilling to adopt a balanced approach that took all that other information into consideration when giving his opinion on what is likely to have occurred (in the failed sterilisation) in this case: T492.30 – T492.34. It was also put to him that he had become wedded to an opinion which has, with the passage of time, and with the development of detail within the evidence, become increasingly unlikely to the point where it ought no longer be accepted: T492.37 – T492.40.Whilst Associate Professor Cooper did not accept the criticism that his evidence was unbalanced (T492.35), and whilst he said he had instead been “attempting to reconcile the different bits of evidence” that he had seen (T492.36), it became apparent from his recurrent reiteration of his stated “struggle” to reconcile what he considered to be inconsistent evidence, that there was some force to the criticism cited in the preceding paragraph.Those asserted inconsistencies were, on one hand, Dr Jeri’s conclusion as to apparent tube patency, and a particular interpretation of the hysterosalpingogram test results which was argued to show that the left Filshie clip was on the left fallopian tube, and on the other hand, where on the preponderance of the medical evidence, that latter proposition was ultimately discredited.Ultimately, in the face of those cited challenges to his evidence, Associate Professor Cooper conceded that if Dr Jeri’s analysis of the condition of the plaintiff’s left fallopian tube was correct, his own recanalisation and fistula theory (identified at T492.10 and T492.19) would no longer have validity: T492.49. That ultimate concession was appropriately made.Reluctant concessionsIn my view, the evidence of Associate Professor Cooper at times demonstrated a repeated reluctance to make due concessions. This initially related to his erroneous interpretation of the hysterosalpingogram dye test images. Whereas he initially stated the test showed a Filshie clip to be on the left fallopian tube, he later conceded that test result showed a gap or a space between the terminal end of that fallopian tube and that Filshie clip (T468.1 – T468.10; T482.27 – T482.31), and he also ultimately conceded he could not be certain the left Filshie clip was attached to the fallopian tube: T468.22 – T468.31.In my view, those ultimate concessions by Associate Professor Cooper are relevantly informative to the assessment of the reliability of his evidence in which he had beforehand expressed the emphatic impressionistic view that Dr Jeri was “incorrect in what he was feeling” when he examined the plaintiff’s left fallopian tube, and where he said “I don’t believe that Dr Jeri felt, the tube all the way along”: T462.34. In expressing those views he was unable to provide cogent supporting reasons that were appropriately referenced to the factual evidence. An example of Associate Professor Cooper’s reluctance to make due concessions appears from the following extract of his evidence which concerned the interpretation of the intra-operative photographic images:“O'KEEFE: … In the last paragraph on that page you have stated there that "The procedure took 46 minutes and the operative images reveal appropriate placement of both clips on either tube." Do you accept that the photographs that were taken only show that the clip placed on the left fallopian tube was not placed on the isthmus of the tube?WITNESS COOPER: Do you mean was, do you mean - I'm sorry, if you, do you mean that the—O'KEEFE: I'll put the question again.WITNESS COOPER: Yeah.O'KEEFE: In relation to that part of your report, the photographs that were taken intra operatively demonstrate that the clip on the left fallopian tube was placed lateral to the isthmus, don't they?WITNESS COOPER: Look, it was, I think it was lateral to where the preferred position would be, yes.O'KEEFE: And do you accept--KALFAS: Could the witness be allowed to finish his - I may have been wrong.O'KEEFE: Had you finished your answer?WITNESS COOPER: Look, I think there's reasons as to why it could be placed in a different position.O'KEEFE: I'm not asking--WITNESS COOPER: It looks--O'KEEFE: --about that. My question was whether or not the photographs that we have available from the operation show that the Filshie clip was placed lateral to the isthmus; do you agree or disagree with that proposition?WITNESS COOPER: Yes, correct.O’KEEFE: The photographs that we have from the operation do not show both sides of the Filshie clip, do they?WITNESS COOPER: No.O’KEEFE: The photos from the operation do not show the jaws of the Filshie clip locked, do they?WITNESS COOPER: One can, I think you can infer that, but you can’t clearly--HIS HONOUR: No, but the question is do they show?WITNESS COOPER: No.”[T468.43 – T469.45]Another example is evident from the following extract which relates to the interpretation of the hysterosalpingogram images taken on 20 September 2018:“O’KEEFE: So it’s entirely possible in this case that what occurred here is that the defendant applied a clip resulting in underclosure of the clip. WITNESS COOPER: If that was correct, then you would expect the dye would flow further than the clip on the subsequent HSG. O’KEEFE: If you accept that the clip shown in the HSG is not attached to the fallopian tube, then it follows that it’s entirely possible in this case that Dr Dhupar did not apply the clip to the left fallopian tube correctly and there was underclosure of the clip.WITNESS COOPER: I struggle to understand how the subsequent HSG image occurred if that was correct. O’KEEFE: The question that I put invited you to accept the proposition that the HSG images do not demonstrate that the clip is attached to the left fallopian tube. Can you please make that assumption? If you make that assumption, then having regard to the intraoperative photographs from the tubal sterilisation, it’s entirely possible, isn’t it, that the defendant when she attached the Filshie clip to the left fallopian tube did so resulting in underclosure of the clip as identified in this image? WITNESS COOPER: That’s possible but as I say I think it’s unlikely given the subsequent HSG.HIS HONOUR: What is the precise argument that it is unlikely? Other than--WITNESS COOPER: Because I would, I would imagine that the dye would flow further past the clip.HIS HONOUR: Is that a view that’s subject to variation depending upon how one considers the anatomical plane of the picture?WITNESS COOPER: It’s, I mean, it’s hard to know. I can’t, can’t be certain about that.”[T470.23 – T471.7]Associate Professor Cooper’s abovementioned expression of uncertainty was difficult to understand given his earlier agreement that on the hysterosalpingogram images there was a gap or a space shown to exist between the terminal end of the fallopian tube and the Filshie clip shown in the image that was under consideration: T468.1 – T468.10; T482.27 – T482.31.Obfuscatory answers to questionsIn my assessment Associate Professor Cooper gave obfuscatory answers to some important questions, including where questions were asked to seek clarification of his views.For example, when asked whether a study of the outcomes for 10,685 women he had cited in support of his views, was specific to Filshie clips his response avoided answering the question. That evidence is extracted below:“O’KEEFE: The article that you have, in the next paragraph you refer to a large study in 1996 following a total of 10,685 women who underwent tubal sterilisation in the US, had a follow up, et cetera, and you referred to failure rates, et cetera. Can I ask, why did you refer to that particular study?WITNESS COOPER: That’s the biggest one I know of. O’KEEFE: That’s--WITNESS COOPER: That relates to, you know, the sterilisation failure.O’KEEFE: That study didn’t--HIS HONOUR: Was this study specific to Filshie clips or did it use other devices?WITNESS COOPER: Multiple forms of sterilisation.HIS HONOUR: Multiple forms. So what is its power for the drawing of inferences?O’KEEFE: Didn’t you think it would - sorry, your Honour. WITNESS COOPER: It demonstrates that sterilisations fail no matter what you do.HIS HONOUR: That could be for a variety of reasons.WITNESS COOPER: Correct.”[T472.32 – T473.10]The question of whether the study involved Filshie clips was avoided. When the issue was taken up again by further questions, I consider the subsequent answers had the effect of undermining the persuasiveness of Associate Professor Cooper’s first report, as follows:“O’KEEFE: Isn’t that the study that you referred to in your first report? ie, in other words, the study you sought to rely upon in relation to your first report as having some relevance to this case and sterilisation failure didn’t consider Filshie clips at all? Can you answer that question?WITNESS COOPER: Correct.O’KEEFE: Do you accept that the extent to which you have provided reports for the assistance of the Court in this case, you’ve made somewhat of an error in seeking to rely upon a study which has nothing to do with the Filshie clips?KALFAS: Could I just draw my learned friend’s attention to the middle paragraph, the third paragraph--HIS HONOUR: Just a step at a time, Mr Kalfas.KALFAS: Your Honour pleases, I was--HIS HONOUR: The question was capable of answer. WITNESS COOPER: Sorry, what’s the question again?HIS HONOUR: Let’s have it played back. Never mind. O’KEEFE: Perhaps if I could just ask--HIS HONOUR: There appears to be an equipment malfunction that prevents playback, but if I can try and encapsulate the essence of the question, it was suggested to you that in so far as you referred to the 1996 study at page 8 in your first report, the opinions that you based upon that study seem to be based on a false premise given the matters that have been identified at page 29 where it was said that the Filshie clip data was not included in the study. Do you agree or disagree with that proposition?WITNESS COOPER: I agree with that proposition.”[T473.30 – T474.14]A further matter arises which went to the question of the extent to which Associate Professor Cooper applied his expertise to a highly relevant question which concerned the validity of an assumption he had been asked to make, which was at variance to the evidence. This concerned Dr Dhupar’s evidence to the effect that she had checked for proper Filshie clip closure by ensuring there had been a “click sound”, which, as an indisputable matter of fact, could not have been possible with the equipment that Dr Dhupar had used. As appears from the following extract of his evidence, he not only did not identify that factual inconsistency, but initially he appeared to avoid answering the related question directly, as is evident in the following interchanges:“O'KEEFE: The next paragraph, you were invited to assume that Dr Dhupar checked for a proper closure by ensuring a click sound. Didn't that strike you as an odd thing to include in the statement of assumptions?WITNESS COOPER: Not particularly.O'KEEFE: Is it your understanding that in this case, Dr Dhupar used a single use Sterishot applicator? Is that your understanding?WITNESS O'CONNOR: I think that's - I'm assuming that's what happened.O'KEEFE: Is it your understanding that if such an applicator is used to apply a Filshie clip, there is no clicking sound when the clip is applied to the fallopian tube?WITNESS O'CONNOR: There's no click. There, there, there's a sort of a feel on the - I'm assuming that's what she's talking about.O'KEEFE: In your capacity as an expert providing an opinion to the Court, didn't you think it would be important to refer to that anomaly in the statement of assumptions that had been given to you?WITNESS O'CONNOR: I didn't place any weight on that.HIS HONOUR: In any event, Dr Dhupar has now distanced herself from that assumption. She acknowledges that there was no click. She--WITNESS O'CONNOR: The - it can't - you can't hear the sound. It's, you know - I mean, I'm assuming it's just a feel and that's, that's the descriptive term that she's used but she was perhaps incorrect in what she, what she's, you know, written with the assumptions.O'KEEFE: If Dr Dhupar was still relying upon an aural sound to ensure that a clip had been applied correctly, she would be in error, wouldn't she?KALFAS: I object. HIS HONOUR: What's the objection?KALFAS: I stand to be corrected, I don't think Dr Dhupar was challenged about what your Honour has just referred to--O'KEEFE: Yes, she was.KALFAS: --as to that particular--HIS HONOUR: She acknowledged that it wasn't a--KALFAS: No, no.HIS HONOUR: --correct summary of her interchange with her instructing solicitor.KALFAS: I'm sorry. Challenged as to whether she used a different device. That's what I understood the question was going to.O'KEEFE: I squarely put to her that she was using an outmoded method of checking clips, ie waiting to hear a clicking sound--KALFAS: That's correct.HIS HONOUR: Yes. I allow the question.O'KEEFE: --and therefore I'm entitled to ask the question.HIS HONOUR: Yes, I allow the question.O'KEEFE: Do you want me to ask the question again, Professor Cooper?WITNESS COOPER: Yeah.O'KEEFE: If Dr Dhupar was relying upon an aural clicking sound to verify that a clip had been closed properly, that would be an error on her part in this case, wouldn't it?WITNESS COOPER: Yes.”[T475.26 – T477.1]Explanations invoking dismissive hyperboleIn my assessment of Associate Professor Cooper’s oral evidence, at times he made unhelpful statements that invoked dismissive hyperbole in identifying his reasons for not accepting the factual basis of the plaintiff’s argued case.Associate Professor Cooper’s use of hyperbole arose because of what seemed to his perception to be an apparent dichotomy between Dr Jeri’s intra-operative findings as earlier identified, which were made on 1 March 2016, and his own initial interpretation of the result of the hysterosalpingogram images taken over 2 years later on 20 August 2018. That dichotomy had apparently perplexed him and led him to what he described as a “struggle” that in turn led to him make a series of hyperbolic references to that struggle in his oral evidence: T460.47 – T461.2; T463.31 – T470.34. Associate Professor Cooper identified his “struggle” as being that the left Filshie clip, as he saw it on the hysterosalpingogram images, could in his view be seen to be appropriately placed and closed (T458.35; T460.49), and aligned so perfectly, that therefore, the contrary proposition “defied imagination” (T461.1), and a circumstance that he considered to be “extraordinary”: T468.17. In my opinion, ultimately, those and his other similar expressions of incredulity can be put to one side. I consider that they should be given little weight as it became plain that such observations were explicable chronologically, and by reference to a proper understanding of the anatomical viewing planes from which the relevant hysterosalpingogram images were taken. The chronological framework for the analytical consideration of this aspect of the evidence was that Dr Jeri’s intra-operative findings and observations which he had made prior to the salpingectomies, and of which Associate Professor Cooper was critical, were made on 1 March 2016. The proper context was that the hysterosalpingogram images were taken over two years later, on 20 August 2018. It is also relevant to note that the earlier salpingectomy procedures had the effect of surgically altering the surrounding anatomy. Associate Professor Cooper’s “struggle” failed to take into account those differing analytical perspectives. In my opinion, his hyperbolic expressions of incredulity have been shown to have been based on a false premise.Evidence shift from clip closed, to clip locked, to clip “sort of closed”An important pivotal issue in this case is whether at the conclusion of her operation on 26 August 2014, Dr Dhupar had left the left Filshie clip in the open position or in the closed position, or in the closed and locked position: T448.42.It is important to observe that significant aspects of the opinions of Associate Professor Cooper were based on his interpretation of photographic and radiological images where the evidence shows that in cross-examination he made significant concessions with regard to those interpretations. Those matters will be referred to in the course of my reasons on this topic.Before referring to those aspects of the evidence, it is relevant to identify the obvious caution and restraint that must be observed in the context where factual conclusions, inferences and insinuations are sought to be drawn from photographic images, as explained in a well settled line of authoritative decisions: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96]. Neither of the expert witnesses claimed any specialised expertise in interpreting photographic images. In his evidence, Professor O’Connor appropriately identified the difficulty in seeking to do so, whereas Associate Professor Cooper did not.That said, the experts were without doubt entitled to rely upon their knowledge, training and experience in identifying anatomical structures shown in the photographic evidence. The question of clip closure or the degree of clip closure, as interpreted from photographic images involves an entirely different undertaking.Associate Professor Cooper’s recollection of the photographic images taken at the time of Dr Dhupar’s laparoscopic placement of the clips was that, to his eyes, the images showed that both clips were “appropriately placed over the structures”. He said this was clear to him in respect of the right clip being closed, and on the left side he said “it’s quite clear that there’s a degree of expansion of the tube lateral to the clip on at least one side insinuating [to him] that that clip was closed”: T458.34 – T458.40. He later described that appearance as a slight swelling: T465.48 – T466.19. No other explanatory possibilities for that perceived swelling were identified or analysed by him. At this point it is of some significance to note that Dr Dhupar, as the operating surgeon who applied the clips in question, did not assert any such swelling or oedema, slight or otherwise, of the kind described by Associate Professor Cooper: T402.38. It was not made clear in the evidence of Associate Professor Cooper as to whether that appearance of a slight swelling could have been a “thickened oedematus tube”, possibly identified by Professor O’Connor as a reason for incomplete clip locking, as cited at paragraph [397] above.Associate Professor Cooper had also based part of his opinion on what he saw as the hysterosalpingogram image that showed the juxtaposition of the left clip abutting the tube on that side. That appearance led him to struggle to see how that clip could not be closed over the tube: T465.47 – T466.2. His perception in that regard raised a question as to whether in this context, closed meant locked: T465.35.Associate Professor Cooper’s opinion to the effect that he thought the clip was closed was based on his interpretation of photographic images, which comprised a two dimensional view of three dimensional structures (T456.16 – T457.1), where the angle or viewing plane could obviously influence the interpretation. To Associate Professor Cooper’s eyes, although the left Filshie clip was “a little bit further lateral”, having regard to a “slightly swollen” appearance adjacent to the clip, indicated to him that there was “some pressure at that point”. He was “reasonably convinced that the clip was closed”: T465.48 – T466.19. That opinion, which was qualified with an expressed imprecision, was plainly in part based on his interpretation of the hysterosalpingogram test result, which to his eye, told him the clip was “perfectly aligned with the dye that’s presumably running in the proximal site (sic) of the tube”: T465.50 – T466.1.However, when that evidence was explored, Associate Professor Cooper conceded the possibility that a Filshie clip could appear closed, but could in fact be closed incompletely, and not be locked: T471.18 – T471.27.Associate Professor Cooper’s opinion that the left Filshie clip looked to him to be closed was influenced by the photographic appearance of tube compression lateral to the left clip, but significantly, he qualified that evidence by agreeing that this was not a definitive view: T478.10 – T478.35.Associate Professor Cooper later agreed that the intra-operative photographic image of the left Filshie clip did not permit a definitive opinion on whether or not that clip had been under-closed, and he agreed that he could not exclude the possibility that the clip could have been under-closed: T478.49 – T479.10. However, it is tolerably clear that his opinion that the clip was correctly applied and closed had been influenced by his interpretation of the appearances on the hysterosalpingogram: T478.49 – T479.4.Associate Professor Cooper rejected the proposition that what most probably occurred in this case was that the left Filshie clip had not been properly applied by Dr Dhupar, although the jaws may have been jammed together, but not locked, thereby allowing the clip to open in some way and to then migrate whilst opened, to a position up in the broad ligament. His rejection was based on his interpretation of the several hysterosalpingogram images that he had seen, which he said had revealed to him that the clip was closed: T484.33 – T484.40.At that point in the cross-examination, it was put to Associate Professor Cooper that those images did not reveal the clip to be locked: T484.42 – T484.44. It is significant that his opinion that the clip in question was locked did not feature in any of his reports. It was a newly emergent view that only arose during cross-examination as follows:“O'KEEFE: It doesn’t reveal that the clip is locked though, does it?WITNESS COOPER: It's locked.KALFAS: Well, I object, your Honour.HIS HONOUR: What's the objection?KALFAS: Well, the question was involved in opening and now it's been put that it didn’t open. The preceding question in the scenario actually proposed that the clip opened, which is also I think the way my learned friend opened the case.WITNESS COOPER: The clip, the clip on the subsequent, on the HSG to my eye is closed and locked. If it was open it would be much more, it would be very obvious on the, on the images.”[T484.42 – T485.7]If the proper interpretation of the hysterosalpingogram images is that they do not show the Filshie clip, which was radio-opaque, to be occluding the left fallopian tube, then it appears that the factual basis for Associate Professor Cooper’s newly emergent opinion on the tube being locked, is invalidated.The basis of such an invalidation was later accepted by Associate Professor Cooper when he conceded the possibility that the left Filshie clip could be surrounded by tissues and other organs in the pelvic cavity in contiguous proximity to the clip: T485.25 – T485.30.Associate Professor Cooper’s initial interpretation of the combined effect of the intra-operative photographs of the Filshie clips and the hysterosalpingogram images was that the left Filshie clip was appropriately applied and closed: T485.47. He referred to that view on multiple occasions in his evidence.When Associate Professor Cooper’s opinion as to clip closure was later explored for its rational basis he reiterated that the hysterosalpingogram “appears to reveal [it] to be closed”: T485.47. He also maintained the view that to him the clip looked closed: T495.45.Associate Professor Cooper was asked to consider another theory following on from the hysterosalpingogram images, which Professor O’Connor said could not be rejected out of hand, namely, that the left Filshie clip could have been closed but not locked, that is, it could have been loose or incompletely closed, and could later have been dislodged with pressure applied from adjacent organs once the insufflating gas used in the laparoscopic procedure was removed from the pelvic cavity which would then have placed all structures within the pelvic cavity into closer contiguity: T485.49 – T486.42. However, Associate Professor Cooper thought that the prospect of such an occurrence was almost zero: T496.43.Paraphrasing, Associate Professor Cooper was asked to consider the implication of the possibility of the left Filshie clip having been incompletely closed or locked at the time it was applied so as to leave part of the tube occluded and a residual part left open or un-occluded. He said for that postulated mechanism to be accepted “you would expect that you would see evidence for that”: T496.45 – T497.11. He did not elaborate on what might comprise such additional evidence.When Associate Professor Cooper’s opinions as to closure or locking were explored in the context of the mechanical operation of the clip in light of the appearances shown on the hysterosalpingogram images, and in light of the possibility of different degrees of tube compression in the imaging as to a possible appearance of closure, a third proposition emerged in his evidence, namely the concept of “it’s been sort of locked”: T496.35 – T497.38.The foregoing analysis reveals the end-point of Associate Professor Cooper’s evidence on this issue to be that his opinions seemed to have morphed from clip closure, to clip locking, to sort of locking, all based on his interpretation of the images he had seen.Those views, and the basis for such views, have to be evaluated alongside Professor O’Connor’s view that locking was the real issue, and his related view that it is not possible to confirm from the images that the left clip was locked: T497.41 – T497.42. This was in the context where both experts agreed that, on the imaging, it would be difficult to differentiate between the proposition of there being a loose application of the clip, and clip closure: T500.19 – T500.24. In my view, that difficulty is an obstacle to a reasoned acceptance of Associate Professor Cooper’s stated views on clip closure.Associate Professor Cooper and Professor O’Connor were asked whether Dr Jeri’s findings and observations as to apparent left fallopian tube continuity without signs of damage, just prior to salpingectomy, could be reconciled with the hysterosalpingogram images: T499.34 – T499.41. Associate Professor Cooper proffered the possible explanation that the clip might have been loose but not widely open: T499.45. Professor O’Connor was of the view that the images do not discount that proposition: T499.48 – T500.1.Those views must also be considered in light of the undisputed chronology of events, that is, Dr Jeri’s unchallenged findings and observations, then followed by salpingectomy, which had the effect of altering the intra-pelvic anatomy. The hysterosalpingogram was performed over 2 years later.The foregoing analysis of Associate Professor Cooper’s evidence on the issue of left clip closure and locking reveals that evidence to be unsatisfactory as to its reasoned basis and unpersuasive because of its vacillatory content.Reiteration of untenable viewsOn an important causation issue, Associate Professor Cooper returned to a reiteration of evidence that he had previously conceded to be incorrect.In his initial consideration of a possible explanation for the plaintiff’s pregnancy, Associate Professor Cooper favoured a recanalisation theory. When his evidence on that issue was explored, he ultimately conceded that if Dr Jeri had correctly observed the plaintiff’s left fallopian tube as appearing normal without any fistula or additional passage between the left ovary and the left fallopian tube, then the recanalisation theory he had raised to seek to explain the plaintiff’s pregnancy was no longer available as a possible explanation for that pregnancy: T492.1 – T492.11. After acknowledging in answers to questions asked of him in cross-examination that he no longer held the view that recanalisation following Filshie clip transection was the cause of the plaintiff’s pregnancy (T472.30), when later asked why he seemed “keen to hold on to a fistula or recanalisation as the cause of the pregnancy”, he said that he relied upon the result of the hysterosalpingogram test where the contrast dye had not flowed beyond a particular point: T482.39 – T482.43.In my assessment that explanation involved a spurious line of reasoning. This is because, as has already been explained, before the hysterosalpingogram test had been carried out on 20 August 2018, on 1 March 2016, Dr Jeri had removed the distal portion of the left fallopian tube. When Associate Professor Cooper’s attention was drawn to that indisputable historical fact, in my view, he obfuscated, and he gave an indirect answer to the question, until he was further pressed on the matter, as is evident from the following extract of his evidence:“O’KEEFE: But we know, don’t we, that the reason why there is no further flow of dye in the left fallopian tube on the HSG is because in March 2016 the distal part of the fallopian tube was excised by Dr Jeri?WITNESS COOPER: Possible.O’KEEFE: Well, that’s his evidence. That’s what he did. He excised the distal part of the left fallopian tube. That stands as the most obvious and most likely explanation for the cessation of flow of dye within the left fallopian tube that’s shown on the HSG, doesn’t it?WITNESS COOPER: But the clip is still adjacent, or appears to my eye to be adjacent to the proximate portion of the tube.O’KEEFE: With respect, that’s not an answer to the question. If the clip is close to the tube and you can’t say that it’s attached to it, and if there is evidence from Dr Jeri that the clip was not attached to the tube in March 2016, it follows, doesn’t it, that the reason why the dye stopped where it did on the HSG was because there was no more fallopian tube for it to flow into?WITNESS COOPER: That’s possible.O’KEEFE: Well, it’s likely, isn’t it?WITNESS COOPER: Once a portion of the tube has been removed, it’s obvious that there would be no flow at that point. O’KEEFE: That’s what we see on the HSG, isn’t it?WITNESS COOPER: We see--O’KEEFE: Flow up to the point at which the tube ends, the distal part having been removed at the salpingectomy.WITNESS COOPER: Yes.”[T482.45 – T483.29]Associate Professor Cooper invoked a proposed fistula or recanalisation theory despite the fact that such a theory had never been reported in published literature as following the application of Filshie clips: T487.15 – T487.18; T487.26; T488.13 – T488.16. His evidence on that topic appears in the following extract:“O'KEEFE: So the theory that you've proposed of fistula or recanalization following Filshie clip application is precisely that, isn't it, it's a theory only?WITNESS COOPER: Correct.O'KEEFE: It's never been demonstrated?WITNESS COOPER: Correct.O'KEEFE: Or published or reported--WITNESS COOPER: Correct.O'KEEFE: --in any credible or any medical literature that you could find, has it?WITNESS COOPER: Well, there's reports of recanalization.HIS HONOUR: Can you help me with my understanding this theory? If it's accepted that the process of application of the Filshie clip has resulted in ischemia of a section of the tube. That must mean that ultimately part of the tube, I'm sorry, the overall length of the remaining two parts of the tube is less than it's integral whole before the procedure occurred. So when you bring the two ends to apposition and apply a stitch, is there sufficient stretchable material there to maintain the connection?WITNESS COOPER: Well, the, it'll, it'll move around so when you, when you suture them they will re join.HIS HONOUR: So the piece that's missing as a result of ischemia does not prevent recanalization, is that what you're saying?WITNESS COOPER: Yeah, correct it's only a small area that's damaged with, with the clip.HIS HONOUR: So the tubes themselves don't regenerate?WITNESS COOPER: No.HIS HONOUR: But apposition can occur with cellular growth around--WITNESS COOPER: Correct.O'KEEFE: But that's never been reported in medical literature?WITNESS COOPER: It's been reported in, in the sense that we were just referring to the process of actually attempting to re join tubes.O'KEEFE: But recanalization of two parts of a fallopian tube after a Filshie clip has been applied has never been reported?WITNESS COOPER: Correct.O'KEEFE: Can I just ask you now to turn to the articles that you've cited in support of the opinion expressed on page 2 of your final report? The first article at page 176, titled "Spontaneous live or current ectopic pregnancy after ipsilateral partial salpingectomy leading to tubal rupture. In the abstract at the top of the page under the subheading "Discussion", the authors state;"The mechanism by which a recurrent ectopic pregnancy after ipsilateral salpingectomy occurs is unclear but is theorised to be secondary to contralateral fertilisation and/or tubal recanalization that may occur due to inadequate diathermy."Do you see that?WITNESS COOPER: Correct, yes.O'KEEFE: Now, this article doesn’t support the proposition for which you have contended in your report, does it?WITNESS COOPER: This article just supports the possibility that other people consider that recanalization's a possibility.O'KEEFE: But in this case, recanalization due to inadequate diathermy, that hasn’t anything to do with application of a Filshie clip, has it?WITNESS COOPER: I was just refer, attempting to refer to the theory of recanalization.HIS HONOUR: I think what Mr O'Keefe's putting to you is that this article is a red herring to your argument.WITNESS COOPER: Possibly, but it refers to the fact that recanalization can probably occur.O'KEEFE: If we can turn to the second article that you cite which begins at page 180, and at page 3 of that article, page 182, the authors note that there was a case report in which fistula formation from the cornual was hypothesised as the ideology for an ectopic pregnancy. Well, again that's only a theory that's been identified, isn't it, and it doesn’t refer to fistula formation from a part of a fallopian tube, does it?WITNESS COOPER: I'm, I'm attempting to indicate that whatever term you'd like to use, fistula recanalization, whatever, something, there must be some way of explaining this, this set of, this sequence of events.O'KEEFE: In expressing your opinions about recanalization, did you take into account at all Dr Jeri's evidence that when prior to performing the salpingectomy, he was able to identify the entirely of the left fallopian tube palpated and it had, appeared more theologically normal?WITNESS COOPER: Yeah, my view was, was tainted by the subsequent HSG as I've indicated.”[T487.15 – T489.18]The recanalisation theory was ultimately and effectively abandoned in the course of the following evidence given by Associate Professor Cooper:“O'KEEFE: Perhaps before I put Dr Jeri's evidence to Professor Cooper I'll just complete my questions in relation to these articles. Could you then turn to the third article that you've cited in support of your theory? At page 183 it commences and if you could turn to page 185 I'm reading from the second or third paragraph:"Ectopic pregnancy has been report to occur as late as 12 years after hysterectomy. Late presentation in 42 such cases have now been reported, including in this latest case treated by this author. This can only develop because the sperm have gained access to the peritoneal cavity through a fistulous track between the vagina and the peritoneal cavity."Is that the only part of this article that you say has some relevance because it contains an opinion about the presence of a fistula?WITNESS COOPER: It, yes, just, this just relates to the fact that a fistula is probably the only mechanism to explain this.O'KEEFE: Its relevance to this case, along with the other two articles you referred to, is at best tenuous, isn't it?WITNESS COOPER: No, I think it's widely accepted that recanalisation is a, is a possibility and this just further, this, this, this - the sequence of events in these reports, it's almost impossible to contemplate that there's anything other than a fistula that could explain it or, in other words, fistulas occur.HIS HONOUR: I heard from Dr Jeri that the dimensions of a fistula in this postulation would be visually observable because the lumen of the fistula would have to be wide enough for an ovum to take a journey through it; do you agree with that?WITNESS COOPER: Ovum, ova as such are pretty small.HIS HONOUR: Yes, but do you agree in general with the proposition that I've extracted?WITNESS COOPER: No.HIS HONOUR: Why not?WITNESS COOPER: Because fistulas in other areas of the body, fistulas involving the bowel, fistulas involving urine, may not necessarily be easily demonstrated on imaging.HIS HONOUR: Those mechanisms are not being invoked here. It's a different kind of fistula, isn't it?WITNESS COOPER: Sure it's a different kind of fistula.”[T490.12 – T491.10]Reference to literature of a “low-ish” epidemiological level of evidenceTo support his views, Associate Professor Cooper invoked some published literature which, on analysis, was revealed to be of limited reliability and persuasive weight. In his report dated 28 May 2019, he stated:“…I believe both clips have been appropriately placed and closed and that the most likely reason for the subsequent pregnancy relates to the development of a fistula or recanalization. Whilst Prof O’Connor appears not to be in favour of the possibility of this phenomenon, there is clear evidence of this probability via reports of pregnancy following unilateral1, and bilateral salpingectomy and even hysterectomy. Many of these case reports can only have occurred as a result of either fistula or recanalization.”[Exhibit “1”, Tab F, p 175][References omitted]Three articles were referred to in that paragraph of Associate Professor Cooper’s report, and they were listed at the conclusion of the report.In his oral evidence, when Associate Professor Cooper was asked about a case report from that cited literature, which concerned a hypothesis of fistula formation from the cornu as the aetiology of an ectopic pregnancy, he said he had cited that article in an attempt to explain fistula recanalisation where “recanalisation can probably occur”: T488.18 – T489.10. However, he later explained that the epidemiological status or level of evidence of the articles he had cited were “sort of low-ish journals” comprising a case report that could demonstrate a theory: T489.43 – T490.8. His report dated 28 May 2019, in which he referred to those articles, did not contain any qualifying comment to that effect. The combination of those circumstances has led me to conclude that the literature cited by Associate Professor Cooper was of limited relevance or persuasive weight.The same impression arises from the 1996 study identified by Associate Professor Cooper where it was apparent that the causes of sterilisation failures the subject of part of that study did not consider or involve Filshie clips at all: T473.12 – T474.13.Accordingly, I considered that Associate Professor Cooper’s generalised and unreasoned statement that sterilisation failure can occur from multiple forms of sterilisation “no matter what you do” must be given significantly reduced weight in light of his concessions that there could be a variety of reasons for failure: T472.31 – T473.10. The possible reasons for failure need to be considered factually in terms of probability in conjunction with the known facts and reasonable inferences that might emerge from those facts.Those questions will be taken up and analysed in connection with the consideration of findings of fact on the cause of the plaintiff’s pregnancy and concerning whether there has been a breach of the duty of care that Dr Dhupar owed to the plaintiff.Conclusion on reliability of evidence of Associate Professor CooperHaving regard to the foregoing matters, in the determination of factual matters in dispute involving gynaecological expertise, for the foregoing reasons, I conclude that the evidence and the opinions of Professor O’Connor provide more measured and reliable expert guidance than the evidence and the opinions of Associate Professor Cooper.PART G – FINDINGS ON ISSUES CALLING FOR DECISIONI now turn to the consideration and determination of the eight substantive issues raised in these proceedings as identified at paragraph [70] above.Issue 1 – Findings on factual mattersThe parties made disparate submissions on various aspects of the factual narrative that ought to be accepted in this case. Having taken those submissions into account, I set out the narrative of my findings on the matters of fact concerning 21 relevant topics of evidence. Those findings are set out in the chronological context and order in which they arise, as follows:The plaintiff’s personal and family history;The plaintiff’s work history;The plaintiff’s previous health;The plaintiff’s family planning intentions;Referral of the plaintiff to Dr Dhupar for tubal ligation;The plaintiff’s prior knowledge of the possibility of pregnancy occurring despite sterilisation surgery;The plaintiff’s pre-operative consultation with Dr Dhupar on 9 May 2014;Bilateral tubal ligation surgery performed by Dr Dhupar on 26 August 2014;Onset of the plaintiff’s unwellness and gradual awareness of pregnancy;Dr Dhupar’s claimed unawareness of plaintiff’s pregnancy;The most probable cause of the plaintiff’s pregnancy;The plaintiff’s initial reaction to the pregnancy with her fourth child;The plaintiff’s negative feelings and attitude to the pregnancy;The onset of labour and travel to Wagga Wagga for the delivery; Caesarean section delivery of fourth child;Dr Jeri’s intra-operative observations and communications;The plaintiff’s discharge from hospital following birth of fourth child;Events between the birth of the fourth child and the trial;Expert medical assessments of the plaintiff relating to damages;Effects of the events on the plaintiff’s work;Relevant observations of plaintiff’s mother-in-law.(1) Plaintiff’s personal and family historyThe plaintiff was born in 1980. She had completed her high school education to Year 11 level at age 17 years in 1997. In 2002, she was married at age 22 years. Before the subject pregnancy, she had delivered three healthy children, who were respectively born in late 2004, late 2006, and in mid-2007. As a result of the events complained of, in 2016 she gave birth to a fourth healthy child.(2) Plaintiff’s work historyBefore the birth of her fourth child, the plaintiff had a consistent history of advancement in her chosen work. The plaintiff’s working career commenced on leaving school in 1997. Between 1997 and 1998, starting at age 17 years, she commenced and then completed a 12 month traineeship in office administration with the local shire council. She then took up employment with a bank in a customer service role, following which she moved through ranks of promotion into a financial services role. In that time, she had successfully pursued TAFE studies and obtained a Certificate III in Financial Services.Whilst the plaintiff was working for the bank she took maternity leave from her work for the birth of her first child. She then returned to work part-time, which ranged between three and four days per week.In 2010, the plaintiff left her employment with the bank in order to pursue work in the financial planning sector. Her role in that employment was in the area of para-planning, which involved writing up documentation associated with the requirements of financial planning. That role also involved her in researching investments for the clientele of that business.The plaintiff’s employment in the financial planning sector commenced on a part-time basis. Whilst in that employment, following the birth of each of her second and third children, the plaintiff took maternity leave. In the longer term, she intended to move back into full time employment once her third child had reached primary school age. The plaintiff’s plan also coincided with the plans of her employer, who was seeking to expand his business. The plaintiff’s work plan involved her taking on what was known as the risk book on the insurance side of the business, which would have involved her in selling insurance products in addition to fulfilling her other roles. In that regard, she was in negotiations with her employer about planned full time employment in due course. That was until she discovered she was pregnant with her fourth child, who was unplanned, which is the subject of these proceedings. Those events saw a significant deleterious change in her working life.(3) Plaintiff’s previous healthThe plaintiff had always been in relatively good overall health. As a child, at the age of about 9 years, she contracted viral meningitis. As a legacy of that illness she has experienced episodic migraines, which at times and to varying degrees involved symptoms such as headaches, dizziness and nausea. She has also had episodic experiences of anxiety. None of those matters of medical history have had a significant or a deleterious impact upon her past work history. I infer from those circumstances, absent the impact of additional stressors, that situation was likely to continue into the plaintiff’s future working life had her fourth child not been conceived. The plaintiff’s first three children were born by uncomplicated elective caesarean section. Those procedures were performed by Dr Jeri, her general practitioner obstetrician. She did not experience any adverse psychological reactions, particularly depressive symptoms, in relation to the birth of any of her first three children. Before the plaintiff’s pregnancy with her fourth child she was physically quite fit. I accept her evidence that she had never been more fit. She undertook daily physical training for triathlons, which included running, swimming and cycling. She also undertook regular physical gym work-outs. She was healthy. She weighed 65kgs. Before the subject tubal ligation procedure, the plaintiff had experienced a form of episodic anxiety. That anxiety was focussed on her apprehension about becoming pregnant with a fourth child. After the tubal ligation, for a relatively short period, she felt liberated from that source of anxiety, that is, until the diagnosis of her pregnancy with her fourth child.Whilst the trial remained current and incomplete, in May 2019, the plaintiff experienced seizures related to the effects of her childhood meningitis. From the defendant’s perspective, this should be seen as being an ever-present possible vicissitude that happened to have crystallised.(4) Plaintiff’s family planning intentionsAfter the birth of the plaintiff’s third child, she and her husband made a joint decision, which was a very firm decision on her part, especially after having had three previous caesarean sections, that they would not have any more children. The plaintiff had previously discussed that issue with Dr Jeri. Those discussions concerned her options for limiting her future fertility. She wanted to proceed with an option that provided her with the least possible chance of becoming pregnant again. She understood her best option in that regard was to undergo tubal ligation. (5) Referral of plaintiff to Dr DhuparIn early 2014, in the course of the plaintiff discussing her family planning options with Dr Jeri, he advised that her best option was to undergo a tubal ligation procedure. He recommended that this should be performed laparoscopically in order to avoid possible complications by operating through pre-existing caesarean section scar tissue. For the plaintiff, a relevant and related factor was that the option recommended by Dr Jeri would minimise post-operative recovery time and it would cause less interference with her physical training regime. She accepted Dr Jeri’s advice, with the result that she was then referred to Dr Dhupar in Wagga Wagga with the aim of undergoing the procedure in a day surgery centre under general anaesthetic. Dr Jeri made that referral because her local hospital was not equipped for laparoscopic Filshie clip procedures.(6) Plaintiff’s prior knowledge of possible pregnancy despite tubal ligationI accept that before the plaintiff consulted Dr Dhupar, in general terms, she understood that there was some risk of pregnancy occurring notwithstanding the performance of tubal ligation surgery. However, I do not accept that such knowledge was other than in general terms. I find her understanding in that regard did not extend to an awareness of the existence of an inherent risk of such surgery because the plaintiff understood that tubal ligation was the most reliable means of achieving sterilisation. The plaintiff’s general understanding of a possible pregnancy following sterilisation surgery was not specifically linked or stratified according to the different types of tubal ligation surgery, or as to how in particular such surgery might fail to prevent pregnancy, including through instances of operator error. Matters of that nature required skilled explanation, including as to the various potential causes of failed sterilisation surgery and how such potential causes were best avoided.(7) Pre-operative consultation with Dr Dhupar on 9 May 2014On 9 May 2014, the plaintiff consulted Dr Dhupar in Wagga Wagga. It is common ground that at this consultation, Dr Dhupar explained to her that the recommended process of laparoscopic tubal sterilisation was achieved using Filshie clips applied to the fallopian tubes. In the course of that consultation, the plaintiff then agreed to undertake that procedure as soon as possible. The first available date for that operation was then selected and booked, namely, for 26 August 2014.The factual matters that remain in dispute as emerging from within the evidence of the plaintiff and Dr Dhupar concerned what was discussed and what information was provided at that first consultation. The dispute comprised first, the extent to which the plaintiff was given “College info” comprising RANZCOG information for patients intending to undergo tubal occlusion, and secondly, the extent to which Dr Dhupar provided the plaintiff with a discussion on the separate topics of potential “failure” and “risk” associated with tubal ligation at the time she obtained the plaintiff’s consent for that procedure.For the reasons outlined at paragraphs [301] to [374] above, I conclude that I have insufficient confidence in the reliability of Dr Dhupar’s evidence on factual matters in dispute, whether such evidence was claimed as being based on an actual recollection, or on the basis of her notes of consultation, or on a combination of those factors, to conclude that at her consultation with the plaintiff on 9 May 2014, she had in fact provided the plaintiff with a take-away copy of the RANZCOG information pamphlet referred to in paragraphs [112] to [123] above, or that Dr Dhupar had adhered to a usual practice in that regard.I am reinforced in that view for what I consider to be two principal and compelling reasons, as follows. First, in Dr Dhupar’s evidence she identified and conceded that in her consultation with the plaintiff on 9 May 2014, there was a relevant departure from the RANZCOG recommended practice in that she did not contemporaneously write a date on the RANZCOG sticker she had affixed to her notes of consultation with the plaintiff. This was in circumstances where annotation of that sticker with the date of the consultation was intended to form contemporaneous evidence of the provision of relevant information: Elayoubi v Zipser [2008] NSWCA 335, at [83], [86]. I do not accept that Dr Dhupar’s failure on 9 May 2014 to contemporaneously date that sticker can simply be dismissed as a small error in the nature of a mere oversight on her part, as she claimed.Secondly, when Dr Dhupar faxed a copy of the pamphlet in question to the plaintiff’s solicitor on 12 September 2016, pursuant to a request to do so (Exhibit “C”, Vol 1, Tab 4.1, pp 200 – 203), the copy that she faxed to the plaintiff’s solicitor did not have a copy of a sticker on it. This fact suggested that the sticker had been removed. That circumstance raises the distinct possibility that Dr Dhupar kept the discussion copy of the pamphlet in her patient file relating to the plaintiff, and that she did not provide it to the plaintiff for her to take away and read. That view generally accords with the plaintiff’s recollection, which I accept as being factually correct. In arriving at that view, I have not overlooked Dr Dhupar’s evidence concerning an alternate possibility, namely that she had only faxed a sample of the RANZCOG pamphlet to the plaintiff’s solicitor rather than sending a copy of the actual pamphlet that she had given to the plaintiff. I do not consider Dr Dhupar’s evidence on that matter to be sufficiently reliable to resolve that question in the manner that was submitted on her behalf. I considered that such a submitted alternative possibility is speculative rather than factual in nature.Absent a specific or a reliably refreshed recollection on Dr Dhupar’s part as to what particular risks were pre-operatively discussed with the plaintiff concerning the potential causes of a failed sterilisation following the application of Filshie clips, I am satisfied that Dr Dhupar only discussed matters concerning the risk of pregnancy in general terms that would not have been likely to provide the plaintiff with knowledge or specific information on how or to what extent the risks of a failed sterilisation and pregnancy could possibly materialise, either by means of the misapplication of a Filshie clip due to operator error, or otherwise.I am persuaded that on 9 May 2014, when the plaintiff left the consultation with Dr Dhupar, she had not been given her own take-away copy of the RANZCOG pamphlet to read and to digest. I am also persuaded that beforehand, Dr Dhupar had not provided her with a reasoned understanding of the various ways in which tubal ligation surgery might possibly fail and lead to pregnancy when Filshie clips were used to achieve sterilisation.(8) Bilateral tubal ligation surgery by Dr Dhupar on 26 August 2014On 26 August 2014, Dr Dhupar performed the agreed bilateral Filshie clip tubal ligation procedure on the plaintiff at the Wagga Wagga Day Surgery Centre. It is clear that following that surgery, so far as Dr Dhupar was concerned, she had no reason to think that the plaintiff might have been at a higher than usual risk of pregnancy as a potential complication following the tubal ligation surgery. That view reasonably arises from the nature and the content of Dr Dhupar’s post-operative communication with Dr Jeri, and also from the fact that nothing of that nature was discussed with the plaintiff prior to Dr Dhupar having discharged the plaintiff from her care.Had Dr Dhupar considered that the plaintiff was at a higher risk of becoming pregnant following the application of Filshie clips, she would have been duty-bound to advise the plaintiff of that fact and the reasons for such a view, and she did not do so.Dr Dhupar’s evidence in which she explained the manner in which she had carried out the tubal ligation procedure on the plaintiff, and her related records and notes of those events, involved some matters of detail that were open to disputed interpretation. I find that Dr Dhupar’s account of those matters was provided in circumstances where her admittedly very limited recollection alone, and the only limited details she recorded in her operation record, did not relevantly assist her to reliably describe crucial factual matters of significance that occurred during the procedure she performed on the plaintiff on 26 August 2014.It is recognised that Dr Dhupar had a busy private and public obstetric and gynaecological practice. In those circumstances, and due to the passage of time, it is entirely understandable that she would not be able to recall the specific details of the procedure she had carried out on the plaintiff on 26 August 2014, including in circumstances where she performed about five such operations per annum: T270.36.Consequently, as observed at paragraph [353] above, for such details, Dr Dhupar was reliant upon her understanding of her usual procedure or practice in combination with reliance upon the limited content of her operation record and the related contemporaneous records as made by others to describe the intra-operative events of the particular tubal ligation procedure that she performed on the plaintiff on 26 August 2014: T280.45 – T280.48; T281.19 – T281.27.In the above context, I consider that the general notion of usual practice in the context of the operation in question must be considered as being in circumstances of “typical use” of Filshie clips as contemplated in the manufacturer’s instructions: Exhibit “C”, Vol 2, Tab 6.5, p 593.Operation documentationThe documentation for the sterilisation operation performed on the plaintiff by Dr Dhupar on 26 August 2014 variously consisted of a number of clerical forms completed by nursing staff, by the anaesthetist, some intra-operative photographs, and Dr Dhupar’s own typed and handwritten operation records, extracts of which are reproduced at paragraphs [132] and [133] above, and which she filled out shortly after she had completed the procedure.Dr Dhupar’s personal template for preparing a printed operation record included a field that was available to be completed by her in which she could include relevant details to identify by name any surgical assistant that might have been present at the procedure. Similar spaces existed on the hospital forms for that purpose. Although I have little confidence in the reliability of Dr Dhupar’s contemporaneous annotation of appropriate details of that nature within her own template as was applicable to the plaintiff’s operation, I am satisfied from the state of the handwritten entries in the hospital records that were completed contemporaneously by a hospital nurse, that there was no other medical practitioner present to assist Dr Dhupar when she operated on the plaintiff on 26 August 2014.That said, there was no medical evidence to suggest that another medically qualified surgical assistant was necessarily required to be present when an obstetrician gynaecologist in the position of Dr Dhupar was performing laparoscopic tubal ligation using Filshie clips at that time. This is in the context where, according to the manufacturer’s literature, the procedure only “requires basic laparoscopic skills and takes just a few minutes”: Exhibit “C”, Vol 2, Tab 6.5, p 593. That description, of itself, does not necessarily mean that every application of Filshie clips is achieved by means of a usual practice where there is scope for individual differences, such as, for example, larger fallopian tubes, as contemplated by the manufacturer. In this context it is noteworthy that the procedure Dr Dhupar carried out on the plaintiff took place over the course of 46 minutes, as was observed by Associate Professor Cooper. Whether or not this was because no surgical assistant was present, or whether some of that time is accounted for with preparation and closing tasks, or whether there was some other reason, remains unknown.The relevance for considering the question of whether there was an assistant present at the time of the plaintiff’s operation is that there was a clear expectation on the part of Dr Dhupar that a member of the team in the operating theatre also providing care to the plaintiff during that procedure would take intra-operative photographic images using component parts of the laparoscopic equipment to create a documentary record in the form of a series of photographs of selectively identified stages of the procedure. Those photographs were intended to show the finally clipped state of various affected structures for the purpose of recording evidence to demonstrate the satisfactory completion of the required steps of the operation. No evidence was called to describe who it was that had decided which particular photographic images would be selected to be taken at particular stages of the procedure that Dr Dhupar carried out on the plaintiff. This was in circumstances where Dr Dhupar did not take the photographs herself: T279.17. The evidence remains unclear as to whether Dr Dhupar had instructed the person taking the photographs as to when and from what perspective to take particular images as a record of the intra-operative steps she had performed on the plaintiff.No evidence was called as to the configuration of the instrumentation or the apparatus for taking such photographs, or as to whether a person other than the operating surgeon was sufficiently skilled and informed to be able to selectively determine at which points and for what reason during the operation, any particular photograph should be taken, either simultaneously with Dr Dhupar’s surgical actions, or at her specific direction, or in a particular sequence, at various stages of the operation. There was no evidence as to whether the images tendered in evidence as Exhibit “5”, were chosen by Dr Dhupar whilst she was looking down a viewing apparatus or whilst she was viewing a monitor screen set up in the operating theatre.Intra-operative photographic images and records regarding clip placementThe evidence discloses that a total of nine intra-operative images were taken during the procedure that Dr Dhupar had carried out on the plaintiff. They are numbered in the series IMG_001 to IMG_009: Exhibit “5”. For reasons not fully explained, images identified as IMG_001 and IMG_002 were not fully copied in Exhibit “5”. Those two images are reproduced below:Image 1Image 2The remaining seven intra-operative images comprising Exhibit “5” are reproduced below in the series IMG_003 to IMG_009:Image 3Image 4Image 5Image 6Image 7Image 8Image 9Both Professor O’Connor and Associate Professor Cooper were able to recognise and describe the relevant anatomical structures and Filshie clip placement positions which appeared in the images comprising Exhibit “5”. For reasons already identified in my analysis of the expert opinions at paragraphs [495] to [561] above, I consider that Professor O’Connor’s reasoned interpretation of those images should be preferred as representing the most reliable source of evidence which interprets what is shown in them. This is particularly so where Associate Professor Cooper’s reasoning relied upon “insinuating” inferences where, on analysis, his reasoning appears to have only considered inferences which favoured the defence case without including a sufficiently detailed and persuasive differential rejection of possible countervailing views or inferences.Materially, in their respective viewing of the photographic images, neither Professor O’Connor nor Associate Professor Cooper could see any evidence of a large varicose vein located on the plaintiff’s left fallopian tube as was asserted by Dr Dhupar. Her assertion as to the presence of such a varicose vein was based on a claimed recollection that was unaided and unsupported by any contemporaneous corroborative evidence. That asserted fact was first articulated in her oral evidence. It was not mentioned in her factual statement to her solicitor. In those circumstances, I find her newly emergent recollection on that issue as stated in her oral evidence was unlikely to be factually correct or reliable.The manufacturer and supplier of the Filshie clips had set out in its product information material (described at paragraphs [48] to [52] above), a series of recommendations for the correct positioning, application, closure and locking of a Filshie clip in a laparoscopic tubal ligation procedure. The evidence discloses that Dr Dhupar did not completely follow the manufacturer’s instructions and recommendations. Her placement of the left Filshie clip was significantly distant to the position which was recommended by the manufacturer.The RANZCOG advisory statement to practitioners set out a discussion guideline as to what constitutes good practice when using Filshie clips. The salient features of those guidelines (described at paragraphs [127] to [129] above), set out a series of described steps to be implemented, including where unusual intra-operative difficulties might emerge, and also including post-operative advice to be given to the patient in such circumstances. The evidence discloses that no intra-operative difficulties relevant to clip placement were noted by Dr Dhupar or communicated to the plaintiff. The evidence discloses that Dr Dhupar did not completely follow the guidelines and recommendations for placement of the left Filshie clip. It is plain that neither the RANZCOG guidelines, nor the manufacturer’s suggested procedure for record keeping, particularly as to making photographic records, had been fully followed by Dr Dhupar. In that regard, it is also plain that the Filshie clip which she had applied to the plaintiff’s left fallopian tube was not placed on the isthmic portion of that tube in a position located 1cm to 2cm lateral to the cornu of the uterus. The experts were in agreement on that fact. The content of the contemporaneous records made by Dr Dhupar did not contain any explanation as to why she had placed the left Filshie clip in a position other than that which was recommended by the manufacturer.Those matters will be taken up in my reasons for decision on whether or not Dr Dhupar had breached the duty of care that she owed to the plaintiff. I find that there is no satisfactory evidence that shows the left Filshie clip, once applied by Dr Dhupar, had completely enclosed and occluded the left fallopian tube within its bite whilst the clip jaws were in a flat, closed, and locked position without also capturing non-fallopian tube tissue. Furthermore, there is no contemporaneous documentary evidence to show that Dr Dhupar had inspected the left Filshie clip by viewing it from both the front and back perspectives in order to confirm that the entire left fallopian tube had been captured within the bite of the jaw of that clip, at a point 1cm to 2cm from the cornu, and that the upper jaw had been compressed and securely latched under the nose of the lower jaw of the clip, without having also captured unintended nearby mesosalpinx tissues in addition to the intended muscular portion comprising the fallopian tube.Such evidence could have been in the form of either an appropriately framed and positioned intra-operative photograph taken in conjunction with a “flipping” manoeuvre as described in the evidence and as occurred in respect of the right Filshie clip, or reliable oral evidence either based on a convincingly credible actual recollection, or by means of a recollection reasonably aided or refreshed by an adequately detailed contemporaneous post-operative note. In my assessment, the evidence of Dr Dhupar on the subject of placement and closure of the left Filshie clip did not fulfil any of those criteria. Dr Dhupar’s evidence on the state of closure of the left Filshie clipDr Dhupar accepted the correctness of the description within a diagrammatic representation appearing at page 32 of Exhibit “1”, in which the phenomenon of an under-closure of a Filshie clip was characterised as being due to an operator fault: T429.13 – T430.12. That diagram is reproduced at paragraph [51] above.In her evidence, Dr Dhupar forthrightly rejected the proposition that she did not properly undertake an intra-operative check of the left Filshie clip for closure: T401.30. The factual basis for that rejection was unclear. This is because of her limited recollection of the procedure she had performed, her reliance on her usual practice to describe the detail of that procedure, and an absence of detailed contemporaneous corroborative records relating to that procedure, including a relevantly positioned intra-operative photograph, which could have provided some contemporaneous proof of correct clip placement, closure and locking.Dr Dhupar signed a statement that had been prepared with the assistance of her solicitor. The purpose of that statement was plainly intended to be used in these proceedings to form the assumed basis for her defence when briefing expert witnesses. In her statement, Dr Dhupar stated that she had satisfied herself, by having heard the sound of an audible intra-operative click, that she had properly closed the left Filshie clip: Exhibit “6”. As examined in detail at paragraphs [369] to [374] above, Dr Dhupar signed the draft statement her solicitor had prepared on her instructions after she had taken the opportunity to check the content of that statement. She signed that statement without material alteration or qualification.However, in her oral evidence, Dr Dhupar sought to disavow that part of the content of her signed statement which referred to the intra-operative sound of a click as being evidence of clip closure. She sought to do so because when she gave her oral evidence, at that time, she knew that the instrumentation which she had used on 26 August 2014 did not produce a clicking sound of the kind referred to in her statement. In that context, Dr Dhupar suggested that her solicitor had misunderstood what it was that she had said on that subject in the telephone conference which had based the content of that statement. Her answers to questions in cross-examination on that point were as follows:“O’KEEFEQ. Page 4, do you see - just before we get there, you were keen, obviously, to tell your lawyers about the steps that you take to check that a clip has been applied directly to the fallopian tube, is that right, when you prepared this document?A. Yes.Q. You see the paragraph about the middle of the page? I'm going to read it to you:“In applying the clips, I flip each tube to make sure the clips are applied properly. The clips need to be applied on both sides in the right place and properly closed. To ensure proper closure, it must be a tight close and then a click sound.”A. That was, I think is the - I read that one.Q. That's in your written statement?A. Yeah, yeah. I know. I read that one. So click sound - what I said is - I think the question they have asked about, “Can you hear some click sound?” I said, “No, it’s only it was in the old instrument previous variation you can hear that click sound, not the new one.” So I never said the click sound, you are waiting. Now, the new instrument, there is no click sound.”[T438.1 – T438.23][Emphasised text replaces transcript text previously described as “not transcribable”: MFI “24”]In her evidence, Dr Dhupar not only claimed that her solicitor must have misunderstood what she had said, but she also stated that she must have herself misread the document before she signed it: T439.27. Such assertions must be read in light of her evidence given in cross-examination, as cited below:“Q. Dr Dhupar, you've just been asked a series of questions about this statement today?A. Yeah.Q. About the fact that you understood how important the statement was in the A. Yeah.Q. --context of this claim?A. Yes.Q. About the fact that you read the statement before you signed it?A. Mm-hmm.Q. And that you understood that the statement was true and correct when you signed it. You've told us that today?A. Yeah, yes, yes.Q. And you read, didn't you, that you were going to represent to your lawyers that you understood the way to ensure proper closure would be to make sure it’s a tight closure with a clicking sound?A. Yes.”[T438.36 – T439.7]Subsequently, clarification was sought concerning Dr Dhupar’s evidence as to the manner of preparation of her statement comprising Exhibit “6”. That evidence was as follows: “Q. Am I correct in assuming that the instrumentation you were using did not enable a click sound?A. Click sound, yes.Q. If this statement came from or was composed as a result of information given by you over the telephone to your lawyers, where else would this reference to the click sound have come from if not from you?A. Because the person was talking about what other way you're looking that your clip is completely locked, so we have to eliminate, okay, these things we are looking, is if there is any other things apart from the observation. I said, “It’s not possible nowadays in the new instrument, there is no sound, when in the past there was the click sound was there,” and that is the only thing I have said. But this line must be, you know, it’s gone through from your eyes and you haven't looked.”[T439.38 – T440.1]The context of Dr Dhupar’s reference to the expression “nowadays” was left unclear, as her statement was undated. It was not clarified as to whether that term was to be applied to either the time she operated on the plaintiff in 2014, or whether it applied to the date she had the relevant telephone call with her solicitor which led to the preparation of the statement.Dr Dhupar’s statement was important to the conduct of the defence of the case brought against her. In light of her evidence that she had read her statement and signed it as being true and correct in its content, I am not persuaded that Dr Dhupar’s answers, in which she sought to explain the manner in which the content of her statement had been prepared, so as to assert there was a mistake in her statement, were based on an actual recollection of the events in question. In that regard no corroborative evidence was called from Dr Dhupar’s solicitor who had drafted that statement to support Dr Dhupar’s assertion of a mistake or the possibility of a mistake.This was in circumstances, where, as observed at paragraphs [376] to [378] above, her solicitor was called to give evidence on other aspects of a procedural nature including concerning an aspect of the preparation of Dr Dhupar’s statement and the related assumptions to be placed before the retained expert witnesses. Absent such corroborative evidence I do not accept Dr Dhupar’s evidence that she had misread the statement before it was signed by her. I find that the content of the statement represented the state of her recollection, albeit a mistaken recollection, at that time.In considering Dr Dhupar’s evidence that she heard a click to indicate that she had achieved clip closure, I have not overlooked the evidence within the manufacturer’s literature and the evidence of Associate Professor Cooper to the effect that an application of a Filshie clip would produce a feel or a perception of a “give” in the muscular tissue of a fallopian tube. I do not accept Associate Professor Cooper’s explanation of a possible equivalence between a “give” and a “click”. A claim of an occurrence of a click is an audible phenomenon. The feel of a “give” in tissues is proprioceptive, and is not suggestive of an audible phenomenon. Dr Dhupar did not articulate a reconciliation or an explanation concerning those differences.There is no basis in fact for construing Dr Dhupar’s reference to the sound of a click as meaning she felt a “give” as a tissue reaction to clip application. That is so, particularly where the expert evidence indicates that the left Filshie clip was placed distal to just the muscular tissue of the isthmus of the fallopian tube and as such, it had also incorporated other tissue. The phenomenon of a “give” referred only to the muscular isthmus of a fallopian tube. Dr Dhupar’s operation record contained no reference to a large varicose veinDr Dhupar’s operation record is the subject of analysis at paragraphs [131] – [144] and [357] – [366] above. There was nothing in that operation record which identified a large varicose vein as being present on the plaintiff’s left fallopian tube.Dr Dhupar, as the operating surgeon, was the person responsible for ensuring that relevant intra-operative images were taken for record purposes if she required such images to be taken and kept in accordance with the manufacturer’s instructions. The same comment applies to the making of any note as to whether any significant or unusual intra-operative events arose, occurred, or were observed during the procedure.I do not accept as reliable Dr Dhupar’s evidence in which she claimed to have encountered a large varicose vein on the plaintiff’s left fallopian tube, or that the presence of such a vein had influenced her placement of the left Filshie clip to a position that was more lateral to that which was recommended by the manufacturer when using Filshie clips.I find that if Dr Dhupar had in fact seen a large varicose vein on the plaintiff’s left fallopian tube as she claimed, it would have been a matter of some significance to the outcome and the efficacy of the procedure she was performing, and a matter worthy of a record to that effect. This is because it may have influenced the position in which the clip was to be placed, including a possible need to place a second clip, a step she knew might be required in some circumstances to achieve efficacy: T402.18 – T402.22. If it occurred, the fact of the appearance of a varicose vein ought to have prompted Dr Dhupar to ensure that a record was made of its presence. I infer from the absence of any such record that Dr Dhupar’s evidence as to having intra-operatively seen a varicose vein as she described, should not be accepted.In making that finding I have taken into account, but discounted the possibility, that the left Filshie clip was placed laterally to the recommended position could of itself provide some evidence of a need for such lateral placement because of the presence of a varicose vein. I have discounted that possibility because neither of the expert obstetrician gynaecologists who considered the factual evidence in this case could identify such a varicose vein when they analysed the intra-operative photographs (T466.47; T467.11), and Dr Dhupar did not seek to do so by reference to specific aspects of those photographs. Furthermore, in that context, I take into account and accept Professor O’Connor’s opinion that finding a varicose vein in that location on the left fallopian tube by reason of its muscular structure, was an improbable occurrence: T466.49. I therefore do not accept Dr Dhupar’s evidence that she had intra-operatively encountered a large varicose vein on the left fallopian tube, a description she raised for the first time when she gave her oral evidence.In my view, it is of some significance that the claim of a presence of a varicose vein was not included in her statement and in the assumptions that were provided to the defendant’s expert, Associate Professor Cooper, who seemed surprised when an assertion to that effect was brought to his attention: T467.3 – T467.4.Application of Filshie clip to right fallopian tubeThere is no dispute that on 26 August 2014, Dr Dhupar had correctly applied a Filshie clip to the plaintiff’s right fallopian tube. Indisputably, that fact is objectively and contemporaneously confirmed by the intra-operative photographs of the plaintiff’s right fallopian tube, which the experts agree shows the right Filshie clip as having been applied and closed on the isthmus of that tube in the position recommended by both the manufacturer and by the RANZCOG publication. Both obstetric and gynaecological experts were in complete agreement on that point.Application of Filshie clip to left fallopian tubeFollowing my consideration of the evidence which describes the manner in which Filshie clips are to be applied, I find that in this case, the task of correctly applying a Filshie clip to the isthmus of a fallopian tube 1cm to 2 cm from the cornu of the uterus is not a procedure that should reasonably be characterised as being a routine mechanical task: Elayoubi v Zipser [2008] NSWCA 335, at [86]. That conclusion arises because that particular surgical task seemed to have required differential surgical exploration and separation of intrinsic intra-abdominal structures and adhesions located in the general anatomical vicinity of where three prior caesarean sections had been performed, and where Dr Jeri confirmed that post-operative adhesions were present from those previous caesarean sections: T176.19 – T176.47; T178.40; T197.20 – T197.28. In that regard, an apparent divergence emerged within the evidence concerning such adhesions. In contrast to Dr Jeri’s unchallenged evidence here cited, Dr Dhupar’s statement Exhibit “6” asserted there were no adhesions blocking the tubes or preventing visualisation of relevant structures, as identified at paragraph [356] above. It is difficult to reconcile those different descriptions which were not canvassed in the expert evidence. In those circumstances, I must do the best I can to reconcile those matters. On that divergence, given the disparate timing of Dr Dhupar’s statement and the lack of supporting contemporaneous evidence for the assertion that there were no adhesions, as well as the paucity of her contemporaneous notes, I consider Dr Jeri’s evidence, which refers the presence of adhesions from three previous caesarean sections, is more likely to be correct, and should be preferred.The surgical tasks described in the preceding paragraph necessarily required Dr Dhupar to identify the distinguishing features of surrounding intra-abdominal structures, undertake selective dissection, and exercise clinical judgments on those matters at various stages of the procedure, including selecting the correct position for clip placement and closure. That entire process does not suggest itself to be a routine mechanical task, such as, to use a simple example, suturing a surgical wound for closure following the conclusion of an operation. Whilst the manufacturer’s description of a simple procedure taking a few minutes suggests a routine tasks, the 46 minutes taken by Dr Dhupar to carry out the procedure does not suggest it was a routine mechanical task.In my view, the foregoing conclusion must necessarily arise because the task in question involved identification of the isthmus, at a particular point 1cm to 2cm from the cornu of the uterus, followed by the correct instrumental manipulation, placement and closure of the clip into the locked position, at a remote location not within the direct vision of the operating surgeon, where direct manual manipulation and palpation was not possible. Visual judgment had to be employed using the comparatively limited visual dimension of the laparoscopic equipment and the associated instruments that were controlled by the operator’s hands but operated remotely.The objective evidence discloses that on 26 August 2014, Dr Dhupar had correctly identified the plaintiff’s left fallopian tube and applied a Filshie clip to a portion of that tube. However, the evidence discloses she applied that clip in a position which was significantly lateral and distant to the position which was recommended by the manufacturer of the Filshie clip and by the RANZCOG guidelines. It is of material significance that a more lateral positioning of such a clip increased the chances of an incomplete closure due to the clip grabbing other tissues within its bite in addition to just the intended fallopian tube. This is a matter of some relevance because Dr Dhupar conceded that an incompletely or incorrectly locked clip could potentially dislodge, move and become free: T428.28 – T429.4. Such a potential for movement would be inconsistent with achieving lumen occlusion as it would enable a clip to migrate without proper locking.The expert interpretations of the photographic images must be considered at this point.The effect of Associate Professor Cooper’s evidence is that he sought to diminish the significance of Dr Dhupar’s more lateral or incorrect placement of the left Filshie clip compared to the position recommended by both the manufacturer and the RANZCOG guidelines. Associate Professor Cooper’s comments, which sought to justify a more lateral clip placement rather than at the preferred position on the muscular isthmic portion of the fallopian tube 1cm to 2cm from the cornu of the uterus (T469.19 - T469.20), were intended to defend Dr Dhupar’s placement of the left Filshie clip. In my view, that evidence does not reliably have that effect as it does not amount to an acceptably reasoned opinion of the kind demanded by UCPR r 31.27(1)(c) and Sch 7 cl 5(e).Associate Professor Cooper’s view on left clip closure was based on an inference which he had drawn, from the “slightly swollen” appearance of the muscular portion on one side of the tube adjacent to the clip, from which he inferred there was “some pressure at that point [which] reasonably convinced [him] that that clip was closed”: T466.17 – T466.19. He also referred to that slightly swollen appearance as “a degree of expansion of the tube lateral to the [left] clip … insinuating [to him] that that clip was closed”: T458.34 – T458.40.In my view, Associate Professor Cooper’s evidence to that effect should be discounted in light of his concession that from within the array of images that were tendered, one could not clearly see that the left Filshie clip had actually been closed: T469.37 – T469.45. In those circumstances, and in light of the evidence of Professor O’Connor, whose view was that there was no proof the clip was closed and locked (T457.6; T464.27; T497.42; T503.19), and whose evidence I have preferred on account of his more balanced reasoning, including his evidence supporting the possibility that a clip could appear to be closed and not locked (T471.20 – T471.31), I consider the cited inference as relied upon by Associate Professor Cooper to be speculative in nature. The objective evidence discloses that the left Filshie clip, in the apparently closed position, had captured and included within the bite of its jaws, other nearby anatomical structures in addition and extraneous to just the intended muscular portion of the left fallopian tube. That circumstance necessarily lessened the likelihood of a successful tubal ligation of the plaintiff’s left fallopian tube because of the possibility of an incomplete occlusion of the lumen of the tube.To the eyes of Associate Professor Cooper, in examining the intra-operative images, as explained and examined at paragraph [528] above, Dr Dhupar had appropriately placed both clips over the required structures, the right being more clearly shown than the left, the latter proposition requiring an inference of closure that was “insinuating” itself to Associate Professor Cooper: T458.34 – T458.45.In my view, as explained at paragraph [523] above, Associate Professor Cooper’s intuitive opinion based on that insinuated inference as identified above, amounted to no more than speculative guesswork, which should be discounted, and given very little weight. It is difficult to reconcile Associate Professor Cooper’s statement that the left Filshie clip was “appropriately placed over the structures” (T458.36), when it was in fact located more laterally than the recommended position 1cm to 2cm from the cornu of the uterus. I therefore do not accept the cited opinion of Associate Professor Cooper for the reasons already identified.Instead, for the reasons already identified at paragraphs [523] to [545] and paragraph [560] above, I prefer and accept the opinions of Professor O’Connor to the effect that it is not possible to determine from the intra-operative photographic images that the left Filshie clip was closed in the locked position: T497.41 – T497.44. This was in circumstances where the applicator equipment, when deployed, permitted a degree of closure that could possibly remain as being incomplete: T499.7 – T499.32. Significantly, Associate Professor Cooper conceded that if a clip was left in that state, it was possible for it to become displaced, which would enable it to migrate towards other structures: T465.40.I accept Professor O’Connor’s opinion that there is no proof available that the left Filshie clip was closed and locked: T503.19. The possibility or the potential for an incomplete clip closure obviously formed a basis for the manufacturer’s recommendation for the operating surgeon to make an intra-operative check for proper clip closure and locking: T504.26; Exhibit “C”, Vol 1, Tab 3.7, as examined at paragraphs [42] to [54] above.Associate Professor Cooper was of the view that it was exceedingly unlikely that an insufficiently closed clip might spring open: T501.1 – T502.11. I have preferred Professor O’Connor’s opinion that a partially closed clip that is not correctly locked is more likely to fail: T504.21 – T504.29. This is in the context where Associate Professor Cooper acknowledged it was possible that there were different stages of incomplete closure depending upon the force applied to the upper arm of the clip: T504.33 – T504.49.Associate Professor Cooper’s reluctance to accept the proposition articulated by Professor O’Connor to the effect that a clip that was not locked could possibly become displaced (T465.40), was based on his adherence to the view that to his eye, the hysterosalpingogram images suggested to him that the alignment of the dye with the apparent closure of the proximal site of the tube was difficult to get around: T465.48 – T466.2. In my view, Associate Professor Cooper’s evidence to that effect must be significantly discounted in light of the evidence concerning the selection of imaging planes and his concession that there was a space evident between the clip as seen on the hysterosalpingogram and the bulbous terminal end of the resected fallopian tube which was the result of the salpingectomy procedure performed on 1 March 2016: T468.1 – T468.10.I also accept Professor O’Connor’s opinion that the intra-operative images taken on 26 August 2014 show that the left Filshie clip was located in a position which he described as sitting right over or next to the left ovary, which necessarily means that it was located at a point which was materially distant from a point on the muscular isthmic portion of the fallopian tube 1cm to 2cm from the cornu of the uterus. I also accept his opinion that the bite of that clip had incorporated within it some other and unintended tissue in addition to, and extraneous to, just the muscular portion of the left fallopian tube: T467.20 – T467.26.As a result, and notwithstanding Dr Dhupar’s claims to the contrary, I find that for no sound reason, the left Filshie clip was not completely closed and locked in the correct position on the left fallopian tube as recommended by the manufacturer and the RANZCOG guidelines. As a result, on the balance of probabilities, a part if not all of the lumen of that tube was left sufficiently patent to allow the passage of gametes for fertilisation to occur in this instance, resulting in the plaintiff becoming pregnant with her fourth child.I make that finding notwithstanding Dr Dhupar’s evidence in which she expressed her belief that the left fallopian tube was compressed by a Filshie clip applied to it: T397.25 – T398.32. I do not accept her uncorroborated evidence to that effect as a proper foundation for that belief, insofar as she sought to imply that she had achieved a complete occlusion of the plaintiff’s left fallopian tube.In my assessment of Dr Dhupar’s evidence, her claimed and unaided memory of the procedure was simply unreliable on the issue of left Filshie clip closure. The photographic images did not assist her to reliably describe the state or the degree of closure of the left Filshie clip, as is evident from the following extract of her explanatory evidence, which for context, I set out at length:“Q. In circumstances where here you have no memory of this operation, you are not able to come to this Court and say that on this occasion you insured that the left Filshie clip was locked appropriately on the left fallopian tube, can you?A. If you see the other side, other, you know, the parameter apart from--HIS HONOURQ. Before you go into that longer explanation, can you just shortly answer Mr O’Keefe’s question? If it needs a follow up discussion, someone will ask you about that.A. Okay.Q. The answer can be given shortly.A. Okay, okay.O’KEEFE: Could that just be played back, your Honour, please?PLAYBACKHIS HONOURQ. Okay, can you now answer that question?A. I--Q. It’s a yes, no, or I don’t know. Which one of those?A. Okay, okay.KALFAS: I have to object to that, your Honour, because there may be that--HIS HONOUR: Well, I suppose it’s yes, no, or I can’t answer, but--WITNESS: I can’t answer.HIS HONOURQ. Why can’t you answer?A. It’s because I have, I’m just going not on my memory. I’m going through the photos also, and I’m, if I’ve done on the right side, I will be doing same thing on the left side also. So it means if the person is basically, if you think about, because you don’t have the images of the other side, you’re flipping, this is the normal practice you do. You have to look after putting that, you’re flipping your, you know, the tube, but the images hasn’t been taken or was ordered or hasn’t been taken so we don’t have evidence of the right side. I can’t say it was locked or unlocked but still the compression on the tube if you see on the left side and mesosalpinx you can see so according to only the one side still you can, you know, comment, the pressure was sufficient enough for the blocking. O’KEEFEQ. None of the photos taken from the operation show the left Filshie clip in the locked position on the left fallopian tube.A. Yes, that’s, yeah, I can’t comment--Q. Agree?A. --because you can’t see the locked one.Q. Yes. That’s the first proposition. The second, you have no actual recollection of this procedure, do you?A. You’re asking the same question I have answered already before.Q. You have no recollection of applying the left Filshie clip to Ms [Xxxxxxxx]’s left fallopian tube, do you?A. From the photos and I, I, I can recollect.Q. You have no independent recollection of applying the left Filshie clip to the left fallopian tube and looking at it to make sure that it was in the locked position, do you?A. Yes, but normal routine practice when you do, you, you do and you have to make sure you’re flipping, that’s the only way you’re doing.Q. Do you accept that sometimes in your professional practice you make mistakes from time to time?A. If it is a mistake, it should be doing many times.Q. Do you accept in your professional practice that you make mistakes from time to time?A. Yes.Q. Do you accept that it’s possible that in this case you made a mistake and you did not check that the left fallopian tube had placed upon it a Filshie clip in the correctly locked position?A. I, I have seen, and that’s why you can see there’s everything--Q. What have you seen?A. The locking one you’re talking about--Q. You’re now telling us that you have an actual memory of seeing the Filshie clip locked on the left fallopian tube?A. You, what I’m saying is you, when you’re doing the operation for every single person, you do, you have to confirm the both sides you can see, and that’s the only way you’re leaving the patient and you’re comfortable and then you’re not putting any extra clip which sometimes people did require. So, and that’s the time you’re going to leave this patient. So as, as a memory, if you’re asking me if 1,000 operation, you are just pressurising on my memory, but you have to look some evidence on the photos also.Q. You cannot point to any evidence in your operation note or in the photographs to prove that the Filshie clip applied to the left fallopian tube was locked correctly, can you?A. Yeah, yeah. There is no evidence.Q. The only evidence that you can offer to the Court to establish that was done is that you say that’s what you do in all of your operations. That is, you’re relying on your usual practice, aren’t you?A. That’s the usual practice and number one on the images of, what about the front image you had, you can from the front image you can say whether this clip is bulging or flat. On that basis also you can see, because the pressure you are putting definitely is going to be locked on the other side that image is missing. Q. What occurred in this case was that you didn’t check that the clip on the left fallopian tube was locked correctly and it was not locked correctly.A. It is not normal routine practice of myself, not checking--HIS HONOURQ. Sorry, what’s not the routine practice?A. For, you know, not checking the clip after putting clip on, on the tube. So you do flip. When you’re flipping, you’re looking back on, okay, and you’re asking people to take image, and when you’re taking image, is that other part, images hasn’t been taken. You can’t say I haven’t checked that tube, I haven’t checked the clip.Q. I take it you’re rejecting the proposition that you didn’t check to see that the clip was--A. I did--Q. Sorry, listen to my question. I take it that you’re rejecting Mr O’Keefe’s proposition that you did not properly check for closure of the clip.A. Yes. O’KEEFEQ. But you made no record of checking, did you? You didn’t make a record of checking, did you?A. There is no written record.”[T398.49 – T401.36][Name redacted]I do not accept Dr Dhupar’s evidence to the effect that her viewing of the intra-operative photographic images had reliably provided her with a refreshed recollection of having closed and locked the plaintiff’s left fallopian tube as claimed in the tract of her evidence which is cited above. I prefer the opinion of Professor O’Connor on that point to the effect one cannot deduce such a conclusion from those images.I base that non-acceptance of Dr Dhupar’s evidence on my general conclusions as to the unreliability of her evidence, the vagueness of some of her answers to questions, the fact that she relied upon her normal or usual practice (as she explained at T400.18 and T401.5), where I am far from satisfied that she had adhered to such a practice, and the inherently unsafe assumption she made that because the intra-operative photographs indicate that she had “flipped” one side of the left tube to check on the clip there, she must therefore have done the same in respect of the other side, and had therefore satisfied herself that she had checked and confirmed that the left Filshie clip was both properly closed and locked. My conclusion in that regard may have been different if there was a reliable photograph of the flip side.In light of the state of the evidence in this case, absent a photographic record of the other side of the left clip to demonstrate that Dr Dhupar had “flipped” the clipped left tube to check it for correct closure and locking, I do not accept Dr Dhupar’s assumption in that regard. In this case, given my findings on the reliability of Dr Dhupar’s testimony, I am not prepared to accept her assumption-based evidence in that regard without contemporaneous corroborative evidence, particularly photographic evidence which would ordinarily have been expected to be available if the manufacturer’s guidelines for use of Filshie clips had been followed by Dr Dhupar.In my view, Dr Dhupar has assumed, without a reasonable basis in the evidence, that the pressure she had applied by the left Filshie clip was sufficient to occlude the lumen of that tube: T426.40. That belief led her to further believe it was unlikely she had allowed the left Filshie clip to remain unlocked: T426.47. Her belief in that regard is inconsistent with Dr Jeri’s intra-operative findings made on 1 March 2016, and which I accept for reasons that will be made clear, where he found the plaintiff’s left fallopian tube to be undamaged and uninterrupted along its length. In my view, if a 4mm section of that tube had been destroyed in the isthmic portion 1cm to 2cm from the cornu of the uterus, as identified in the manufacturer’s literature at Exhibit “C”, Vol 1, Tab 3.7, pp 157 – 158, this would have been detected and noted by him on that occasion during the course of his surgical investigation on that date.I find that it is doubtful, and unlikely to be correct, that Dr Dhupar had closed and locked the left Filshie clip at the applied location. This is where the bite of that clip had also captured additional and extraneous tissues which made it possible for an incompletely closed clip to migrate without having occluded the lumen of the left fallopian tube: T428.29 – T429.4.In reaching those conclusions I have not overlooked an aspect of the evidence of Associate Professor Cooper in which he said the lateral swelling seen on the intra-operative photograph insinuated to him that the left fallopian tube was occluded. His opinion in that regard is not definitively persuasive for the proposition of a complete occlusion as distinct from a partial occlusion. Dr Jeri’s 1 March 2016 intra-operative observations of the intact state of the plaintiff’s left fallopian tube prior to salpingectomy cast significant doubt on the aptness and persuasiveness of the insinuated inference drawn by Associate Professor Cooper. Further, as already observed, Dr Dhupar did not assert a factual basis for such an insinuation or inference: T402.38.On the question of whether Dr Dhupar had locked the left Filshie clip, in my assessment, her explanation on that matter involved a confounding element of confusion. This is because in asserting it was not possible for her to have allowed the clip to remain incompletely closed (T427.39) she invoked the mechanism of a confirmatory audible click (T427.43), when it was common ground that she could not have heard such a click whilst deploying the instrumentation she was using.Dr Dhupar acknowledged that if a Filshie clip is left unlocked or incompletely locked, it may easily come off when manipulating tissues with the instruments such as with “flipping”: T428.29; T429.4. This permits the possibility that she may have flipped an incompletely closed or an unlocked clip, thereby causing it to dislodge. As earlier observed, the absence of a photograph of the second side of the left fallopian tube once clipped and “flipped” therefore takes on some significance to the analysis.In that regard, Dr Dhupar acknowledged that it was important to avoid under-closure of a clip which meant looking at the latch (incorrectly referred to as the lash at T429.43), along with looking for discolouration and flatness of the clip: T429.45. None of the intra-operative photographs were reliably described in the evidence to support a conclusion to that effect. In that context, Dr Dhupar agreed that an under-closure of a Filshie clip involved operator fault: T430.6 – T430.12.Dr Dhupar’s defence was based on the proposition that just because there was an absence of confirmatory images or documentation of clip closure, this does not mean that the left Filshie clip was not properly closed. Dr Jeri’s factual observations at the caesarean section and bilateral salpingectomies he carried out on 1 March 2016 which did not reveal any relevant damage to the plaintiff’s left fallopian tube, suggests otherwise.I find that at the conclusion of Dr Dhupar’s operation on the plaintiff, for no sound reason, she had allowed the left Filshie clip to remain in a position which was materially lateral to the recommended position on the muscular isthmus of the fallopian tube 1cm to 2cm from the cornu of the uterus. In doing so, she permitted the bite of the clip to also take in and include other tissues of or around the mesosalpinx, which meant that she could not be reasonably satisfied that only the intended muscular tissue of the left fallopian tube would be compressed flat so as to occlude the lumen of that tube with the clip in the locked position. In those circumstances where doubt must be seen to have reasonably arisen, she did not take the further step of placing an additional clip on the left fallopian tube to address that situation as recommended by the manufacturer and which she acknowledged was an available option: T428.35.I find that the combination of the expert evidence, the photographic evidence, and the hysterosalpingogram images, does not permit a reasoned conclusion that Dr Dhupar applied the Filshie clip on the plaintiff’s left fallopian tube in the closed and locked position at the recommended location that was 1cm to 2cm from the cornu of the uterus. I find that the evidence is overwhelmingly to the contrary of Dr Dhupar’s evidence in which she unreliably claimed to have done so.Those circumstances had the effect of placing the plaintiff at a higher than otherwise risk of fertilisation and pregnancy due to incomplete occlusion of the lumen of the left fallopian tube. Discharge of plaintiff from Dr Dhupar’s careFollowing the plaintiff’s recovery from general anaesthesia on 26 August 2014, and following a post-operative review by Dr Dhupar on 5 September 2014, the plaintiff was then discharged from Dr Dhupar’s care without any further arrangements for additional follow-up consultations. There was no suggestion that the plaintiff required any further follow-up appointments from that time onwards, which indicated that Dr Dhupar considered her role, and the tasks required of her, had been completed.The plaintiff left the Wagga Day Surgery Centre with the understanding given to her by Dr Dhupar to the effect that the tubal ligation procedure had been successful, and that everything had gone well. Dr Dhupar invited the plaintiff to ask questions. The plaintiff had no questions at that time. No issues of concern to either the plaintiff or Dr Dhupar arose from the follow-up visit on 5 September 2014. Dr Dhupar did not advise or inform the plaintiff that she might be at higher than usual risk of pregnancy due to either a failed tubal ligation or due to a clip being placed in a position which was different to that recommended by the manufacturer.When the plaintiff was discharged from Dr Dhupar’s care, she felt relieved that the procedure was behind her, and she looked forward to implementing her plan to continue to parent her three children and to go back to full time work in order to pursue her pre-determined economic goals. The plaintiff then also resumed intimate relations with her husband without contraception and without worry or anxiety as to the possibility of any ensuing further and unwanted pregnancy. She also continued to pursue and to enjoy her work in her employer’s financial planning business for the remainder of 2014 and into 2015, that is, until she started to feel unwell due to pregnancy with her fourth child.(9) Unwellness and gradual awareness of further pregnancyIn July 2015, some 11 months after the tubal ligation procedure carried out by Dr Dhupar, the plaintiff began to feel unwell. At that time, she thought she had contracted some sort of illness because she felt nauseous, she was vomiting, and she became quite sensitive to smells, including some foods. She found those feelings of unwellness upsetting. She discounted the possibility that she was pregnant. She took that initial view because she had undergone the described tubal ligation procedure. She waited about 3 weeks, until 20 July 2015, before she consulted Dr Jeri about her symptoms.At that consultation Dr Jeri referred the plaintiff for blood tests, including a pregnancy test. The referral for a pregnancy test gave her some considerable concern. Following those tests, Dr Jeri rang her at home late in the evening and informed her that she was pregnant. Knowing that she had previously had tubal ligation surgery, Dr Jeri had beforehand taken the step of triple checking the test results with the pathology laboratory before informing her that there was no mix-up, and that she was in fact pregnant with her fourth child.(10) Dr Dhupar’s claimed unawareness of plaintiff’s pregnancyDr Dhupar claimed she first became aware of the plaintiff’s pregnancy at the time of the caesarean section.In contrast to Dr Dhupar’s claim, as related at paragraphs [261] to [263] above, Dr Jeri said that following his confirmation that the plaintiff was pregnant, he had telephoned Dr Dhupar to advise her of that fact, and he said her reply was to the effect that: “it happens”: T208.13. That evidence from Dr Jeri was not challenged in cross-examination and I accept that Dr Dhupar had responded to Dr Jeri in the manner he described.I do not accept Dr Dhupar’s evidence to the effect that the first she knew of the plaintiff’s pregnancy following tubal ligation surgery, was when she was in the operating theatre during caesarean section surgery.(11) The most probable cause of the plaintiff’s pregnancyTo succeed in this case the plaintiff must establish the causative mechanism of her subject pregnancy despite tubal ligation surgery. This must be established on the balance of probabilities: s 140(1) of the Evidence Act 1995 (NSW). Findings on that question must be made before any consideration can be given to the question of whether or not the failed sterilisation procedure which preceded that pregnancy occurred due to a breach of duty of care on the part of Dr Dhupar. General approach to the analysisWhen evaluating the question of the cause of the pregnancy, it is permissible to look back at the array of potential causative factors to seek to identify and exclude which factors were improbable, and if possible identify which factors were more likely to be responsible for the pregnancy, and to then determine whether a prospective reasoned analysis satisfactorily permits the plaintiff’s argued conclusion that there was operator error on the part of Dr Dhupar: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].In that regard, on behalf of the plaintiff, it was submitted that whilst she must prove her causation case on the balance of the probabilities, in arriving at a factual finding to that effect, where, on an evaluation of the array of potential causes for her pregnancy, one potential cause stands out as being more probable that not, it is no answer for the defendant to say that other possible causes remain open to be excluded. A finding on the balance of the probabilities negates the availability of that latter proposition: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408, at p 430.The process of analysis leading to relevant findings of fact is aided by those aspects of the expert evidence which are determined to be acceptable. The process must proceed according to the facts as found and with due regard to reasonable available inferences that may be drawn from those facts: SRA v Earthline Constructions Pty Ltd (in liquidation) [1999] HCA 3, at [63], [94], [139] and [155].As explained at paragraph [397] above, Professor O’Connor identified Filshie clip sterilisation as a relatively safe and effective procedure. He identified the incidence of failure of that procedure as being rare. Essentially, in summary, in no particular order of likelihood, he identified the potential causes of failure as being clip misapplication causing non-occlusion or incomplete occlusion of the fallopian tube, misapplication of a clip due to placement on a wrong structure, possible tubal-peritoneal recanalisation following clip dislodgment after transection, and possible mechanical failure due to a manufacturing issue: Exhibit “C”, Vol 1, Tab 3.1, p 30.I consider that in this case the framework for considering and determining on balance, the question of the probable cause of the pregnancy as identified at paragraph [692] above, is essentially threefold, as follows: First, it must be recognised that failure of tubal ligation may possibly occur for a variety of reasons, including as defined in the evidence, and also possibly including unidentified reasons, which may not involve operator error. On the basis of the factual evidence adduced in this case, inculpating an unknown cause seems to me to be an unlikely explanation especially given the existence of factors that suggest that there was an atypical deployment of the Filshie Tubal Ligation System by Dr Dhupar; Secondly, the plaintiff’s right fallopian tube is unlikely to have been a causative factor for the subject pregnancy because the intra-operative photographs and Dr Jeri’s findings on 1 March 2016 all confirm the correct placement of the right Filshie clip in accordance with the described typical use of the Filshie Tubal Ligation System; Thirdly, given that sterilisation by means of application of Filshie clips is recognised as a procedure that, since 2008, has been indisputably and broadly recognised as 99.76 per cent effective, providing consistently effective results with “typical use”, as shown in over 13 million applications since 1982: Exhibit “C”, Vol 2, Tab 6.5, p 593, it is in light of such recognition that the remainder of the analysis must proceed. I therefore consider that the required analysis may be fairly distilled down to focus upon the question of whether or not Dr Dhupar’s application of the left Filshie clip in this case was a “typical use” as recommended by the manufacturer of the Filshie Tubal Ligation System, or whether identifiable operator error occurred, which amounted to misapplication of the left Filshie clip in the context of an atypical use.A background consideration for the required analysis is that according to the literature and the expert evidence, the fact that the plaintiff’s pregnancy occurred less than 12 months following the tubal ligation procedure, this raises a suggestion of operator error, as observed at sub-paragraph (18) of paragraph [168] above and at paragraph [169] above: Exhibit “1”, Tab 3, p 36.First line of analysis : exclusion of failure unrelated to operator errorThe incidence of failure of sterilisation involving the use of Filshie clips has been reported in the gynaecological literature as being extremely low, with the incidence falling to as low as 0.2 per cent after factors relating to known operator error are isolated and excluded from consideration: Exhibit “1”, Tab 3, p 29.The evidence in this case identifies a number of possible reasons for failure of tubal ligation to events unrelated to operator error, including possible mechanical failure of a Filshie clip or its applicator, possible fallopian tube recanalisation following tube transection, the possibility of a fistula formation, and possible unknown factors.As identified at sub-paragraph (1) of paragraph [697] above, on the balance of probabilities, the existence of an as yet unknown cause seems to be an unlikely explanation that should be discounted in view of elements within the evidence that suggest Dr Dhupar’s use of the Filshie Tubal Ligation System was atypical in this instance.On the facts that have been rationally considered by the expert witnesses, in the present case, no sound and non-speculative basis has emerged from the evidence to either reasonably suggest, or to rationally infer, that a process of recanalisation or fistula formation is responsible for the plaintiff’s pregnancy. There is no objective evidence to support a recanalisation theory in this case. That theory was initially advanced by Associate Professor Cooper. However, the foundation for that theory was ultimately shown to have been based on his conceded misinterpretation of the term transection as used in the histopathology report which followed the salpingectomy procedure carried out by Dr Jeri on 1 March 2016. There was no substantive support in the medical literature for that theoretical belief on the part of Associate Professor Cooper to justify its adoption or acceptance as a factual conclusion in this case.On the question of a tubular fistula being a possible mechanism of fertilisation, I accept Professor O’Connor’s opinion in which he rejected it as being most unlikely as a suggested mechanism responsible for the plaintiff’s pregnancy, as explained with evidentiary references at paragraph [407] above. I consider that Associate Professor Cooper’s view to the contrary should be disregarded on account of the basis that it amounts to no more than unsupported speculation.As observed at paragraphs [51] to [54] above, as at March 2017, the manufacturer’s product information guide identified a range of adverse events associated with failed tubal ligation involving the use of Filshie clips. Relevant to the plaintiff’s circumstances, these included a uterine pregnancy rate of 0.46 per cent, and a rate of 0.05 per cent as being associated with misapplication of Filshie clips to other tissues, including to nearby ligaments and the tubal serosa in the mesosalpinx.In that context, I consider it to be more than just a co-incidence that the plaintiff’s pregnancy occurred within twelve months of tubal ligation surgery. That is in circumstances where such timing may be considered to be a possible indicator of operator error: Exhibit “1”, Tab 3, pp 35 – 36.In my view, the possibility of a mechanical failure of the left Filshie clip or any part of the equipment used in its application can be excluded on the basis of unwarranted speculation without foundation in the evidence. Neither the evidence nor the literature reviewed by the experts provides a rational basis of support for such a theory in the context of Filshie clips being a very reliable means by which to achieve sterilisation.In those circumstances, I consider the potential mechanisms of mechanical failure, recanalisation and fistula formation to be most unlikely and improbable explanations for the plaintiff’s pregnancy as those explanations have no cogent persuasive basis of support from within the evidence when considered as a whole.Second line of analysis : exclusion of right fallopian tube as a cause of the pregnancyThe evidence indisputably establishes that Dr Dhupar had correctly located and applied the Filshie clip to the appropriate position on the plaintiff’s right fallopian tube. Furthermore, in light of Dr Jeri’s intra-operative findings and observations on 1 March 2016 concerning the appearance and location of the right Filshie clip, there is no reasonable basis in the evidence to suggest that the right Filshie clip should be considered to be a relevant causative factor for the failure of Dr Dhupar’s sterilisation procedure. Third line of analysis : whether typical use or misapplication due to operator errorIn light of the foregoing conclusions, the position with regard to the left Filshie clip leads to an entirely different analysis. This involves a consideration of the pivotal question of whether Dr Dhupar’s application of the left Filshie clip was a “typical use” of the Filshie Tubal Ligation System. In that context, on the basis of the evidence adduced, and in light of the manufacturer’s instructions, I consider that a misapplication of a Filshie clip should not be considered to be a “typical use” of that System.The following range of factors must be addressed in determining the outcome of a consideration of whether there was typical use in this case in connection with the deployment of the left Filshie clip: Whether any unusual anatomical features were present on or near the left fallopian tube in the target area that had been selected for placement of the left Filshie clip. (“Whether unusual anatomical features were present”);Whether the Filshie clip in question was correctly located on the recommended target area on the muscular isthmic portion of the left fallopian tube 1cm to 2cm from the cornu of the uterus. (“Incorrect location”);Whether the bite or grab of the jaws of the left Filshie clip had taken in extraneous tissues in addition to just the muscular isthmic portion of the left fallopian tube located 1cm to 2cm from the cornu of the uterus. (“Incorporation of extraneous tissues”);Whether there was any reliable evidence to suggest that the left Filshie clip was appropriately closed and locked by Dr Dhupar before she considered the tubal ligation procedure in question to have been completed. (“Whether the clip was closed and locked”).In combination, the manufacturer’s literature, the RANZCOG guidelines, and the acceptable aspects of the expert evidence in this case, serve to define what should be considered to be a typical use of the Filshie Tubal Ligation System.Absent the identified and accepted presence of unusual anatomical considerations, I consider that the evidence reasonably permits the assumption that an incorrect clip location, and the inclusion of extraneous tissues in the bite of the jaws of the clip without complete and final in situ locking of the clip would not be a typical use. It follows that a non-typical use would be very likely to have an adversely influential impact on the efficacy of the procedure so as to create a greater risk of pregnancy occurring due to a failure of tubal ligation.Whether unusual anatomical features were present : As to the consideration identified in sub-paragraph (1) of paragraph [712] above, there was no reliably acceptable factual or expert evidence of the presence of any unusual anatomical structures such as a large varicose vein located on or near the left fallopian tube in the intended vicinity where the clip was to be placed so as to justify or explain Dr Dhupar having placed the left Filshie clip in a location that was materially lateral to the muscular portion of the isthmus 1cm to 2cm away from the cornu of the uterus. Furthermore, there was no evidence to suggest that the plaintiff’s left fallopian tube had or included a relevant anatomical variant such as that tube being thicker than would otherwise have been expected so as to have a possible adverse impact on the efficacy of the procedure. That latter inference reasonably arises from the fact that Dr Dhupar did not make any contemporaneous note of the presence of any such variation and because at the time she did not consider it necessary to apply a second Filshie clip to the left fallopian tube, which would have been indicated if such phenomenon had been intra-operatively encountered by her.Incorrect location and incorporation of extraneous tissues : As to the considerations identified in sub-paragraphs (2) and (3) of paragraph [712] above, the expert evidence of Dr O’Connor, which I accept, shows that additional or extraneous tissues were included within the grab or bite of the jaws of the left Filshie clip at the time when Dr Dhupar sought to close that clip. The inclusion of such additional non-fallopian tube tissue within the jaws of the left Filshie clip at the time of intended closure and locking had the very real potential to have an adverse impact on the efficacy of tubal occlusion so as to impair efficacy. This is because such circumstances created a higher risk of either non-occlusion or achieving only a partial occlusion of the left fallopian tube. The manufacturer’s clip placement instructions as identified at paragraphs [48] to [52] above, and the RANZCOG guidelines identified at paragraphs [123] to [129] above, and the cited explanations in the expert evidence, are directed at avoiding such circumstances. In my view, non-adherence to such guidance for product use, without sound reason, could not be fairly or rationally described as being a typical use of the Filshie Tubal Ligation System. In that regard, I do not accept as apt or applicable the downplayed, inherently imprecise, and exculpatory description proffered by the evidence of Associate Professor Cooper, to the effect that, to his eye, Dr Dhupar’s placement of the left Filshie clip was “a little bit further lateral”, or “a centimetre or so lateral to perhaps where it should have been”, and not “necessarily a major deal”: T466.17; T477.7 – T477.49.I do not accept those comments as representing a reasonable exculpatory justification for what was plainly an incorrect placement location of the left Filshie clip at a location other than just on the muscular tissue of the fallopian tube 1cm to 2cm away from the cornu of the uterus, as was explained by Professor O’Connor. I have found the vague and loose imprecision within Associate Professor Cooper’s explanations as cited in the preceding paragraph to be unconvincing and unpersuasive. The location for placement of the left Filshie clip as selected by Dr Dhupar plainly did not adhere to the manufacturer’s cited recommendations and the RANZCOG guidelines. As such, in my view, Dr Dhupar’s deployment of the left Filshie clip did not amount to typical use of the Filshie Tubal Ligation System. The need for a correct placement of a Filshie clip was explained by Professor O’Connor, where he stated that the more lateral the placement of the clip, the less the muscular portion of the tube is compressed, thereby creating the possibility of an incomplete occlusion: T494.32 – T494.36. I accept and prefer as more likely to be correct the inherent logic of that explanation. I do not consider that a deployment which increased the possibility of incomplete occlusion to be an indication of typical use.In that regard, Associate Professor Cooper ultimately conceded that a clip placement in a position more lateral to the intended position on the isthmus could result in an underclosure or only a partial occlusion of the fallopian tube which, if it occurred, would detract from the clip performing its designated function: T495.15 – T495.18; T428.29; T429.4.Associate Professor Cooper also conceded that the intra-operative photographs showed the left Filshie clip had been placed more lateral to the preferred position: T468.43 – T469.45. Those concessions emerged slowly. They were expressed with marked reluctance and equivocation, as is evident from the following extract of his evidence:“O'KEEFE: In relation to that part of your report, the photographs that were taken intra operatively demonstrate that the clip on the left fallopian tube was placed lateral to the isthmus, don't they?WITNESS COOPER: Look, it was, I think it was lateral to where the preferred position would be, yes.O'KEEFE: And do you accept--KALFAS: Could the witness be allowed to finish his - I may have been wrong.O'KEEFE: Had you finished your answer?WITNESS COOPER: Look, I think there's reasons as to why it could be placed in a different position.O'KEEFE: I'm not asking--WITNESS COOPER: It looks--O'KEEFE: --about that. My question was whether or not the photographs that we have available from the operation show that the Filshie clip was placed lateral to the isthmus; do you agree or disagree with that proposition?WITNESS COOPER: Yes, correct.O’KEEFE: The photographs that we have from the operation do not show both sides of the Filshie clip, do they?WITNESS COOPER: No.O’KEEFE: The photos from the operation do not show the jaws of the Filshie clip locked, do they?WITNESS COOPER: One can, I think you can infer that, but you can’t clearly--HIS HONOUR: No, but the question is do they show?WITNESS COOPER: No.”[T469.6 – T469.45]In my assessment, the preponderance of the evidence compels the conclusion that Dr Dhupar in fact placed the Filshie clip on the plaintiff’s left fallopian tube in a positon that was materially more lateral to the recommended location of 1cm to 2cm from the cornu of the uterus. I find that in doing so, without sound reason, she applied that clip in such a way that, within its bite and grab, it inappropriately included additional mesosalpinx tissues that were extraneous to the muscular fallopian tube. This was contrary to the manufacturer’s product information and instructions which the experts accepted as being the appropriate standard of practice to be applied in the circumstances under present consideration. That was not a typical use of the Filshie Tubal Ligation System.Whether the left Filshie clip was closed and locked : As to the consideration identified in sub-paragraph (4) of paragraph [712] above, on the question of clip closure and locking, I find that the intra-operative photographs taken on 26 August 2014 do not provide persuasive evidence of a complete closure and locking of the left Filshie clip in a position that would serve to occlude that tube. On the contrary, the findings and observations made by Dr Jeri on 1 March 2016, which I accept as reliable and correct, namely that he found the left fallopian tube to be undamaged along its length, provide the reasonable basis for an inference that Dr Dhupar did not close and lock that clip in accordance with the appropriate instructions and guidelines, thereby leaving the clip in a state in which it could move, or dislodge, and migrate to another area within the plaintiff’s abdominal cavity.The manufacturer’s product information guide contains descriptive diagrams and related text showing how an apparently closed Filshie clip could nevertheless potentially be misapplied, leaving it to remain in an underclosed state. Those diagrams have been identified and reproduced at paragraphs [50] and [51] above.The manufacturer’s product information guide also identifies a potential mechanism for a failed sterilisation due to faulty clip application if a Filshie clip is left in a half-closed or underclosed state, which I construe to also mean and include the clip being left in an unlocked state. In such circumstances, it is recognised that a Filshie clip may dislodge and move from where it was originally placed, and onto other structures, such as the broad ligament, thereby creating a possible opportunity for fertilisation to occur because such a misapplication is likely to leave a fallopian tube to remain either wholly occluded or sufficiently partly unoccluded by reason of such a misapplication: Exhibit “C”, Vol 1, Tab 3.7, pp 157 – 158. The results of the hysterosalpingogram test in this case do not serve to contradict the possibility of a non-occlusion or a partial occlusion.On the objective evidence, as commented upon by the expert witnesses, I find it is indisputable that Dr Dhupar had placed a Filshie clip on the plaintiff’s left fallopian tube at a point on the isthmus that was a material distance away from the recommended position of 1cm to 2cm from the cornu of the uterus.Furthermore, the intra-operative photographic images also indisputably show that the bite of the jaws of the left Filshie clip as placed by Dr Dhupar also included within its grab, other extraneous tissues within the mesosalpinx in addition to just the targeted muscular fallopian tube. In combination, I find that the effect of that placement was to materially reduce the otherwise very high rate of likely success of the tubal ligation procedure.Having accepted the findings and observations made by Dr Jeri on 1 March 2016, to the effect that the plaintiff’s left fallopian tube was found to be intact, and not destroyed or damaged at any point along its entire length, I consider that it is both safe and reasonable to infer from that fact, that when Dr Dhupar placed the Filshie clip in her chosen location on the plaintiff’s left fallopian tube she did not apply sufficient pressure to that clip so as to effectively achieve the intended occlusion of the lumen of that fallopian tube. Those circumstances had the result that the procedure she performed was unlikely to have prevented the passage of gametes, fertilisation, and a uterine pregnancy.In arriving at that conclusion I have not overlooked the view expressed by Associate Professor Cooper that, to his eye, sufficient pressure had been applied to close the left Filshie clip which “appeared” to be closed as identified at sub-paragraph (1) of paragraph [430] above. I find it difficult to accept that proposition.In my assessment, in circumstances where Associate Professor Cooper has conceded the images that have been tendered had not captured both sides of the left Filshie clip, and where one of those images materially showed the bite of the jaws of the left Filshie clip had picked up additional extraneous tissues, Associate Professor Cooper’s cited view must be discounted as being based on speculation that is not reasonably supported by evidence. I prefer Professor O’Connor’s contrary view of that image, where he stated the most likely explanation for the plaintiff’s pregnancy was that the left Filshie clip had been improperly applied due to an incorrect anchoring of the clip.The Filshie clip manufacturer’s instructions suggested that a photographic record be kept as providing proper clip application and closure. Dr Dhupar did not make a photographic record of both sides of the left Filshie clip in its final position as recommended by the manufacturer.Absent a photographic record demonstrating the left Filshie clip to have been closed and locked in the position recommended, and given Dr Jeri’s finding of the presence of an undamaged left fallopian tube as detected by him just prior to salpingectomy on 1 March 2016, the conclusion that there was a misapplication of the left Filshie clip compellingly arises on the evidence as a possible, plausible, and most probable explanation for the plaintiff’s pregnancy.At sub-paragraph (12) of paragraph [168] above, in the context of an analysis of the previously cited article by Varma R, and Gupta JK, which was relied upon by the defendant, a series of six factors were identified as potential causes of failed sterilisation: Varma R, Gupta JK, “Failed Sterilization: Evidence-based review and medico-legal ramifications” (December 2004) British Journal of Obstetrics and Gynaecology, vol 111, at 1322-1332: Exhibit “1”, Tab 3, pp 28 – 38.Of those six factors, only four of them have ultimately been shown to remain relevant to the analysis in this case. For convenient reference, those six factors are reproduced below as follows:fault in locating the correct sterilisation site;deviation from the recommended technique for each sterilisation method;failure in the systemic approach to check the sterilisation method; complete or partial tubal transection through luminal regeneration whether by fistula or recanalisation, in which case, salpingectomy is required, as correct use of the clip is unlikely to transect the tube; applying the clips too close to each other on the same tube; and improper maintenance of mechanical occlusion device applicator: Exhibit “1”, Tab 3, pp 31 – 32;The evidence and the analysis of the evidence outlined here and elsewhere in my reasons suggests that factors (d), (e) and (f) in paragraph [737] above, should be discounted as being unlikely and improbable events. There is no evidence to rationally support or infer the transection, recanalisation or fistula theories referred to in factor (d) above. Multiple clips were not applied as referred to in factor (e) above. There is no evidence of improper maintenance of the mechanical occlusion device referred to in factor (f) above. That would also seem to be an unlikely factor since it had operated properly to effectively occlude the plaintiff’s right fallopian tube.As to the considerations identified in factors (a), (b) and (c) in paragraph [737] above, as explained in the foregoing paragraphs, for no sound reason, Dr Dhupar placed the left Filshie clip in a position that was far more lateral than was recommended. It was also applied in a manner so as to include extraneous tissue, the effect of which were bound to have an adverse impact on the efficacy of the procedure. The photographic evidence compellingly suggests that Dr Dhupar did not check both sides of the left Filshie clip for closure. In that latter regard, there is an apparent inconsistency between Dr Dhupar’s evidence, in which she conceded that the other side of the left Filshie clip was not photographed as recommended by the manufacturer (T399.41; T400.50; T402.21), and the statement that she had made to her solicitor, in which it was noted that she gave the following instructions that “Photos taken as evidence it was done correctly”: T314.5. The above-cited note attributed to Dr Dhupar, as related in evidence by her solicitor, was obviously an abbreviated note. The note is in ambiguous terms. I do not intend that comment to be read as a criticism of Dr Dhupar’s solicitor. The note could possibly have been intended to mean that the procedure had been performed correctly and that photographs had been taken as evidence of that proposition. Alternatively, the note may represent two unpunctuated sentences. Either way, as Dr Dhupar was not cross-examined on this aspect of the evidence, therefore nothing should turn on that ambiguity, especially given the non-contemporaneous timing of that note in relation to the procedure.Evidentiary photographs were taken, but they did not include the complete range of recommended views. The available photographs do not support the proposition that the left Filshie clip was correctly applied, closed and locked. I prefer and accept the opinion of Professor O’Connor in that regard.The fact remains that the crucial photograph that might have demonstrated a correct closure and locking of the reverse side of the left Filshie clip was absent. In the absence of that critical photograph, I do not accept Dr Dhupar’s claim of having systemically checked that she had correctly applied the left Filshie clip as identified in factor (d) of paragraph [737] above.That said, given that the bite or grab of the left Filshie clip had indisputably also included extraneous tissues from within the mesosalpinx, a photograph along the lines described above would not necessarily have served to prove that a complete tubal occlusion had occurred in this case because of the inclusion of the described extraneous tissue.Concluded findings as to the probable cause of the plaintiff’s pregnancyIn my view, the compelling conclusion arises that Dr Dhupar either did not flip and check the structures that would have been seen on the opposite side of what is seen in the intra-operative image of the left Filshie clip, or if she did, she did not recognise that the left Filshie clip had not been applied, closed and locked at the appropriate location, so as to only clip the appropriate muscular fallopian tube tissue at a point 1cm to 2cm from the cornu of the uterus without including extraneous tissues comprising a portion of the tubo-ovarian pedicle in the mesosalpinx before she considered that procedure to have been concluded.In my assessment of the evidence, the foregoing evaluation leads me to find that the subject pregnancy occurred due to Dr Dhupar having misapplied the left Filshie clip to a position that was more lateral than was intended by the use of the system. In doing so she included the described extraneous tissues in addition to just the intended muscular portion of the left fallopian tube at the recommended location. That misapplication which incorporated such extraneous tissues, was significantly more lateral to the recommended location 1cm to 2cm from the cornu of the uterus. As a consequence of those circumstances, I find it more probable than not that the left Filshie clip remained incompletely closed and therefore unlocked. Those circumstances created the opportunity for that clip to become dislodged, and to move or migrate away from its intended point of permanent and effective application.The expert evidence indicates that an incompletely closed clip may become dislodged in the “flipping” process if not by other means such as re-establishment of intra-abdominal pressure from relocated organs. Either way, I find that it was more probable than not that the left Filshie clip became dislodged due to incomplete closure before it had time to cause the intended sterilising process of creating ischaemic damage and interruption to the patency of the left fallopian tube over the intended 4mm portion of that tube. I find that on the balance of probabilities, those circumstances plausibly and on balance most probably explain why Dr Jeri found the plaintiff’s left fallopian tube to be intact and undamaged along its length when he visualised and palpated it just prior to the bilateral salpingectomy procedures he performed on the plaintiff on 1 March 2016.In arriving at that finding I have not overlooked the significance of the hysterosalpingogram evidence that shows the left Filshie clip within the plaintiff’s abdominal cavity. In that regard, I accept the evidence of Professor O’Connor to the effect that such images do not permit a concluded view as to whether the clip as shown in those images is completely or partly closed.The evidence discloses that there were several possible explanations for an incompletely closed or unlocked Filshie clip to become dislodged and migrate away from the point of intended effective application. Those explanations appear to arise in the following sequence.It is possible that after Dr Dhupar placed the left Filshie clip where she did, she then “flipped” the second side of the clip for a visual inspection and closure before completing the procedure, and in an incompletely closed or locked state, the clip could have become dislodged during or following that “flipping” manoeuvre.On a logical examination of the evidence, dislodgment of an incompletely closed and unlocked Filshie clip may occur due to a variety of reasons, including disturbance of its position when it was being “flipped”, or by intra-abdominal organ pressure in the context of a re-establishment of the normal anatomical apposition of organs and structures following removal of the insufflating gas that had been introduced into the abdominal cavity in order to separate those structures for the purpose of identifying and isolating them in order to perform the tubal ligation procedure.Associate Professor Cooper appears to have accepted the possibility that an apparently closed clip “can sort of bounce open” but he discounted that mechanism in light of the appearances of the hysterosalpingogram images: T485.45 – T485.47. In my view, his cited discounted view should not be accepted because of his initial misperception of the significance of those images based on an incorrectly assumed tube transection where that misperception has infiltrated his interpretation of the hysterosalpingogram images.In that regard, I prefer and accept Professor O’Connor’s evidence that the hysterosalpingogram images do not permit one to say that the clip was either open or fully closed: T457.6.When Associate Professor Cooper was asked whether he allowed for the possibility that pressure from adjacent organs could dislodge a clip once insufflating gas had been removed, he responded with the comment “I don’t think so”: T486.32. In contrast, Professor O’Connor stated that such a mechanism should “not at all” be rejected out of hand: T486.42. On that divergence in the expert evidence, I prefer Professor O’Connor’s more cautiously measured response on that question. In those circumstances, it appears that the postulated mechanism for possible clip dislodgment and migration should not be entirely discounted.A further possible explanation for clip dislodgment is that Dr Dhupar may have believed she was closing the left Filshie clip in her chosen position on the left fallopian tube when in fact she may have incompletely closed it whilst including extraneous non-fallopian tube tissue in addition to the fallopian tube itself, in an apparently but not actually closed state, with the result that the left Filshie clip subsequently fell away from that tissue but appeared to Associate Professor Cooper’s eye to be closed and locked on the subsequent hysterosalpingogram images he examined.Either way, in my assessment, Dr Dhupar was unable to reliably contribute to that factual analysis because of her limited and unreliable recollection on factual matters, evidenced by the erroneous content of her statement comprising Exhibit “6”, in which she said she heard a click to indicate closure and correct completion of the application of the clip when she could not have heard such a click, in addition to the other matters referred to in the reliability analysis of her evidence at paragraphs [301] to [375] above.I accept the submission made on behalf of the plaintiff that on the balance of probabilities, the subject pregnancy was conceived as a consequence of Dr Dhupar having incorrectly applied a Filshie clip to the left fallopian tube which remained either wholly or partly patent, at least until July 2015, and sufficiently patent to allow the passage of gametes that enabled fertilisation to occur. The likelihood for that occurrence was increased by the more lateral placement away from the recommended position 1cm to 2cm from the cornu of the uterus only on the muscular tube without including extraneous tissue.In my view, an aggregation of the identified factors within the evidence compellingly leads to the finding that following Dr Dhupar’s application of the left Filshie clip it moved and migrated away from its point of initial application so as to leave the left fallopian tube in a sufficiently patent state to permit fertilisation to occur: SRA v Earthline Constructions Pty Ltd (in liquidation) [1999] HCA 3, at [63], [94], [139] and [155].In reaching that conclusion I have not overlooked the opinion of Associate Professor Cooper which was to the effect that he interpreted the intra-operative photograph of the left Filshie clip as showing a slightly expanded or swollen fallopian tube adjacent to that clip (T458.38), where that observation “insinuated” to him that the left Filshie clip had been locked. Dr Dhupar did not give evidence to that effect: T402.38.I have not accepted that cited opinion of Associate Professor Cooper for the reasons already identified at paragraphs [495] to [561] above. I consider his opinion in that regard to be problematic because of its speculative nature and because of the inherent and well-understood difficulties that arise in seeking to draw factual conclusions from photographs, as identified in the decided cases referred to at paragraph [525] above.In addition to those considerations there are two further standout reasons for not accepting Associate Professor Cooper’s insinuated interpretation that the left Filshie clip was closed in the locked position.First, such a conclusion is not supported by a confirmatory intra-operative photograph that I infer would have ordinarily resulted in the course of “typical use” of the Filshie Tubal Ligation System to demonstrate that intra-operative inspection revealed appropriate closure and locking when viewed from both sides of the clip after “flipping” for that purpose.Secondly, despite Associate Professor Cooper’s insinuated interpretation, when Dr Dhupar was questioned at length on her understanding of the manufacturer’s instructions for the correct use of the Filshie Tubal Ligation System (Exhibit “C”, Vol 2, Tab 6.5), including proper closure (commencing at T393.32 and following), she specifically stated, in relation to this issue: “No, there was no oedema, no swollen tube” present: T402.38.In my view, if the intra-operative images had reasonably permitted a factual conclusion to the effect that the plaintiff’s left fallopian tube was in any material way swollen due to pressure from a closed Filshie clip, then, from her particular vantage point as the operating surgeon, Dr Dhupar would most likely have recognised and claimed the benefit of that conclusion after viewing those photographs, yet she did not make that claim. Those considerations lead me to reject as speculative the opinion of Associate Professor Cooper to the effect that the left Filshie clip was closed and locked.That analysis indicates that the plaintiff’s clip migration theory is not only plausible but that it is the most probable explanation for Dr Jeri’s findings of apparent left fallopian tube patency. The above analysis leads me to conclude that, on the balance of probabilities, despite the sterilisation procedure carried out by Dr Dhupar on 26 August 2014, due to operator error the plaintiff’s left fallopian tube remained either unoccluded or sufficiently partially unoccluded so as to permit and therefore cause the subject pregnancy to occur by fertilisation within 12 months of the procedure, not long after the plaintiff had post-operatively resumed intimate relations with her husband.(12) Plaintiff’s initial reaction to her pregnancy with her fourth childThe plaintiff experienced an instant adverse emotional reaction to the news of the subject pregnancy. She did not feel good. She was very upset. Her husband needed to assist her to try to calm down. When she recounted the events, her description of those circumstances projected a profound sense of anguish and upset. After she received the news of her pregnancy, the next day she had to travel to Wagga Wagga in order to have an ultrasound test to confirm that the pregnancy was not ectopic. This was important because ectopic pregnancy was a recognised and concerning risk that followed a failed tubal ligation. The result of that test was to confirm that the plaintiff had a normal non-ectopic pregnancy. That news did not quell the plaintiff’s sense of anguish.Following the diagnosis of her pregnancy, the plaintiff was obliged to travel to Wagga Wagga on a number of occasions post 32 weeks gestation for the assessment of foetal welfare: Exhibit “C”, Vol 2, Tab 4.3, pp 417 – 423. This was because she needed to have her caesarean section performed at Wagga Wagga. The plaintiff had antenatal discussions at Wagga Wagga Referral Hospital about the risk of the occurrence of placenta accreta in her situation, and the risks of spinal anaesthesia: Exhibit “C”, Vol 2, Tab 4.3, pp 450 – 452. She would not have needed to have such distressing discussions were it not for the pregnancy.(13) Plaintiff’s negative feelings and attitude to the pregnancyThe tubal ligation procedure Dr Dhupar carried out and the content of the antecedent discussions the plaintiff had with Dr Dhupar had reasonably instilled in the plaintiff a feeling of confidence that she would not become pregnant again. She felt that having had tubal ligation surgery, this had enabled her to move forward with her plan toward full-time work and in relation to her future as she had mapped out for herself. In those events, she enjoyed her role as mother to three healthy children and she was looking forward to focussing her efforts to provide for them as best she could.Therefore, when the plaintiff became aware, and when it was confirmed to her, that she was in fact pregnant with her fourth child, she was affected by a range of mixed and unsettling emotions. These ranged from sadness, negative thoughts towards her as yet unborn child, and considerable feelings of guilt over having such thoughts: T55.29 – T55.39. It was plain from her upset state when she gave that evidence, that she had difficulty articulating those ambivalent feelings in her evidence, most likely because of those feelings of guilt.As a result of such feelings, the plaintiff found the whole of the period of her pregnancy to be daunting, and hard to endure. This was because of her continued feeling that she had not wanted any further children. Those feelings extended to not wanting to hold other people’s babies or children. She felt that she had completed that part of her life and she had negative thoughts about having to face people who would be asking her well-intentioned but nevertheless intrusive questions about how she was faring, or how her pregnancy was progressing, particularly since it was well-known amongst her friends, in her family, at her work, and in her community in the relatively small town in which she lived, that she had undergone a sterilisation procedure by tubal ligation. The plaintiff felt considerable shame and embarrassment over the changed circumstances in which she then found herself. This was particularly so since she had previously told people that she had completed the size of her family.Those events affected the plaintiff’s interactions both socially and at work, and she found that she did not want to be around people. She found that she did not want to be involved in discussions about being pregnant or having another baby. She just did not want to see anyone. At times she found herself being visibly upset at her work. She found that as a result of such feelings, her work was suffering, and she felt that she was no longer as reliable an employee as she previously had been. She was embarrassed at having to discuss such matters with her employer, who, fortunately for her, was very understanding about her predicament and her changed circumstances.The plaintiff described one of the worst experiences she had at her work, in 2015, at a time when she felt withdrawn during her interactions with clients, and when she found that she lacked emotional empathy with a client who was a young mother, who in the work setting, wanted to talk about pregnancy and young children in the course of discussing financial planning. That experience led the plaintiff to avoidantly restrict herself to background work and paperwork in her job, so that she would not have to associate with clients. She found herself unable to discuss her pregnancy with others, and she felt unable to seek counselling about such matters.Although the plaintiff had enjoyed her work, she found the need to stop work in about December 2015. She did so in order to spend as much time as she could with her first three children before the birth of her fourth child. She had feelings of guilt about the prospect of having to share her time again, this time to accommodate the needs of a fourth child. This was contrary to her plans and contrary to the medical procedure she had undergone on 26 August 2014 in order to ensure that those plans remained viable.The plaintiff did not enjoy her time on maternity leave whilst she was awaiting the birth of her fourth child. She felt apprehensive as if she had a weight on her shoulders from which she could not free herself, and from an emotional perspective, she felt “down” all the time.Throughout her pregnancy, the plaintiff continued to remain under the care of Dr Jeri. In that time, she found that her concentration levels were reduced. She remained apprehensive over the impending birth of her fourth child. Between January and March 2016 she experienced abdominal pains on and off and she was unsure of the significance or the origin of those pains as she had never beforehand experienced labour.Based upon the plaintiff’s discussions with Dr Jeri, she knew she would not be able to undergo a natural labour and delivery of a fourth child, and that as a result, she would have to undergo a caesarean section delivery in Wagga Wagga. This was because her circumstances were medically classified as being a high risk pregnancy on account of her three previous caesarean section deliveries, which contra-indicated any attempt at a caesarean section delivery at her local hospital.The plaintiff experienced considerable stress and inconvenience when her antenatal care had to be transferred to Wagga Wagga because of the risk classification which had been ascribed to her pregnancy. This burdened her with considerable additional travel and inconvenience.In those cumulative events, the plaintiff felt as if she had lost control and she felt that she was outside of her comfort zone in circumstances that were not her fault. She found it difficult to stay in control and to deal with the needs of her pregnancy. This included having to be attended by midwives and staff she did not know in Wagga Wagga. Such circumstances were different to her experiences at her local hospital for the previous deliveries. The plaintiff was also apprehensive about the need for her to travel from her home, for an hour, to Wagga Wagga with her children. She described the whole experience as being just horrible. She felt that she just did not want to be in Wagga Wagga, she did not want to think about the prospect of being there instead of being at home with her family. An elective caesarean was booked due to be performed at Wagga Wagga Referral Hospital on 15 March 2016. The plaintiff was considerably apprehensive about the entire circumstances.(14) Onset of labour and travel to Wagga WaggaUnexpectedly for the plaintiff, and for Dr Jeri, on 1 March 2016, she went into spontaneous labour. Initially, she was not certain as to what was happening. Whilst she was at a social function involving her children’s tennis, her son told her that the back of her dress was wet. This obviously raised a concern for her as to whether there had been a rupture of the amniotic membrane thus releasing amniotic fluid. The plaintiff immediately went to the local hospital where a nurse informed her she was in labour. Dr Jeri was contacted and arrangements were then made for her immediate transfer to Wagga Wagga Referral Hospital, where, as it transpired, Dr Dhupar was the obstetrician on duty to be called on to assist. In those events, Dr Jeri was concerned about the plaintiff’s state of mind. He agreed to follow the ambulance to Wagga Wagga in order to perform the caesarean section himself. They arrived at Wagga Wagga Referral Hospital in the early hours of the evening of 1 March 2016.Submissions were made on behalf of Dr Dhupar criticising the construction of the rushed circumstances of the plaintiff’s trip to Wagga Wagga. I find those submissions to be entirely misconceived and unacceptable in the plaintiff’s circumstances of a medical emergency.When the plaintiff arrived at Wagga Wagga Referral Hospital, and whilst she was being prepared for caesarean section delivery under regional rather than general anaesthesia, she was very emotional and very upset about the changed delivery plan. She felt overwhelmed by those feelings and she had questions in her mind as to why this was happening to her. She was sobbing and crying whilst being prepared for spinal anaesthesia. She described experiencing pain when she had started to tear, which would doubtless have been distressing to her, knowing that she needed to have a caesarean section delivery. (15) Caesarean section delivery of fourth childOn 1 March 2016, whilst in the operating room, and although under spinal anaesthesia, the plaintiff remained fully conscious throughout the caesarean delivery. Dr Jeri performed that procedure in a routine manner and without complications.At that time, the plaintiff was aware that Dr Dhupar was in the operating room with Dr Jeri. However, at Dr Jeri’s request, an obscuring sheet was set up to serve as a blind to block the plaintiff’s view of Dr Dhupar so that she did not actually see her during the procedure. This was because up until that time, the plaintiff was burdened with a lot of negative emotional feelings about Dr Dhupar. In that regard, the plaintiff felt very angry because she considered that Dr Dhupar had made a mistake, and that she was being required to deal with the consequences of that mistake for the rest of her life, despite being faultless herself. As a result, she felt that the control of her life had been taken from her hands without any agreement on her part.(16) Dr Jeri’s intra-operative observations and communicationsImmediately following the caesarean section, and before undertaking bilateral salpingectomy surgery, as was then expected of him in the circumstances of a failed tubal ligation, Dr Jeri proceeded to investigate the plaintiff’s intra-abdominal reproductive structures to seek to ascribe a cause for such failure.As described in more detail at paragraphs [270] to [275] above, in that operation Dr Jeri observed the fully closed and locked clip on the plaintiff’s right fallopian tube. He did not see any Filshie clip that would otherwise have been expected to have been attached to the left fallopian tube.After conducting a fruitless intra-abdominal visual search for the left Filshie clip, in addition to that visual search, Dr Jeri then palpated the plaintiff’s left fallopian tube along its length. In that process he found no clip. He then determined that the left fallopian tube had remained intact without evidence of damage, compression, or signs that suggested the lumen of that tube had been occluded by a previously applied Filshie clip. Dr Jeri therefore concluded that the left Filshie clip must have moved to a position on the broad ligament which he could not confirm by direct vision due to the presence of adhesions in that area.In his evidence, as cited at paragraph [277] above, Dr Jeri explained that during the operation on 1 March 2016, he had told Dr Dhupar of his findings as described above. He said that Dr Dhupar “didn’t reply, she didn’t comment” in response to Dr Jeri’s remarks: T227.40.I do not accept Dr Dhupar’s denial that Dr Jeri had told her that the left fallopian tube appeared normal and did not have a clip on it. I prefer and accept Dr Jeri’s unchallenged evidence on that particular matter, and his evidence as a whole, as summarised at paragraphs [227] to [300] above, in its entirety.If the left fallopian tube had earlier been occluded by a correctly closed and locked application of a Filshie clip, a 4mm area of destroyed tissue would have been expected to have been seen by Dr Jeri.After carrying out the above investigation, Dr Jeri then proceeded to perform bilateral salpingectomies to ensure that future conception would be prevented. He then sent selected portions of the excised tissues for histopathological examination as described at paragraphs [159] and [272] to [275] above. Unfortunately, those samples did not include the isthmic portion of the left fallopian tube. It was not suggested that there was a requirement on his part to do so. That said, I nevertheless accept Dr Jeri’s evidence that he found the left fallopian tube to be intact without evidence of prior compression, damage, occlusion or interruption. Dr Dhupar had left the operating theatre before the caesarean Pfannensteil incision was closed. I accept Dr Jeri’s evidence that before she left, he had the conversation with her, as cited at paragraph [797] above.(17) Plaintiff’s discharge from hospital following birth of her fourth childThe plaintiff remained an in-patient at Wagga Wagga Referral Hospital for 2 days between 1 and 3 March 2016, following which she was then transferred to the local hospital for post-operative convalescence. After a few days as an in-patient at the local hospital the plaintiff was discharged home. After several days at home she noticed an infection had taken hold in her caesarean wound, which had become quite infected, including with the appearance of suppurating pus, despite her best attempts at wound hygiene. When she saw that the caesarean wound was starting to open up and that it was becoming green, she then sought appropriate medical attention.The plaintiff received a 14 day course of antibiotics aimed at treating a rare type of staph infection that she had acquired whilst in hospital. This required that she stop breastfeeding her newborn child and that she commence bottle feeding when the child was aged just two-and-a-half weeks. As a mother, she found those circumstances very upsetting in a period when mother and child bonding should be occurring.(18) Events between the birth of the fourth child and the trialAll of the events described above, and the plaintiff’s related feelings of distress, significantly interfered with and affected her adversely in bonding with her newborn fourth child. The plaintiff found that she preferred her husband to hold the child so she would not have to do so herself, and so that she could give of her time to her other three children. The circumstances were understandably conflicting for her.In those events, the plaintiff began to feel that her newborn child did not even need her. She noticed a discernible difference in the prevailing circumstances when compared to the way in which she had bonded with her three other children. Furthermore, her newborn child seemed to have slept rarely, was frequently upset, and cried so much that they needed to consult with a paediatrician over the course of a number of appointments.The described circumstances caused the plaintiff to experience anxiety and difficulty in coping. As a result, she consulted a general practitioner in Dr Jeri’s practice, and she was prescribed the anti-depressant medication Sertraline. The dose was gradually increased to 150 mgs per day, which she has continued to take until the present time, on serially renewed prescriptions, a form of treatment that was agreed between that doctor and Dr Jeri. For those prescription renewals, she requires further consultations every few months. She has not yet been given any indication as to when, if at all, that medication should be ceased.The effect of the medication for the plaintiff is that whilst she still cries, the likelihood of her doing so has lessened in that her previous experiences of big emotional highs and big emotional lows, or crashes, has levelled somewhat, and she is now able to concentrate better on certain tasks “without jumping all over the place”: T64.39. Whilst the plaintiff acknowledged that the described levelling effect was a positive benefit of the medication, she also identified some negative effects, which affected her libido, and she has also noticed that her weight has increased significantly. In that latter regard, the plaintiff has felt unable to resume her previous exercise regime after the birth of her fourth child because of her need to commit herself to her child’s needs. As a result, her own needs have taken a second place in the hierarchy of her priorities. This would explain why she has gained 20kg in weight since the birth of her fourth child.In describing her feelings and experiences that followed the birth of her fourth child, the plaintiff described herself as having become withdrawn, both from her husband, and from her social circle, and “from just life”: T65.47. She has also found it extremely difficult to take her fourth child out without becoming very easily upset and crying a lot.On two such occasions the plaintiff started to cry whilst she was proceeding through the check-out at the local supermarket. In that regard, her crying was in response to the crying of her child. On one of those occasions the plaintiff felt that she could not move and just sat on the ground in the supermarket in a state of acopia with the child, thus requiring that her husband had to be called to come and take her home, after she had refused a stranger’s earlier kind offer to take the child to try and comfort her.Another adverse impact of the plaintiff’s circumstances as described is that she feels she has not been sufficiently present or attentive to the needs of her other three children, including the need to support them in the active sporting life of the family. This is plainly the cause of feelings of guilt on her part. The children are involved in many sports in which she would normally have also been involved. She found that she could not go to their sporting matches. This made her feel that she “was losing as a mother” because she was not there for her children, and she felt this was the “fault” of her fourth child. As a result, the plaintiff has felt that she has been “the one to miss out”: T66.35. The plaintiff’s problems as described in the preceding paragraphs still persist to the present time. Those circumstances have impacted adversely on how she feels about herself. As a result of those matters, the plaintiff was referred for counselling as part of a mental health care plan. Unfortunately, the plaintiff felt that counselling has not been of assistance to her as she does not like talking about her problems, and she feels that people with whom she might discuss such feelings may end up thinking ill of her as a mother. The plaintiff broke down when giving evidence about those feelings. There is no suggestion that she has unreasonably failed to mitigate her damage by not pursuing more intensive counselling.The plaintiff went on to describe her experience of panic attacks, in which she had rapid heart palpitations, a feeling of loss of control, of getting hot and feeling really emotional. At those times she feels overwhelmed. Such attacks can be of varied duration. Sometimes she is able to bring herself out of them quite quickly, and at other times this is not so easy to achieve. Those panic attacks seem quite different to her previous episodes as described in her medical records.The plaintiff’s experience of panic attacks after the birth of her fourth child is that they are random, and coincide with the feeling that she cannot deal with certain situations and when she feels she is losing control. Those panic attacks first commenced when she learnt that she was pregnant with her fourth child. They have continued after the birth of that child. They occurred daily, sometimes more than once per day, until she commenced taking medication aimed at levelling out her feelings. Unfortunately, she still experiences panic attacks depending on the circumstances, including when contemplating matters to do with the present case.The plaintiff’s panic attacks vary in their intensity, and sometimes they coincide with the feeling of anger at the ongoing litigation, and because she feels that the problem of her unwanted pregnancy has not been acknowledged by Dr Dhupar, and she has the feeling that this has “just hung there for years now”: T69.9. That feeling remains the same and she does not know how to deal with such feelings.The plaintiff’s most recent panic attack, the worst she has experienced thus far, occurred a few weeks before the hearing, whilst she was at her part-time work, and she thought she was going to have a heart attack. A work colleague took her to see her general practitioner because she appeared to be so unwell. Her doctor spent the lunch hour talking the plaintiff through that panic attack. The precipitating circumstances were that she was simply at work and suddenly felt she just could not concentrate, or focus, or hear anything, and this was associated with an impending feeling of foreboding or adversity.The plaintiff described what I interpret to be a pervading loss of self-esteem. Her perception is that when people see her with her fourth child, they know that she did not want that child. She was plainly embarrassed and upset at recounting these matters in her evidence. She said she does not feel she is the same person she was before she became pregnant with her fourth child. She said she is still withdrawn in her dealings with that child. She has not yet returned to exercise. She is concerned about the 20kg of weight she has gained and she feels that the events have had an adverse impact on her relationship with her husband. She feels that something has been taken away from her because of how she has felt about herself since she last became pregnant.The plaintiff did not return to her financial planning work because she experienced doubts about herself and about her abilities. She felt she was no longer able to perform at the level which was required for that work. She felt that she should not go back to a work environment where she felt unable to succeed.The plaintiff’s adverse feelings as described above have not ameliorated since the birth of her fourth child. The prescribed medication she takes makes things a little easier and clearer for her to accept her changed circumstances. Things are still “a little harder” for her in that she still harbours the untoward feelings that she has described. She has not had any trial periods off her medication.(19) Expert medical assessments of the plaintiff relating to damagesIn February 2017, at the request of her solicitor, the plaintiff was examined by Dr Samson Roberts, a consultant psychiatrist: Exhibit “C”, Vol 1, Tab 3.6, pp 122 – 135. In December 2017, at the defendant’s request, she was examined by Dr Angelo Virgona, also a consultant psychiatrist: Exhibit “C”, Vol 1, Tab 5, pp 53 – 65. I accept that she answered their questions truthfully: T72 – T73. Neither of those experts were required to give oral evidence. An analysis of their opinions now follows.Opinions of Dr RobertsDr Roberts examined the plaintiff on 20 February 2017 and took a history from her that she had been struggling mentally as a consequence of the unplanned pregnancy. He noted a history of persisting tendency to panic attacks and a related inability to cope, palpitations, a tendency to apathy, feeling overwhelmed, reduced confidence and self-esteem, impaired memory and concentration, anxiety, poor libido, feelings of guilt, lack of motivation, a feeling of drowning in certain aspects of her life, and a loss of enjoyment of life. He noted she was taking anti-depressant medication.Dr Roberts conducted a mental state examination. He noted the plaintiff exhibited a restricted affect, and at times became teary during the consultation. He identified her description of a persistently depressed mood state and a tendency to anxiety. He noted an expressed sense of shame over her negative feelings about the subject pregnancy. After reviewing relevant aspects of the plaintiff’s health records which included details of the plaintiff’s peri and post-natal depression, Dr Roberts went on to state his opinions.Dr Roberts was of the opinion that the plaintiff had developed a depressive disorder consequent upon her distress over her unplanned pregnancy. Diagnostically, he considered she was suffering from a major depressive disorder. He considered her depressive condition had worsened after the birth of her fourth child, and he noted a significant related stressor being the plaintiff’s feelings of guilt over her negativity for having had a fourth child.Dr Roberts noted there had been some improvement with treatment in the form of psychological support and medication. He expected that the plaintiff’s symptoms would diminish with further treatment but he considered it doubtful the symptoms would improve in the short to medium term. He considered that it would be some years before the plaintiff would return to her pre-existing positive outlook that existed prior to the subject pregnancy.The symptoms to which he had been referring included the plaintiff’s social withdrawal, difficulty maintaining a commitment to childcare, difficulty in full participation in her relationship with her husband, amotivation, apathy, pessimism, guilt, pervasively depressed mood state, fatigue, memory and cognition problems, self-doubt and pervasive negativity.It is of some significance that Dr Roberts noted that the plaintiff’s rural location made it impractical and disruptive of family life for her to undertake regular psychiatric supervision by a consultant psychiatrist or a clinical psychologist, although he noted that tele-psychiatry consultations were possible. He identified a range of talking and pharmacological therapies and follow-ups for managing the plaintiff’s condition.Opinions of Dr VirgonaDr Virgona examined the plaintiff for one hour on 12 December 2017. Dr Virgona took a history that, before the subject pregnancy, the plaintiff had been the fittest and the healthiest she had ever been, and after she discovered she was pregnant, she had felt like “throwing the towel in”, she had ceased exercising and she had resigned herself to becoming “fat and unfit”. He took a history of her having become sad, cranky and anxious and feeling out of control.The post-birth history recorded by Dr Virgona included feelings of acopia, crying, and following an episode in a supermarket when she collapsed in tears, she began to take prescribed anti-depressant medication. Despite treatment, she continued to have feelings of crankiness, guilt and upset associated with “a horrible headspace” with some “worst moments”. Those problems were further described as feeling bad about herself, being out of control, anxious, weight gain, and reduced libido. Dr Virgona recorded that the plaintiff was feeling better than when she saw Dr Roberts ten months earlier.Dr Virgona recorded the plaintiff’s hope that in time her negative thoughts and feelings would fade because they have been reducing in intensity.Dr Virgona’s notes of the mental state examination he had undertaken recorded that the plaintiff was “near tears once or twice” during the course of the interview but otherwise her mood was euthymic and her affect was mildly restricted, without obvious concentration difficulty.Dr Virgona noted Dr Roberts’ opinion and diagnosis of a major depressive disorder. He undertook a review of the plaintiff’s past medical records which included Dr Jeri’s notes of consultation concerning the plaintiff’s previous reported episodes of anxiety and fears over getting pregnant again, and related symptoms up to the point where she requested tubal ligation on 19 February 2014. He also noted the post-pregnancy record of anxiety, social anxiety, acopia and feeling panicky.Dr Virgona identified the plaintiff’s tendency to obsessive compulsive personality traits which featured characteristics such as a need for a sense of order and control to maintain psychological stability. He considered that as such, this made her more vulnerable to anxiety and depressive reactions in the wake of unplanned events or accidents. He concluded, as did Dr Roberts, that the plaintiff has suffered a major depressive disorder which probably began during the subject pregnancy when she became aware that she was pregnant, and it reached its nadir in the months following the birth of the fourth child. He noted she had responded to medication and that she should be considered to be in partial remission.Dr Virgona considered that the plaintiff should continue with her anti-depressant medication for the next 12 months, with the possibility of symptomatic improvement. He considered the plaintiff’s prognosis to be “good generally” with the expectation of a trajectory of improvement to an eventual remission. He considered the plaintiff’s symptoms will not result in a significant impact on her future earning capacity.Evaluation of the respective psychiatric opinionsWhilst Dr Virgona had examined the plaintiff 10 months after Dr Roberts had examined her, and allowing for the fact that he had noted improvement and partial remission of her major depressive disorder when compared to the description identified by Dr Roberts, it is difficult to discern the rational basis for his prediction that the plaintiff would achieve an eventual complete remission of that condition.In my assessment, comparing Dr Virgona’s optimistic view with the plaintiff’s state of upset at the trial, even allowing for the fact of having to recount upsetting matters in her evidence, which could have brought her emotional turmoil to the surface, I find it difficult to accept Dr Virgona’s opinion as to a complete future remission. In my view, that opinion should be seen to be an inadequately reasoned “ipse dixit” that precludes its acceptance: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, at [59], [87].My conclusion in that regard is not intended to supplant matters of medical diagnosis: Strinic v Singh [2009] NSWCA 15, at [60]. Instead, it is simply the product of a logical analysis of the facts for the purpose of determining whether the matters assumed and given emphasis by Dr Virgona are sufficiently like the evidence adduced in the proceedings, which determines the acceptability of the expert opinion, under consideration: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. In my assessment, on the face of his report, Dr Virgona has not given due recognition to the fact that the plaintiff’s economic circumstances, the plans for her life and her psychological outlook, have changed since the advent of the subject pregnancy. It is difficult to see how the plaintiff’s described negative feelings would dissipate to produce a state of complete remission when the plaintiff still has, and will continue to have before her, the daily reminders of her additional responsibilities and burdens of an unwanted parenthood for the foreseeable future.In my view, those factors suggest that Dr Virgona’s opinion is based on positive hope and optimism that has not been adequately balanced alongside the potential negative factors and stressors that comprise the prevailing obligations and factors associated with parenthood.I consider that Dr Roberts has provided a more balanced opinion which should be preferred and accepted compared to Dr Virgona’s overly optimistic and less adequately unexplained views.(20) Effects of the events on the plaintiff’s workThe plaintiff’s former employer in the financial planning sector provided financial planning services to central western New South Wales. He confirmed that he had employed the plaintiff in 2010, initially in the capacity of receptionist, and with training, her work then progressed into tasks involving customer service and para-planning.The plaintiff’s former employer had employed her for two periods before and after 2015, around her family commitments and maternity leave. He valued her highly as an employee. He said that about a week before the plaintiff had become aware of her last pregnancy, he had discussed and agreed with her that in her work she would become more involved in the specialist advisory services that his business provided to its clientele. The initial agreement they had was to be flexible as to timing and working hours but this was to lead to work on a permanent full-time basis (T96.13; T96.44) and it also envisaged the possibility of flexible part-time employment if she had requested that: T97.4. In 2015, in the knowledge that the plaintiff was pregnant, he was employing her for about three days per week on that flexible arrangement. In December 2015, the plaintiff’s remuneration would have been at a base rate of $22.11 per hour plus employer funded superannuation, but this would have most likely increased to a level commensurate with anticipated increased levels of responsibility and work intensity, to an estimated $25 per hour: T97.25.The former employer confirmed that if the plaintiff had been willing to work in 2016 and 2017, the business had sufficient work for her and he would have employed her as the business grew: T97.40. Unfortunately, after the birth of her fourth child, the plaintiff could not face continuing to work in that employment, for the reasons earlier described.When the plaintiff’s fourth child was aged about 5 months, her mother-in-law assisted with looking after her child. Her mother-in-law had retired in order to pursue planned golfing and holidaying, but she took on the role of assisting with childcare two days per week, with the child being occupied at a pre-school on a third day. In that time, the plaintiff worked as a medical receptionist for one day per week until January 2017: T71.The plaintiff was later offered more working days with a local medical imaging centre but she found that she could not cope with front of house client contact. She found that she did not want to talk to people or to interact with them. She therefore continued to work in a lesser capacity one day per week until January 2017.In January 2017, the plaintiff took up other employment with her local shire council as a personal assistant and secretary in one of the council’s departments. That position is a job-share arrangement where she works a five day fortnight. In that position there is the potential for the plaintiff to work more days once her youngest child is older.The plaintiff’s financial records have been tendered. They accurately reflect her earnings. These will be appropriately analysed in connection with her claim for damages for economic loss.(21) Relevant observations of plaintiff’s mother-in-lawThe plaintiff’s mother-in-law, a retired local bank manager, gave evidence on a number of relevant topics. These included her knowledge of the plaintiff over the past 20 years in the employment setting before the plaintiff had married her son, and in the family setting, and following the events in question.The plaintiff’s mother-in-law described the plaintiff’s personality characteristics in the period before her last child was born as being confident, outgoing, very social, eager to enjoy life, and someone who enjoyed family life. She confirmed that the plaintiff had exercised regularly and had got back to fitness after the birth of each of her first three children, and that she was conscious of her appearance.In 2015, the plaintiff’s mother-in-law was available to assist with childcare on either three or four days per week except for Wednesdays, which was her golfing day. She had been able to assist because she has been retired since 2010.The plaintiff’s mother-in-law confirmed that after the birth of the plaintiff’s third child, and before the tubal ligation which is the subject of these proceedings, the plaintiff and her son, the plaintiff’s husband, had told her that having three children was enough for them, and they did not want to have more children in view of their family and financial plans.The plaintiff’s mother-in-law stated that when the plaintiff informed her that she was pregnant with her fourth child, the plaintiff was crying, angry, upset, and had kept asking how and why this had occurred. The plaintiff’s mother-in-law stated that since then, the plaintiff became withdrawn, anxious, reluctant to go out and to socialise, and was prone to crying without apparent reason, other than in relation to the pregnancy in question. She observed this to occur several times per week on the occasions she was there. She also confirmed that the plaintiff had been anxious and nervous about the impending birth of the fourth child and because of the effect this would have on the other children.The plaintiff’s mother-in-law stated that when she saw the plaintiff at the hospital shortly after the delivery of her fourth child, the plaintiff was looking at the newborn child and was looking sad and anxious. She stated that the plaintiff did not react well to the occurrence of post-delivery infection, the effects of which lasted for about three weeks. In addition, she had observed the plaintiff to be crying every day. The plaintiff’s mother-in-law assisted in looking after the newborn child for the wellbeing of the family, including because the child was a poor sleeper. In the months that followed the birth of the fourth child, The plaintiff’s mother-in-law became very concerned about the plaintiff’s mental health. This was because she had observed her to be crying, not joining in the children’s activities, not looking after them, and being very withdrawn. She summed up her lay observation thus: “Just she wasn’t right”: T150.10. She described the change in the plaintiff as a complete reversal of the previous outgoing person she used to be: T150.31. She described how on outings, the plaintiff needed to return home even after just a short time out of the house: T150.45.The plaintiff’s mother-in-law confirmed that she has been available to look after the fourth child on the days the plaintiff went to work from August 2016 to January 2017, and had the plaintiff chosen to work more days, other than on Wednesdays, she would have been able to assist by making herself available for childcare. This was in circumstances where pre-school care was otherwise available on Wednesdays.The plaintiff’s mother-in-law stated that there were a number of occasions when she realised, from speaking to the plaintiff, that the plaintiff was not coping with caring for her fourth child, and she then took over that care, including on occasion taking the child to be care for in her own home.The plaintiff’s mother-in-law stated that whilst the plaintiff has improved somewhat in her outlook since the early days of changed temperament in 2015, and she now does go out more, she is still uncharacteristically short-tempered, and has days where she just does not cope with things in general. She also confirmed that the plaintiff still appears to be anxious from time to time.The plaintiff’s mother-in-law confirmed, from her discussions with the plaintiff before the subject pregnancy, that it had been her intention to increase her work up to full-time hours of employment once the third child had commenced primary school in 2016: T153.6 – T153.24. The unchallenged evidence of the plaintiff’s mother-in-law was generally confirmatory of the plaintiff’s evidence, providing further explanatory detail.Issue 2 – Relevant risk of harmAfter determining factual matters, the next liability issue to be determined pursuant to s 5B(1) of the CL Act, with an appropriate degree of generality, is the identification of the relevant risk of harm: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [59]-[62]; Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1, [2015] NSWCA 90, at [98]. Successive binding decisions have explained that the relevant risk of harm should not be formulated too precisely or narrowly. Instead, for the purpose of undertaking an analysis according to the requirements of s 5B of the CL Act, the risk of harm must be seen to be a generally broad concept that is not confined to the particular hazard that ultimately caused the harm. On a prospective analysis, the formulation of the risk of harm in a case of this kind should allow for a range of foreseeable contingent circumstances that might flow from the activity in question, whilst also encompassing, but not just simply focussing upon, the particular hazard which is the subject of the litigation: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [118]-[119]; Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].The parties were invited to make submissions to assist in the identification of the relevant risk of harm. The defendant did not initially provide a specifically formulated submission on that issue. The defendant referred to the plaintiff’s formulation, as pleaded in paragraph 16(e) of the amended statement of claim filed on 24 August 2018, as being “an increased and unwanted chance of becoming pregnant”: Defendant’s written submissions, paragraph 19. In my assessment the evidence suggests there should be a more broadly stated formulation of the riskThe plaintiff’s final submissions ultimately identified a more expanded formulation of the risk of harm to be that if the tubal ligation procedure using Filshie clips was not performed in accordance with accepted standards and instructions from the manufacturer, then a fallopian tube may not be effectively occluded, which could then foreseeably lead to unwanted pregnancy, childbirth, and other foreseeable untoward consequences, including the development of an adverse psychological condition consequent upon an unwanted pregnancy.In submissions in reply, the defendant pointed to the plaintiff’s more expanded formulation as cited in the preceding paragraph, as being different to that which was pleaded in the plaintiff’s amended statement of claim: Defendant’s written submissions in reply, paragraph 39.In my view, having regard to the way the case has proceeded, the defendant has not been taken by surprise by that formulation, nor has the defendant been relevantly disadvantaged by the way in which the relevant risk of harm has been refined in the plaintiff’s final submissions, as that formulation reasonably arises from, and reflects the evidence. The risk of harm must be assessed having due regard to the evidence once it has been concluded: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666, at p 668. For the purpose of applying s 5B of the CL Act to the facts of this case, it is for the Court to discern and identify from the evidence the relevant risk of harm in order to define the appropriate framework for analysing and determining the issues to be decided. The submissions of the parties are intended to assist in that process. In my opinion, in the particular circumstances of this case, the formulation of the relevant risk of harm as was submitted on behalf of the plaintiff strikes an appropriate balance between avoiding undue specificity on the one hand, and undue vagueness or generality in identifying the relevant risk of harm on the other hand. This is in circumstances where it must be recognised that there is no “right” formulation of the risk of harm: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320, at [119]; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [59]. In this case, the potential risk of harm following incorrectly performed tubal ligation surgery included the specific risk of an unwanted pregnancy. I therefore accept the plaintiff’s formulation as cited at [864] above, as providing the appropriate framework for the consideration of the issues that now follow.Issue 3 – Duty of care, scope and contentIt is beyond dispute that a doctor and patient relationship gives rise to a duty of care. This is a well settled principle, as was stated in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58, at [5]:“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment" ((2) Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871, per Lord Diplock at p 893); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case ((3) Gover v. South Australia (1985) 39 SASR 543, at p 551.). It is of course necessary to give content to the duty in the given case.”The content of the duty of care that was owed in the plaintiff’s presenting circumstances must be defined and identified by the Court in the context of the case at hand: Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18, at [7] and [63]. Plainly, in this case, the scope of the duty of care the defendant owed to the plaintiff was to take reasonable precautions according to her skill and competence as a trained obstetrician and gynaecologist when operating on the plaintiff with the intention of occluding her fallopian tubes with the aim of preventing future pregnancy, whilst also having due regard to the instructions and recommendations of the manufacturer of the devices used in the operation, and whilst also having due regard to the advisory recommendations of relevant professional organisations, in this case, RANZCOG, which also identify appropriate standards of practice.In this case, the content of the duty of care owed must be recognised and viewed in the context that a woman in the position of the plaintiff has a right to plan or limit family size by choosing whether and when to have a child, and the infringement of that autonomous right could give rise to a claim for particular heads of damage: Walter v James [2015] NSWCA 232, at [129]-[130].Any assessment of the manner in which the duty of care owed has been discharged must be undertaken in terms of the applicable statutory requirements and limitations: s 5B, s 5C, and s 5O of the CL Act.Dr Dhupar does not contest the proposition that she owed the plaintiff a duty to exercise reasonable care and skill in the provision of diagnostic and treatment services to the plaintiff at the Riverina Day Surgery Centre.The plaintiff has submitted, and I accept that, having regard to matters emergent from the evidence of the defendant, and from the expert witnesses, that the manufacturer’s instructions and guidelines as promoted and promulgated by Dr Dhupar’s professional college, RANZCOG, and as identified at paragraphs [47] – [54] and [112] – [123] above, as also explained in the expert evidence, encapsulate the standard of care that was to be provided by Dr Dhupar in this case. This will be taken up in connection with the consideration of Issue 6 concerning the question of breach of duty of care and negligence.Issue 4 – Inherent risk : s 5I of the CL ActDr Dhupar has pleaded a defence of a materialisation of an inherent risk within the meaning of s 5I of the CL Act. Although the defendant did not “particularly” address the defence of inherent risk (T539.31), because that defence was not specifically abandoned, and since it was submitted on behalf of Dr Dhupar that the plaintiff’s claim rises no higher than an inference of negligence following the occurrence of pregnancy, the defence of inherent risk nevertheless requires consideration.Section 55I of the CL Act provides:5I No liability for materialisation of inherent risk(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.The safe harbour defence of inherent risk which may be afforded to a defendant by s 5I of the CL Act is only available as a defence in the absence of negligence: s 5I(2) of the CL Act. An effect of the civil liability legislation is that it becomes necessary to determine the issue of whether there has been a materialisation of an inherent risk in order to ascertain whether that legislative provision has an up-front dispositive effect, before considering whether or not there has been a negligent breach of duty of care, which involves the consideration of a different category of risk to that of an inherent risk: Leeming M, The Statutory Foundations of Negligence (2019, The Federation Press) at p 35, citing Paul v Cooke [2013] NSWCA 311, at [54]-[57]; Schultz v McCormack [2015] NSWCA 330, at [84] and [153], and other authorities to the same effect. The consideration of whether there has been a materialisation of an inherent risk in this case, now follows.At the outset of an assessment of whether an inherent risk of pregnancy materialised, it must be recognised that the singular purpose of properly applying Filshie clips to fallopian tubes is to avoid a pregnancy. The manufacturer’s product information guide comprising Exhibit “1”, Tab 2, p 32, as cited at paragraph [47] above and at other places in these reasons, identifies how the occurrence of operator fault in applying Filshie clips may result in a failure to completely occlude tubal lumen which could result in an unintended pregnancy. A pregnancy resulting from an operator fault of that kind in the context of a non-typical use of the Filshie Tubal Ligation System cannot be reasonably described as the materialisation of an inherent risk: s 5I(2) of the CL Act.The context for the consideration of the claimed defence of inherent risk is the statements made by the manufacturer of Filshie clips which describe Filshie clips as: “The choice of leading surgeons around the world”: Exhibit “C”, Vol 2, Tab 6.5, p 593. The descriptions within that document have been assembled and enumerated in the series (1) to (6) as set out in detail at paragraph [87] above. The essence within those enumerated point refers to internationally recognised excellent clinical efficacy, ease of use, permanent effect, assuming “typical use” of the Filshie Tubal Ligation System.In this case, for the defendant to be able to rely upon a defence of inherent risk pursuant to s 5I of the CL Act, she must first satisfactorily show that she had applied the left Filshie clip in a manner consistent with that which was recommended by the manufacturer so as to obviate the need to consider operator fault. This raises a question as to whether Dr Dhupar’s application of the left Filshie clip in this case could reasonably be considered to have been a “typical use” of a Filshie clip: Exhibit “C”, Tab 6.5, p 593.I find that Dr Dhupar has not discharged that onus. Instead, the evidence unequivocally shows that without good cause, she placed the Filshie clip on the plaintiff’s left fallopian tube in a position which was significantly far more lateral to the manufacturer’s recommended position of 1cm to 2 cm from the cornu of the uterus so that when closure was attempted, the left Filshie clip also encapsulated other extraneous tissues in its bite, in addition to just the muscular structure of the fallopian tube. Accordingly, and on the expert evidence and also having regard to the manufacturer’s instructions, Dr Dhupar’s placement of the left Filshie clip should not be construed as being a “typical use” of that device. Dr Dhupar’s non-typical application of the left Filshie clip had the effect of materially increasing the risk of permitting patency or partial patency of the fallopian tube to remain so as to allow the passage of gametes. An unintended pregnancy in those circumstances cannot be reasonably described as the materialisation of an inherent risk within the meaning of s 5I of the CL Act.In reaching that conclusion I have not overlooked Associate Professor Cooper’s evidence which contained a statement to the effect that tubal ligation may fail for a variety of reasons “no matter what you do”: T472.31 – T473.10. That unreasoned sweeping statement, which in my view amounts to no more than a throw-away line, is an insufficiently reasoned basis for discharging the defendant’s onus of proof for the assertion that there had been the materialisation of an inherent risk within the meaning of s 5I of the CL Act. In my view, similarly, Dr Dhupar’s comment to Dr Jeri, to the effect that “it happens” (T208.13), does not provide a satisfactorily rational basis for such a defence. Those statements do not sit well with the manufacturer’s statement to the effect that the clips have a recognised 99.76 per cent effectiveness and providing reliable results in “every procedure” on the basis of an assumed typical use: Exhibit “C”, Vol 2, Tab 6.5, p 693.In contrast, in cases where, consistent with the exercise of reasonable care and skill, a properly located, applied, closed and locked Filshie clip causes a fallopian tube transection which results in recanalisation of the kind arguably postulated by Associate Professor Cooper, a resultant fertilisation might be capable of being reasonably described as the materialisation of an inherent risk of pregnancy: Perisher Blue Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90, at [167]. However, in this case, there was no transection of the left fallopian tube due to the application of a Filshie clip. The absence of a transection undermines the availability of a defence of inherent risk.On the facts found in this case, where on surgical exploration and examination immediately prior to salpingectomy on 1 March 2016, Dr Jeri found the left fallopian tube not to have been damaged, destroyed, compressed, flattened, or transected by a Filshie clip, the proposed mechanism of recanalisation following transection does not arise for consideration. Dr Jeri’s cited findings suggest that at the least, under-closure occurred, which if it occurred, would be due to operator fault, as was conceded by Dr Dhupar: T429.13 – T430.12; s 5I(2) of the CL Act.The stated purpose of applying Filshie clips to fallopian tubes in a location 1cm to 2cm from the cornu of the uterus is anticipatory, in that it is “future looking”, and on the evidence adduced, a misapplication of a Filshie clip to a non-recommended location is capable of being “avoided by the exercise of reasonable care and skill” which negates a defence of inherent risk: Nominal Defendant v Buck Cooper [2017] NSWCA 280, at [116], following Paul v Cooke (2013) 85 NSWLR 167, [2013] NSWCA 311, at [66]; s 5I(2) of the CL Act.In this case, the preponderance of the evidence indicates it was more probable than not that the plaintiff’s left fallopian tube was most likely left either partially or wholly unoccluded by reason of a misapplication of the left Filshie clip due to operator error in the context of a non-typical use of the Filshie Tubal Ligation System. In my assessment of the evidence, the consequence of such a misapplication necessarily negates the availability of a s 5I defence. This is because if the Filshie clip had been applied at the recommended location in accordance with typical use and the exercise of reasonable care and skill, pregnancy would have been a very unlikely consequence given the manufacturer’s statement of efficacy cited at paragraph [890] above: Sparks v Hobson; Gray v Hobson [2018] NSWCA 29, at [47], [49], [206]; Paul v Cooke [2013] NSWCA 311, at [80].I find that the evidence adduced by the defendant in this case does not enliven the claimed defence of inherent risk pursuant to s 5I of the CL Act. I therefore find that the defendant has not made good that claimed defence. Issue 5 – Defence of peer opinion: s 5O of CL ActOn Dr Dhupar’s behalf, it was submitted that she does not incur a liability to the plaintiff in this case because the facts of this case engage a defence pursuant to s 5O of the CL Act. That submission was expressed in the following brief terms:“87.???The defendant gave detailed evidence of her usual practice, which was consistent with the opinions of the experts as to what constitutes competent professional practice, as set out in their joint reports”That submission, which I consider to involve significant oversimplification, bears close analysis by reference to both the facts as found and those portions of the expert opinions that relate to those facts.The convenient starting point for the analysis relating to the claimed s 5O defence is the finding that I do not accept that on 26 August 2014, Dr Dhupar had conducted the sterilisation procedure she performed on the plaintiff, in accordance with her usual practice for such procedures. As described elsewhere in these reasons, there were significant departures from the requirements of usual practice: Elayoubi v Zipser [2008] NSWCA 335, at [86]. This was with regard not only to record keeping and ensuring that appropriate photographic images were taken, but also, and more importantly, as to making an appropriate anatomical placement of the left Filshie clip, and then checking for correct closure and locking of that clip prior to completing the operation. The analysis of the operation Dr Dhupar performed on the plaintiff indicates that in significant respects, it did not involve a “typical use” of the Filshie Tubal Ligation System as recommended by the manufacturer and as endorsed by RANZCOG.In my assessment, Dr Dhupar has not provided any satisfactory or persuasive evidence that identifies a sound reason for her placement of the left Filshie clip at a location that was more lateral to the position recommended by the manufacturer and endorsed by RANZCOG, namely at a location 1cm to 2cm from the cornu of the uterus and only on the muscular section of the fallopian tube without also including other extraneous tissues of the mesosalpinx.Those circumstances provide the relevant background to the consideration of whether in this case, Dr Dhupar is able on a factual basis, to successfully invoke a defence made possible by the enactment of s 5O of the CL Act, which provides:5O Standard of care for professionals(1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.Dr Dhupar bears the onus of proof for establishing the sheltering effect of a defence claimed pursuant to s 5O of the CL Act. The plaintiff is not required to negate a claimed different professional practice that is favourable to the defendant: Dobler v Halvorsen (2007) 70 NSWLR 151; [2007] NSWCA 335, at [60], [61].For a s 5O defence to apply to the circumstances of this case, it is essential that Dr Dhupar satisfactorily prove both the existence of a practice that was widely accepted in Australia by peer professional opinion as being competent, and that she had acted in accordance with that practice: South Western Sydney Local Health District v Gould [2018] NSWCA 69, at [123]-[129]. The defendant’s primary written submissions on this topic relied upon the evidence of Associate Professor Cooper as set out in the joint expert reports he prepared in conjunction with Professor O’Connor on 13 August 2018 and 28 March 2019: Exhibit “C”, Tab 3.7, pp 130 – 184; Exhibit “C”, Tab 3.8, pp 185 – 190. The defendant submitted that the cited opinion of Associate Professor Cooper was “not irrational”: s 5O(2) of the CL Act.For the defendant to satisfactorily prove the applicability of a defence pursuant to s 5O of the CL Act, the evidence in support of such a defence must amount to more than just a bland reiteration, without the provision of sound explanatory reasons, reciting the statutory formula that she had “acted in a manner that (at the time the service was provided), was widely accepted in Australia by peer professional opinion as competent professional practice”: s 5O of the CL Act; UCPR r 31.27(1)(c), Sch 7 cl 3(e).The standard against which the defendant’s intra-operative actions stand to be assessed must be identified before a determination can be made as to whether those actions come within the sheltering terms of s 5O(1) of the CL Act. The evidence of what constituted competent professional practice at the time of the surgery is provided not only by the manufacturer’s instructions as cited at paragraphs [47] to [52] above, paragraph [88] above, but also in the RANZCOG statement cited at paragraphs [112] to [122] above: Sparks v Hobson; Gray v Hobson [2018] NSWCA 29, at [213].On behalf of the plaintiff, it was submitted that there was no dispute between the parties regarding the requisite standard of care, namely that of compliance with the recommendations of the manufacturer of Filshie clips, and the related standard that is also embodied in the RANZCOG publication tendered in evidence: Plaintiff’s written submissions, paragraph 242. The inherent assumption in that submission is that Dr Dhupar’s deployment of the Filshie Tubal Ligation System in the sterilisation procedure that she performed on the plaintiff was a typical use of that System.On behalf of the plaintiff it was submitted that evidence of a particular practice or standard of conduct whether laid down by a professional body or sanctioned by common usage, may be relevant to establishing a standard of care in a professional negligence case: CGU Insurance Ltd v Porthouse (2008) 235 CLR 103; [2008] HCA 30, at [72]. The plaintiff’s submission went on to state that, generally, whether or not conduct is consistent with reasonable care, is a question of fact to be determined in the particular case, citing the authority of Sibley v Kais (1967) 118 CLR 424; [1967] HCA 43, at [5]-[6].In this case, there was no evidence to suggest that the standard of care concerning the deployment of Filshie clips as identified by the manufacturer, did not apply to the operation that Dr Dhupar had carried out on the plaintiff, or that those standards were capable of being applied selectively to a lesser degree of adherence. In light of the manufacturer’s instructions for use I consider that such departures from the identified standards would necessarily represent a non-typical use of the Filshie Tubal Ligation System.The submissions made on behalf of Dr Dhupar in relation to her defence claimed pursuant to s 5O of the CL Act were to the effect that the suggested method of application of Filshie clips was “not mandatory”: Defendant’s written submissions, paragraph 33.In my view, that submission flies in the face of the evidence of Dr Dhupar and that of the experts who accepted that those recommendations represented the appropriate standard of care, which the plaintiff’s submissions described as being steps that should be followed: Plaintiff’s written submissions paragraph 68. Neither of the experts suggested that the manufacturer’s recommendations were not mandatory or could be diluted or ignored.In this case, I have found that there is no satisfactory evidence to persuasively show that the left Filshie clip was applied to the isthmus of the left fallopian tube at a location 1cm to 2cm from the cornu, and then locked into the closed position to occlude the lumen of that tube. On the contrary, the photographic evidence has been persuasively interpreted by the experts as showing that the bite of the left Filshie clip was applied at a different and more distant point on the left fallopian tube so that the bite of the jaws of the clip included additional and extraneous tissues, and not just the muscular tissue comprising the fallopian tube itself at the suggested location on the isthmus. Absent a satisfactorily sound reason for doing so, a clip placement of that kind cannot reasonably be considered to be either typical use or competent professional practice.Furthermore, there is no satisfactory evidence that the left Filshie clip was fully closed in the locked position to exclude a misapplication of the kind identified at sub-paragraph (4) of paragraph [54] above, namely involving the incorporation of extraneous tissues.On the evidence, particularly that which shows a non-typical use of the Filshie Tubal Ligation System, I find that the defendant has not satisfied the statutory preconditions for s 5O of the CL Act to operate as a complete defence to the plaintiff’s claim: South Western Sydney Local Health District v Gould [2018] NSWCA 69, at [123]-[129]. The defendant has not established the requisite factual preconditions for that section to apply. The absent element is proof that Dr Dhupar’s deployment of the left Filshie clip involved a typical use. The facts as found suggest the contrary.Dr Dhupar failed to apply the left Filshie clip to the recommended position on the fallopian tube at the isthmus and lock it into the closed position. She did so without good cause. Dr Jeri’s findings on 1 March 2016 contradict Dr Dhupar’s claim that she properly applied the left Filshie clip as the left fallopian tube was undamaged, whereas if the Filshie clip had been properly applied, a 4mm ischaemic or damaged portion would have been detected. Dr Dhupar’s failure to properly apply the Filshie clip to the left fallopian tube was contrary to peer professional opinion widely accepted in Australia as competent professional practice as identified and cited in the manufacturer’s literature and the RANZCOG guidelines.There is nothing that emerges from the evidence of Professor O’Connor that would support a defence claimed pursuant to s 5O of the CL Act. Very little of the evidence of Associate Professor Cooper was specifically directed to matters relevant to Dr Dhupar’s defence pleaded pursuant to s 5O of the CL Act.In the oral evidence of Associate Professor Cooper, the topic of s 5O of the CL Act was only lightly touched upon in the content of an answer to a question that did not specifically raise the issue. As observed at paragraph [890] above, in connection with the analysis concerning s 5I of the CL Act, inadequately reasoned statements to the effect that tubal ligation fails “no matter what you do” (T472.32 – T473.10), and “it happens” (T208.13), do not provide a sufficient basis to enliven a defence claimed pursuant to s 5O of the CL Act.In arriving at that view I have not overlooked the context of the evidence Associate Professor Cooper cited in an article which studied 10,685 women and that dealt with multiple other forms of sterilisation to say it was demonstrable that for a variety of reasons “sterilisations fail no matter what you do”: T472.32 – T473.10. In my view, the fact that an aspect of the cited study did not include data that related to the use of Filshie clips (Exhibit “1”, Tab 3, p 29), significantly and decisively undermines any force that might otherwise have applied to the cited opinion of Associate Professor Cooper.In my view it follows that the defence claimed pursuant to s 5O of the CL Act must be rejected.Issue 6 – Breach of duty of care and negligenceThe plaintiff’s claim of Dr Dhupar having negligently failed to take reasonable precautions when applying the Filshie clip to her left fallopian tube during the tubal ligation surgery so as to minimise the risk of a subsequent pregnancy must be judged according to the standard of care applicable to the circumstances. The plaintiff must establish the appropriate standard of care: Sparks v Hobson; Gray v Hobson [2018] NSWCA 29, at [18].Identification of standard of careThe plaintiff has identified that standard of care first, by reference to the description of the standard published and distributed by Dr Dhupar’s professional organisation, RANZCOG: CGU Insurance Ltd v Porthouse (2008) 235 CLR 103, at [72]; Neal v Ambulance Service of NSW [2008] NSWCA 346, at [61], and secondly, by a related reference to the instructions provided by the manufacturer of the Filshie Tubal Ligation System. Dr Dhupar has accepted that those instructions reflect the appropriate standard of care to be adopted when performing Filshie clip tubal ligation surgery: T392.49 – T393.1; Exhibit “”, Vol 2, Tab 6.4, p 590. The expert evidence in this case is to the same effect.The evidence when read as a whole discloses that in essence, the sequence by which that standard of care had to be applied at the time when Dr Dhupar operated on the plaintiff using the Filshie Tubal Ligation System required that she:use the laparoscopic instruments to locate and isolate the relevant structures in order to identify the recommended point at which the Filshie clip was to be applied on the muscular isthmic portion of the fallopian tube, at a location 1cm to 2cm from the cornu of the uterus and not distal to that point unless there was sound reason for a more distal placement;place the clip in the location described above whilst also ensuring that the entire width of the fallopian tube had been captured by the bite of the jaws of the clip without including extraneous non-fallopian tube tissue;once the clip was in the required position, the upper jaw of the clip had to be compressed and fully closed into the securely latched or locked state under the nose of the lower jaw of the clip, following which inspection was required to ensure that the jaws of the clip were closed and locked;use the laparoscopic instruments to manipulate, hold and flip the clipped tube over to the other side in order to view and check both sides of the clip for proper closure and locking whilst also checking to ensure that such application had not caused an immediate clip induced tube transection;for record purposes, take an appropriate range of intra-operative photographs that showed correct placement of each Filshie clip;note any unusual features encountered during the procedure, and if present, consider whether any such matters required disclosure and discussion with the plaintiff before finally discharging her from care.I do not accept the submission made on behalf of Dr Dhupar that the manufacturer’s instructions were “not mandatory”. That submission is inconsistent with Dr Dhupar’s concession in which she accepted those instructions as the appropriate standard: T392.49 – T393.1. A fair reading of the expert evidence does not support that submission. Associate Professor Cooper’s first report, in which he paraphrased the manufacturer’s instructions as cited at paragraphs [42] to [43] above, did not describe those instructions as being non-mandatory. Neither did he identify such a view in his oral testimony.The effect of my findings of fact, as set out between paragraphs [590] to [686] and paragraphs [692] to [767] above concerning the consideration of Issue 1, is that Dr Dhupar did not adhere to those defined standards in the following respects.The question of whether such non-adherence amounted to a breach of the duty of care owed must be considered and determined by reference to the particular requirements of s 5B of the CL Act: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48, at [27]. That consideration must be prospective: Ibid, at [31]; Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124], [126].Before proceeding to consider those statutory requirements, it is convenient to identify both the factual substrate for the consideration and the particulars of negligence as they inter-relate to the facts as found.Incorrect locationAs to sub-paragraph (1) of paragraph [927] above, the experts agree that the location of the left Filshie clip as placed by Dr Dhupar was not at a point on the muscular isthmus of the left fallopian tube 1cm to 2cm from the cornu of the uterus. Instead it was placed significantly distal and lateral to that point and incorporated non-fallopian tube tissue. That placement materially decreased the effectiveness of the capacity of the left Filshie clip to cause intended ischaemic fallopian tube damage and total lumen occlusion, which was the whole object of the procedure. Dr Jeri’s evidence of the state of the left fallopian tube on 1 March 2016 confirms the view that no such damage had been occasioned to the left fallopian tube: T135.15.Extraneous tissue incorporatedAs to sub-paragraph (2) of paragraph [927] above, the expert evidence compellingly shows that Dr Dhupar had placed the left Filshie clip at a location that also included other extraneous tissue including the tubo-ovarian pedicle, being part of the mesosalpinx. This is plainly evident when the images of the right Filshie clip and that left Filshie clip are compared. Professor O’Connor’s interpretation of the images to that effect was not contradicted by Associate Professor Cooper. The effect of the expert evidence of Professor O’Connor and Associate Professor Cooper is that the RANZCOG guidelines for performing tubal ligation should be followed. It is plain from the content of those guidelines that if they are not adhered to, there would be an emergent risk of failed tubal ligation and resultant pregnancy.The inclusion of extraneous tissue in the bite of the clip had the foreseeable effect of reducing the intended effectiveness of the tubal ligation procedure because of the inclusion of non-muscular tissue in the jaws of the clip. This created the potential for non-occlusion or only partial occlusion of the left fallopian tube so as to leave sufficient tube patency to remain for fertilisation to occur.Clip not fully closed and lockedAs to sub-paragraph (3) of paragraph [927] above, there is no satisfactory evidence to show that Dr Dhupar had achieved full closure and locking of the left Filshie clip. In that regard, for the reasons identified at paragraphs [443] to [561] above, I prefer and accept the evidence of Professor O’Connor on this question. For a contrary conclusion to apply, given my identified view of the unreliability of Dr Dhupar’s evidence on this point, reliable photographic evidence, which might have supported such a contrary view, is absent. This is in circumstances where such photographic evidence would otherwise have been expected to be available if the manufacturer’s instructions had been followed. On the balance of probabilities, the result was incomplete closure of the left Filshie clip, which created the opportunity for clip dislodgment and migration without beforehand causing the otherwise intended ischaemic damage to a 4mm section of the tube which, if the clip had been applied correctly, would have led to complete fallopian tube occlusion and sterility so as to prevent fertilisation.Incomplete check for correct closure and lockingAs to sub-paragraphs (4) and (5) of paragraph [927] above, there is no reliable evidence of Dr Dhupar having checked both sides of the left Filshie clip to ensure complete closure and locking without immediate transection. Her evidence in which she claimed to have done so was in my view unreliable. My conclusion on this point may have been otherwise if there was confirmatory persuasive contemporaneous photographic evidence that she had closed and locked the left Filshie clip and checked both sides to demonstrate complete closure and locking without incorporation of extraneous tissues. That said, the fact that the left Filshie clip also included extraneous tissues necessarily undermined the effectiveness of the procedure.Absence of unusual featuresAs to sub-paragraph (6) of paragraph [927] above, Dr Dhupar did not make a contemporaneous note of any unusual features such as her claim of the presence of a large varicose vein on the left fallopian tube encountered during the procedure. She did not subsequently raise any post-operative discussion with the plaintiff as to the existence or the significance of any such unusual features. I cannot accept as determinatively persuasive the loose and insufficiently reasoned comment made by Associate Professor Cooper in his oral evidence to the effect that the distal placement of the clip was “a sort of grey zone” or that he would “be surprised if Dr Dhupar mentioned [to the patient] that this clip was a few – was perhaps a centimetre or so lateral to where it perhaps should have been” (T477.32 – T477.49), where the manufacturer’s precise instructions are to the contrary. I take that view given the increased risk of pregnancy which resulted from that variation in Filshie clip placement, this being a matter that would have been of material significance to the patient and her autonomy concerning her fertility. If such a variation in clip placement was indeed surgically indicated, that was something that would ordinarily have been expected to have been noted and it ought to have been the subject of discussion with the patient. Neither of these things occurred.Absent reliable contemporaneous evidence of Dr Dhupar having intra-operatively encountered a large varicose vein on the plaintiff’s left fallopian tube, an event that Professor O’Connor considered to be unlikely on account of the anatomy of the fallopian tube (T466.47 – T466.50), an observation that Associate Professor Cooper said he could not make (T467.11), I do not accept Dr Dhupar’s account of the presence of a large varicose vein as a reason for her placement of the left Filshie clip at a point that was considerably and materially distal to the position recommended by the manufacturer.Late application on behalf of the plaintiff to amend particulars of negligenceIn the plaintiff’s written submissions, at paragraph 251, she sought leave to amend the particulars of negligence to further allege that Dr Dhupar had failed to comply with the RANZCOG protocol namely, “If there is any doubt about either of the clip applications or if one or both tubes cannot be visualised, discuss the situation with the patient post-operatively”.The plaintiff’s submission on that point went on to argue that it was tolerably clear that if Dr Dhupar had given the plaintiff such information the plaintiff would have sought further methods of sterilisation.In the defendant’s submissions in reply, objection was taken to such an amendment because the claim that Dr Dhupar had failed to have a post-operative discussion with the plaintiff along the above lines has not been pleaded as a head of negligence specifically characterised as a failure to warn. Whilst that submission is correct in terms of a warning, the plaintiff’s case is not based on an allegation of a failure to warn. Instead, it is based on inferences as to Dr Dhupar’s surgical actions and on her failure to inform the plaintiff that the left Filshie clip may not have been applied adequately: Particular of negligence (h). The relevance of the fact that Dr Dhupar did not post-operatively discuss the significance of left Filshie clip placement in my view indicates that she did not in fact encounter a large varicose vein on the plaintiff’s left fallopian tube as she has asserted at trial as being the basis for a distal clip placement. In view of the lateness of the proposed amendment, and Dr Dhupar’s stated lack of a detailed recollection of the events, I do not allow the proposed amendment. The plaintiff’s position is in my view adequately covered by particular of negligence (h), as explained above, which is identified in full form in a paragraph that will shortly follow.Particulars of negligence relied upon by plaintiffThe ultimate question to be addressed at this point is whether those intra-operative circumstances should be characterised as Dr Dhupar having undertaken a negligent departure from the required standard of care.The procedural framework for considering the plaintiff’s claim that Dr Dhupar had been negligent in carrying out the subject procedure is provided by the final version of the pleaded particulars of negligence. By paragraph 21 of the amended statement of claim filed on 24 August 2018, the plaintiff pleaded the following allegations of negligence in support of her claim that the defendant had breached her duty of care:“(a)???Failing to engage a calibrating instrument to ensure the jaws of the Filshie clip applicator were able to completely occlude the plaintiff's fallopian tubes;(b)???Failing to properly apply Filshie clips during surgery; and(c)???Failing to properly occlude the plaintiff’s left fallopian tube.(d)???Failure to apply a Filshie clip to the isthmus of the left fallopian tube.(e)???Failure to inspect properly the left fallopian tube following application of a Filshie clip.(f)???Failure to observe that the Filshie clip had been applied to the left fallopian tube as well as other tissue.(g)???Failure to apply another Filshie clip to the left fallopian tube when it ought to have been apparent that there was a risk the first Filshie clip applied to the left fallopian tube could fail.(h)???Failure to inform the plaintiff that the Filshie clip on the left fallopian tube may not have been applied adequately and to arrange for a hysterosalpingogram or hysterosalpingo contrast sonogram to be performed after the tubal ligation procedure to ensure that the left fallopian tube was occluded.” [Amendments as emphasised in the pleading]Particular (a) became otiose as it had no application to the equipment used by Dr Dhupar when she operated on the plaintiff. The remaining amendments identified (d) to (g) in paragraph [947] above, represent an expansion and separation of the content of an earlier version of the original particulars. It is not necessary to refer to earlier iterations of those particulars. Particular (h) has been analysed above.Dr Dhupar’s initial response to negligence allegationsDr Dhupar denied all of the plaintiff’s originally pleaded allegations of negligence. In that regard, Dr Dhupar’s statement, which was undated, contains the following rebuttals:“Comments on the allegationsMy response to the claim is that there is clearly a failure rate with tubal ligations which the patient was warned about. Also pregnancy can cause clips to move. This is because the tubes can stretch and the clip/s could relocate to the broad ligament or other areas due to the growth of the tubes.Although this is the first case of this happening to me, I have known cases where this has happened. I have attached some articles/reports of other cases (Dr Dhupar please attach if you have any)I therefore do not agree that I:failed to properly identify the fallopian tubes;failed to engage the clip to adequately clamp the tubes;failed to ensure that the clip contained the entire circumference of the fallopian tubes;applied the clip to the broad ligament; andfailed to recognise the incorrect placement of the clip as I do not accept that this was incorrectly placed.”[Exhibit “6”, p 5][Emphasised text as in the original]In my view it is significant that the content of the above statement, which Dr Dhupar had adopted by her signature in circumstances where that statement was based on her instructions to her solicitor, no mention was made of having intra-operatively encountered a large varicose vein at the time when she was called upon to identify her rebuttal of the plaintiff’s allegations of negligent application of the Filshie clip. Dr Dhupar claimed that her reason for placing the Filshie clip at a location other than on the isthmus of the fallopian tube, that is, distal to the isthmus, was because of an asserted unusual feature which justified a placement elsewhere, a step the plaintiff characterises, correctly in my view, as a misapplication.The unusual feature relied upon by Dr Dhupar for that distal application of the left Filshie clip was the claim of the presence of a large varicose vein: T405.26 – T405.29. That observation was not the subject of any contemporaneous record or minute made by Dr Dhupar at the time. I do not accept that Dr Dhupar saw such a vein nor do I accept that this was the reason for placing the left Filshie clip in a position other than the recommended position. I am reinforced in that view in light of the testimony of Professor O’Connor and Associate Professor Cooper, neither of whom could see the varicose vein on the left fallopian tube in image IMG-008, as claimed by Dr Dhupar. I have accepted Professor O’Connor’s opinion that such a finding was unlikely.In my assessment, if Dr Dhupar had a true recollection of such an unusual feature, the time when she reviewed her draft statement that was an obvious occasion on which to raise such an assertion. Instead, in that statement, Dr Dhupar only raised the explanation that clips can move during pregnancy because of stretching, which could result in relocation of a clip onto the broad ligament or other areas due to growth of the tube. That factual scenario did not apply to the plaintiff’s circumstances. There is no evidence that suggests the plaintiff was pregnant at the time the Filshie clips were applied.At this point, for completeness, I record that I have not overlooked the evidence given by Dr Dhupar of the presence of a varicose vein on the broad ligament at the time of caesarean section on 1 March 2016: T337.26. That was a specific reference to vascularity associated with pregnancy (T326.3) which was an entirely different circumstance to the procedure Dr Dhupar performed on the plaintiff on 26 August 2014. It was not suggested that the varicose vein Dr Dhupar said was present on the broad ligament on 1 March 2016 was a varicose vein on the left fallopian tube at tubal ligation surgery on 26 August 2014.As to the mention in Dr Dhupar’s statement of the possibility that there may be supporting articles as stated in the cited extract of the statement, it is not clear as to whether Dr Dhupar had in fact attached any such articles to her signed statement as was suggested to her by her solicitor. I infer from the circumstances that if there were any such supporting articles that were different to those tendered in the defendant’s case, they would have been specifically identified by Dr Dhupar.The reference in Dr Dhupar’s statement that she has known of previous instances where failed tubal ligation has occurred was not the subject of further or specific evidence in the defendant’s case. It may therefore be safely assumed that if there were any such cases, they did not relate to the deployment of Filshie clips. If they had involved Filshie clips that fact would most likely have been adduced in evidence in the defendant’s case.Factual inter-relationship of particulars of negligence and the standard of careAs to sub-paragraph (1) of paragraph [927] above, on the evidence, there is no room for doubt that intra-operatively, Dr Dhupar had correctly identified and located the plaintiff’s left fallopian tube and placed a Filshie clip on it. Her failure to apply the Filshie clip to the muscular isthmic portion of that tube 1cm to 2cm from the cornu of the uterus, engages the pleaded particulars of negligence (b) and (d) as identified in paragraph [947] above.As to sub-paragraph (2) of paragraph [927] above, the evidence indisputably shows that the bite of the jaws of the left Filshie clip as applied by Dr Dhupar, inappropriately included extraneous tissues, and engages the pleaded particulars of negligence (e) and (f) as identified in paragraph [947] above. As to sub-paragraph (3) of paragraph [927] above, on the evidence, it was unlikely that Dr Dhupar had adequately inspected the unphotographed flipside of the left fallopian tube for adequacy of closure or locking. This engages the pleaded particulars of negligence (e), (f) and (g) as identified in paragraph [947] above. In that regard Dr Dhupar thought, incorrectly I find, that she had heard the sound of a confirmatory click to indicate that she had properly closed the left Filshie clip. Having regard to the instruments she was using, as is confirmed by the expert evidence, I find that she could not have heard that sound as she asserted.As to sub-paragraphs (4) and (5) of paragraph [927] above, the absence of a photograph of the flip side of the left fallopian tube showing the closed and locked clip in situ persuades me that Dr Dhupar did not carry out the required flipping manoeuvre to inspect both sides of the left Filshie clip. Alternatively, if she did, she did not observe it sufficiently carefully to notice that the jaws of the clip included extraneous tissue, the presence of which was likely to impede or impair the effectiveness of the procedure. This engages the pleaded particulars (d), (e) and (f) as identified in paragraph [947] above.As to sub-paragraph (6) of paragraph [927] above, Dr Dhupar did not note as unusual the fact that she had applied the left Filshie clip to additional tissues that were extraneous to the intended location on the muscular isthmic portion of the fallopian tube 1cm to 2cm from the cornu of the uterus, which necessarily adversely impacted upon the likely success of the procedure to occlude that fallopian tube to prevent fertilisation, nor did she inform the plaintiff that the left Filshie clip may not have been applied adequately. This engages the pleaded particulars of negligence (d) to (h) as identified in paragraph [947] above.Applicable legislationSection 5B of the CL Act provides:5B General principles(1) A person is not negligent in failing to take precautions against a risk of harm unless:(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and(b) the risk was not insignificant, and(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):(a) the probability that the harm would occur if care were not taken,(b) the likely seriousness of the harm,(c) the burden of taking precautions to avoid the risk of harm,(d) the social utility of the activity that creates the risk of harm.Section 5C of that Act provides:5C Other principlesIn proceedings relating to liability for negligence:(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.Those provisions must be applied in accordance with applicable authoritative decisions which guide the process of evaluation, as follows. General consideration of the claim of negligenceOn an application of common law principles on the question of whether Dr Dhupar had appropriately exercised reasonable care during the tubal ligation surgery on 26 August 2014, in the described circumstances, a finding of negligence is compelling. However, a common law analysis is but the first step in the process of determining whether or not, on a prospective analysis, she was in breach of the duty she owed to the plaintiff: Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [14]. This is because, slightly more demandingly, the plaintiff must, amongst other things, satisfy the three statutory pre-conditions required for such a finding, as provided by s 5B(1) of the CL Act: Shaw v Thomas [2010] NSWCA 169, at [44]. The consideration of those three pre-conditions and the related ensuing provisions now follows.Consideration of s 5B(1) of the CL ActSection 5B(1) of the CL Act identifies those three pre-conditions as foreseeability of harm, significance of risk, and the precautions that a reasonable person would have taken in the circumstances. Section 5B(1) of the CL Act reflects the common law requirement that the Court identify what a reasonable person in the position of the defendant would do by way of a response to a risk that was reasonably foreseeable: Waverley Council v Ferreira [2005] NSWCA 418, at [27]. Section 5B(1)(a) of the CL Act – foreseeability of harmOn a prospective analysis, if a Filshie clip were to be placed at an incorrect location on a fallopian tube in circumstances that did not achieve full clip closure and locking, at a distance greater than at the recommended location 1cm to 2cm from the cornu of the uterus, so as to also include additional and extraneous tissues than just the muscular isthmic portion of the fallopian tube, this would necessarily give rise to a foreseeable risk of harm in that an unintended pregnancy could result because of a fallopian tube being left patent or incompletely occluded. This was contrary to the aim of the tubal ligation procedure. This was a risk of harm that was well known and therefore foreseeable to Dr Dhupar at the time she operated on the plaintiff: s 5B(1)(a) of the CL Act.Section 5B(1)(b) of the CL Act – not insignificant riskAn incorrect placement of a Filshie clip in the manner described in the preceding paragraph created a “not insignificant” and increased risk of failed tubal ligation and a resultant pregnancy. At the time, this must also have been well known to Dr Dhupar as part of her professional acumen: s 5B(1)(b) of the CL Act.Section 5B(1)(c) of the CL Act – precautionsOn 26 August 2014, in the circumstances of an elective tubal ligation procedure, where Dr Dhupar was required to exercise reasonable professional skill and care in the application of Filshie clips to fallopian tubes with the aim of occluding them, an obstetrician of ordinary skill and competence in her position at the time she operated on the plaintiff ought to have observed the precautions identified and recommended by the manufacturer of the Filshie Tubal Ligation System, in conjunction with the steps recommended by the learned professional body of which she was an accredited Fellow, namely, RANZCOG: s 5B(1)(c) of the CL Act.Essentially, those precautions were:correct location of clip placement;correct application of the clip without inclusion of extraneous tissues;correct closure and locking of the clip;checking both sides of the clip for closure.The evidence that I have described and evaluated in these reasons persuades me that Dr Dhupar had failed to take the available precautions that a reasonable person in her position would have taken in the circumstances. Consideration of s 5B(2) of the CL ActAs the three pre-conditions necessary for a negligence finding have been established according to the requirements of s 5B(1) of the CL Act, to justify a need for precautions to be taken against the risk of harm, as explained above, it is necessary to evaluate the factors that must be considered according to the requirements of s 5B(2) of the CL Act, namely the probability of harm occurring if precautions were not taken, the likely seriousness of that harm, the burden of taking precautions, and the social utility, if any, that created the risk of harm. In essence, the terms of s 5B(2) of the CL Act reflect the formulation for a negligence finding as stated in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12, at [14]; Waverley Council v Ferreira [2005] NSWCA 418, at [45]; Varga v Galea [2011] NSWCA 76, at [8].Section 5B(2)(a) of the CL Act – probability of harmMy assessment of the expert evidence indicates that there was a high probability for fertilisation and pregnancy to occur if tubal ligation had not been achieved effectively despite the surgical attempt to do so. A similarly high probability of pregnancy would arise if attempted tubal ligation resulted in an incomplete tubal occlusion: s 5B(2)(a) of the CL Act.Section 5B(2)(b) of the CL Act – seriousness of harmIn my assessment, the risk of harm to the plaintiff from an unintended pregnancy and childbirth even if uncomplicated, was not only “not insignificant” to use the words of the statute, but it also represented a potential source of additional serious harm, where death or injury, including psychological injury could also possibly ensue: s 5B(2)(b) of the CL Act.Section 5B(2)(c) of the CL Act – burden of taking precautionsIn my view, on a prospective analysis, on 26 August 2014, any burden on Dr Dhupar in taking the precautions of the kind identified at paragraph [927] above, would have been minimal, at best, when the professional responsibility for taking such precautions is weighed alongside the potential risk to the health and wellbeing of the plaintiff if reasonable precautions that were appropriate to the circumstances were not taken. In my assessment of the evidence, the identified precautions did not involve extraordinary or special measures to be taken beyond the ordinary prudent steps recommended by the manufacturer of the Filshie Tubal Ligation System: s 5B(2)(c) of the CL Act.Section 5B(2)(d) of the CL Act – no relevant social utilityIn my assessment of the circumstances, there was no relevant social utility or similar benefit to be gained to any person if the identified precautions were not taken: s 5B(2)(d) of the CL Act.Consideration of s 5C of the CL ActAs the plaintiff has satisfied the array of requirements of s 5B of the CL Act it is necessary to consider the provisions of s 5C of that Act insofar as they apply to this case.Section 5C(a) of the CL Act – burden of taking precautions for similar riskThe burden of taking precautions to avoid a similar risk of pregnancy was negligible in this case if Dr Dhupar had followed the non-controversial guidelines of RANZCOG, and those of the manufacturer in applying a Filshie clip to the plaintiff’s left fallopian tube as she had carried out when applying a Filshie clip to the plaintiff’s right fallopian tube. That burden, if it could properly be described as a burden, essentially involved:Identifying the isthmus of the left fallopian tube, isolating it and holding it in place with appropriate surgical instruments;Using the instrument described as the Sterishot applicator to place the open clip across the fallopian tube at the correct part of the muscular isthmus without including extraneous tissues, and if necessary, “milking” away any fluid within the tube before locking it into the closed position;Taking the time to examine the top and bottom arms of the clip in its position of apposition over the fallopian tube to check that it has been closed and locked correctly without incorporating additional extraneous tissue, and to check that it was located in the correct position to occlude that tube;Taking sufficient intra-operative photographs to satisfy herself that the left Filshie clip had been applied, closed and locked correctly without including extraneous tissues.The manufacturer’s guide describes the procedure as taking a few minutes. Associate Professor Cooper interpreted the records as showing that Dr Dhupar performed the procedure in 46 minutes. That appeared to be ample time in which to take the identified precautions.Whilst it is accepted that those relatively simple steps as described above involved the application of expertise, dexterity and skill in the manipulation of instruments and structures, it must be recognised that Dr Dhupar was, by her qualifications and experience, appropriately trained. In addition, she held herself out as having such skills. The time that would have been taken for Dr Dhupar to do what reasonable care required to be done in relation to the left fallopian tube as she had done in relation to the right fallopian tube, must be seen to have involved a negligible, if not a non-existent burden, recognising that the procedure in question was identified as being bilateral. In the described circumstances, I do not consider the recommendation and requirement of following the manufacturer’s instructions to be an undue or an unreasonable burden in the circumstances: s 5C(a) of the CL Act.Section 5C(b) of the CL Act – avoidability of doing things differentlyDr Dhupar had correctly applied the right Filshie clip. She did not need to do anything different in her approach to the application of a Filshie clip to fully occlude the left fallopian tube in the correct position. The two procedures were not materially different to justify a departure from the manufacturer’s instructions and RANZCOG recommendations. In my view, when Dr Dhupar operated on the plaintiff’s left Filshie tube, she simply strayed from the manufacturer’s recommended standard pathway for no sound reason. In doing so she applied the left Filshie clip incorrectly: s 5C(b) of the CL Act.Section 5C(c) of the CL Act – relevance of subsequent actionsIn this case no relevant considerations or inferences arise from Dr Dhupar taking any subsequent actions: s 5C(c) of the CL Act. Conclusion on breach of duty of care and negligenceFor the reasons outlined in detail at paragraphs [924] to [984] above, I am satisfied that on 26 August 2014, when Dr Dhupar operated on the plaintiff, she breached the duty of care that she owed to the plaintiff as her patient. As the plaintiff has satisfied the requirements of s 5B and s 5C of the CL Act, a finding of negligence on the part of Dr Dhupar necessarily follows.Issue 7 – Causation of harmTo obtain an award of damages for negligence the plaintiff must first discharge the onus of satisfying the statutory causation requirements of factual causation and scope of liability, to justify a finding on the balance of probabilities that Dr Dhupar’s negligence had relevantly caused her pregnancy that would not have otherwise occurred but for the breach of the duty of care owed: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48, at [42]; Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19, at [12]; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18]; s 5D, s 5E of the CL Act.LegislationSection 5D of the CL Act provides:5D General principles(1) A determination that negligence caused particular harm comprises the following elements:(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.Approach to causation analysisThe plaintiff must meet the statutory requirements that comprise the three elements within s 5D(1) of the CL Act. The first requirement is that she must demonstrate precisely the harm actually incurred, secondly, she must satisfy the “but for” test for factual causation as required by s 5D(1)(a) of the CL Act, and thirdly, she must satisfy the scope of liability test as required by s 5D(1)(b) of the CL Act. Those elements raise questions of fact: March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 50; [1991] HCA 12, per Mason CJ at p 515; per Toohey J at p 424; per McHugh J at p 530. The examination of those elements necessarily involves a retrospective inquiry: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124]. On the facts as found in this case, the statutory provisions of s 5D(2) and (3) of the CL Act are not relevant to the causation analysis.Precise identification of the harm incurredOn behalf of Dr Dhupar it was submitted that the plaintiff’s causation case was simply that the claimed omissions on Dr Dhupar’s part, now found as fact, were indicative of a number of possible causes of the harm claimed. In my findings identified at paragraphs [692] to [768] above, I have not accepted the submissions made on behalf of the defendant along those lines. In my reasons identified at paragraphs [924] to [985] above, concerning Issue 5, I have found that Dr Dhupar’s omissions created the circumstances for the plaintiff’s pregnancy to occur. The plaintiff submitted that “but for” the defendant’s breach of duty in failing to place the Filshie clip on the left fallopian tube in the correct location on the muscular isthmus without incorporating additional extraneous tissues within the mesosalpinx this has resulted in a failure to fully occlude the left fallopian tube, thus leading to pregnancy. I have accepted that submission. The plaintiff has established that but for the identified failures on the part of Dr Dhupar, and her related failure to recognise deficiencies in her placement of the left Filshie clip, which ought to have led to the deployment of a further Filshie clip on the left fallopian tube, the pregnancy with her fourth child would not have occurred. In that regard, a distinction must be made to the alternative and more simplistic analysis as relied upon by the defendant, namely, an instance of the risk of harm having simply played itself out as an historical occurrence without a causal connection of the kind demanded by the requirements of the statute: Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, at [36]; Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12, at [142]; Amaca Pty Ltd v Ellis [2010] HCA 5, at [65].I do not accept the defendant’s submitted constructions of the events.I find that the plaintiff has satisfied the requirement of showing with sufficient precision that the harm comprising the subject pregnancy and its sequelae occurred because Dr Dhupar failed to take the identified, prudent and necessary precautions when using the Filshie Tubal Ligation System, which if taken, on the balance of probabilities, would have most likely prevented the pregnancy from occurring: Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48, at [41]-[44].Factual causation – s 5D(1)(a) of CL Act – the “but for” testThe requisite standard of proof for establishing, but for Dr Dhupar’s breach of the duty of care, that the plaintiff would not have become pregnant, is proof on the balance of probabilities: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18]. The plaintiff bears that onus of proof: s 5E of the CL Act. On the evidence adduced in this case I find that the plaintiff has discharged that onus.As was explained in the evidence of Professor O’Connor, the more distal the left Filshie clip was located on the fallopian tube compared to the recommended location 1cm-2cm from the cornu of the uterus, the more likely it would be that the fallopian tube would not be compressed so as to interrupt the patency of its lumen: T494.32 – T494.36. The formulation of “adequate” placement as articulated in the evidence of the defendant’s expert, Associate Professor Cooper (T494.20), invoked a concept that is too loose and imprecise for the circumstances bearing in mind that the aim of the operation was to deploy a sterilisation device with the stated aim of preventing a future pregnancy. On the balance of probabilities, I find that but for Dr Dhupar’s failure to take the precautions identified at paragraphs [970] to [972] above, which a reasonable person in her position would have taken in the circumstances, the plaintiff’s pregnancy would not have occurred: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [18]. I therefore find that the plaintiff has discharged the onus of proof for establishing factual causation: s 5D(1)(a) of the CL Act.Scope of liability – s 5D(1)(b) of CLAThe plaintiff submitted that it is appropriate for the defendant’s liability to extend to the harm incurred by the plaintiff in the form of the pregnancy and its sequelae, and therefore the responsibility in damages for such harm should be imposed on the defendant. I accept that submission because the sole purpose of the tubal ligation procedure undertaken by the defendant as a professional service was to achieve sterilisation to prevent future pregnancy: s 5D(1)(b) of the CL Act.Causation submissions were made on behalf of Dr Dhupar seeking to rely upon the general proposition that there is a known failure rate for Filshie clip sterilisation even if properly applied. However, that formulation does not adequately reflect the facts as found in this case. This is so especially in circumstances where the left Filshie clip was not applied in the correct location as recommended by the manufacturer and RANZCOG in accordance with typical use of the Filshie Tubal Ligation System.In the found circumstances where the Filshie Tubal Ligation System was not properly deployed on the plaintiff’s left fallopian tube in accordance with the manufacturer’s recommendations involving typical use, it is only appropriate for the scope of Dr Dhupar’s liability be extended to the harm so caused, namely, the subject pregnancy: s 5D(1)(b) and s 5D(4) of the CL Act. In this case, no exceptional considerations arise for consideration: s 5D(2) of the CL Act. I therefore find that the plaintiff has discharged the onus of establishing the scope of liability requirements to perfect her claim for damages: s 5D(2) of the CL Act.Conclusion on causationFor the above reasons, I find that the plaintiff has established that Dr Dhupar’s breach of duty of care was the relevant cause of her pregnancy: s 5D of the CL Act. She is therefore entitled to have her claim for damages assessed.Issue 8 – Assessment of damagesA parent of a child born due to the negligence of a medical practitioner may claim a limited range of damages: Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38, at [404]-[405]. That right must be seen to be subject to the statutory enactments which followed that decision and which are intended to restrict certain aspects of such claims.In this case, the plaintiff claims damages for non-economic loss, past economic loss, future economic loss, future treatment expenses and past out-of-pocket expenses. In the paragraphs that now follow I set out my assessment of those claimed heads of damage: s 71 of the CL Act.Non-economic lossThe assessment of the plaintiff’s claim for damages for non-economic loss, which includes physical and psychological pain, distress and suffering, as well as the loss of the enjoyment and amenity of her life, is an evaluative tasks that must be assessed in percentage terms according to a comparison with a most extreme case: s 16 of the CL Act.The evidence and findings which relate to that task has been reviewed and identified in my reasons and findings at paragraphs [14] to [16]; [48] to [153]; [288] to [289] and [767] to [857] above.The emotional effect on the plaintiff on learning of her pregnancy, the physical effects of the pregnancy, including the need for caesarean section, and the subsequent emotional stresses and subjective sequelae of those matters for the plaintiff, have already been described in some detail in those cited paragraphs. The plaintiff described her experience of the delivery as horrible: T59.1. In my view, the plaintiff’s written submissions aptly sum up the position as follows:“271.???After [the child] was born, the plaintiff became very withdrawn from her husband, from her social circle and from life generally. She found it difficult to take [the child] out. She cried a lot. She has had a number of distressing experiences when in the community including the one described as occurring when attending a Woolworths store to do the grocery shopping (T66.4). She has been unable to recommence her exercise regime (265.15). Her libido has been affected by antidepressant medication and her weight has increased (T65.9). 272.???The plaintiff continues to be traumatised and suffers from symptoms consistent with ongoing psychiatric disorder including panic attacks (T67 – T69). Her self-esteem has been affected in a bad way (T69.40). She is quite withdrawn with [the child] (T70.25). She was referred by [the child]’s paediatrician to a general practitioner for counselling about her behaviour. She continues to feel she is not able to give as much and participate as much in the lives of her three older children (T66.40). Her feelings about herself have continued as a result of these changes in her life. She sought counselling but did not find it of any assistance (T67). 273.???She still cries at times but this has been ameliorated by the antidepressant medication (T64.27). She continues to take antidepressant medication and has never stopped taking it. 274.???She is very angry about what occurred, feeling like the defendant made a mistake and she would have to deal with that for the rest of her life (T61.15).275.???As for the future, she is hopeful that she will get better although there has been no improvement in how she feels about herself to the present time. 276.???The parties’ psychiatric experts agree that the plaintiff suffered from a major depressive disorder caused by the plaintiff’s unplanned pregnancy and its consequences.277.???Clearly, there is evidence of ongoing impairment.”All of those considerations, which are soundly based on the evidence, are relevant to the assessment of the plaintiff’s damages for non-economic loss. Those matters describe a significant and life-changing event that has had and will continue to have an adverse impact on the plaintiff’s autonomy and on her plans for her life, and on her enjoyment and the amenity of her life.From the time the plaintiff’s fourth pregnancy was initially diagnosed, and then in the ensuing continuum of the plaintiff’s feelings of adversity which pervaded until the time of delivery of her fourth child, and beyond, she has been subject to a range of upsetting thoughts, emotional conflicts and anguish which have been diagnosed as a recognised psychiatric illness.Whilst ordinarily, the birth of a child may otherwise be seen as a positive life changing event, the unplanned birth of the plaintiff’s fourth child has had lasting negative and adverse physical and psychological impacts on the plaintiff. This has given rise to mixed or conflicting emotions and guilt on her part.This is because, unlike with her earlier pregnancies, the natural human response of bonding has not occurred in the same way as with her other children. This has caused mixed feelings and created a cycle of feelings of guilt concerning her hesitant and resentful responses since conception and continuing. Those psychological problems are entrenched. Those emotions have been in contrast to her three earlier positive experiences of motherhood. The course of pregnancy, the trauma of the birth process, although a natural process, and the uninvested emotional issues that follow birth, are matters properly characterised as comprising personal injury and which are assessable as general damages or non-economic loss: Melchior v Cattanach & Anor [2001] QCA 246, at [141]; Inside Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137, at [125]. In that latter case, matters such as grief, anxiety, distress and disappointment are properly assessable elements within a claim for non-economic loss. An award on account of such matters involves the coalescence of many composite factors, including those identified above, and the loss of amenity resulting from a deprivation in the autonomous ability to otherwise participate and take full advantage of the opportunities life has to offer: Teubner v Humble (1963) 108 CLR 491, at p 506; [1963] HCA 11, at p 507.In assessing the plaintiff’s damages for non-economic loss, I accept the formulated diagnosis expressed in the opinion of Dr Roberts to the effect that the plaintiff has developed a major depressive disorder that has worsened and which has been pervasive since the child was born. To fluctuating degrees, that condition will be with her for years. It is a condition of vulnerability that is liable to fluctuate according to emergent stressors and in relation to her feelings of shame and guilt, which show no signs of abating. Given her negative experiences to date, her fourth child will very likely be an ever-present stressor for her. Her rural location and her family responsibilities make it difficult for her to obtain appropriate psychiatric treatment. Her depressive condition affects her relationships and her ability to work. The plaintiff has satisfactorily proven that these problems all stem from and were caused by the negligence of Dr Dhupar.In assessing those matters in terms of a percentage impairment of the plaintiff when compared to a hypothetical most extreme case, I have taken into account the evidence of her pre-existing health which included episodic specific anxiety and Dr Jeri’s assessment of the history of that anxiety. Those matters are of an entirely different character and effect to the psychological problems that have arisen due to the consequences of Dr Dhupar’s negligence. I have also taken into account the plaintiff’s pre-existing history of meningitis which has left her with a propensity to occasionally experience migrainous headaches, and more recently, seizures. In that regard, the defendant must take the plaintiff as she is found in respect of those matters: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at p 406.Those pre-existing problems and pre-dispositions, such as they were, did not have a significant effect on the plaintiff’s previous ability to fully exercise her earning capacity and enjoy the amenity of her life. She managed her work without any adverse impact. To the extent that those episodic matters may possibly have had an impact on the amenity of her life, she could ill-afford the blight of the additional problems with which she is now burdened. That is a matter the defendant must accept in terms of a damages assessment.The defendant raised an argument to the effect that the plaintiff’s psychiatric response to her pregnancy arose from an incorrect belief that she could not get pregnant. The defendant therefore argued that the plaintiff’s psychiatric disorder as a result of an incorrect belief was a reaction of mere grief and sorrow and as such it was not compensable.I do not accept that argument as it ignores the causal reality of the combined adverse physical and emotional effects that the pregnancy and birth have had on her. Both psychiatric experts agreed the plaintiff developed a depressive psychiatric condition as described. Those opinions, which only differed as to degree, were soundly based on the evidence they had before them. That evidence is sufficiently like the evidence given by the plaintiff to make their opinions as to diagnosis relevant and acceptable: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].Dr Roberts and Dr Virgona have both diagnosed the plaintiff’s depressive disorder. That disorder is a recognised psychiatric illness within the meaning of the mental harm provisions of Pt 3 of the CL Act which deal with the definitions of a mental condition, mental harm and consequential mental harm. I therefore find that the plaintiff is entitled to have her damages for non-economic loss assessed so as to include the effects of her diagnosed psychiatric condition as it was relevantly caused by the negligence of Dr Dhupar.For the avoidance of doubt, and for completeness, I add that the plaintiff’s experience of having to undergo the evolving physical changes and restrictions well-known to be associated with taking a pregnancy to full-term, the ensuing caesarean section, and the subsequent post-operative infection, all comprised elements that led to an impairment of her physical or mental condition and constituted a recognised disease within the meaning of s 5 and s 27 of the CL Act.The parties made disparate submissions on the extent to which the plaintiff’s damages for non-economic loss should be assessed. No comparable verdicts have been cited: s 17A of the CL Act. Cases of this kind occur rarely.The plaintiff submitted that the factors which have been identified in the preceding paragraphs should attract an assessment of non-economic loss at 38 per cent of a most extreme case: s 16 of the CL Act. The defendant’s submissions provided no assistance as to the appropriate assessment of the percentage for non-economic loss. Instead the defendant simply submitted that the assessment argued on behalf of the plaintiff was manifestly excessive. In my evaluation, I do not accept that submission as being fairly reflective of the plaintiff’s circumstances. On account of the matters I have identified, reviewed and found as fact in these reasons, I accept the plaintiff’s submitted percentage assessment as reasonable and appropriate to the case she has made out.In light of the above analysis, I assess the plaintiff’s claim for non-economic loss at 38 per cent of a most extreme case: s 16 of the CL Act. In rounded down terms, as is required by the legislation, that percentage assessment is the monetary equivalent of $261,000. I therefore assess the plaintiff’s damages for non-economic loss in the indexed amount of $261,000.Past economic lossThe plaintiff claims damages for past economic loss including past loss of employer funded superannuation contributions. That claim comprised the following discrete elements:Loss of income incurred during the period of the plaintiff’s pregnancy;Loss of income incurred during the period of the plaintiff’s recovery from the caesarean section delivery and in the ensuing weeks where she experienced consequential infection complications of that delivery; andSubsequent pre-trial impairment in the plaintiff’s earning capacity which she incurred due to her diagnosed psychiatric condition where that condition had its causative origins in her reaction to the realisation that she was pregnant contrary to her wishes and Dr Dhupar’s surgery.The plaintiff submitted that her damages for past economic loss, including loss of employer funded superannuation benefits should be assessed at $67,279, comprising the following elements of calculation:An amount of $1555 net for 20 weeks loss of income between August and mid-December 2015 during which time the plaintiff could no longer face and cope with her work due to the pregnancy and her experience of the effect the pregnancy had on her interaction with others;An amount of $4860 net for loss of income from mid-December 2015 to the delivery date which had been brought forward for a caesarean section on 1 March 2016, during which time the plaintiff was unable to work;An amount of $1944 net for one month’s loss of income during the plaintiff’s recovery from a post-operative infection, during which time she was not rearing or maintaining the child, in circumstances where she was unable to breastfeed because of that infection, and where the child and the child’s needs were attended to by the plaintiff’s mother-in-law;The balance of the plaintiff’s claim for past economic loss was for her incapacity for work from April 2016 until the time of the hearing due to her psychiatric illness, quantified according to the tendered economic loss documentation.In my view, the plaintiff’s approach to the quantification of her claim was reasonable and on the evidence, it was open for acceptance. The latter component of the past economic loss claim was based on the uncontradicted premise that the plaintiff’s mother-in-law had retired, that she was otherwise fit and well, and that she was available to look after the child in order that the plaintiff could work: T71.12 – T71.19. That component of loss was the subject of the following submissions made on behalf of the plaintiff:“299.???Once the plaintiff had recovered from the caesarean section delivery and commenced to provide nurture and support to [the child] she was nevertheless unable to return to work. However, her loss of earnings did not bear the necessary connection to rearing or maintaining [the child] but rather her loss of earnings arose while she was suffering from psychiatric impairment.300.???The phrase “rears or maintains” is not a term of art. The meaning in most dictionaries seems to be to provide with necessities for life so far as “maintain” is concerned and the meaning of “rear” appears to mean to bring to maturity or self-sufficiency.301.???If the legislature wished to preclude all awards of damages for loss of earnings it did not need to add the qualifying words “while the claimant rears or maintains” it could simply have stated there is to be no award for loss of earnings or impairment of earning capacity in relation to a claim for. 302.???The qualifying phrase must be given meaning – a loss of earnings can be compensated if it does not arise while the claimant rears or maintains.303.???As to the period post-delivery, applying the common sense meaning of the phrase “rearing or maintaining” [the child], it is self-evident that there have been times when the plaintiff has not worked additional days because of her psychiatric condition when she was not rearing and maintaining the plaintiff. This includes days when she has been unable to cope, has not been at work and [the mother-in-law] cared for [the child].304.???By the time [the child] was born, [the mother-in-law] had retired (T71.12). She had [the child] so that the plaintiff could work (T71.19). 305.???The plaintiff’s inability to work more hours does not bear any relation to rearing or maintaining [the child]. She returned to work approximately five months after [the child] was born, that is in about August 2016 for one day a week (T71.7). 306.???She was not mentally capable of working more than one day a week and she would have done so if she had been mentally capable (T71). 307.???If [the mother-in-law] could look after [the child] five days a week, she would not have been able to return to work to a greater extent because of an inability to focus properly before she took medication. 308.???The reason why the plaintiff is not able to work to the full extent of her capacity arises not from the fact that she is rearing and caring for the child but for the fact that she is incapable of working due to her psychiatric condition. 309.???If the interpretation to be given to the phrase “while rearing and maintaining” or is to be a blanket prohibition when a plaintiff has legal obligations as parent even when not actually involved in rearing a child, then unjust circumstances would arise where for example:(a)???A mother who gives up the child for adoption and is unable to work due to a psychiatric illness is entitled to bring a claim;(b)???A mother who does not have custody of the child and is unable to work due to a psychiatric illness would be able to bring a claim in similar circumstances;(c)???A mother who has custody of the child but the child is cared for during working hours by others and who is unable to work due to a psychiatric illness is not entitled to make a claim for loss of earnings.”[Redactions have been applied in conformity with the non-publication order made in the proceedings]The defendant’s initial submitted response to the plaintiff’s claim for past and future economic loss was to draw attention to earlier iterations of the plaintiff’s filed particulars and to point to the relatively late emergence of the claim for economic loss, and to challenge the factual basis of the claim. Those factual challenges have not found acceptance in my findings. The plaintiff has persuaded me, in line with the submissions cited in the preceding paragraph, that she has in fact incurred loss of earnings and loss of earning capacity due to her psychiatric illness that followed the conception, pregnancy, and the birth of her fourth child.The plaintiff’s claim for economic loss was formally pleaded in October 2018, as was acknowledged at paragraph 133 of the defendant’s written submissions. As such, it was a justiciable issue which was adequately made known and particularised to the defendant so that the defendant knew the case to be met on damages. The plaintiff’s claim for economic loss therefore requires assessment according to the evidence. The duty of the Court is to assess the evidence relating to that claim and to make the required assessments: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666.In the defendant’s substantive submitted response to the plaintiff’s claim for economic loss it was argued that the effect of the applicable statutory framework comprising s 70 and s 71 of the CL Act precludes an award of economic loss in this case. It therefore becomes necessary to construe the terms of s 71(1)(b) of that Act to ascertain the meaning and the effect of those provisions as they may apply to this case. The parties have informed me that s 71 of the CL Act has not been the subject of previous judicial consideration.Section 70 of the CL Act provides:70 Application of Part(1)???This Part applies to any claim for damages in civil proceedings for the birth of a child, regardless of whether that claim is made in tort, in contract, under statute or otherwise.(2) ???This Part does not apply to any claim for damages by a child in civil proceedings for personal injury (within the meaning of Part 1A) sustained by the child pre-natally or during birth.(3)???This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B but, despite that section, does apply to liability of the kind referred to in section 3B(1)(a).Section 71 of the CL Act provides:71 Limitation of the award of damages for the birth of a child(1) ???In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for—(a)???the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or(b)???any loss of earnings by the claimant while the claimant rears or maintains the child.(2) ???Subsection (1)(a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.An aspect of the construction of s 71 of the CL Act as submitted on behalf of the plaintiff referred to the broad dictionary meanings of the statutory terms within the above provisions. In construing those provisions, I must adhere to the required cautions to be observed and which contraindicate adopting that approach as it invites the danger of using dictionary meanings to make an illusory “fortress”, whereas the true inquiry requires construction of the meaning of the words of the Statute whilst having due regard to the context and the purpose of the legislative provision under consideration: South Western Sydney Local Health District v Gould [2018] NSWCA 69, at [76]-[83]. The construction of s 71(1)(b) of the CL Act must be purposive and it should beneficially recognise the restrictive policy intention as the background factor that drove the intended limiting effect of the legislation in respect of claims for economic loss, subject to just exceptions that emerge from the terms of the Statute. In that regard, the required construction should not adopt a tortured interpretation of the words of the Statute so as to result in unintended unjust and absurd consequences.It is plain that the circumstances in which s 70 and s 71 of the CL Act were enacted were the result of a policy decision aimed at precluding a court from awarding damages for economic loss to a claimant parent of a non-disabled child for the birth of the child whilst the claimant rears or maintains that child until the child reaches the status of legal majority at 18 years.It is not necessary to in this case to seek to discern the meaning of the statutory term “costs associated with rearing or maintaining the child” because the plaintiff makes no claim for recoupment of any such incurred costs.In personal injury litigation generally, the differential terms of economic loss and loss of earning capacity are well understood to respectively refer to the entities of past economic loss and future loss of earning capacity. That distinction is reflected in the terms of s 12(1) of the CL Act, which provides as follows: 12 Damages for past or future economic loss—maximum for loss of earnings etc(1) This section applies to an award of damages—(a) ???for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or(b) ???for future economic loss due to the deprivation or impairment of earning capacity, or(c) ??? for the loss of expectation of financial support.For the purposes of statutory construction, when the same word is used in a section of an Act it is understandably arguable that there is a presumption the same meaning should be applied where the word appears in that section, but the weight and rigidity that might be attached to such a presumption depends upon the context: Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1, [1981] HCA 40, per Gibbs CJ at [6], p 11; following McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633; [1979] HCA 19, at p 643.It follows that in differing contexts, absent the availability of a precise statutory definition, a word or an expression in a Statute may take on different meanings. Of significance to the present case, the expression “loss of earnings” as appears in s 71(1)(b) of the CL Act remains undefined in Pt 11 of that Act which deals with damages for the birth of a child. That significance arises because elsewhere, the CL Act recognises the economic loss distinction of “past economic loss” (as appears in s 12(1)(a) of that Act), and “future economic loss due to the deprivation or impairment of earning capacity” (as appears in s 12(1)(b) and s 13 of that Act).The underlying policy objective of Pt 11 of the CL Act is to define the limitations upon courts when awarding damages for economic loss of any kind involving a claim for the birth of a child. That policy in relation to the birth of a healthy child was based on what the legislature considered to be “a strong moral objection” to such damages because they were thought to classify the birth and existence of a child as an “injury” to the child’s parents. This moral objection was cited as having been voiced by the community, which expressed serious concerns about the High Court decision (in Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38). However, those speeches also clearly identified the policy consideration that where a pregnancy is the result of someone’s negligence the mother would still be able to recover damages for the pregnancy and the birth, but not for the costs of raising the child. Second Reading Speeches, Parliamentary Debates (Hansard) New South Wales Legislative Assembly, 13 November 2013 and 4 December 2003. That qualification is of some significance in this case as the plaintiff makes no claim for the cost of raising the child. Instead, her economic loss claim relates to her own incapacity due to psychiatric injury which results from the conception, pregnancy and the birth.Against that background, the context of the statutory use of the very wide term “any” as used in s 12(1)(b) of that Act must therefore be read as referring to both past and future instances of economic loss that might otherwise arise in specified circumstances, subject to the specific qualifying phrase “while the claimant rears or maintains the child”. It follows that the period during which such undefined child rearing and maintenance activities are undertaken must be taken to occur in what must be recognised as the continuum of parental responsibility for child rearing until the age of the child’s legal majority, at which time any legal parental responsibility ceases.It is clear that the statutory limitation on awarding damages for claims for economic loss remains in place for so long as a claimant parent rears or maintains the child.In these modern times, where the parental responsibility for rearing and maintaining a child is commonly recognised and understood to be a shared responsibility that can at times also be a responsibility that may be shared by other family members, the object and terms of the Statute must be applied in the relevant factual context.In the present case, in the assessment of the plaintiff’s claim for economic loss, two material questions arise for consideration. First, was the economic loss in question relevantly caused by the defendant’s negligence? Secondly, does the period of the plaintiff’s claim for past economic loss coincide with the period in which she was herself rearing or maintaining her fourth child? As to the first question identified in the preceding paragraph, the plaintiff has overwhelmingly demonstrated that her economic loss was relevantly caused by the conception, pregnancy and the birth of her fourth child due to the negligence of Dr Dhupar. That loss was not in the form of the birth of the child being considered to be an “injury” to the mother, but rather, that the mother had sustained a relevant injury due to the conception, pregnancy and birth of the child. In this case the injuries were both physical and psychiatric in nature.As to the second question identified in paragraph [1045] above, the evidence as to who it was that actually reared and maintained the child in the period in which the plaintiff’s past economic loss has been incurred must be assessed according to the evidence. That analysis now follows.In that regard, I find that the restrictive terms of s 71 of the CL Act are not engaged by the plaintiff’s claim for past economic loss in respect of the period from conception and during the pregnancy up to the time of the birth, and in the period during which she was undergoing recovery from the caesarean section surgery and the related treatment for post-operative wound infection, where in that latter period, she was not permitted to breastfeed her child and plainly, she was not materially engaged in activity that could reasonably be understood to involve the rearing or the maintenance of a child, particularly where the evidence discloses that as a result of her psychiatric injury, she had not bonded with the child in the newborn period.This point in the analysis leads to an examination of the evidence as to who relevantly undertook the rearing and the maintenance of the plaintiff’s fourth child where, in light of the plaintiff’s ongoing physical and psychological problems which followed the birth, which problems also included the plaintiff’s weight gain due to reduced activity and her self-esteem issues that were inter-related to those circumstances.Obviously, since the birth the plaintiff must have carried out some activity in relation to the care of the child that might ordinarily be understood to have comprised rearing and maintaining the child. However, the preponderance of the evidence indicates that this was minimal as a significant part of such activity was undertaken by the plaintiff’s mother-in-law, who had retired, and who had taken on the responsibilities for childcare when the plaintiff found mitigatory employment that was within her capacity but which was nevertheless limited by her psychiatric illness and its effects on her ability to function.Those factual circumstances give rise to a further question; namely, in the context of an economic loss claim within the contemplation of s 71(1)(b) of the CL Act, what activity relevantly constitutes rearing or maintaining a child?In general, the status of parenthood is commonly understood to be associated with both of those broadly identified activities, where physical input may not necessarily be the determining feature, and where a mere parental presence may sufficiently qualify as rearing activity, and a background parental presence may also sufficiently qualify in the sense of it being a supervisory role in ensuring that a child’s health, welfare, development and wellbeing is being adequately maintained without necessarily requiring the provision of hands-on activity by a parent, or someone acting in the role of a parent.In my assessment, in the context where Pt 11 of the CL Act is specifically concerned with limiting claims for economic loss, the damages prohibition in question here must refer to the specific time or times during which rearing and maintaining a child displaces the opportunity of a claimant to exercise an earning capacity.In my view, that circumstance is distinguishable from the circumstance where a parental earning capacity has become impaired by the effects of a psychiatric illness, as has been amply demonstrated in this case. In conformity with that view, I find that the plaintiff’s claimed past loss of earnings was not relevantly incurred while she reared or maintained her fourth child: s 71(1)(b) of the CL Act. Accordingly, I find that on the evidence, the plaintiff has made good her claim for past economic loss.In that regard, on the evidence there can be no answer to the first component parts of the plaintiff’s claim that relate to the period between the diagnosis of her pregnancy and the first month of the newborn period. The total quantum of those claimed elements amount to $9278.In respect of the ensuing newborn period up until the time of the trial, the evidence does not permit precise calculations of economic loss. The evidence indicates that there appears to have been a relatively small time delay before the plaintiff’s mother-in-law took over assisting with the care of the fourth child. The evidence was that she had retired from her own work and was therefore available to look after the child every week: T71. However, that said, there must obviously have been some minor tasks undertaken by the plaintiff that concerned the maintenance of the child. This topic was not explored in detail in the evidence. Consequently, in my view, those matters may be adequately addressed and reflected by applying a discount to the submitted calculations in the same manner as buffer amounts are assessed.In s 71(1)(b) the phrase “any loss of earnings” must be taken to mean a wide range of potential earnings. The word “any” could have no other or restricted meaning in the statutory context in which it appears. It must therefore relate to all forms of past and future earnings. The limiting phrase within that provision which qualifies claimable loss of earnings specifically relates to the period “while the claimant rears or maintains the child”.The activities described as rearing or maintaining a child involve the multi-faceted and all-encompassing obligations of a parent. Those activities should not be seen to be restricted to just the hours during which a person would exercise an otherwise available earning capacity.On considering the moral and policy considerations in the Second Reading Speeches as cited above, in my view, it does not seem to have been the intention of the legislature to seek to impose an all-encompassing or blanket limitation on the hours during which a person could exercise or claim in respect of an impaired earning capacity. Nor was there an expressed intention to limit which person or persons in particular should be responsible for rearing and maintaining a child during ordinary or available working hours.When regard is had to the legislative limit on “costs” that a “claimant has incurred or will incur in the future”: s 71(1)(a) of the CL Act, that description is plainly intended to cover the eventualities of past and future costs. On a comparative reading of s 71(1)(b) of the CL Act, the absence of any similar words clearly indicating a prohibition on an award for any loss of earnings for an injury to a claimant is instructive. There is no question that the legislation is aimed at limiting claims of economic loss involving the birth of a child where parental rearing and maintenance is involved. However, that does not mean a claim for economic loss involving physical or psychiatric injury to the mother is precluded by that legislative provision. I do not construe the words “proceedings involving a claim for the birth of a child” to include and capture and exclude from damages a claim of physical and psychiatric injury to the mother caused by the negligence of a medical practitioner.In my view, in the present case, that is an important point of distinction. Here, the plaintiff’s loss of earnings is founded upon her inability to work due to her psychological and psychiatric problems that were caused by the negligence of Dr Dhupar. Those psychiatric problems commenced at the time she became aware that she had conceived and they continue until the present time. It is that disease or adverse condition of health of the plaintiff which has caused the plaintiff to suffer loss of earnings, and not the parental obligation to rear or maintain the child. Several consequential points arise. Rearing and maintaining a child, where the child has two parents, involves a dual responsibility. The duality of that responsibility is not anchored only in the hours during which remunerative employment ordinarily takes place.In this case, the plaintiff’s mother-in-law has been available for child rearing and maintaining the child during those hours. Parents with child rearing responsibilities commonly arrange their working hours around such responsibilities. Income earning activity on the part of parents is not limited to particular hours of the 24 hour clock.For quantification of the final element of her claim for past economic loss as identified at paragraph [1026] above, the plaintiff ultimately relied upon a differential comparison of her probable net earnings and her actual or mitigatory net earnings to identify her claimed loss at $67,279 including loss of employer funded superannuation entitlements.In my assessment, the general approach submitted by the plaintiff is correct, however, it must be subject to a discount because of the impact of an array of imponderable factors that influence the assessment of her past economic loss. Those imponderables include the possibility she may not have achieved or maintained the higher hourly rate of remuneration identified by her former employer, and, to adopt the words of the Statute, the formulated approach was contingent upon the continued ability of her mother-in-law to carry out the tasks of rearing and maintaining the child, and the possibility that some of the child’s needs relating to rearing and maintenance were carried out by the plaintiff to some, albeit lesser degree. In my view, the operation of those imponderable factors requires a buffer discount on the submitted calculation for the plaintiff’s past economic loss. In conformity with that view, I therefore assess the plaintiff’s damages for past economic loss including allowances for employer funded superannuation, in the net discounted amount of $45,000.Future loss of earning capacityThe plaintiff claims damages for future loss of earning capacity in the buffer amount of $100,000. The defendant’s submissions were to the effect that no such allowance could be justified in this case based on an acceptance of the defendant’s submissions as to the construction of s 71 of the CL Act.My reasons for construing the meaning, effect and application of s 71 of the CL Act in relation to the plaintiff’s claim for past economic loss also form the basis for my assessment of the plaintiff’s claim for future loss of earning capacity. That assessment now follows.Although the plaintiff has demonstrated a difference between what would have most likely been her potential earnings if uninjured and her actual earnings after injury, this is not a case where the evidence permits the mathematical projection of a precise or finite amount of recurring net weekly loss of earning capacity so as to require findings as to what would have been the plaintiff’s most likely circumstances but for the birth of her fourth child, as may otherwise have been required by s 13 of the CL Act. Instead, I consider that the plaintiff’s circumstances are such that a buffer approach to this head of damage is the most appropriate method of assessment: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72].The plaintiff’s submissions make the well-understood and conventionally applied distinction between past economic loss and the deprivation or impairment of earning capacity in relation to injury, which is reflected in s 12(1)(a) and (b) of the CL Act. In conformity with that distinction, and where the plaintiff’s claim for future economic loss or loss of earning capacity relates to the injury sustained by her, I accept the submissions made on her behalf that s 71 of the CL Act should be construed according to its terms, which does not preclude an award of loss of future earning capacity where the loss is incurred due to the plaintiff’s psychiatric illness as distinct from a claim for the birth of a child or a claim that is precluded because of child rearing or maintenance.The evidence of the plaintiff and that of her former employer persuades me that, but for the unwanted advent of her fourth child, which occurred due to Dr Dhupar’s negligence, her autonomous economic plan was to fully pursue her earning capacity and her economic opportunities. The unchallenged evidence of her former employer persuades me that she had very good prospects for pursuing and achieving that goal. The combination of the plaintiff’s evidence and the opinion of Dr Roberts persuades me that the diagnosis of the plaintiff’s major depressive disorder requiring treatment in the presence of the ever-present stressor of her fourth child has caused a substantial but difficult to measure loss of her future earning capacity where that loss will continue to have an adverse impact upon her for some considerable years to come.The principles governing the assessment of a claim for loss of earning capacity are well settled. An unimpaired future earning capacity should be seen to be an intangible asset. If that asset has become impaired to the point of being productive of a probable financial loss, this mandates an assessment due to injury: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48. In my view, the plaintiff’s circumstances satisfactorily meet those criteria.In this case, if the plaintiff had not been affected by her psychiatric illness, most probably, she would have ordinarily expected to have been able to exercise her earning capacity for at least a further 20 years, if not more, without restriction. With three children, she had a good economic incentive to do so. That capacity has now been substantially impaired because of her psychiatric illness. She is unable to face an array of people in the workplace. She has found it necessary to seek lesser paid part time work due to her depressive state. She experiences recognisable psychological and psychiatric difficulties because she has had an additional child which was contrary to her autonomous plans for her future. She now feels she is no longer in control of her life and this has had a significantly deleterious impact on her earning capacity which would otherwise have been unrestricted.The plaintiff’s ability to work has been adversely affected to a significant degree since the birth of her fourth child because of her psychiatric illness. Those matters are the subject of findings at paragraphs [804] to [819] above. In summary, she suffers from a form of disabling anxiety of a kind that she did not have beforehand. She finds that she must take prescribed antidepressant medication. Her concentration is reduced. She has become withdrawn and is easily upset in random situations. She experiences random and overwhelming panic attacks of varied duration and intensity, she has lost self-esteem to a considerable degree. She can only manage part-time work of a limited nature that does not expose her to many people. Her future earning capacity is significantly impaired as a consequence of those matters.The impact of those factors is incapable of precise monetary estimation in terms of a recurring weekly loss for projection on the 5 per cent actuarial tables. In my assessment, the appropriate lump sum buffer amount which incorporates all the required discounts for vicissitudes and imponderable contingencies (including the potential for her recent seizures to have an impact on her earning capacity) and which is both fair to the plaintiff and at the same time not unfair to the defendant, is the sum of $80,000. I therefore assess the plaintiff’s future loss of earning capacity in the buffer amount of $80,000.Future treatment expensesThe plaintiff made a claim for future out-of-pocket expenses for treatment in the amount of $17,804. That claim was based on the opinions expressed by Dr Roberts, to the effect the plaintiff requires treatment from a psychologist and a psychiatrist according to a plan or recommendation he made, along with the need for anti-depressant medication. I accept Dr Roberts’ formulation as being a reasonable therapeutic response to the plaintiff’s situation. In addition, as the plaintiff is taking antidepressant medication, and given her rural location, she will also need to have continued regular contact with her treating general practitioner.Dr Roberts proposed future treatment comprising weekly sessions with a psychologist for 3 months, followed by fortnightly sessions for a further 3 months at a cost of $242 per consultation. This reveals an identified short-term cost of $13,068 [($242 x 12 + $242 x 6) = $13,068]. Dr Roberts also proposed face to face specialist psychiatric consultations in the event that the option of telemedicine proves to be an inadequate mode of treatment. He proposed two-weekly attendances for 6 months at $355 per session ($3,645). In addition, the plaintiff claims the cost of anti-depressant medication for 5 years at $2.75 per week, which, when projected on the 5 per cent tables (x 231.5) yields the sum of $636.36. The likely cost of future general practitioner consultations is not known.The above elements of likely cost relating to the plaintiff’s adverse condition of health, none of which are associated with either rearing or maintaining her fourth child, are all reasonable and are indicated by the circumstances of the plaintiff’s psychiatric diagnosis. The total of those known elements amounts to $17,349. In my view, considering imponderable factors and vicissitudes, that sum should be discounted to $15,000 to reflect uncertain variability and possible scope for further remission of symptoms in the event that the plaintiff might manage to further adjust to her adverse circumstances. I therefore assess the plaintiff’s future treatment expenses in the discounted amount of $15,000.Past out-of-pocket expenses The plaintiff claims past out-of-pocket expenses in the amount of $7,700. Following a further listing of the matter on 17 November 2020, the parties indicated their agreement that out-of-pocket expenses were in the rounded down amount of $7,700. I therefore assess the plaintiff’s past out-of-pocket expenses in the amount of $7,700.Summary of damages assessmentMy assessment of the plaintiff’s damages is summarised as follows:(a) Non economic loss$261,000(b) Past economic loss$45,000(c) Future loss of earning capacity$80,000(d) Future treatment expenses$15,000(e) Past out-of-pocket expenses$7,700Total$408,700PART H – DISPOSITION, COSTS, ORDERSDispositionThe plaintiff has established her entitlement to an award of damages in the amount of $408,700. She should therefore have judgment entered in her favour for that amount.CostsAs the plaintiff has succeeded in obtaining a judgment in her favour, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order, for which I will grant liberty to apply.OrdersI make the following orders:Verdict and judgment for the plaintiff in the sum of $408,700;The defendant is to pay the plaintiff’s costs on the ordinary basis unless a party is able to show the basis for some other costs order;Liberty to apply for further or other orders if required.**********APPENDIXGlossaryTermDefinitionampullaA saccular dilation of a canal or duct, in this case, an expanded section of a fallopian tube.avascular necrosisPathologic death of a portion of tissue resulting from irreversible damage resulting from deficient blood supply.broad ligamentThe wide peritoneal fold passing from the lateral margin of the uterus to the wall of the pelvis on either side of the uterus, consisting of tissues known as the mesometrium, mesosalpinx and mesovarium.cornuThe horn at each side of the extremity of the fundus of the uterus which marks the entry or connection point of the fallopian tube into the uterine cavity.diathermyTherapeutic use of high-frequency electric current to induce heat in tissue, used in surgery to cauterise blood vessels.fallopian tubeAlso known as salpinges (singular salpinx). These are bilateral muscular tubes leading from near each ovary to the proximal tubal opening of the uterus, which transport the ova after release from an ovary to the uterus. Its components consist (from ovary to the uterus) of infundibulum, fimbriae, ampulla and isthmus.Fimbria(plural fimbriae)Fingerlike fringe of tissue surrounding the distal tube opening (ostium) of the fallopian tube proximal to the ovary and forming the end of the infundibulum. hydatid of MorgagniIn the female, a variant of a paratubal cyst: a benign epithelium-lined fluid-filled cyst below the fallopian tube near the fimbriae. hysterosalpingectomyOperation for the removal of the uterus and one or both fallopian tubes. ischaemiaInadequate blood supply to tissue due to blockage of blood vessels leading to that area, causing a shortage of oxygen required for cellular metabolism to keep tissue viable.isthmusA section of the fallopian tube, about two centimetres long, distal to the fimbria, ampulla and infundibulum, contiguous with the cornu, which connects the ampulla of the fallopian tube to the uterine cavity. laparoscopyAlso known as diagnostic laparoscopy. A keyhole surgical diagnostic procedure used to examine the abdominal organs, using a laparoscope. laparotomy?A surgical incision into the abdominal cavity.lumenA patent space in the interior of a tubular structure. mesosalpinxPart of the broad ligament that encloses or surrounds the fallopian tubes.ovarian ligamentFibrous band of ligamentous tissue within the broad ligament which connects the ovary to the fundus of the uterus. Pfannensteil incisionAn abdominal surgical incision made transversely, and through the external sheath of the recti muscles, about an inch above the pubes, the muscles being separated at the midline in the direction of their fibres which permits access to the abdominal cavity. The most common method for performing Caesarean section delivery.placenta accretaAbnormal adherence of part or all of the placenta to the uterine wall risking severe blood loss after delivery. round ligamentBilateral fibromuscular bands of connective tissue that are attached to the cornu of the uterus on either side in front of and below the opening of the uterine or fallopian tubes; they cross the pelvis and pass through the inguinal canal to the labia majora. salpingectomyRemoval of the fallopian tube.transectionCreation of a transverse cut or complete division.tubal ligationInterruption of the continuity of the fallopian tubes by either cutting and cauterising, clamping or tying; or leaving whole but applying a plastic or metal clip, band or ring, intended to prevent future conception.tubo-ovarian pedicleElongated stalk-like structure of the mesosalpinx at the junction of a fallopian tube and an ovaryAmendments24 November 2020 - Paragraphs [6] - Part C; [225] and [932] : typographicalAppendix - Glossary : addition "placenta accreta"DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. ................
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