Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dhupar v Lee [2022] NSWCA 15 Hearing dates: 25, 26 May 2021 Date of orders: 18 February 2022 Decision date: 18 February 2022 Before: Brereton JA at [1]; McCallum JA at [192]; Simpson AJA at [193]. Decision: Dismiss the appeal with costs. Catchwords: TORTS – Medical negligence – Gynaecological surgery for elective sterilisation – Failed Filshie clip tubal ligation leading to unwanted pregnancy – Circumstantial case – Reconciliation of inconclusive medical imagery with other evidence – Whether onus of proof reversed by trial judge – Requirement to prove ultimate question rather than subsidiary issues – Conclusion that pregnancy post surgery was attributable to negligent operator error on part of doctor TORTS – Damages – Civil Liability Act s 71 – Difference between damages for pregnancy and birth of child and damages for economic loss for loss of earnings attributable to psychiatric injury associated with birth of child TORTS – Damages – Non-economic loss – assessment of percentage of most extreme case Legislation Cited: Civil Liability Act 2002 (NSW), s 71 Cases Cited: AEA Constructions Pty Ltd v Wharekawa [2019] NSWCA 176 Barkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 Bourhill v Young [1943] AC 97 Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38 Dell v Dalton (1991) 23 NSWLR 528; [1991] NSWCA 76 Dhupar v Lee (NSWCA, 24 May 2021, unreported) MD v Sydney South West Area Health Service (2009) 8 DCLR (NSW) 232; [2009] NSWDC 22 Melchior v Cattanach [2000] QSC 285 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60 Rowe v McCartney [1976] 2 NSWLR 72 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 Tame v NSW (2002) 211 CLR 317; [2002] HCA 35 Waller v James (2015) 90 NSWLR 634; [2015] NSWCA 232 Wilson v Peisley (1975) 50 ALJR 207 Texts Cited: Della Bosca The Hon John, Civil Liability Amendment Bill, Second Reading, Hansard, Legislative Council, 4 December 2003. Varma R, Gupta JK, "Failed sterilisation: evidence-based review and medico-legal ramifications", BJOG: an International Journal of Obstetrics and Gynaecology (December 2004), Vol 111: 1322-32. Varma R, Gupta JK, "Predicting negligence in female sterilization failure using time interval to sterilization failure: analysis of 131 cases", Human Reproduction (2007) 22(9): 2437-43. Category: Principal judgment Parties: Dr Nita Dhupar (Appellant) Jodie Lee (A pseudonym) (Respondent) Representation: Counsel: Mr S Kalfas SC and Ms E Elbourne (Appellant) Mr D Higgs SC and Mr R O'Keefe (Respondent) Solicitors: Avant Law (Appellant) Slater & Gordon Lawyers (Respondent) File Number(s): 2020/340595 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: [2020] NSWDC 717 Date of Decision: 19 November 2020 Before: Levy SC DCJ File Number(s): 2017/284433 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On 26 August 2014, the appellant ("the doctor") performed on the respondent ("the patient") a laparoscopic tubal ligation – a surgical procedure intended to result in permanent contraception – using 'Filshie clips' to clamp the Fallopian tubes so that they become sealed and eventually severed. Approximately 9 months after receiving the surgery, the patient fell pregnant. The patient sued the doctor in the District Court for negligence, alleging that the doctor did not correctly apply the Filshie clips or inspect whether they had been properly applied. The patient's claim was successful and she was awarded damages of $408,700 plus costs, including damages for non-economic loss, past economic loss and future loss of earning capacity. The doctor appealed, both as to liability and as to damages. Held (per Brereton JA, McCallum JA and Simpson AJA agreeing), dismissing the appeal: [191]. As to the evaluation of witnesses: 1. It was entirely open to the trial judge to accept the evidence of Dr Jeri, who performed the patient's subsequent caesarean section and salpingectomy (removal of the fallopian tubes), as an accurate account of his intraoperative observations: [65]. 2. There were matters that legitimately raised questions as to the doctor's credibility, which was quintessentially a matter for the trial judge: [75]. 3. It was reasonable for the trial judge to prefer the expert witness called by the patient to the expert witness called by the doctor: [85]. As to procedural rulings 4. The trial judge did not err in permitting Dr Jeri to give expert (opinion) evidence about a matter not contained in his report: [88]. 5. The trial judge did not err in refusing to grant the doctor leave to adduce evidence from a radiologist regarding the interpretation of a hysterosalpingogram (HSG) scan: [95]-[96]. As to findings and reasoning 6. In a circumstantial case such as the present, it is the ultimate question – not the various intermediate facts – which must be proved according to the balance of probabilities. A set of circumstances may be explained, more probably than not, by an hypothesis which includes matters which, standing alone, seem improbable. That is subject to this exception. An hypothesis otherwise capable of explaining the circumstances may be excluded if it appears to be inconsistent with an irrefutable fact: [101]-[102]. 7. In the absence of an actual recollection of how she performed the operation and what she saw and did, evidence of the doctor's usual practice provides some evidence of what she might have done on the occasion in question. However, it has to be weighed with other evidence from which inferences are available. Moreover, there were several matters which significantly detract from the proposition that on this occasion the doctor followed an invariable practice such as she described. Of course this does not of itself mean that more probably than not the clip was not properly applied; but it leaves open, as one of the available explanations of the circumstances, the possibility that she did not follow that practice: [106]. 8. The trial judge was right to conclude that on the balance of probabilities, the patient's pregnancy post tubal ligation was attributable to negligent operator error on the part of the doctor in the application of the left Filshie clip. The approach taken by the trial judge in reaching this conclusion did not involve a reversal of the onus of proof: [156]-[161]. 9. The contention that the trial judge should have had regard to the fact that the appellant had not previously had a failed sterilisation following application of a Filshie clip was without substance: [161]. As to damages 10. Civil Liability Act 2002 (NSW) ("CLA"), s 71, is a limited intrusion on the common law and does not involve denying a mother damages for the pregnancy and birth of the child, but only for the costs of raising the child, and lost earnings "while the claimant rears or maintains the child". It follows that, in proceedings involving a claim for the birth of a child, CLA s 71(1) does not preclude the award of damages for economic loss for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child: [172]-[177]. 11. The primary judge's assessment that the patient's non-economic loss amounted to 38% of a most extreme case was not unreasonable: [186]. AEA Constructions Pty Ltd v Wharekawa [2019] NSWCA 176; MD v Sydney South West Area Health Service (2009) 8 DCLR (NSW) 232; [2009] NSWDC 22; South Western Sydney Local Health District v Sorbello [2017] NSWCA 201, considered. Judgment 1. BRERETON JA: On 26 August 2014, the appellant Dr Nita Dhupar ("the doctor"), an obstetrician and gynaecologist, performed on the respondent, who has been given the pseudonym Jodie Lee ("the patient"), a laparoscopic tubal ligation [1] procedure utilising Filshie clips to occlude the fallopian tubes. [2] Notwithstanding the procedure, the patient subsequently fell pregnant and had a child delivered by caesarean section on 1 March 2016; inferentially she fell pregnant in late May 2015, about nine months after the procedure. 2. The patient sued the doctor in the District Court, contending that the doctor had been negligent in applying the left Filshie clip to a location and in a manner which did not achieve complete occlusion of the left fallopian tube, and in failing to undertake proper intraoperative inspection to ensure that the clip had been correctly applied. After a trial over ten sitting days between April and August 2019, Levy DCJ on 19 November 2020 gave judgment for the patient, for $408,700 plus costs. [3] The damages included damages for non-economic loss (psychological disorder, trauma of surgery etc), past economic loss and future loss of earning capacity, and past out-of-pocket expenses and future treatment expenses. The doctor appeals, both as to liability and as to damages. BACKGROUND 1. The tubal ligation procedure in this case involved the application of two Filshie clips, one to each fallopian tube. Filshie Clips 1. The following description of the application and operation of Filshie clips is largely drawn from the trial judge's detailed account, [4] which was not contentious. 2. Filshie clips, a pair of which appears in the below photograph, are patented medical devices made of titanium with a silastic insert, designed to prevent conception by occluding the fallopian tubes. 1. In its open state (as in the above photograph), a Filshie clip has two articulated component jaws or arms that are connected at the base by a concealed riveted hinge. The upper jaw has a convex curve which, at a point a few millimetres from the end, turns into an upturned open concave curled lip. The lower jaw, which forms the base, is straight, but it incorporates a half return lip or locking latch, about 2mm in height, designed to receive the upturned or convex curled lip of the upper jaw during the locking process following 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, designed to squeeze and apply pressure to the fallopian tube when the clip is closed and locked. Once closed, the dimensions of a clip are about 14mm in length and about 3.5mm in width. 2. The laparoscopic application of a Filshie clip to a fallopian tube is a touch-free process, commencing with the clip being loaded into a pistol-like Sterishot applicator device. Mechanical pressure is then applied to a trigger on the applicator handle, which transmits pressure onto the concave curve of the upper jaw of the clip, which then progressively straightens and flattens as increasing pressure is applied through the applicator. The curve of the upper jaw of the clip then becomes locked into place as further and continued mechanical pressure is applied to push and advance the curled metal lip at the end of the upper jaw further forward, so that it engages with and locks under the return lip or latch of the lower jaw. Once a Filshie clip is locked, it becomes permanently closed and cannot be opened. There was undisputed evidence that the mechanical action of the applicator of the type used by the doctor in the procedure performed on the patient is inaudible and does not produce any "click" sound. 3. The following two diagrams provide a broad overview of the process of locating and applying a Filshie clip to a fallopian tube with an applicator: 1. Aspects of the process are depicted in greater detail in the following series of diagrams which appears in the manufacturer's product information material: 1. The recommended location for the application of Filshie clips is over the muscular isthmic portion of the fallopian tube, between 1cm and 2cm lateral to the utero-tubal junction (or cornu). [5] The instructions contained in the manufacturer's product information sheet include the following (emphasis added): "7.4.1 Identifying and Manipulating the Fallopian Tube 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 millimetres 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." 1. The product information sheet also contains the following instructions for intra-operative inspection of a closed clip (emphasis added): "7.4.2 Inspection of a Closed Clip Inspect 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." 1. Correct and incorrect compression and secure latching of the upper jaw or arm are illustrated in the following diagram: 1. When the clip is applied and fully closed, the curved upper jaw is straightened out and flattened. The closure of the two jaws applies pressure to the tube through the silastic linings, occludes it, and ultimately severs it. The expanding silastic linings apply constant pressure to the muscular portion of the tube, resulting in avascular necrosis [6] of the tube. With time, the silastic linings of each arm join together, resulting in complete transection [7] of the tube, involving destruction of approximately 4mm of the fallopian tube. This process takes some time to occur, and following it there is usually a defect between the proximal and distal ends of the fallopian tube, where the clip was affixed. At that stage, the clip becomes redundant, having achieved its objective of transecting and occluding the fallopian tube with ischaemic scar tissue. The manufacturer's product information includes the following: "The Filshie Clip is manufactured from titanium and is lined on the inner surface with silicone rubber (both materials are implantable grade). At one end there is a hinge and at the other a latch. The Filshie Clip is applied across 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 is flattened and is securely latched under the front end of the lower jaw. This acts as a clasp, securing the upper jaw of the Clip. The silicone rubber is in direct 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." 1. The resultant gap of about 4mm means that the clip is no longer attached to an anatomical structure and may migrate to virtually any area within the abdominal cavity. The possibility of such migration is enabled once the tube has been transected by the pressure of the clip and the process of avascular necrosis. 2. The following annotated diagrams, extracted from an article entitled "Failed sterilisation: evidence-based review and medico-legal ramifications" ("the 2004 Article"), [8] describe (on the left) the correct closure of a Filshie clip, and (on the right) incorrect under-closure (which the authors say is attributable to operator fault): 1. If a Filshie clip is left in an under-closed state – that is to say, it is not completely closed and locked – it might not completely occlude the fallopian tube, and it might dislodge from the tube, [9] and migrate to other structures – such as the broad ligament [10] – permitting fertilisation to occur. Failed tubal ligations 1. It is not in doubt that pregnancy can occur after tubal ligation, without negligence. In a joint report, the expert witnesses – Professor O'Connor called by the patient, and Associate Professor Cooper called by the doctor – identified several possible reasons for a pregnancy occurring following a tubal ligation using Filshie clips, some of which did not involve operator error. [11] Dr Jeri gave evidence to the effect that where clips have been applied properly and fully locked across the width of the fallopian tubes, the failure rate after one year was 0.3%. [12] 2. The manufacturer's product information brochure refers to a range of reported adverse events associated with Filshie clips, including uterine pregnancy (0.46%), ectopic pregnancy (0.16%), clip migration or expulsion (0.13%), and misapplication of clips to other tissues, namely ovarian ligaments, broad ligaments, omentum, bowel, tubal serosa, and cornual or broad ligaments (0.05%). This data does not enable negligent and non-negligent causes to be segregated. Nor does the manufacturer's product information brochure identify the sample sizes from which it has been drawn. The literature 1. However, most failed sterilisations involving Filshie clips, at least where the failure occurs within nine months of the procedure, are attributable to operator error. Professor Cooper's second report, dated 13 June 2018, cited a 2007 article by Varma and Gupta entitled "Predicting negligence in female sterilization failure using time interval to sterilization failure: analysis of 131 cases" ("the 2007 Article"). [13] However, it annexed the 2004 Article, by the same authors. The 2004 Article was in evidence before the trial judge; due to a misunderstanding and confusion, the 2007 Article was not; it was admitted in evidence on the hearing of the appeal for reasons then given. [14] The 2004 article 1. In the 2004 Article, the authors referred to studies in several jurisdictions suggesting that Filshie clips were the most effective method of tubal ligation, with a failure rate of 0.84% (Canada), or between 0.11 and 1.93% (RCoG). One study showed the overall ten-year failure rate for Filshie clip sterilisations was 0.56% in 10,000 women, but this fell to 0.2% when cases caused by operator error were excluded. [15] This implies that the majority are attributable to operator error. 2. Failures not attributable to operator error were caused by: 1. spontaneous tubal lumen regeneration, of which there were numerous reports following electrocautery, fallope rings, or tubal excision methods, but none following Filshie or Hulka clips; [16] and 2. mechanical failure of the occlusion device. [17] This was acknowledged to be a theoretical possibility, but had not been reported for Filshie clips, Hulka clips or fallope rings. 1. The authors stated that, based on the data they obtained and analysed and a review of world literature, evidence for sterilisation failure revealed: [18] "• when considering all cases of failed sterilisation for all methods, initial tubal non-occlusion through operator error is the most common mechanism of failure. • a greater proportion of early (within one year from operation) than late (after one year from operation) sterilisation failures are due to initial tubal non-occlusion. In contrast, a greater proportion of late compared with early sterilisation failures arise as a result of tubal lumen regeneration (tubal fistula formation or tubal recanalization). … • mechanical clip occlusion methods are observed to have lower rate of tubo-peritoneal fistula formation than coagulation-based techniques. • the evidence suggests a minimal interval of one year between electrocautery and evidence of functional tubo-peritoneal fistula. This evidence may also be applicable to mechanical occlusion – and excision based sterilisation methods." The 2007 article 1. In the 2007 Article, the authors analysed 131 failed sterilisations from the United Kingdom, Australia and a qualitative systematic review, of which 88 were attributed to negligence and 43 were non-negligent. They observed that the Filshie clip, most often failing due to non-occlusion or application to the wrong structure, was the predominant method in negligent failures (accounting for 71% of such cases); whereas the Pomeroy method, only failing by recanalisation and fistula, was the predominant method in non-negligent failures (accounting for 44% of such cases). Two non-negligent failures of Filshie clips were noted: one by fistula at fourteen months, and one by recanalisation at ten months. [19] 2. Relevantly, the authors concluded that sterilisation failure occurred significantly earlier in negligent than in non-negligent failure mechanisms (median failure intervals of 7.0 versus 12.0 months), and thus that knowing that sterilisation failure occurred 'early' increased the probability that the failure mechanism was likely to be negligent rather than non-negligent. Thus a 'short' interval to failure was suggestive of a negligent failure mechanism, with there being less certainty in the predictive value of longer time intervals on the mechanism of failure due to a paucity of cases. The authors wrote: [20] "Probability of negligence for any case given the interval to pregnancy The pre-test probability (prevalence) of negligence from our case series is 0.67 (88/131). Thus, the probability of a randomly selected case of sterilization failure being negligent from our case series is 0.67. However, if we assume that time interval of failure may influence the likelihood that the randomly selected case has a negligent failure mechanism, then time interval when sterilization failure occurs may be used as a 'test' that increases or decreases this pre-test probability of negligence." 1. They continued: [21] "Failure at or before 6 or 9 month intervals appears to provide statistically significant test positive LRs (4.89 and 4.26, respectively). Later failures appear to have lower test positive LRs and are less likely to be predictive of the failure mechanism. However, there is a paucity of late failures available for analysis which may make LRs derived from this group less reliable. Furthermore, we have specified test positive LRs for 9–18 months and 18–84 months intervals, although these are likely to be biased. …" 1. Analysis demonstrated that 90% of failures occurring within nine months, and 77% of those occurring within twelve months, were negligent. [22] From the table of data it appears that the "tilting point" is at the nine-month mark: the majority of failures after nine months are non-negligent, although this conclusion is less reliable due to the paucity of cases. Conclusion 1. While the 2004 article states that the possibility of tubal regeneration – either by fistula or recanalisation – had never been reported with Filshie or Hulka clips (as distinct from in sterilisation by electrocautery, fallope rings, or tubal excision), that must be modified in light of the 2007 Article. However, the Articles support the following relevant conclusions: 1. Filshie clips are highly effective, and have a very slight failure rate; 2. within that slight band of failure, the most likely cause – particularly if it occurs "early", which in light of the 2007 Article might be defined as the first nine months – is operator error. The failure rate falls to 0.2% from 0.56% when operator error is excluded. That implies that most failures are attributable to operator error, and the probability of a failure being attributable to operator error increases the earlier it occurs, particularly if it occurs within nine months of the procedure; 3. in all techniques, initial tubal non-occlusion through operator error is the most common cause of failure, especially if it occurs within one year (in contrast to failures occurring after one year, in which event tubal regeneration was more likely); 4. under-closure is a known cause for failure, that is attributable to operator error in most cases; and 5. the alternative explanation to operator error, at least in the case of a Filshie clip, is recanalisation or fistula, but this typically requires some twelve months at least for a fistula, although there was one reported case of recanalisation at ten months. The doctor's account 1. Unsurprisingly, the doctor did not claim to be able to recall the detail of the procedure she performed on 26 August 2014 – it was a procedure she had performed many times. She gave this evidence: [23] "Q. The actual procedure; do you remember any of the conduct of that? A. I don't think so, because this is same surgery you're doing many times and there is was no, something was, else that I have to be remember also. HIS HONOUR: Q. The things that would make something stand out as memorable would be, I'm just guessing here, I suppose anatomical variations? A. Yeah, there, there was nothing was there. Q. Or unusually located procedures, structures? A. No, I don't think so. Q. You've not noted any of those. A. No. I was surprised because I was hoping or I was guessing because of the previous caesarean, I was be looking lots of adhesion and scarring, which hasn't been there inside. So, that was the good side point of view. Q. There's individual differences about that isn't there? A. Yeah, yeah. HIS HONOUR: Yes, all right? Q. All you can say about this procedure performed on Ms [Lee] is that from your operation notes, and photographs taken intraoperatively, you can say that the procedure was performed and there were no outstanding abnormalities that would stand out to give you a separate recollection other than usual procedure? A. Yeah, no. Q. Is that correct? A. Yeah, yeah." 1. She said that her usual practice when performing this procedure included "flipping" the tube after applying the clip, to ensure that it was completely closed over the tube. [24] She had not previously experienced a patient becoming pregnant subsequent to any tubal ligation, including by means of Filshie clips, performed by her. [25] 2. Whether on this occasion the doctor followed her usual practice was in issue. Ultimately his Honour concluded that she did not, and that conclusion is in issue in the appeal. The intraoperative photographs 1. Intraoperative photographs of the application of the Filshie clips were taken by a nurse, and included photographs of the clips after they had been applied to the tubes. Photos 006, 007 and 009 depict the clip applied to the right tube, and photo 008 depicts one side of the clip applied to the left tube. [26] 2. Professor O'Connor and Professor Cooper agreed that the intraoperative photos demonstrated that the right clip had been correctly applied. They also agreed that the photographs did not conclusively show that complete closure of the left clip had been achieved, though neither suggested that they showed that closure had not been achieved. They agreed that they showed the left clip to have been placed more distally to the cornu than recommended – according to Professor O'Connor, about 2.9cm from the utero-tubal junction. Professor O'Connor said that the image appeared to show that additional vessels had been picked up with the fallopian tube, and that this had significance as the tube is the only structure that should be picked up, and the inclusion of extraneous tissue would reduce the likelihood of achieving correct occlusion, [27] and meant that the clip was not applied correctly, providing a possible explanation for the pregnancy, and some indication of incompetence in the application. Professor Cooper did not expressly disagree, but inferred from the apparent placement of the clips on the correct structures and the appearance that they were closed that there had been sufficient pressure for the left clip to be closed. 3. Whether the intraoperative photographs supported the doctor's case that the left clip was properly closed, or (as his Honour ultimately found) accommodated the patient's case that it was not, was and is a significant issue. The caesarean section and salpingectomy 1. The caesarean section on 1 March 2016 was performed by Dr Jeri, coincidentally assisted by the doctor. After delivering the baby, Dr Jeri identified a clip on the right tube; he could not identify any clip remaining on the left tube. He performed a bilateral salpingectomy, [28] removing the whole of the right tube and about 80% of the left tube, including the clip on the right tube; the left clip, which he believed to be located "somewhere in the broad ligament", was not retrieved. He said that there was no fistula. 2. The trial judge understood the effect of Dr Jeri's evidence to be that prior to the salpingectomy, intraoperatively, both by visual examination and by palpation, he assessed the left tube as being intact along its length. [29] The appellant disputes that Dr Jeri's evidence, properly analysed, was to that effect, and if it was, complains that it should not have been accepted when contrasted with the intraoperative photographs, the doctor's usual practice, and the hysterosalpingogram next mentioned. The hysterosalpingogram (HSG) 1. In the course of the litigation, on 20 August 2018, a hysterosalpingogram (HSG) (involving the injection of radio-opaque dye into the uterus) was performed and reported upon by Dr Stephenson, in order to ascertain whether there had been a recanalisation of the patient's fallopian tube, or a fistula, and whether the tubes were patent or occluded. Dr Stephenson's report contains a number of images taken in different planes, in which the left Filshie clip is visible. It was common ground between the experts that the test did not demonstrate any current fistula or recanalisation - although Professor Cooper said that the HSG did not preclude the existence of a fistula at an earlier time, which might not be evident due to scarring from the salpingectomy. 2. The HSG report contains eight images on which the left Filshie clip can be seen, in views taken in different planes. Originally, it was (incorrectly) interpreted as showing the clip in situ across and occluding the left fallopian tube, as the flow of dye appeared to end at the location of the tube. However, despite this earlier confusion, ultimately no party and neither expert contended that the clip was on the tube and obstructing contrast flow down the tube, and Professor Cooper conceded that the flow ceased at the point of the partial salpingectomy: [30] "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? 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 of the cessation of flow of dye within the left fallopian tube that's shown on the HSG, doesn't it? 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? COOPER: That's possible. O'KEEFE: Well, it's likely, isn't it? 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? COOPER: We see – O'KEEFE: Flow up to the point at which the tube ends, the distal part having been removed at the salpingectomy. COOPER: Yes." 1. Thus at HSG the clip was not on the tube, but it was in close proximity to the end of the post-salpingectomy remnant of the tube. The appellant contended that the HSG shows that the clip was closed. If so, that would weigh heavily, if not decisively, against the proposition that it had been incorrectly applied, as it would suggest that the clip remained closed and migrated having achieved its intended objective of transecting the tube. 2. In cross-examination, Dr Jeri said that he could not say with certainty whether the clip as it appeared on the HSG was open or closed; he said it may be closed, or it may be "partially open". [31] Professor Cooper was of opinion that the clip depicted in the HSG imagery was closed (or, "exceedingly unlikely to be open"), [32] though he did not entirely exclude the possibility that it might have been incompletely closed. Professor O'Connor (whose opinion the trial judge accepted) held the view that the HSG images did not prove that the clip was closed and locked, and it remained a possibility that the clip was partially open, in the sense of not being completely locked - though it was "fairly clear that it's not widely gaping open", [33] but on this question would defer to a radiologist. [34] However, counsel for the doctor was not permitted by the trial judge to ask Dr Jones, a radiologist, to express an opinion in oral evidence, not covered by his report, as to whether the clip depicted in the HSG was open or closed. 3. Whether the clip so depicted was closed is a central issue: at the heart of the doctor's case on appeal is a complaint that the finding that the left fallopian tube was intact along its length when examined by Dr Jeri prior to salpingectomy on 1 March 2016 is irreconcilable with the clip which had been applied to it having become dislodged from the intact tube without springing obviously open; whereas the appearance of the clip in the HSG images would be entirely consistent with its having performed its intended function by transecting the tube and then becoming dislodged and migrating elsewhere. LIABILITY Introduction 1. The trial judge found that the appellant placed the left clip in an incorrect location, [35] incorporated extraneous tissue in the bite of the clip, [36] failed to achieve full closure and locking of the clip, [37] and did not properly check that the left clip was completely closed and locked. [38] Those findings were inferences, drawn from the whole of the evidence. Although the twenty grounds of appeal relating to liability that were ultimately pressed attacked various steps in the trial judge's reasoning, [39] ultimately the doctor must, if the adverse finding on liability is to be overturned, establish that the trial judge erred in concluding that, more probably than not, the patient's pregnancy post tubal ligation was attributable to a departure by the doctor from proper professional practice in the application of the left Filshie clip, in particular by failing to achieve proper and complete closure of the clip. 2. In essence, the patient's case was that operator error was to be inferred from the combination of: 1. the high probability of itself that failure at nine months was attributable to operator negligence, reinforced by the high improbability of recanalisation or fistula before twelve months, and the absence of evidence of either at salpingectomy or on HSG; 2. the inclusion within the left clip of extraneous tissue as demonstrated on photo 008, increasing the likelihood of incomplete closure; 3. the unchallenged evidence of Dr Jeri, who performed the caesarean section on 1 March 2016, that he inspected and palpated the tube pre-salpingectomy and found that it was not transected, that the left clip could not be found and was certainly not on the tube, and that there was no fistula; whereas 4. the HSG imagery did not conclusively demonstrate that the clip was closed and locked. 1. In those circumstances, the patient contended, the more probable explanation of the whole of the evidence was that the clip was not fully closed, rather than that Dr Jeri was wrong. Against that, the contention advanced on behalf of the doctor was that a conclusion that more probably than not the clip was incorrectly applied could not be reached, having regard to: 1. the known reasons why such tubal ligations can fail without negligence; 2. the intraoperative photo 008, on which the clip does not appear to be open; 3. the doctor's evidence of her usual practice as to application and inspection of Filshie clips, and her observations on caesarean section, which contrary to those of Dr Jeri were to the effect that the left clip was visible in part, entangled in adhesions and scarring below the tube on the broad ligament; [40] and 4. the HSG, on which the clip does not appear to be open, in the light of the characteristics of the Filshie clip, in particular that it is said to "spring open" if not properly locked. 1. The chief alternative explanation as to how the patient might have become pregnant which did not involve negligent application of the left clip was recanalisation, either direct or by fistula. No other theory was seriously advanced. The alternative explanations for the patient's pregnancy were thus operator error (posited by the patient, and accepted by the trial judge), and recanalisation (posited by the doctor). There was no suggestion of non-negligent operator error: in other words, the case was conducted on the basis that if it were operator error, it was negligent operator error. Thus, in the way that the case was conducted, the patient's pregnancy was caused either negligently by improper application of the left clip, resulting in incomplete occlusion due to failure to close it properly; or non-negligently by recanalisation. 2. Before turning to the overarching and dispositive question whether the trial judge erred in concluding that, more probably than not, the patient's pregnancy post tubal ligation was attributable to a departure by the doctor from proper professional practice in the application of the left Filshie clip, in particular by failing to achieve proper and complete closure of the clip, it is convenient first to address two discrete categories of grounds of appeal: those which relate to the evaluation of witnesses, and those which relate to procedural rulings. Grounds relating to evaluation of witnesses 1. Ultimately this was a circumstantial case in which the critical conclusions depended on inferences drawn from the whole of the evidence, and not on the acceptance of any one witness in preference to another. That said, the trial judge made findings in relation to the credibility of a number of witnesses, which to some extent inform the weight to be given to their accounts, observations and opinions in the overall analysis of the circumstances to determine whether, more probably than not, they were explained by negligent operator error in the application of the left clip. The appellant challenges his Honour's acceptance of Dr Jeri as reliable, his adverse evaluation of the credit of the doctor, and his preference for the opinions of Professor O'Connor over those of Professor Cooper. Dr Jeri (Grounds 2, 4) 1. Dr Jeri's initial operation report of 1 March 2016 described in detail, in eighteen enumerated paragraphs, the conduct of the caesarean section, but referred to the salpingectomy much more briefly, merely stating after paragraph 18: Thereafter a bilateral salpingectomy was performed stitched with vicryl 2(0). 1. His original report did not refer at all to the location of the Filshie clips, or to the condition of the Fallopian tubes. However, he revised the report on 4 May 2016, and the revised report included, under "Findings": 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. 1. The description of the operation was amended to include the following: 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. 1. There was still no reference to the condition of either Fallopian tube. However, the histological examination of the specimens removed at salpingectomy described the left tube specimen as "a defective segment of fallopian tube with attached fimbria 40x15x7mm", and the right tube specimen as "a fallopian tube, 40mm x a diameter ranging from 10mm proximally to 15mm distally". The diagnosis was, in respect of each tube, "Normal fallopian tube confirmed". [41] 2. In his report dated 26 September 2018, prepared for the purpose of the proceedings, Dr Jeri answered questions asked in the instructing letter, which were not reproduced in his response. Interposing the relevant questions and answers, he stated: "4. Was the left Filshie clip attached to the broad ligament (in other words did it appear that it had been applied to the broad ligament)? 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. Did you observe the left Filshie clip to be abnormal or damaged in any way? If so, how did it appear? According to my observation the left Filshie clip appeared to be intact. 6. Did you observe the left Filshie clip had not been closed fully in the same manner that the right Filshie clip had been closed? If so, in what way did it not appear closed? Again I cannot attest to your 'statement' that the left Filshie clip had not been closed fully in the same manner as 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. Did you observe the left Fallopian tube to be of normal appearance prior to performing salpingectomy? I did observe that the left fallopian tube was absolutely patent and was of normal appearance prior to performing salpingectomy. 8. Did you observe any fistula or additional passage between the left ovary and some part of the left fallopian tube? I did not observe any fistula or additional passage between the left ovary and some part of the left fallopian tube. 9. The substance of any discussion that you had with Dr Dhupar, who was assisting at the operation, regarding the location of the Filshie clips. I did make Dr Dhupar aware that the left fallopian tube was patent." 1. In chief, Dr Jeri described his observations at the salpingectomy. He gave this evidence: [42] Q. Can I ask you about the left fallopian tube? Were you able to see all of the left fallopian tube when you turned your attention to the left side? A. The fallopian tube, they're close to the uterus but there's a lot of scarring tissue. I reviewed the fallopian tube and I, I couldn't see the Filshie clip in the left fallopian tube. There was scarring tissue close to the cornu, but the rest of the fallopian tube was intact. And I couldn't identify the Filshie clips in the left fallopian tube. Q. Does that include in the isthmic area of the fallopian tube? A. Yeah, well I checked the isthmic area. Yeah, it wasn't it wasn't the Filshie clips there. HIS HONOUR: Q. What was the, if you can describe, the dimensions of the scarred area, and what was the nature of that scarring? A. Yeah, the, the scarring tissue was caused by the four – the three previous caesarean section that Mrs [Lee] already have. So there was a lot of adhesions and tissues. But I, I tried to identify if there is the fallopian – the, the Filshie clips in this area, and I couldn't, I couldn't see. Q. Because the way I understood your description, and correct me if I'm wrong, the scarring you've described was uterine scarring and scarring on the surface of the uterus relating to previous caesarean sections, is that right? A. Yes. Q. So were you describing scarring on the fallopian tube or not? A. Well there was around the fallopian tubes all this scarring tissue, yes. Q. You referred to adhesions, is that different to the scarring? A. It is the same. Adhesions or scarring tissue, yeah. But I, I review all this scarring tissue to make sure there is the – to identify the Filshie clips, because I couldn't see the Filshie clips in the fallopian – it wasn't the Filshie clips even inside the scarring tissue. Q. The way you've described that, you were using finger movements. Do I understand from that description that you were palpating this area, or just viewing it? A. Not only, not only palpating but also dissecting. Q. Dissecting? A. So dissecting, trying to cut these adhesions in order to see the – to explore the fallopian tubes. So it's not only feeling, but is also dissecting the tissue. Trying to cut all this scarring tissue in this, in the proximate area, in the isthmic area of the fallopian tubes. Q. So from that description, do I understand that from your dissection, palpation, and examination, that if there had been a Filshie clip in that area, you would have seen it? A. Yes, I would." 1. Dr Jeri explained that while he performed a total salpingectomy on the right fallopian tube, he did only a partial salpingectomy on the left fallopian tube, including the fimbriae: [43] because of the scarring tissue, he removed only 80% of the left fallopian tube and fimbriae, removing the fallopian tube from the isthmus area down to the top of the fimbriae. [44] 2. With reference to his report of 26 September 2018, Dr Jeri was cross-examined as follows: [45] "Q. Question 5, you were asked; 'Did you observe the left Filshie Clip to be abnormal or damaged in any way. If so, how did it appear?' And your response at question 5 in your report is: 'According to my observation the left Filshie clip appeared to be intact'. Do you see that answer? A. Yes I, I, I have – I basically – I haven't seen the, the, the fallopian tube – the, the left, the left Filshie clip, so yeah. … Q. You'd seen the dye test and can I – A. I assume, I assume, according to the dye test, that the Filshie Clip was, where I said 'intact' means that the, the Filshie clip was in, in the hysterosalpingogram, so. But based on the Filshie clip, because I couldn't see any – I couldn't see the Filshie clips when I did the caesar. Q. When you wrote this report you understood that you were being asked to give an opinion to solicitors for the purpose of this case didn't you? A. Yes I did, I knew. Q. When you said 'The left Filshie clip appeared to be intact', by 'intact' you meant closed didn't you? A. No by 'intact' means that I – not that was closed, I, I just assume that in the hysterosalpingography, you can see all, all the Filshie clip, the complete Filshie clip, I didn't see – what I mean when – the question is, it was – I know that was a tricky – a little difficult question, is based on my – after reviewing the hysterosalpingogram, that the Filshie clip was there and I, I – it wasn't broken or it was, lock or unlock, it's just it was there. HIS HONOUR: Q. What I understand you're saying is that 'intact' means all its components were there in one piece? A. In one piece. Q. Not disintegrated? A. … (not transcribable) … Q. But intact in this context did not mean closed or locked? A. That's true. ELBOURNE: I think if your Honour goes over the page to p 549, Dr Jeri does enlarge upon that. 'I was unable to determine whether the clip was fully closed in the same manner that the right Filshie clip had been closed'. HIS HONOUR: Yes. He's explained what 'intact' means. ELBOURNE: Q. Do I take it from that that, to your observation, the right Filshie clip had been closed and that the left Filshie clip appeared to be closed but you couldn't say that it was fully closed? A. No, I I can't, I can't test this because I couldn't see the left Filshie clips. I, I can't see the structure of the left Filshie clips. It, it was – I don't know if it was closed or open or yeah but it just – we couldn't see the Filshie clip. So – but I report as intact based on the hysterosalpingography." Q. Page 549, your report, in response to question 7, you've said this: "I did observe that the left fallopian tube was absolutely patent". By "Patent" you mean it wasn't blocked? It wasn't occluded? A. Yeah, yeah. Q. "And was of normal appearance prior to performing salpingectomy". Can I suggest to you that you can't tell with the naked eye whether a tube is patent or not? A. Not 100% you can't, you, you, you, you, you can't feel there was – the fallopian tube. During my – this is my observation during the fallopian tube, when a fallopian tube is not patent usually there is some – you can feel some sort of blockage in – along the fallopian tube. But in this case, I was able to feel the fallopian tube, yeah, certainly. The confirmation of this observation has to be done by, by hysterosalpingography. Q. The only way to confirm a tube's patent is effectively to put the dye through it isn't it? A. Yep 100%, yeah, yeah. This is my observation. My clinical observation about the – when I, when I did the … (not transcribable) … before the salpingectomy. Q. If you observed that the tube was patent, why didn't you put that in the operation report? HIS HONOUR: Didn't you just ask him a question that would tend to make that observation problematic? Wasn't the force of the last interchange that he couldn't tell for sure? Go on. ELBOURNE Q. You didn't make any mention of the fact that the left fallopian tube was patent in your operation report, did you? A. No, I mentioned the, the – in my report that basically the – what is, what I saw, which is the – there, there was no clip in the left fallopian tube. Q. But you didn't mention in the report that you – A. No, I, I, I didn't mention. HIS HONOUR: Q. When you examined this fallopian tube and palpated it before the salpingectomy, during the process of palpation, would an area of damage from previous occlusion have become apparent? A. Yeah. Certainly. Q. How would that feel as you palpate? A. Yeah, yeah, you, you, you can feel that it's a healthy fallopian tube when, when it's usually patent, that's my clinical observation, but when it's an – as a consequence of an occlusion you've – you may feel there is a scarring tissue, some sort of flattening of the, of the fallopian tube that – Q. If you had made an observation to that effect, was that something you would have noted in your clinical findings? A. Yes I, I would, yeah." 1. With reference to Dr Jeri's evidence, the trial judge said: [46] "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." 1. Ultimately, the trial judge accepted Dr Jeri's account. The appellant complains that his Honour erred in accepting Dr Jeri as reliable and preferring his evidence to that of the doctor (Ground 2), and in finding that Dr Jeri determined visually and by palpation along its length that the patient's left fallopian tube was intact, when his evidence properly analysed did not demonstrate a determination as to the condition of the entire tube, so that the judge proceeded on an erroneous understanding of a material fact and used it as the foundation for findings on breach and causation (Ground 4). Ground 4: Did the judge misinterpret Dr Jeri's evidence? 1. The appellant submitted that Dr Jeri's evidence was at best ambiguous as to the extent to which he ascertained that the left tube was intact along its length. I do not agree. From the passages set out above, it is clear that Dr Jeri said that he palpated, dissected and inspected the left Fallopian tube, which he observed was "absolutely patent and was of normal appearance"; that an area of damage from previous occlusion would have become apparent during that process but did not, and that the tube appeared normal (although conceding that without an HSG one could not be 100% certain) and not occluded; that if there had been a Filshie clip in that area, he would have seen it, but he could not locate the left Filshie clip, which was not on the tube, and which he assumed was somewhere "around the area of the broad ligament"; and that his answer that the left clip appeared intact was not based on intra-operative observation but on its appearance on the HSG, and meant only that it was not disintegrated, not that it was closed or locked, which he was unable to say. 2. It is true, as the appellant submits, that his Honour incorrectly took Dr Jeri's answer to question 5 in his report of 26 September 2018, to the effect that the left Filshie clip appeared to be intact, to be a slip, and assumed that he had intended to refer to the left tube rather than the clip. Thus his Honour quoted the relevant paragraph of the report in the following terms: [47] "4. According to my observation the left Filshie clip (sic for fallopian tube) appeared to be intact." 1. The matter "sic for fallopian tube" was his Honour's insertion. Subsequently, his Honour recorded: [48] "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 it [157] above." 1. However, as appears above, Question 5 in the request of 12 September 2018, to which Dr Jeri's report of 26 September 2018 responded, was (emphasis added): "5. Did you observe the left Filshie clip to be abnormal or damaged in any way? If so, how did it appear?" 1. Moreover, the extracts from Dr Jeri's evidence set out above confirm that answer 5 was intended to refer to the clip, although it was based not on intraoperative observation but on having seen the HSG. However, the trial judge's misapprehension concerning answer 5 was not material, as Dr Jeri elsewhere – including in the same report – gave evidence to the effect of what his Honour incorrectly assumed answer 5 to state. Thus in the same report, it was stated in answer 7 that "the left fallopian tube was absolutely patent and was of normal appearance". Dr Jeri confirmed in his oral evidence, set out above, that he was able to visualise and palpate the fallopian tube and detected no abnormality. Thus, although his Honour misapprehended that answer 5 was intended to refer to the tube and not the clip, the misapprehension was of no consequence. 2. Save for limited cross-examination as to whether he could be 100% sure, and that he had not mentioned the condition of the Fallopian tube in his report, Dr Jeri's evidence about his inspection, palpation and dissection of the left tube was not challenged. Specifically, it was not put to him that the tube might have been divided, or occluded, yet he missed it. In those circumstances, his evidence was rightly understood to be to the effect that, on examination, palpation and dissection, the left fallopian tube appeared to be intact. Ground 4 therefore fails. Ground 2: acceptance of Dr Jeri's evidence. 1. Ground 2, which impugns the acceptance of Dr Jeri in preference to the doctor and despite the HSG images, is ultimately intertwined with other grounds: Dr Jeri's account forms part of the matrix of evidence from which the most probable hypothesis is derived. However, insofar as this ground deals discretely with Dr Jeri's evidence, it is improbable, to a high degree, that Dr Jeri would have failed to observe that the tube had been divided or occluded if it had been, and it was not suggested to him that he might have. Dr Jeri described a quite extensive search for the clip on the left tube, including by palpation and dissection. The histology report – which describes the left tube specimen as a single specimen 40x10x7mm, and concludes that it was "normal" – tends to confirm that what was removed was not divided or occluded. This is reinforced by the HSG, which shows the remaining (post partial salpingectomy) proximal part of the left tube to be patent, even two years later, the dye stopping not at the clip but at the point where he had dissected the left tube two years earlier. [49] 2. As the appellant conceded, no direct challenge was made in cross-examination to Dr Jeri's evidence concerning his findings on inspection, palpation and dissection of the left fallopian tube. Belatedly, in the course of submissions, his standing, expertise and impartiality were impugned; these attacks were justifiably rejected by his Honour, not least because they had not been raised in cross-examination. [50] The appellant sought to impugn Dr Jeri's credit by reason that on 4 May 2016 – two months after it was made – he had revised his initial operation report, which did not refer to the location of the Filshie clips or the condition of the Fallopian tubes, to record that the left Filshie clip was located in the broad ligament, which was repeated in his report of 26 September 2018. This was said to be misleading because it was an assumption, not an observation. If this had any impact on Dr Jeri's credit, it did not dictate that his evidence must be rejected. Not only was his assumption that the left clip was located in the broad ligament not argued to be an unreasonable one, but the doctor even claimed to have seen it there during the salpingectomy. 3. Taken as a whole, it was entirely open to accept Dr Jeri's evidence as an accurate account of his intraoperative observations. The real issue about Dr Jeri's evidence is its reconciliation with the HSG, considered later. [51] The doctor (Grounds 14, 20) 1. The central question to which the doctor's evidence related was the proposition that, in accordance with her usual practice, after applying the Filshie clips, she "flipped" the tube and checked that the clips were locked; [52] if so, that would weigh against a conclusion that she failed to use reasonable care. She also gave evidence that at the caesarean section, at which she was the assistant surgeon, she observed the left Filshie clip to be involved in adhesions on the left Fallopian tube. 2. As has been noted, the doctor unsurprisingly did not claim to be able to recall the detail of the procedure she performed on 26 August 2014. [53] As the trial judge said, the effect of her evidence in chief was that there was nothing outstanding or abnormal about this particular operation that caused her separately to remember details other than her usual procedure. His Honour, who saw and heard her give evidence, formed the impression that her evidence was essentially based on the limited content of her operation records, [54] and that her evidence in chief was to the effect that she assumed that she had carried out the procedure in accordance with her usual practice, which she proceeded to describe. [55] His Honour observed that her description of the operation appeared to be based on a general understanding of her usual approach to the procedure, and not an actual recollection of the events, details or observations, including that there was nothing that stood out as having occurred or having been observed which made it memorable. These findings, which are unremarkable, are not challenged. 3. Ultimately, the trial judge did not accept that, on this occasion, the doctor followed the usual practice she described. The appellant contends that his Honour erred in finding that the doctor did not follow her usual practice as described by her in applying Filshie clips, including "flipping" and checking them after application (Ground 14); and in making global adverse credibility findings based on peripheral issues, such as deficiencies in her note-taking and departures from her practice in respect of another matter (use of an information pamphlet) (Ground 20). 4. As to ground 14, the finding that on this occasion the doctor did not follow her usual practice does not depend solely on whether or not her evidence was regarded as credible, but on evaluation of the whole of the evidence, to which I return below. 5. As to ground 20, which impugns the trial judge's assessment of her credit as a witness, the following matters at least, which cannot be passed off as "peripheral issues", were adverse to her credibility, and also to her contention that she had on this occasion followed an invariable practice such as she described. 6. First, against the background of her evidence that there were no anatomical or other abnormalities that she would specifically recollect beyond reliance on her usual practice, in cross-examination she sought to justify the lateral placement of the left clip – in a place which did not accord with her usual (or recommended) practice – by the presence of a large varicose vein on the left fallopian tube. [56] Moreover, contrary to her evidence, the experts agreed that the images revealed no such varicose vein. [57] 7. Secondly, it emerged in cross-examination that she had only completed the sticker on the information pamphlet she said she had given the patient two years after the consultation, rather than contemporaneously. At the least, this showed that in that respect she had not abided by her usual practice. [58] 8. Thirdly, she at first claimed to have checked that she had achieved a proper closure by ensuring that a clicking sound was heard, and that she had heard an audible click when closing the clip, which she relied on as indication of complete clip closure. She later departed from this. The undisputed evidence was that the process in use at the relevant time did not produce an audible sound and that the relevant applicator did not produce a clicking sound (although a superseded version might have done so). [59] Professor Cooper agreed that reliance on an audible click would be an error. [60] Not only was the claim to have heard a click inconsistent with her lack of recollection of the detail of the operation; it was impossible. 9. Fourthly, the doctor said that at caesarean section the left clip was partially visible, involved in the adhesions on the broad ligament; she could not say whether the clip was open or closed. However, Dr Jeri – who as the operating surgeon was in a superior position to make an observation – said that despite palpation and dissection, he could not find the clip. 10. Taken together, these matters legitimately raised questions as to the doctor's credibility, which was quintessentially a matter for the trial judge. Ground 20 fails. The experts (Ground 10) 1. His Honour explained, in comprehensive detail, [61] his reasons for preferring the opinions of Professor O'Connor to those of Professor Cooper, which were introduced and summarised as follows: [495] In 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. 1. There followed a detailed exposition of each of the matters relied on, culminating in the conclusion: [561] Having 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. 1. There is no direct challenge to that conclusion which, being an evaluation of a witness who was cross-examined before him, was quintessentially a matter for the trial judge. However, the appellant contends that the trial judge erred in misstating the evidence to criticise and diminish the significance of Professor Cooper's inability to reconcile the proposition that Dr Jeri had ascertained that the tube was intact with the objective evidence of the intraoperative photographs and the HSG, while failing to address the evidence of Professor O'Connor that the question of how a clip could come off an intact tube without springing open was "unanswerable" (Ground 10). The question of reconciliation of Dr Jeri's evidence with the HSG, and Professor O'Connor's evidence on the question of how a clip could come off an intact tube without springing open, do not depend exclusively on the evaluation of the exerts as witnesses, but form part of the overall analysis of the evidence and are addressed later. At this point, I address the ground insofar as it involved arguments that might undermine his Honour's above-quoted conclusion that Professor O'Connor provided more measured and reliable expert guidance than Professor Cooper. 2. The appellant submitted that his Honour was unfairly critical of Professor Cooper in respect of a "newly emergent view that only arose during cross-examination", in the following passage in the primary judgment: [62] "[536] At that point in the cross-examination, it was put to Associate Professor Cooper that those images [the intra-operative photos] 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 - T485.71 [537] 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. [538] 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." 1. The appellant submitted that the distinction between a clip being "closed" and "locked" was in fact introduced by Professor O'Connor, in the first joint expert report. However, that does not detract from the point that Professor Cooper had not previously asserted that the clip was locked, and more significantly from the point that his readiness to state so categorically, in answer to the proposition that the intra-operative photo "doesn't reveal that the clip is locked though, does it?", that "It's locked" – not on the basis of the photo about which he was being asked, but based on a deduction that it would be obvious on the HSG images if it were open – reflected so firmly held an opinion as to betray a want of objectivity. 2. The appellant then submitted that the judge did not then set out further cross examination from which it was said to be clear that Professor Cooper disagreed with the proposition that the clip might not appear to be open, and thereby misstated the evidence. In that further cross-examination, Professor Cooper maintained that the clip was designed to be open and required pressure to close it, and that if it were surrounded by tissues and other organs in the pelvic cavity in contiguous proximity to the clip, they would not exert sufficient pressure to close it: [63] "O'KEEFE: Well, in that answer do you admit the possibility that the clip could be surrounded by tissues, other organs? WITNESS COOPER: Correct, yes. HIS HONOUR: You mean in contiguity not continuity? O'KEEFE: Yes, Yes, your Honour, I do. O'KEEFE: In those circumstances, the other tissue or organs surrounding in contiguity with the clip could be applying some pressure, such as the clip has the appearance of being closed? WITNESS COOPER: No. O'KEEFE: It's possible isn't it? WITNESS COOPER: No. No, the clip has a, a, it, it's designed so that it's open. It's actually hard to sort of close it unless you forcibly close it with the, with the instrument. So once it's closed, having seen lots of them closed in patients after the procedure, they're closed and I, if it can bounce sort of open then I would expect it to be obvious on the, on the HSG. But the HSG appears to reveal to be closed. O'KEEFE: So you don't accept the possibility that during the course of a clip being opened and coming loose of a fallopian tube and migrating to another place within the pelvic cavity and being subjected to the pressures of other tissues or organs – KALFAS: Well, I object, your Honour. O'KEEFE: – that it could have an appearance of being closed? WITNESS COOPER: Correct, correct, correct, I do not believe that in the – HIS HONOUR: I don't see the objection, Mr Kalfas. WITNESS COOPER: I, I don't believe that it could look like that. HIS HONOUR: Mr Cooper, just something occurs to me, you're speaking about the state of closure in your view of the clip as seen on the hysterosalpingogram. It seems to me that's a different view, that is, visual view to that which was available to Dr Dhupar when she had the abdomen insufflated with gas and that the organs were all separated by that process. You agree with that? WITNESS COOPER: That's correct but organs we're talking about are soft and the capacity to close a clip like that would require massive degrees of pressure. And I don't believe it would possible for any organ to compress the clip to make it close." 1. It is not apparent to me how Professor Cooper's opinion that on HSG the clip would have appeared clearly open if it were not locked is invalidated by the concession that the HSG does not show the left Filshie clip attached to and occluding the left tube, [64] but that (as he accepted) the clip could be surrounded by tissues and other organs in the pelvic cavity in contiguous proximity to the clip. To that extent, his Honour's reasoning was inapt. However, that opinion, though not invalidated for the reasons his Honour supposed, still has to be weighed with other evidence, considered later, which was to the contrary effect. 2. The appellant also complains that the judge was critical of conclusions drawn by Professor Cooper from studies referred to by him as to the possibility of recanalisation, [65] while overlooking that both experts agreed that it was accepted that recanalisation in fact occurs, although it had not been reported in relation to Filshie clips, [66] and that the 2007 Article, referred to by Professor Cooper in his report of 13 June 2018, in fact reported failed sterilisation by way of fistula and also by way of recanalisation after Filshie clips. His Honour said: [555] To 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] [556] Three articles were referred to in that paragraph of Associate Professor Cooper's report, and they were listed at the conclusion of the report. [557] 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. [558] 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. [559] 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. 1. The 2007 Article which reported two cases of failed sterilisation after Filshie clips, by way of fistula and recanalisation, was not in evidence before his Honour, though it was received on appeal, and though it was referred to in a footnote to Professor Cooper's report, for another purpose, at trial no reference was made to this aspect of it. The absence from the above passage of specific reference to the agreement of the experts that it was "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" does not mean that his Honour overlooked it. To the contrary, his Honour specifically referred to it. [67] What was in contrast was Professor O'Connor's acceptance that it probably sometimes happened, with Professor Cooper's enthusiastic adoption of it as the explanation in the instant case. His Honour was explaining why the literature relied on by Professor Cooper did not persuade him that recanalisation was a likely explanation. His Honour did not overlook the agreement of the experts in their joint report that recanalisation was a theoretical possibility, but observed that the theory was ultimately and effectively abandoned by Professor Cooper in the course of the following evidence: [68] "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 reported to occur as late as I2 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. OKEEFE: 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 recanalization 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". 1. Although in one respect I consider his Honour's reasoning mistaken, that does not detract significantly from the conclusion, which was well-supported by the other matters to which his Honour referred, that Professor O'Connor's opinions (most relevantly, ultimately, as to whether the clip was closed and locked), were more measured and qualified than those of Professor Cooper, whose objectivity was legitimately called into question by reason of his enthusiastic embracement of and adherence to a theory (recanalisation) which appeared to be an improbable explanation. It was reasonable for the trial judge to consider that Professor Cooper's adamant certainty, contrasted with Professor O'Connor's more measured approach, together with the other considerations to which his Honour referred, detracted from the reliability of the former's evidence and opinions. Grounds relating to procedural rulings 1. The appellant challenges two procedural or evidentiary rulings made by the trial judge in the course of the trial, namely that Dr Jeri would be permitted to express some expert opinions not contained in his statement, and that Dr Jones (radiologist) would not be permitted to give oral evidence not covered by his report, as to whether the HSG showed the clip to be open or closed. Permitting Dr Jeri to give opinion evidence (Ground 3) 1. Ground 3 complains that his Honour erred in accepting Dr Jeri's opinion as an expert opinion over the objections of the appellant despite his not having been involved in the expert conclaves or the giving of joint expert evidence at the hearing and not serving a report containing the opinion he expressed in oral evidence. 2. When Dr Jeri was called, counsel for the doctor indicated that there was an objection to him giving evidence beyond his existing report. [69] It was clarified that the objection did not extend to factual evidence, but related to expert (opinion) evidence. [70] Thereafter, Dr Jeri proceeded to give evidence of his conduct of the caesarean section and salpingectomy, and the observations he made, without objection. Objection was taken to his giving opinion evidence as to the interpretation of the HSG. In permitting such evidence to be given, his Honour observed that any prejudice was more than able to be met by the period of time that would inevitably elapse between when the question was asked and answered and when the defendant would be in a position to call medical evidence. [71] His Honour's discretionary judgment to permit that evidence to be given is unimpeachable. 3. As a result, Dr Jeri gave evidence to the effect that the HSG was indicative that the Filshie clip was not in place because part of the isthmic area could be seen, [72] and that the results of the HSG did not cause him to doubt the accuracy of the observations he had made at the time of the salpingectomy in 2016: [73] "Q. Can I put it this way: despite the TSG [sic] report, are you still quite certain that when you performed the left salpingectomy in 2016 the Filshie [clip] was not attached to any part of the left fallopian tube? A. Yes, I – yes, I did." 1. That was the extent of his evidence in chief. It is inconceivable that he would not have been asked questions to that effect in cross-examination in any event based on the HSG, had he not been asked them in chief, to challenge his evidence as to his findings at the time of the salpingectomy. In any event, these aspects of Dr Jeri's evidence do not feature in his Honour's ultimate judgment. 2. As has been noted, in cross-examination, Dr Jeri said that he could not say with certainty whether the clip as it appeared on the HSG was open or closed; that it may be closed, or it may be "partially open". [74] These opinions as to whether the clip was open or closed were elicited by the doctor's counsel in cross-examination, in the course of seeking unsuccessfully to obtain a concession that the clip appeared to be closed – when no opinion on that topic had been adduced in chief. The doctor cannot complain that Dr Jeri gave adverse opinions in response to questions asked in cross-examination by her own counsel. 3. This ground fails. Refusal of leave to question radiologist (Ground 12) 1. As has been noted, Professor O'Connor indicated that on the question of whether, on the HSG imagery, the clip appeared to be open, the opinion of a radiologist would be preferable. Ground 12 complains that the trial judge erred in refusing to permit oral evidence in chief to be adduced from Dr Jones regarding the appearance of the clip in the HSG imagery. 2. When Dr Jones, the radiologist who had reported on the HSG at the request of the doctor, was called, the doctor's counsel endeavoured to ask him in chief: [75] "Q. Are you able to say whether the Filshie clip appears open or closed on those images?" 1. Objection was taken to that question, including on the ground that his report did not cover that matter. The trial judge asked whether there were "exceptional circumstances" that justified leave being given to adduce the evidence for the purposes of UCPR r 31.5, and counsel referred to it being a matter that had been addressed by other experts, including the plaintiff's expert, and that it was a material matter. [76] Counsel for the patient responded, inter alia, that the patient had not retained an expert radiologist because the doctor was not adducing expert radiological opinion. His Honour refused leave. [77] His Honour's discretionary decision to refuse leave is unimpeachable: the matters referred to by the doctor's counsel hardly amounted to "exceptional circumstances", whereas that identified by the patient's counsel was one involving real prejudice if leave were granted. 2. Although it was contended that the refusal of leave for the appellant to adduce evidence on this question from Dr Jones stood in contrast to the judge having permitted Dr Jeri to opine, having regard to the HSG, whether the clip was open or closed, that was in the context that, as his Honour observed, [78] any prejudice was more than able to be met by the period of time that would inevitably elapse between when the question was asked and answered and when the defendant would be in a position to call medical evidence. That was not the case when Dr Jones was called. Moreover, as has been explained, the relevant evidence was elicited from Dr Jeri not in chief, but in cross-examination. 3. No reference was made in argument before his Honour to the significance now attributed to Professor O'Connor's deference to the opinion of a radiologist on this question. That was no doubt because Dr Jones was called before Professor O'Connor. No application to recall Dr Jones was made after Professor O'Connor indicated, in substance, that the question was really one for a radiologist. 4. This ground fails. General (Grounds 1, 2, 5, 6, 7, 8, 9, 11, 13, 14, 15, 16, 17, 18, 19) 1. The remaining grounds of appeal were to the effect that his Honour erred: 1. in "reversing the onus of proof": 1. by finding that the appellant could not demonstrate that the left Filshie clip was completely closed and locked over the tube, in circumstances where the evidence did not demonstrate that it was not (Ground 1(a)); 2. by finding that the appellant could not demonstrate that the left clip as depicted on HSG was closed, when the evidence could not demonstrate that it was open (Ground 1(b)); and 3. by not accepting the evidence of Professor Cooper and the appellant and finding that that meant the opposite of their evidence had been proven and that the evidence of Dr Jeri and Professor O'Connor could be accepted without further analysis (Ground 1(c)); 1. in accepting Dr Jeri as reliable and preferring his evidence to that of the doctor (Ground 2); 2. in failing to consider how the clip could have come off the tube (if the tube remained entirely intact) without springing open when the evidence did not suggest that it was open (Ground 5); 3. in finding that the clip was improperly or partially closed rather than that it had been properly applied, correctly occluding the tube and thereafter migrated remaining closed (Ground 6); 4. in finding that the left clip was improperly or partially closed while appearing to be closed and not open without identifying how the appellant should or could have identified the incomplete closure (Ground 7); 5. in accepting that the tube remained intact despite no clip being found on it, the appellant's evidence that it was closed and intraoperative photographs and HSG images demonstrating it remained so "and thereby failing to resolve the ineluctable inconsistency between the respondent's theory and the evidence that evidence that the clip remained closed" (Ground 8); 6. in finding that the clip had become detached from the respondent's tube without postulating or seeking to identify the mechanism by which that could have happened and therefore failing to assess its plausibility (Ground 9); 7. in failing to have any or proper regard to the actual depiction of the images in the HSG when compared to those in evidence of an open Filshie clip and the exhibited specimen clip, as being closed (Ground 11); 8. in failing to have adequate or proper regard to the various possible non-negligent causes of the respondent's pregnancy identified by the experts in their joint report and in the literature, while proceeding to infer inadequate application of the left Filshie clip by the appellant (Ground 13); 9. in finding that the appellant did not follow her usual practice as described by her in applying Filshie clips, including "flipping" and checking them after application (Ground 14); 10. in finding that the appellant breached her duty of care by choice of location of her placement of the left clip (Ground 15); 11. in finding that the appellant breached her duty of care by failing properly to close the left clip (Ground 16); 12. in finding that the appellant breached her duty of care by the manner of her placement of the left clip (Ground 17); 13. in finding that the manner and location of the placement of the clip was the cause of the pregnancy (Ground 18); and 14. in failing to have regard in a circumstantial case to the fact that the appellant had never had a previous instance of a failed sterilisation following application of a Filshie clip (Ground 19). 1. Notwithstanding the number and detail of these grounds, they cannot avail the appellant unless they vitiate the trial judge's conclusion that, more probably than not, the patient's pregnancy post tubal ligation was attributable to a departure by the doctor from proper professional practice in the application of the left Filshie clip, in particular by failing to achieve proper and complete closure of the clip. Essentially, these grounds attack various aspects of his Honour's reasoning underpinning that conclusion. As has been noted, that conclusion was an inference drawn from the circumstances. As the competing cases of the parties, earlier summarised, [79] indicate, the significant integers were: 1. the potential explanations as to how the patient could have fallen pregnant some nine months after tubal ligation with Filshie clips; 2. the doctor's account of the performance of the procedure; 3. the appearance of the left clip on the intraoperative photographs; 4. the findings at caesarean section and salpingectomy; and 5. the appearance of the clip on the HSG. 1. In a circumstantial case such as the present, it is the ultimate question – not the various intermediate facts – which must be proved according to the balance of probabilities. A set of circumstances may be explained, more probably than not, by an hypothesis which includes matters which, standing alone, seem improbable. Thus it is essential not to be distracted by irrelevant questions on subsidiary issues, such as whether on the HSG (or on the intraoperative photos) it was more probable than not that the clip was open; or whether on Dr Jeri's evidence it was more probable than not that he found the tube to be intact. That is because resolution of the question whether, more probably than not, the clip was not properly closed, depends on the mutually supporting effect of the whole of the circumstances, and not on one or more of them in isolation. 2. That is subject to this exception. An hypothesis otherwise capable of explaining the circumstances may be excluded if it appears to be inconsistent with an irrefutable fact. Thus the hypothesis which his Honour ultimately accepted – that the doctor failed to achieve complete closure of the left clip – would have had to be excluded if the intra-operative photographs conclusively demonstrated that complete closure was achieved, or if the HSG conclusively showed that the clip remained fully closed. However, if the evidence fell short of being conclusive of those issues, the hypothesis remains an available one, to be considered and weighed with the alternatives. The potential explanations (Ground 13) 1. In their joint report, Professor O'Connor and Professor Cooper identified the following possible reasons for a pregnancy following a tubal ligation using Filshie clips: 1. the patient is pregnant before the clip is applied. That was not the case here, and can be excluded; 2. the clip is applied to the wrong structure; 3. the clip is applied, but not locked in place, and then reopens, resulting in normal canalisation through a normal fallopian tube, the likelihood of which is increased if additional structures are included with the tube when the clip was applied. This is potentially relevant; 4. clip applicator failure; 5. clip failure. This has not been reported with Filshie clips; 6. recanalisation, through natural rejoining of the fallopian tubes or through a tubal fistula. As has already been mentioned, the experts said that this had not been reported in the case of Filshie clips, but that it was reasonably accepted that it does in fact happen; in fact, as has also been mentioned, the 2007 Article received in evidence in this Court shows that at least two such cases involving Filshie clips have been reported; 7. the tube can be only partially occluded, but this is quite difficult and in practice is unlikely because of the nature of the anatomy; and 8. IVF treatment with assisted conception. This can be excluded in the present case. 1. The most common reason for a clip migrating from the tube is if it is not properly locked, and "then it just falls off … [leaving] patent the fallopian tube". [80] If the clips are locked properly, they do not open spontaneously; [81] but if not locked properly, the clip can dislodge, which is the main reason for the procedure not being effective. [82] The academic literature to which reference has been made is indicative that the most likely cause of failure of a tubal ligation with Filshie clips – particularly if pregnancy occurs in the first nine months after the procedure – is operator error in application of the clip; and that under-closure is a known cause for failure, that is generally attributable to operator error. 2. As has already been noted, in the present case, the foremost alternative explanation as to how the patient might have become pregnant which did not involve negligent application of the left clip was recanalisation, either direct or by fistula. While this was proposed as a possible explanation by Professor Cooper in his first report, it originated from his misinterpretation of the post-salpingectomy histology as reporting a complete transection of the left tube by the clip, on which basis he concluded that this was highly suggestive of tubal lumen regeneration. In his oral evidence, extracted earlier, [83] he adhered to fistula as the explanation. The doctor's account (Grounds 8, 14) 1. As has also been explained, it was the doctor's evidence that, in accordance with her usual practice, after applying the Filshie clips, she "flipped" and checked that the clips were locked; and that at the caesarean section, at which she was the assistant surgeon, she observed the left Filshie clip to be involved in adhesions on the left Fallopian tube. In the absence of an actual recollection of how she performed the operation and what she saw and did, evidence of the doctor's usual practice provides some evidence of what she might have done on the occasion in question. However, it has to be weighed with other evidence from which inferences are available. Moreover, as has been explained, there were several matters which significantly detract from the proposition that on this occasion the doctor followed an invariable practice such as she described. Of course this does not of itself mean that more probably than not the clip was not properly applied; but it leaves open, as one of the available explanations of the circumstances, the possibility that she did not follow that practice. The intra-operative photos (Ground 8) 1. Professor O'Connor's opinion was that photo 008 showed the clip on the left tube to be located about 2.9cm from the utero-tubal junction (or cornu), on the mid portion of the left tube rather than on the isthmus, and appeared to show that some extraneous tissue, including the leash of left ovarian blood vessels, was caught in the bite of the left clip in addition to the tube, which was an incorrect application as the bulky inclusion of adjacent anatomical structures would reduce the likelihood of achieving correct occlusion. [84] Moreover, this inclusion of extraneous tissue would provide an explanation as to why the clip could fall off the tube, and some indication of incompetence in the application. This evidence was not contradicted. 2. In their first joint report, Professor O'Connor and Professor Cooper agreed that the intraoperative photos demonstrated that the right clip had been correctly applied. They also agreed that the photographs did not show with certainty that either clip was locked in place, although neither suggested that they demonstrated that they were not locked. Professor O'Connor said that the image appeared to show that additional vessels had been picked up with the fallopian tube, the significance of this being that the tube is the only structure that should be picked up, and the inclusion of additional vessels meant that the clip was not applied correctly and provided a possible explanation for the pregnancy. Professor Cooper did not expressly disagree, but inferred – from the apparent placement of both clips on the correct structures and the appearance that they were closed – that sufficient pressure had been applied for the clip to be closed. 3. In oral evidence, Professor O'Connor said, regarding the clip, that: [85] "the recommendations of the manufacturer and everybody else is that it be applied very close to the junction of the tube and the uterus … [and here] that application was considerably further distant from the uterus than is recommended. Furthermore, the fallopian tube – in … the photographs of it, it does seem to me that there's an incorporation of part of the mesosalpinx or … the tubo-ovarian pedicle but, basically, there's more tissue incorporated in it and that, in fact, is the sense of the advice, that is, that if you do put the clip close to the junction of the tube in the uterus, there is much less chance of incorporating other tissue into it." 1. Professor Cooper agreed that the left clip was "lateral to where the preferred position would be, yes", [86] but speculated "Look, I think there's reasons as to why it could be placed in a different position". [87] He agreed that the photographs did not show both sides of the left clip, and did not show the jaws to be locked, but said "I think you can infer that". [88] He explained that he inferred – from the "slightly swollen" appearance of the muscular portion of one side of the tube adjacent to the clip, which he also described as "a degree of expansion of the tube lateral to the clip", "insinuating to me that that clip was closed" – that there was "some pressure at that point [which] reasonably convinced me that that clip was closed". [89] However, he agreed that he could not tell from the intraoperative image whether or not there had been under-closure of the clip; and that he could not exclude the possibility that the clip could have been under-closed. [90] 2. The trial judge concluded: [91] "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." 1. Self-evidently, that paragraph refers back to the analysis contained at primary judgment [495] to [561], discussed earlier, [92] in which his Honour sets out in detail his reasons for doubting Professor Cooper's objectivity. The appellant's criticism that his Honour did not identify any basis for the conclusion expressed as to his reliability is unfair. 2. It was common ground between Professor O'Connor and Professor Cooper that the intraoperative photographs did not conclusively show that complete closure of the left clip had been achieved, though neither suggested that they showed that closure had not been achieved. Professor Cooper's opinion that the clip was locked depended on inference from the associated observation of the "dilated" appearance of an area on the proximal side of the clip which appeared to have been compressed from which he inferred that the clip was closed. [93] However, he agreed that this was a qualified and not a definitive view. [94] Moreover, it is not apparent, and the evidence did not establish, that the "slightly swollen" appearance resulting from compression that he described could not be associated with an under-closed clip (perhaps also associated with the incorporation of other tissue) as well as with a fully closed clip. Under-closure applies pressure to and partially occludes the tube, at least so long as the clip remains in place, so logically it too might be expected to produce some dilation proximal to the location of the clip. Indeed, Professor Cooper acknowledged this (emphasis added): [95] "O'KEEFE: Professor Cooper, just turning again to p32, the article you cite in your second report and the images there showing under-closure of the clip. That under-closed clip would exert a degree of compression on the fallopian tube, would it not? COOPER: It, it would, but not as much, obviously. O'KEEFE: And you couldn't tell from the intraoperative image whether or not there had [been] under-closure of the clip, could you? COOPER: No, you can't tell. O'KEEFE: So it's entirely possible, dare I say it, probable, that what occurred in this case is that the clip was not applied correctly and resulted in under-closure of the clip? COOPER: But if that was the case, you would expect the HSG to be different. HIS HONOUR: I think we've gone through your reasons for that view earlier, but can you address the substance of the question as to whether it was entirely possible or probable— COOPER: I, I accept that it's – I concede that it's a possibility." 1. Thus he agreed that he could not tell from the intra-operative photographic image of the left Filshie clip whether or not there had been under-closure of that clip, and that it was possible that this was a case of under-closure. [96] As the above quoted passage also illustrates, Professor Cooper's confidence that the clip was closed was also clearly influenced by his interpretation of its appearance on the HSG, [97] which is discussed later. [98] 2. It was also common ground that the intraoperative photos showed that the left clip was placed more distally to the cornu than recommended, and Professor O'Connor's evidence that the image appeared to show that additional vessels had been picked up with the fallopian tube, meaning that the clip had not been correctly applied and providing a possible explanation for the pregnancy, was unchallenged and uncontradicted. 3. Thus, the intraoperative photos did not exclude the possibility that the left clip was not properly and completely closed. Moreover, in demonstrating that the clip was placed more distally to the cornu than recommended, and included extraneous tissue, they provided a potential explanation for why complete closure and occlusion might not have been achieved, increasing the plausibility of the hypothesis that the patient's pregnancy was attributable to incomplete closure of the left clip. The findings at salpingectomy (Grounds 2, 6) 1. As has been explained, [99] Dr Jeri's evidence was to the effect that on inspection, palpation, and dissection, the left Fallopian tube was absolutely patent, of normal appearance, and intact; and he could not locate the left Filshie clip, which was not on the tube, but which he assumed was somewhere around the area of the broad ligament. He also said that there was no fistula. That evidence, which was not challenged, both told against the clip having transected the tube, and against the alternative theory of fistula. To some extent, Dr Jeri's evidence was supported by the absence of any abnormal findings in the post-operative histology. [100] 2. The appellant contends that the trial judge erred in accepting Dr Jeri's evidence in preference to that of the doctor. However, except on the minor issue of whether the Filshie clip was observable at salpingectomy, there was no direct conflict between them. The doctor's evidence which was not accepted related to conduct of the tubal ligation in accordance with her usual practice, whereas Dr Jeri's which was accepted related to his observations 18 months later at salpingectomy. In circumstances where his evidence was not challenged, it is hardly surprising that it was accepted. The appellant's argument appears to be that it was inconsistent with irrefutable facts, in particular the appearance of the clip on the HSP; however, as explained below, that is not the case. 3. Dr Jeri's evidence as to what he observed at salpingectomy is not conclusive of the ultimate question, and it must be weighed with the other evidence, but it weighs considerably in favour of the theory that the clip was not properly applied, because it is indicative that the tube had not been transected by the clip, and that there was no fistula. The hysterosalpingogram (Grounds 5, 7, 8, 9, 11) 1. The appellant contends that the HSG shows that the clip was closed. If so, that would weigh heavily, if not decisively, against the proposition that it had been incorrectly applied: no theory, let alone a plausible one, has been suggested as to how it might have become closed by the time of the HSG if it were not originally closed. Does the clip spring open after partial closure? 1. One important element of the contention for the doctor that the clip as it appeared on the HSG was closed and locked was the proposition that if it were not locked, it would have sprung wide open and that this would be apparent on the HSG. It was asserted that a Filshie clip is designed so that if it is not properly locked by the self-calibrating applicator, it will spring back open. 2. No statement to that effect appears in the product information. Notably, the diagrams depicting incorrect or under-closure (reproduced at [12] and [15] above) are suggestive that an under-closed clip does not necessarily "spring" open. 3. The appellant referred to two evidentiary passages as supporting the proposition. The first was the doctor's evidence: [101] "Q. You see, it's quite possible for an incorrectly locked clip to remain on the fallopian tube for some time after the procedure, potentially for weeks, isn't it? A. If it is – I'm saying is, if it is a spring action, okay, if you're saying about lock and unlocked, okay, locked means locked. Unlocked means it's sitting there. If you're moving tube that clip is going to be open. It's, it's a spring action, spring – it's not going to stay for seven days on the same position." 1. The second was the following evidence of Professor Cooper: [102] "COOPER: To me the clip appears closed. It, it, I, I'm not quite sure I, I could see how the clip can be sort of partially closed or partially open in the sense that a silastic sort of expands to sort of fill the space. So if it was, I, I, I can understand it would, might be distorted and that you wouldn't be able to pick this up, and that there was some misapplication or misfiring so that there was a portion which was sort of half open, if you will, or not quite closed, but the design of the clip makes me think that difficult for that to occur. HIS HONOUR: Well, do you understand Professor O'Connor's potential explanation that there may not have been, if I can summarise it this way, may not have been a sufficient degree force applied to the piston to close the clip as was intended. … Is that an available explanation? COOPER: I, I don't think so because the, if it wasn't closed then it would presumably spring back open again. HIS HONOUR: Well, that then leads to the consideration of the theory was it closed but not locked. COOPER: Then if it was closed but not locked I'm, I'm assuming then it would be, well, sprung open again." 1. It is clear enough that before the clip is closed the expansive effect of the silastic insert exerts pressure that keeps the arms of the clip in the open position, so that it requires the application of force to close the clip. However, whether it has that effect after partial closure, involving some but incomplete straightening and flattening of the upper arm, is not clear. Asked how, assuming that the clip was no longer on the tube at salpingectomy, that could have occurred other than by migration "in the recognised way" (a reference to migration following the clip transecting the tube) or by the clip opening and coming off the tube, Professor Cooper said that if the clip was open, an open clip would have been seen on the HSG. While he said that if the clip was open it would be obvious on the HSG images, [103] he appeared unsure as to whether the clip's upper arm could or would spring (or "bounce") back open after the applicator had bent it during deployment, stating (emphasis added) "… if it can bounce sort of open then I would expect it to be obvious on the … HSG. But the HSG appears to reveal [it] to be closed". [104] And when asked how the clip could become detached from an intact tube without springing open or cutting through the tube, Professor Cooper offered that it might have been "loose but not widely open". [105] 2. Professor O'Connor explained that if the clip were partially but incompletely closed, it would not spring open completely, because the architecture had been changed by the flattening of the arm: [106] "I find that difficult to prove sir. I mean my only comment sir would be that if the gynaecologist actually deployed the piston of the Sterishot incompletely, you would have some degree of closure and straightening of the top arm, without necessarily that going underneath the lip. So we're not talking about something that springs open in that sense, because the architecture has been changed." 1. Professor O'Connor later gave this evidence: [107] "KALFAS: … In other words, it remains a possibility in your view that it could be open? O'CONNOR: Yes, partially. Not, not completely locked in if we, if you see what I mean. KALFAS: I see, yes, well, just to clarify, are you saying now that it definitely isn't completely open in the way that Professor Cooper said, demonstrating with his hands where it's properly sprung open? O'CONNOR. Yes, I mean, there, it's it's it's fairly clear that it's not widely gaping open." 1. In response to that, Professor Cooper said (emphasis added): [108] "KALFAS: Dr Cooper, do you have a view about that degree of opening that Professor O'Connor's just referred to? COOPER: Well, look, I, I think I would agree in large measure in large measure in the sense that it doesn't appear to be widely open. Once there's been some degree of distortion of the floating arm of the clip, then I guess it could be in any sort of measure, but if it was like that, as I say, you'd expect the silastic would still occlude something so it couldn't, but it's impossible to tell. HIS HONOUR: What I'm getting from your answer, Professor Cooper, is that there are different stages of incomplete closure depending upon the force applied to upper arm. COOPER: I suspect so. HIS HONOUR: And the silastic material that's internal to the arms can be compressed to a degree. COOPER: Presumably, yes." 1. In my view, the evidence did not establish that, if it had been applied but incompletely closed, the clip would necessarily spring wide open to the condition in which it was before application. What does the HSG show? 1. In a joint expert report of 28 March 2019, the experts agreed that in the HSG imagery, the dye was filling "to the level of the clip on the left hand side". (At that time, the belief that the HSG depicted the clip affixed to the tube was still current). They gave the following opinions: "Associate Professor Cooper: The various images taken from different perspectives appear to show that the clip we're looking at, which is presumably the left clip, is actually closed. Prof O'Connor: I think it is a bit of an assumption to say it's closed. The dye extends to the level of the clip. Associate Professor Cooper: To my eye the clip is closed, and the images have been taken in at least six different angles, and in all of those images the clip appeared to be closed. I think the likelihood of it being open is exceedingly slim. Prof O'Connor: I can't be sure of that. If you're visualising a clip, it's a matter of the shadow that forms and it can be a bit difficult to be sure that it is closed. That it's locked in, in other words. A/Prof Cooper: I would take a different view, I think you can be fairly sure that it is almost certainly not open." 1. In respect of this, Professor O'Connor gave the following oral evidence: [109] "KALFAS: … Professor O'Connor, in the second conclave report where there is a discussion … between the two of you as to whether or not the clip is closed and Professor O'Connor says, after Professor Cooper has referred to what he said today about the six different angles shown on the HSG, Professor O'Connor, you said: 'I can't be sure of that. if you're visualising a clip, it's a matter of the shadow that forms and it can be a bit difficult to be sure that it's closed, that it's locked in, in other words.' Are you saying that it's not open as depicted in the HSG but rather, what you described earlier in your evidence today where it's not properly closed but not sprung open? O'CONNOR: Yes. … HIS HONOUR: Well, let's have an explanation, if there's dispute. Professor O'Connor, apart from the answer, 'yes', what else do you want to say in answer to that proposition? O'CONNOR: Your Honour, just to reiterate that I think that, as I said at the beginning, that it's an issue of, of locking as opposed to closure." 1. He also said: [110] "The issue for me is whether it's locked or not … basically, you have to deploy, the, the, the piston of the Filshie clip applicator so that it, it straightens out a bent top arm of the Filshie clip, and it is possible that deployment can be incomplete and yet look like closure, but it is not locked … [and] the real difference between any other clip for tubal sterilisation and the Filshie clip is that the titanium and silicone top arm is actually straightened out and locked." 1. Both experts agreed that it would be difficult to differentiate on the HSG images between a partially but incompletely closed clip, and a completely closed clip. [111] 2. As has been noted, Professor Cooper, having agreed that he could not tell from the intraoperative image whether or not there had been under-closure of the clip, conceded that though he would expect the HSG to appear differently if the clip was not applied correctly and resulted in under-closure, it was nonetheless a possibility. [112] 3. As also noted above, [113] Professor Cooper said that if the clip was open it would be much more obvious on the HSG images, [114] and that if "it can bounce sort of open" then he would expect it to be obvious on the HSG, on which it appeared to be closed. [115] As has also already been recorded, [116] he also said that the clip appeared to him to be closed, contending that if it had not been properly closed "it would presumably spring back open again", but acknowledged the possibility that it might be distorted or "sort of half open, if you will, or not quite closed" which would not be picked up on the HSG. [117] 4. Professor O'Connor responded, "I don't think I have much more to add, your Honour", [118] but offered this qualification: [119] "O'CONNOR: I want to be careful about that because that's really a radiologist's call I believe and so I don't want to be too dogmatic about that. I, I, would think that the radiologist's opinion would be the better one." 1. Professor Cooper maintained that it was "exceedingly unlikely to be open". [120] 2. Later, as has been recorded, [121] Professor O'Connor confirmed that in his view it remained a possibility that it could be "partially" open and "not completely locked in" – though it was clearly "not widely gaping open", [122] to which Professor Cooper replied that he agreed "in large measure in the sense that it doesn't appear to be widely open", acknowledging that there might well be "different stages of incomplete closure depending upon the force applied to upper arm", resulting in partial compression of the silastic material. [123] 3. Undoubtedly the effect of the evidence was that the HSG did not show the left clip to be fully open. However, while the experts differed in degree, and Professor Cooper certainly leant in favour of the view that it was closed, both ultimately accepted that there was a possibility that it was incompletely closed. Professor Cooper's confidence that the clip was closed was largely based on the unsubstantiated presumption that the clip would "spring back open". In any event, he ultimately acknowledged the possibility that it might be partially but not completely closed, in a way which would not be apparent on the HSG. 4. Thus the HSG imagery did not exclude the possibility that the clip was incompletely closed. The trial judge rightly concluded that the HSG images did not permit one to say that the clip was either open or fully closed. [124] That is not to cast any burden of proof on the doctor to show that it was closed, but to establish that the HSG imagery was not conclusive, and had to be weighed and reconciled with all the other evidence in resolving whether, more probably than not, the clip had been inadequately closed. Reconciliation of the HSG with the evidence that the tube was intact 1. At the core of the appellant's case was the argument that no mechanism had been identified whereby the clip would not be obviously open if it had not been correctly applied to occlude the tube. It was submitted that the judge failed to identify how the clip could have become separated from the tube without springing open, or how it could move, migrate or dislodge while remaining closed as was said to be demonstrated by the HSG, particularly in light of evidence that if closed but not locked the clip should spring back open, and Professor O'Connor's supposed inability to provide an explanation for how it could detach without springing open or cutting through the tube. 2. However, the force of that argument is much diminished once it is appreciated that, as has been discussed, the evidence did not establish that the clip would necessarily "spring back open" after it had been partially closed, nor exclude the possibility that the HSG depicted a clip that was partially but incompletely closed. Moreover, the mechanism by which it could be dislodged from the tube was not unexplained in the evidence. 3. The appellant relied on the following passage in Professor O'Connor's evidence for the proposition that he was unable to explain how the clip could detach from the tube without springing open unless it had transected the tube as intended: [125] KALFAS: How does it then detach itself from an intact tube without springing open, or cutting through the tube? O'CONNOR: I don't have a clear answer for you, Mr Kalfas. I think if I, if I answer the question and provide a supposition it's not provable so it's probably better to say that it's unanswerable. HIS HONOUR: I suppose the analysis is predicated on the proposition that if the clip is not completely closed in the sense of being locked, then there can be degrees of lack of closure, could that be right? O'CONNOR: I think your Honour yes, you're taking the sense of what I'm trying to explain. KALFAS: Just to emphasise, and maybe you've already answered it, the missing component, then that proposition is that, is the tube being intact? I'm struggling and I'm seeking assistance from the experts as to how it can be that in that circumstance the clip can be removed from the tube other than by its opening, or performing its proper task and then migrating in a way that is recognised, on the assumption, which is Dr Jeri's evidence, as summarised by my learned friend, that there was a complete tube without any obvious damage to it. That was intended to be a question. I think it began with the word "our" [sic, how]. HIS HONOUR: See if you can get an answer. 1. The answer was provided by Professor Cooper, as follows: [126] COOPER: Your Honour, maybe the expression might be loose but not widely open, might explain it. 1. I do not understand Professor O'Connor to be saying that the appearance of the clip on the HSG and its detachment from the tube was inexplicable or irreconcilable, but rather that he was unable to prove how it had happened. In his report of 20 June 2017, Professor O'Connor had explained (emphasis added): "Spontaneous opening of the clip shortly after application can be a very rare cause of failure. Such spontaneous opening of the clip does not need to have been caused by material failure, but may be explained by incorrect squeezing during closure of the clip. Instead of closure a mere jamming of the clip may then be obtained, falsely suggestion [sic] of closure. Especially in the teaching situation not only the correct placement but also the closure of the clip has to be checked. The described possibility of a jammed clip has to be excluded after application by detailed examination of the upper jaw of the Filshie clip. … 1. With regards to the enclosed contemporaneous records, do you consider that Dr Dhupar correctly applied the Filshie Clips to both fallopian tubes? Answer: The Filshie clips were applied to both Fallopian tubes and not to adjacent anatomical structures such as the round or ovarian ligaments. However the adequacy of the applications is more difficult to assess. For example insufficient compression of the Filshie clip by the applicator may fail to lock the anterior Filshie clip jaw below the lip of the posterior jaw. That may mean that the application is unstable and the Filshie clip may dislodge" 1. Dr Jeri provided a similar explanation: [127] "Q. Yes I understand that process, you've explained that, but I'm— A. But the most common reason I would say why it would happen is because – and this is – that's your question, is if it is not properly locked then is, is left open and then, and then it just falls off or migrate, and left patent the fallopian tube. Q. That's what I was getting at. A. Yeah, so— Q. So am I understanding this correctly, that from your findings of a patent fallopian tube and the assumptions that the Filshie clip that was supposed to have been applied to that tube had migrated, that it must follow that the clip was not properly locked, if migration is the explanation. A. It may be the most – according to my experience, and – that it may happen, that, that's, that the fallopian – the Filshie clip didn't clip properly and that's why it, it falls off or migrate or whatever but whatever is the mechanism – the, the fallopian tube was patent, which was shown in the hysterosalpingogram." 1. In my view it is tolerably clear that, although they may have differed as to the likelihood of it in this case, all three of Professor O'Connor, Professor Cooper and Dr Jeri were saying that it was possible for a Filshie clip that was not completely closed to dislodge from the Fallopian tube, leaving it unoccluded. As already explained, this would not necessarily involve it springing fully open. 2. Contrary to the appellant's submissions, the trial judge did identify mechanisms by which this might occur: [128] [751] 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. …" 1. His Honour then proceeded to summarise those explanations, which included disturbance of the clip when it was being "flipped" for inspection, 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; or that the doctor 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 tube, in an apparently but not actually closed state, with the result that the left clip subsequently dislodged from that tissue. Resolution (Grounds 15, 16, 17, 18, 19) 1. As has been mentioned, it is the ultimate question – not the various intermediate facts – which must be resolved according to the balance of probabilities. In this case, resolution of whether, more probably than not, the failure of the tubal ligation to prevent the patient's pregnancy nine months after the procedure was attributable to operator error in application of the left clip involves evaluating potential explanations each of which, standing alone, might appear unlikely: recanalisation (directly or by fistula) of the left tube on the one hand, and under-closure of the left clip on the other. However the evidence, including the academic literature, is indicative that, all else being equal, such a failure is most likely to be attributable to operator error. In his second report, Professor Cooper acknowledged that the short interval in this case between application and failure was suggestive though not indicative of a negligent event. 2. In the absence of an actual recollection of how she performed the operation and what she saw and did, the doctor's evidence that, in accordance with her usual practice, she "flipped" and checked that the clips were locked, provides some evidence of what she might have done on the occasion in question. However, as has been explained, [129] there were several matters which cast doubt on whether on this occasion the doctor followed an invariable practice such as she described. Her evidence has to be weighed with other evidence from which inferences are available. 3. The positioning of the clip outside the recommended distance from the cornu, and in particular its inclusion of extraneous tissue in addition to the fallopian tube, provides additional reason for supposing that the pregnancy was attributable to incomplete closure. Contrary to the appellant's submission, the evidence did not establish that the clip was applied to an anatomically appropriate portion of the tube and was adequately closed: Professor O'Connor's evidence, as has been summarised above, was clearly to the contrary; and Professor Cooper accepted that it was possible that the clip was not completely closed. 4. The alternative explanation of recanalisation or fistula, in the context of this case, also necessarily involves the clip having become detached from the tube not because of incomplete closure, but because it transected the tube as intended. In their first joint report, the experts agreed that spontaneous recanalisation by the proximal and distal ends of the tube re-joining had not been reported with Filshie clips, and was less common than re-joining through a tubal fistula, but that it was "reasonably well accepted" that, notwithstanding the appropriate placement of clips, the proximal and distal ends of the fallopian tube may ultimately recanalise. However, recanalisation or fistula typically requires some twelve months or more. As has been noted, the 2007 Article notes two non-negligent failures of Filshie clips – a fistula at fourteen months, and a recanalisation at ten months. Thus there is no reported precedent for recanalisation or fistula accounting for a pregnancy at nine months after the procedure. 5. Moreover, the HSG was undertaken to ascertain whether there was a fistula, and whether the tubes were patent or occluded. It was common ground between the experts that the test did not demonstrate any current fistula or recanalisation, and although Professor Cooper, whose view was the pregnancy must have been caused by a fistula, said that the HSG did not preclude the earlier existence of a fistula which might not be evident due to scarring from the salpingectomy, Dr Jeri, who performed the salpingectomy, said that there was no fistula then. Further, Dr Jeri's evidence to the effect that the left tube was found to be intact on 1 March 2016 told against the proposition, necessary to the alternative theory, that the clip had become detached from the tube not because of incomplete closure, but because it transected the tube as intended. 6. In all those circumstances, recanalisation or fistula appears a most improbable explanation. 7. Thus the mere fact of failure, occurring as early as it did, was suggestive of operator error in application of the clip. That hypothesis was reinforced by the circumstance that the left clip was applied at a sub-optimal point on the tube and incorporated extraneous tissue, increasing the chances of an incomplete closure. The appearance of the clip in the HSG images did not exclude that hypothesis, because the clip could have been incompletely closed. The alternative explanation of recanalisation or fistula is rendered highly improbable by the relatively short time between operation and pregnancy, and by the evidence of Dr Jeri and the HSG, all of which militated against a fistula circumventing an otherwise successful transection. More probably than not, the patient's falling pregnant nine months after the tubal ligation is in those circumstances to be explained by operator error on the part of the doctor in the application of the left Filshie clip. 8. Contrary to the appellant's submissions, this approach – and that adopted by the trial judge – involves no "reversal of the onus". The appellant contended that the judge erred in "reversing the onus of proof" by finding that the doctor could not demonstrate that the left Filshie clip was completely closed and locked over the tube, in circumstances where the evidence did not demonstrate that it was not (Ground 1(a)); by finding that the appellant could not demonstrate that the left clip as depicted on HSG was closed, when the evidence could not demonstrate that it was open (Ground 1(b)); and by not accepting the evidence of Professor Cooper and the appellant and finding that that meant the opposite of their evidence had been proven and that the evidence of Dr Jeri and Professor O'Connor could be accepted without further analysis (Ground 1(c)). 9. These complaints must be seen against the background that, but for the appearance of the clip on the HSG suggesting that it was closed, and the doctor's evidence as to her usual practice, the evidence very strongly pointed to a conclusion that the clip was not properly applied. The circumstances were such as to call for an explanation. It is a misconception that the judge's finding impugned by Ground 1(a), that there was no satisfactory evidence to show that the appellant had achieved full closure and locking of the left clip because of the absence of reliable photographic evidence, [130] involved any reversal of the onus of proof: his Honour did not reason that because the clip was not shown to be closed, it was therefore open. The significance of the photographic evidence was that the inference that the doctor had failed to achieve full closure was not excluded by the intraoperative photographs and remained an available one, to be weighed with the alternative hypotheses in the light of the whole of the circumstances. 10. Similarly, the finding impugned by Ground 1(b), that the left clip as depicted on the HSG was not shown to be closed, involved no reversal of the onus: his Honour did not reason that it was therefore open. Again, it simply meant that the hypothesis (that the doctor had failed to achieve complete closure) remained available, to be weighed with the alternatives. 11. Ground 1(c) is likewise misconceived. His Honour did not reason that it followed, from the rejection of the evidence of the doctor and of Professor Cooper, that the opposite had been proven. The conclusion that on this occasion the doctor did not follow her usual practice in applying and checking the clips does not depend solely on whether or not her evidence is regarded as credible, but on evaluation of the whole of the evidence. His Honour affirmatively preferred the evidence of Dr Jeri and of Professor O'Connor, and concluded that the circumstances were most probably explained by the doctor having failed to achieve complete closure of the left clip, as appears from the following passage in his Honour's reasons, which also refutes the complaint that his Honour did not have regard or proper regard to the HSG imagery: [131] "749. 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 I March 2016. 750. 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." 1. For the foregoing reasons, the trial judge was right to conclude that on the balance of probabilities, the patient's pregnancy post tubal ligation was attributable to negligent operator error on the part of the doctor in the application of the left Filshie clip, in particular by one or more of placing the clip too distally and including extraneous tissue in the bite of the clip (as appeared from the intraoperative photograph), failing to achieve full closure and locking of the clip (an inference from the circumstances), and/or failing properly to check that the left clip was completely closed and locked (as such a check should have revealed that it was not). The contention that the judge erred in failing, in a circumstantial case, to have regard to the fact that the appellant had not previously had a failed sterilisation following application of a Filshie clip, is without substance: it is no more relevant than would be the fact that, in a motor vehicle case, the defendant driver had not previously had an accident. Notice of Contention 1. In light of the conclusion which I have reached, it is unnecessary to consider the Notice of Contention by which the respondent seeks to uphold his Honour's conclusion on alternative grounds. DAMAGES 1. The trial judge assessed damages in the total sum of $408,700, calculated as follows: 1. Non-economic loss $261,000; 2. Past economic loss $45,000; 3. Future loss of earning capacity $80,000; 4. Future treatment expenses $15,000; and 5. Past out-of-pocket expenses $7,700. 1. Grounds of appeal 23 and 24 complain that the trial judge erred in interpreting Civil Liability Act 2002 (NSW) ("CLA"), s 71, as not precluding the patient's claim for loss of earnings (Ground 23); and in assessing her claim for non-economic loss at 38% of a most extreme case, and awarding damages for economic loss "in breach of s 71", so that her total damages were wholly disproportionate to the alleged harm caused (Ground 24). Economic loss – CLA, s 71 (Ground 23) 1. In the appeal, the doctor does not contest the calculation of the economic loss components but submits, as was submitted at trial, that it is excluded by CLA s 71(1)(b). Section s 71 is located in Part 11 of the Act. Section 70 relevantly provides that Part 11 "applies to any claim for damages in civil proceedings for the birth of a child". Section 71 provides as follows: "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." 1. The patient's claim for past financial loss was founded not on her giving up work (or refusing promotion) to look after the child, but on her ability to work being constrained by on-going mental health consequences originating from the discovery that, despite the tubal ligation, she had conceived a child. It covered: 1. the period towards the end of the pregnancy from mid-December 2015 to 1 March 2016 – before the child was born – during which she experienced physical illness and psychological symptoms. The claim was $6,000, being $600 gross per week; after deducting income tax of 19% the loss was $4,860; 2. the period of four weeks following the emergency caesarean section, while she was unable to work due to the consequences of post-operative infection. The claim was $2,400, less income tax of 19% being $1,944; 3. in respect of the period thereafter until the date of hearing, during which she returned to some paid work but incurred a difference between probable earnings and actual earnings ($156,745 minus $89,466) of $67,279, which the judge did not accept in full but reduced on account of various vicissitudes – including the possibility that to some extent her income would have been reduced by herself attending to the rearing and maintenance of the child – to $45,000. [132] 1. In respect of lost future earning capacity consequent upon her compromised mental health, the patient claimed a buffer of $100,000. The judge allowed $80,000. 2. On behalf of the doctor it was submitted that: "The respondent here has framed her economic loss as a loss due to her pregnancy, birth and a psychiatric condition arising from those, as opposed to from raising the child, however it is arguable that they all arise from the pregnancy. Any economic loss cannot be separated from the birth claim, because her psychiatric condition must arise from what she claims is her shock at an "unexpected and unwanted" birth. It is not disputed that there are no on-going physical effects from the pregnancy and birth. It is sophistry to say that her mental harm arises from her psychiatric state due to birth and pregnancy, but not to raising the child, in circumstances in which, for example, the respondent gave evidence that she is distressed that she does not feel the same attachment to her fourth child". 1. Essentially, the contention advanced on behalf of the doctor is that, on a literal construction of s 71(1)(b), the width of the term "any loss of earnings" and the temporal connector "while" means that any loss of earnings the patient suffered during the time that she was involved in rearing or maintaining the child is irrecoverable. 2. Section 71 was enacted in response to the decision of the High Court in Cattanach v Melchior, [133] with the intention of altering the common law position as established by that case, in which Mrs Melchior underwent a tubal ligation after she and her husband decided that they wanted no more children. As a result of negligence in the performance of the procedure, she gave birth to a healthy son. At trial (1) Mrs Melchior recovered damages for pain, suffering and loss of amenities of life associated with the pregnancy and childbirth; loss of some part-time earnings; loss of earning capacity because of a thrombosis associated with the pregnancy; and medical and pharmaceutical expenses; (2) Mr Melchior recovered damages for loss of consortium during his wife's pregnancy; and (3) Mr and Mrs Melchior jointly recovered the costs of raising and maintaining the child to age 18. Only the third category of damages was in issue in the High Court, which by majority upheld the award of damages for the costs of raising the child, essentially on the basis that once it was established that the birth of the child had been caused by the defendant's negligence, there was no proper basis for denying the parents damages in respect of the foreseeable expenses arising from that event. [134] 3. The legislative response encapsulated in CLA s 71 was informed by the "strong moral objection to such damages because they classify the birth and existence of a child as an 'injury' to the child's parents". [135] The intention was to deny a claimant damages for the costs of raising a healthy child and "damages for any loss of earnings suffered by the parents while rearing or maintaining the child", "for example, if a parent gives up work or refuses promotion to look after the child". [136] 4. Section 71 is a limited intrusion on the common law and (contrary to the appellant's submission) does not involve denying a mother damages for the pregnancy and birth of the child, but only for the costs of raising the child, and lost earnings "while the claimant rears or maintains the child". The Second Reading speech explicitly acknowledged that where a pregnancy is a result of negligence, the mother would still be entitled to recover damages for the pregnancy and the birth, though not for the cost of raising the child. [137] 5. The first (pre-natal) component of the patient's claim for past economic loss is on no view caught by s 71(1)(b), which refers to the period "while the claimant rears or maintains the child", and does not apply to the period of pregnancy before the birth of the child. 6. Nor is the second (four week post-natal) component: during that period, the patient was unable to breast feed, and her mother-in-law cared exclusively for the child; as she was not on any view rearing or maintaining the child during this period, it would not be caught by s 71(1)(b). 7. As to the third component of the claim for past economic loss, and the claim for future loss, the policy underlying s 71 is the moral judgment that parents of a healthy child should not be entitled to recover damages for raising, rearing and maintaining that child. That policy does not require that recovery be denied in respect of the loss of earnings which, though coincident with the raising of a child, is attributable not to the need or choice to raise the child, but to another cause, such as a physical or psychological injury (albeit one that is connected with the birth of the child). The phrase "while the claimant rears or maintains the child" is intended to capture loss of earnings arising from the need or choice of a parent to rear the child and its consequent impact on the parent's income, as distinct from lost earnings attributable to a disability arising from the pregnancy or birth. It follows that, in proceedings involving a claim for the birth of a child, CLA s 71(1) does not preclude the award of damages for economic loss for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child. 8. The patient's case was that she had returned to work approximately five months after the child was born for one day a week, but she was not mentally capable of working more than one day a week, as she would have had she been mentally capable. Thus her inability to work to the full extent of her capacity arose not from the fact that she was rearing or maintaining the child, but because she was incapable of working any more than she did due to her psychiatric condition. [138] No ground of appeal challenges the judge's finding that the patient had developed a major depressive disorder that had worsened and had been pervasive since the child was born, and which to fluctuating degrees would be with her for years. [139] Nor does any ground of appeal challenge the judge's finding 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 birth of the child. [140] Importantly, in assessing damages, his Honour took into account as a vicissitude the possibility that the patient's earning capacity might in any event have been impacted by rearing or maintaining the child. 9. This ground therefore fails. Non-economic loss (Ground 24) 1. This ground contends that the trial judge erred in assessing the respondent's claim for non-economic loss at 38% of a most extreme case "and awarding her economic loss in breach of s 71 … so that her total damages were wholly disproportionate to the alleged harm suffered". Insofar as this ground impugns the award for economic loss, said to be "in breach of s 71", that has been addressed under the preceding ground. That then leaves the question of the assessment of non-economic loss at 38% of a most extreme case. 2. The trial judge accepted the patient's written submissions as aptly summarising her position, including her "horrible" experience of the birth; that after the birth she became very withdrawn from her husband, her social circle and life generally; that she had been unable to recommence exercise and her libido had been affected by antidepressant medicine, and her weight increased; that she continued to be traumatised and suffer from symptoms consistent with ongoing psychiatric disorder including panic attacks; that her self-esteem was adversely affected, and she still cried at times, though this had been ameliorated by the antidepressant medication which she continued to take; that she was very angry about what had occurred, and though hopeful that she would get better there had been no improvement; and that the psychiatric experts agreed that she suffered from a major depressive disorder and that there was ongoing impairment. [141] His Honour characterised these matters as describing "a significant and life-changing event that has had and will continue to have an adverse impact on the plaintiff's autonomy and her plans for her life, and on her enjoyment and the amenity of her life". [142] His Honour accepted that she had a: [143] "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". 1. His Honour took into account evidence of her pre-existing health, including episodic-specific anxiety and meningitis, which his Honour considered "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". [144] His Honour also observed that her experience of having to undergo the evolving physical changes and restrictions associated with taking a pregnancy to full term, the ensuing caesarean section, and the subsequent post-operative infection, all comprised an impairment of her physical or mental condition and formed part of her damages. [145] 2. Observing that no comparable verdicts were cited, his Honour accepted the plaintiff's submission that her non-economic loss should be assessed at 38% of a most extreme case. [146] This resulted in an award of the indexed amount of $261,000. On behalf of the doctor it was submitted that this was well outside the appropriate range. 3. The appellant emphasises that damages for non-economic loss are limited to those arising from physical injury or a recognised psychiatric disorder, and that grief, anxiety, distress and disappointment alone do not constitute a psychiatric disorder. [147] However, none of the trial judge's findings, referred to above, as to the physical and mental impact on the patient of the pregnancy and infection was the subject of specific challenge on appeal. Nor was there any challenge to his Honour's conclusion that the patient suffered from a recognisable psychiatric illness, namely a major depressive disorder, as was common ground between the relevant experts. 4. The appellant cited Tame v NSW, [148] for the proposition that it was not foreseeable that a person of normal fortitude would suffer a psychiatric injury from a false belief that she was incapable of becoming pregnant despite being warned that she could still become pregnant, and that any psychological reaction to her mistaken belief was neither foreseeable nor causally linked to any negligence on the part of the appellant. In my view, this is entirely unrealistic. The circumstances in Tame (in which it was held that it was not reasonably foreseeable that a person in the position of that plaintiff would sustain a recognisable psychiatric injury or illness as a result of the erroneous recording of her blood alcohol level in a motor accident report) is far removed from that of a failed tubal ligation, in which – accepting that the patient was told that there was nonetheless a risk of pregnancy of 1 in 2-300 – it was nonetheless quite foreseeable that she might become depressed upon discovering that she was in that unfortunate tiny minority. 5. Although no comparable cases were cited at first instance, the appellant referred to four in this Court: 1. Melchior v Cattanach [149] (Queensland, 2000). Associated with the birth of a healthy third child following a failed sterilisation, the plaintiff recovered general damages of $30,000 in respect of the pain, discomfort and inconvenience associated with the birth, venous incompetence in her legs, and depression for twelve to eighteen months post birth which had largely resolved but left her vulnerable to relapse. 2. Waller v James [150] (NSW, pre CLA). Although there was a judgment for the defendant, general damages were contingently assessed at $50,000 for each parent, for relatively mild psychiatric repercussions which were unlikely to require treatment or medication, consequent on the birth of a seriously disabled child after a failure to warn of a hereditary genetic defect. 3. MD v Sydney South West Area Health Service [151] (NSW, post CLA). Following a failure to undertake a pregnancy test before a tubal ligation, the plaintiff had a healthy fifth child, resulting in serious depression which had somewhat diminished by trial, and relationship breakdown. Non-economic loss was assessed at 30% of a most extreme case, equivalent to $103,500. 4. South Western Sydney Local Health District v Sorbello [152] (NSW, post CLA, 2017). The birth of a profoundly disabled child with hypoxic brain injury caused the mother to have a chronic adjustment disorder with anxiety/depression, relationship breakdown, inability to return to work and full-time employment terminated. Her non-economic loss was assessed at 35% of a most extreme case. 1. As Basten JA explained in AEA Constructions Pty Ltd v Wharekawa, [153] an assessment of damages for non-economic loss under CLA, s 16 requires the court to determine the severity of a loss by reference to a proportion of a most extreme case, and in this respect: 1. it is necessary to have in mind the injury or harm for which damages are to be assessed – relevantly, pain and suffering and loss of amenities of life. There is a significant subjective element in the assessment of a plaintiff's suffering for this purpose, from which it follows that an appellate court should usually give weight to the assessment of the severity in the particular case by the trial judge; 2. consistently with (1), the appellate court will generally be constrained in its approach to a challenge based on an evaluative judgment made by a trial judge which involves questions of fact and degree and matters of opinion, impression, speculation and estimation calling for the exercise of common-sense and judgment, [154] so that, absent demonstrable error of fact or law, the court will not interfere with a proportion which was reasonably open on the material before the trial judge; that is to say, the court will not interfere unless "a particular award of damages lies beyond the limits of what a sound discretionary judgment could reasonably adopt"; [155] and 3. in this exercise, the range of reasonable opinion is to be assessed by reference to the task of evaluating the proportion of a most extreme case, and not by its financial consequences. 1. Having regard to the comparable cases to which reference has been made, if I were myself assessing the patient's non-economic loss, I might do so at about 33% of a most extreme case, regarding her psychological injuries as somewhat more severe than those in MD, but less than those in Sorbello. However, it does not follow that the trial judge's assessment was not reasonably open. No particular error has been identified, and in the light of the 35% allowed in Sorbello, I do not consider that the 38% assessed in this case, though at the upper end, can be said to be outside the range of reasonableness. 2. Accordingly, this ground also fails. CONCLUSION 1. My conclusions may be summarised as follows: 2. As to liability, the mere fact of failure, occurring as early as it did, was suggestive of operator error in application of the clip. That hypothesis was reinforced by the circumstance that the left clip was applied at a sub-optimal point on the tube and incorporated extraneous tissue, increasing the chances of an incomplete closure. The appearance of the clip in the HSG images did not exclude that hypothesis, because the clip could have been incompletely closed. The alternative explanation of recanalisation or fistula is rendered highly improbable by the relatively short time between operation and pregnancy, and by the evidence of Dr Jeri and the HSG, all of which militated against a fistula circumventing an otherwise successful transection. In those circumstances, the trial judge was right to conclude that more probably than not, the patient's pregnancy post-tubal ligation was attributable to negligent operator error on the part of the doctor in the application of the left Filshie clip. Contrary to the appellant's submissions, this approach involves no "reversal of the onus". 3. As to damages, in proceedings involving a claim for the birth of a child, CLA s 71(1) does not preclude the award of damages for economic loss for loss of earnings by the claimant attributable to psychiatric injury associated with the birth of the child, as distinct from a need or choice to rear or maintain the child, and the trial judge's award for economic loss was not erroneous. The assessment of non-economic loss at 38% of a most extreme case has not been shown to be affected by any particular error and, though perhaps at the upper end, cannot be said to be outside the range of reasonableness. 4. It follows that in my opinion the appeal should be dismissed with costs. 5. McCALLUM JA: I agree with the orders proposed by Brereton JA for the reasons his Honour has comprehensively and persuasively explained. 6. SIMPSON AJA: I agree with Brereton JA. ********** Endnotes 1. Tubal ligation: Interruption 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. 2. The fallopian tubes, also known as salpinges, 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. The fimbria (plural fimbriae) is a finger like fringe of tissue surrounding the distal tube opening (ostium) of the fallopian tube proximal to the ovary and forming the end of the infundibulum. 3. Lee (a pseudonym) v Dhupar [2020] NSWDC 717. 4. Primary judgment at [33]-[55]. 5. The cornu (also known as the utero-tubal junction) is the 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. The isthmus is a section of the fallopian tube, about two centimetres long, between the fimbria and the cornu, which connects the ampulla of the fallopian tube to the uterine cavity. 6. Avascular necrosis: Pathologic death of a portion of tissue resulting from irreversible damage resulting from deficient blood supply. 7. Transection: Creation of a transverse cut or complete division. 8. R Varma R, JK Gupta, "Failed sterilisation: evidence-based review and medico-legal ramifications", BJOG: an International Journal of Obstetrics and Gynaecology (December 2004), Vol 111, pp 1322-32. 9. Professor O'Connor, report of 20 June 2017; see [104] below; and Tcpt 28 June 2019 p465(40). 10. Broad ligament: The 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. The mesosalpinx is the part of the broad ligament that encloses or surrounds the fallopian tubes. 11. Joint Report of Liability Experts dated 13 August 2018. 12. Tcpt 18 April 2019 p220(35)-221(02). 13. R Varma, JK Gupta, "Predicting negligence in female sterilization failure using time interval to sterilization failure: analysis of 131 cases" Human Reproduction (2007) 22(9): 2437-43. 14. Dhupar v Lee (NSWCA, 24 May 2021, unreported). 15. 2004 Article, 1323. 16. 2004 Article, 1326. 17. 2004 Article, 1327. 18. 2004 Article, 1329. 19. 2007 Article, 2440. 20. 2007 Article, 2440. 21. 2007 Article, 2440-2441. 22. 2007 Article, 2441. 23. Tcpt 3 June 2019, p280(460)-281(27). 24. Tcpt 3 June 2019 p272(29)-277(08), 277(48)-278(44); see also 27 June 2019 p394(01)-(35), 399(35)-407(32), 440(35)-(41). 25. Tcpt 27 June 2019 p445(27)-(38). 26. The left clip is also visible in photo 009, but it provides little assistance. There is no issue concerning the clip applied to the right tube. 27. Tcpt 28 June 2019, p466(30)-(40). 28. Salpingectomy: Removal of the fallopian tube. 29. Primary judgment at [453] 30. Tcpt 28 June 2019 p482(45)-483(29). 31. Tcpt 18 April 2019, p190(3)-191(24). 32. Tcpt 28 June 2019, p485(05)-(07), 485(47), 502(10)-(11). 33. Tcpt 28 June 2019, P503(18)-(24), 504(08)-16). 34. Tcpt 28 June 2019, P501(43)-(45). 35. Primary judgment at [932]. 36. Primary judgment at [933]-[935]. 37. Primary judgment at [936]. 38. Primary judgment at [937]. 39. Two of the twenty-four grounds of appeal (Grounds 21 and 22, which related to Civil Liability Act, s 5I) were not pressed. Grounds 23 and 24 related to damages. 40. Tcpt 27 June 2019, p331(33)-(39) 41. In respect of the left tube it was noted that "Full face sections show complete tube transection". This simply described that the salpingectomy had completely transected the tube, but it occasioned some confusion as, initially, the experts understood it to mean that the tube had been completely transected by the Filshie clip. 42. Tcpt 18 April 2019, p176(03)-188(02). 43. Fimbria (plural fimbriae): Finger-like fringe of tissue surrounding the distal tube opening (ostium) of the fallopian tube proximal to the ovary and forming the end of the infundibulum. 44. Tcpt 18 April 2019, p177(42)-178(18). 45. Tcpt 18 April 2019, p222(04)-224(17). 46. Primary judgment at [453]. The reference is to the passage in cross-examination set out at [54] above. 47. Primary judgment at [157]. 48. Primary judgment at [229]. 49. Tcpt 18 April 2019, p190(30)-(41), 191(44)-(49), 225(28)-(34), 226(05)-(09). 50. Primary judgment at [77], [236]-[249]. 51. See [141]-[149] below. 52. Tcpt 3 June 2019 p272(29)-277(08), 277(48)-278(44); see also 27 June 2019 p394(01)-(35), 399(35)-407(32), 440(35)-(41). 53. Above at [28]. 54. Primary judgment at [353]. 55. Primary judgment at [354]. 56. Primary judgment at [355]. 57. Tcpt 28 June 2019, p466(42)-467(11). 58. Primary judgment at [330]-[332]. 59. Tcpt 28 June 2019, p475(36)-(42). 60. Tcpt 28 June 2019, p476(03)-477(01). 61. Primary judgment at [495]-[561]. 62. Primary judgment at [536]-[537]. 63. Tcpt 28 June 2019, p485(25)-486(24). 64. Tcpt 28 June 2019, p482(45)-483(29); above at [37]; see also primary judgment at [552]. 65. Primary judgment at [553] – [559]. 66. Tcpt 28 June 2019, p487(15)-(31). 67. Primary judgment at [429(4)]. 68. Primary judgment at [554]; Tcpt 28 June 2019 p490(12)-491(10). 69. Tcpt 18 April 2019, p166(04)-(06). 70. Tcpt 18 April 2019, p166(19)-(26). 71. Judgment of 18 April 2019. 72. Tcpt 18 April 2019, p184(04)-(13). 73. Tcpt 18 April 2019, p184(29)-(32). 74. Tcpt 18 April 2019, p190(3)-191(24). 75. Tcpt 27 June 2019 p410(48)-(49). 76. Tcpt 27 June 2019 p411(03)-412(37). 77. Judgment of 27 June 2019. 78. Judgment of 18 April 2019. 79. Above at [42]-[43]. 80. Dr Jeri, in cross-examination: Tcpt 18 June 2018, p217(08)-(12). 81. Dr Jeri, in re-examination: Tcpt 18 June 2018, p227(45)-(49). 82. Dr Jeri, in re-examination: Tcpt 18 June 2018, p 228(14)-(48). 83. Above at [83]. 84. Tcpt 28 June 2019, p466(30)-(40). 85. Tcpt 28 June 2019, p466(30)-40). 86. Tcpt 28 June 2019, p469(10). 87. Tcpt 28 June 2019, p469(20). 88. Tcpt 28 June 2019, p469(32)-(45). 89. Tcpt 28 June 2019, p458(34)-(39), 466(15)-(19); see also Primary judgment at [652]. 90. Tcpt 28 June 2019, p478(44)-479(10). 91. Primary judgment at [611]. 92. Above at [76]-[77]. 93. Tcpt 28 June 2019, p478(14)-(17). 94. Tcpt 28 June 2019, p478(31)-(35). 95. Tcpt 28 June 2019, p478(44)-479(10). 96. Tcpt 28 June 2019, p478(44)-479(10). 97. Tcpt 28 June 2019, p479(03)-(04). 98. Below at [130]-[140]. 99. Above at [51]-[56]. 100. See above at [50]. 101. Tcpt 27 June 2019, p429(06)-(11). 102. Tcpt 28 June 2019, p501(02)-(26). 103. Tcpt 28 June 2019, p485(05)-(07). 104. Tcpt 28 June 2019, p485(45)-(47). 105. Tcpt 28 June 2019, p499(45)-(46). 106. Tcpt 28 June 2019, p499(07)-(12). 107. Tcpt 28 June 2019, p504(05)-(16). 108. Tcpt 28 June 2019, p504(30)-(49). 109. Tcpt 28 June 2019, p463(46)-464(27). 110. Tcpt 28 June 2019, p461(06)-(19). 111. Tcpt 28 June 2019, p499(48)-500(24). 112. Tcpt 28 June 2019, p478(44)-479(10); see above at [113]. 113. Above at [125]. 114. Tcpt 28 June 2019, p485(05)-(07). 115. Tcpt 28 June 2019, p485(44)-(47). 116. Above at [124]. 117. Tcpt 28 June 2019, p501(02)-(30). 118. Tcpt 28 June 2019, p501(34). 119. Tcpt 28 June 2019, p501(33)-(35). 120. Tcpt 28 June 2019, p502(10)-(11). 121. Above at [127]. 122. Tcpt 28 June 2019, p504(05)-(16). 123. Tcpt 28 June 2019, p504(30)-(49); above at [128]. 124. Primary judgment at [755]. 125. Tcpt 28 June 2019, p499(20)-(43). 126. Tcpt 28 June 2019, p499(45)-(46). 127. Tcpt 18 April 2019, p217(08)-(24). 128. Primary judgment at [751]. 129. Above at [70]-[74]. 130. Primary judgment at [936]. 131. Primary judgment at [749]-[750]. 132. Primary judgment at [1067]. 133. (2003) 215 CLR 1. 134. Cattanach v Melchior at [91] (McHugh and Gummow JJ); [161]-[162] and [149] (Kirby J); [298]-[299] (Callinan J). 135. Hansard, Legislative Council, 4 December 2003, Civil Liability Amendment Bill, Second Reading, The Hon John Della Bosca. 136. Hansard, Legislative Council, 4 December 2003, Civil Liability Amendment Bill, Second Reading, The Hon John Della Bosca. 137. Hansard, Legislative Council, 4 December 2003, Civil Liability Amendment Bill, Second Reading, The Hon John Della Bosca. 138. Tcpt 16 April 2019, p70(46)-71(40); primary judgment at [1027]. 139. Primary judgment at [1014]. 140. Primary judgment at [1028]. 141. Primary judgment at [1007]. 142. Primary judgment at [1008]. 143. Primary judgment at [1014]. 144. Primary judgment at [1015]-[1016]. 145. Primary judgment at [1020]. 146. Primary judgment at [1021]-[1024]. 147. See Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394 (Windeyer J); Rowe v McCartney [1976] 2 NSWLR 72; Bourhill v Young [1943] AC 97. 148. (2002) 211 CLR 317. 149. [2000] QSC 285. 150. (2015) 90 NSWLR 634. 151. (2009) 8 DCLR (NSW) 232; quantum was not in issue on appeal. 152. [2017] NSWCA 201. 153. [2019] NSWCA 176 at [8]. 154. Dell v Dalton (1991) 23 NSWLR 528 at 533-534 (Handley JA; Kirby P and Priestley JA agreeing). 155. Wilson v Peisley (1975) 50 ALJR 207 at 214; Barkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [10]-[11] (Basten JA). 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. Decision last updated: 18 February 2022