New South Wales Court of Appeal CITATION : STATE OF QUEENSLAND (sued as The South Coast Regional Health Authority t/a Gold Coast Hospital) & ANOR. v. BLOODWORTH [2002] NSWCA 134 FILE NUMBER(S) : CA 40966/2000 HEARING DATE(S) : 13-14 September 2001 JUDGMENT DATE : 22 May 2002 PARTIES : South Coast Regional Health Authority t/a Gold Coast Hospital and Dr. Geoffrey Miller (Appellants) Charles Bloodworth (Respondent) JUDGMENT OF : Powell JA at 1; Ipp AJA at 39; Sperling J at 112 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20052/95 FILE NUMBER(S) : LOWER COURT McInerney AJ JUDICIAL OFFICER : COUNSEL : J.L. Glissan QC and J.A. McDougall (Appellants) A.S. Morrison SC and D.W. Elliott (Respondent) Moyles (Coomera Qld) by their City Agents, SOLICITORS : Cowley Hearne (North Sydney) (Appellants) Gerard Malouf & Partners (North Parramatta) (Respondent) CATCHWORDS : NEGLIGENCE - Breach of duty - Medical practitioner - Duty to warn of possibility of risks involved in proposed operation - Extent of duty - Whether duty discharged. - NEGLIGENCE - Breach of duty - Medical practitioner - General surgeon - Laparoscopic surgery - Standard of care to be observed - Whether standard met. D DECISION : Appeal allowed; New trial ordered - 1 -IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40966/2000 CLD 20052/95 POWELL JA IPP AJA SPERLING J 22 May 2002 STATE OF QUEENSLAND (sued as The South Coast Regional Health Authority t/a Gold Cost Hospital) & ANOR. v. BLOODWORTH Judgment 1 POWELL JA: This is an appeal from Judgments delivered by McInerney AJ on 1 September 2000 and 6 November 2000 on the latter of which days his Honour found a verdict in the sum of $1,093,680.45 and ordered "the Defendant (sic) to pay the Plaintiff's costs". 2 In the proceedings with which his Honour had been concerned to deal, the Respondent had sought to recover from the First Appellant ("the Hospital") and the Second Appellant ("Dr. Miller") a staff specialist attached to the Hospital, damages for professional negligence in respect of an operation – known as a laparoscopic cholecystectomy – performed by Dr. Miller on the Respondent on 28 January 1992 at the Hospital, which operation was intended to remove the Respondent's gall bladder and, by so doing, to relieve the recurrent pain which the Respondent had been suffering as the result of symptomatic gall stones. 3 At trial there was no dispute that the operation miscarried in that, shortly after the operation commenced, the common right iliac artery and the left iliac vein were lacerated, thus causing internal haemorrhaging, a fact which was not observed for the better part of an hour after the commencement of the operation. Although, at trial, there seems to have been disagreement as to the cause of what followed, McInerney AJ held that, as the result of the laceration of the blood vessels to which I have earlier referred, carbon dioxide (CO2) gas, which, by the use of a device known as a Veress needle, had, at an early stage of the operation, been introduced into the peritoneal cavity with the intention of inflating the cavity so as to facilitate the carrying out of the operation, had entered the vascular system, resulting in what is described as a CO2 embolism which led to a rapid fall in the Respondent's blood pressure and to cardiac arrest. 4 After the cardiac arrest occurred, the operation was ceased and external cardiac compression was commenced. This continued for approximately 12 minutes until blood pressure was detected at 60 mmHg, at which time external cardiac compression ceased. Thereafter, the Respondent's blood pressure and heart beat were monitored for some 55 minutes, during which the Respondent remained hypotensive – his blood pressure fluctuating between 50 and 85 mmHg – and tachycardic. At the end of this time, it was observed that the Respondent's abdomen began to distend, a fact indicating internal haemorrhage. At that stage the operation was abandoned, and a laparotomy – that is, an incision through the abdominal wall – was carried out with a view to determining the cause of the distension of the Respondent's abdomen and taking whatever steps might be necessary to correct it. The laparotomy revealed two to three litres of blood in the peritoneal and retroperitoneal cavity and the laceration of the artery and the puncture of the vein were discovered – the fact that they had not earlier been observed was due to the fact that those vessels are located in the retroperitoneal cavity. As chance would have it, a vascular surgeon, Dr. Dinnen, was present in the hospital at the time and he was called into the theatre where he resected the artery and repaired it and sutured the vein. 5 The Respondent was thereafter moved to an intensive care ward and, following his recovery, to a surgical ward, being discharged from hospital about 10 days later. 6 In July 1992 the Respondent underwent an operation described as an open cholecystectomy, which operation was carried out by a Sydney surgeon, Dr. Van Gelderen, who removed the offending gall bladder without any complications. It does not appear to have been in dispute at trial that the Respondent's condition prior to the operation at the Hospital was such that the removal of his gall bladder was called for if his condition were to be relieved, the only dispute being as to whether or not the removal needed to be carried out at the time. 7 The Respondent claimed that, as the result of what occurred at the Hospital, he suffered significant sequelae both from the failed procedure itself and as the result of the cardiac arrest and what followed prior to the laparotomy and the remedial surgery being performed. Among those sequelae, so the Respondent alleged, were hypoxic brain damage leading to significant memory dysfunction, cognitive difficulties and, mild expressive dysphasia. It was to recover damages in respect of those sequelae that the Respondent's proceedings were brought. 8 Despite the fact that Dr. Miller, although a staff surgeon at the Hospital, had a right of private practice, and despite the fact that the form of consent to operation (Blue AB 879-881) which was signed by the Respondent some months prior to the operation, indicated that the Respondent had elected to be admitted to the Hospital as a private patient, it would appear (T 1-2) that the Respondent was in fact admitted as a public patient and that the hearing was conducted upon the basis that, if it were held that Dr. Miller had been negligent, the Hospital would be vicariously liable for that negligence. 9 Reduced to its most simple form, the case which, in the Amended Statement of Claim which was filed on his behalf, the Respondent sought to advance was as follows: (a) the advice which was given by Dr. Miller – for which advice the Hospital was also to be held responsible – upon which advice the Respondent acted when consenting to undergo a laparoscopic cholecystectomy was inadequate and that if he had been given adequate advice by Dr. Miller he would either have opted for an open cholecystectomy or sought referral to a surgeon who was more experienced than, so it was alleged, Dr. Miller; (b) that the treatment which was accorded to the Respondent by Dr. Miller was inadequate in a number of respects such as; (i) that the level of Dr. Miller's training, expertise and experience in the conduct of laparoscopic cholecystectomy was such that he ought to have referred the Respondent for treatment to a more experienced surgeon than it was alleged he was or to have ensured that the laparoscopic cholecystectomy was conducted under the supervision of a more experienced surgeon than Dr. Miller was alleged to have been; (ii) that Dr. Miller did not, when carrying out the procedure, exercise reasonable care so as to avoid the risk of major vascular injury such as occurred; (iii) that Dr. Miller's treatment of the Respondent following the cardiac arrest was inadequate. 10 In the Judgment which he delivered on 1 September 2000, McInerney AJ, when dealing with the first basis upon which the Respondent's case was advanced wrote, first (RAB 81-82): "134. On the whole, whilst the matter is not without doubt, in my view in light of the literature that was available at that time I believe he should have been told of the rare possibility of an arterial artery or vein being punctured and fully explain (sic) his experience and the fact the plaintiff was a thin person all posed special dangers. I am satisfied on all the material before me that at that point of time such a complication was known in the literature as likely to occur in 1 in four thousand cases. I should point out in Rogers v. Whittaker (1992) 175 CLR 479, the chance referred to in that case was one in fourteen thousand. 135. Rogers v. Whittaker is authority for the fact that a risk is material if in the circumstances of a particular case a reasonable person in the plaintiff's position if warned of the risks would be likely to attach significance to it. " Later, his Honour wrote (RAB 84-86): "141. Both Rogers v. Whittaker and Chappel v. Hart were cases where the patient sought specific assurances that what eventually happened to them would not happen. If they had been warned of such dangers they would not have had the particular surgeon perform the operation. This was not disputed in each case. The plaintiff in this case was not able to say what his attitude would have been other than he believes he would have sought further information. 142. I am not satisfied on the balance of probabilities on the plaintiff's evidence that he would have taken a different course. It may be he would have, but he carries the onus and I am not satisfied he would have either instructed the second defendant to do an open cholecystectomy or would have sought to have it done by a more experienced surgeon, Dr. Van Gelderen, who it is suggested he would have consulted. The plaintiff on the totality of the evidence I accept was a very sick person subject to severe attacks of pain which I believe would have continued and probably would have worsened. This I believe was confirmed if it needed to be confirmed at the subsequent operation by Dr. Van Gelderen. He had been advised by his local practitioner to seek specialist advice and he had discussed the matter with the second defendant. It is also important to bear in mind that he was living on the Gold Coast where there was large and well equipped hospital and a most convenient place for him to have the surgery. He was also satisfied Dr. Miller was a competent general surgeon as he undoubtedly was with considerable experience in open gall bladder surgery. It was also urgent not only in the sense of overcoming the problem but was necessary to enable him to be fit in February to take up the prospective offer of a job overseas. He was told of the relative advantages of having laparoscopic cholecystectomy as against the open cholecystectomy and the fact that the consequences subsequent to the operation would not be as debilitating as that (sic) which could occur under the open cholecystectomy. I accept there would be distinct advantages and it would be more likely he would be fit in February to take up the job overseas. Furthermore, he was able to jump the queue in Queensland by becoming an intermediate patient rather than suffer a 12 month delay. He was told if problems arose the procedure would be converted to an open procedure. It is impractical therefore to suggest, in my view, that he would have consulted Dr. Van Gelderen which would have meant travelling to Sydney and, if electing to have it done at a public hospital, it was likely he would be on a long waiting list. No evidence was led on behalf of the plaintiff as to when he could have expected such surgery to have taken place in Sydney. 143. Even assuming in all the circumstances he was told that there was a one in four thousand chance of venous injury the would be told such complication was rare and he would know the operation would be converted to an open surgery if problems arose. I am therefore not satisfied that because of the lack of appropriate warning (sic) would have caused him to act otherwise." His Honour then continued (RAB 86-87): "144. One of the submissions made by the plaintiff was that I should assess this matter on the basis of the loss of chance to consult a more experienced surgeon. 145. Kirby J in Chappel v. Hart (supra) pointed out there were reasons for such an approach but his Honour conceded that the weight of judicial opinion in England and Canada was critical of such an approach in medical negligence. 146. His Honour pointed out in any event it was not pleaded in Chappel v. Hart and no evidence was tendered in the case as to the value of that chance. 147. In the circumstances here, even if one assumes that there was an argument on the basis of the loss of a chance to have this operation performed elsewhere by a so-called more experienced surgeon, there is no evidence sufficient to enable me how to determine the value of the loss of the chance. 148. In any event summing-up the whole of the material in the circumstances here I am not satisfied that even if the plaintiff had been warned as I believe he should have been that he would have sought the services of a so-called more experienced surgeon. 149. I now turn to the question whether the operation was performed in circumstances attaching liability in the second defendant." 11 McInerney AJ then continued (RAB 87-94): "150. The second defendant accepted at the time of the surgery, as he had to do, that he was a very inexperienced surgeon in this type of procedure. He also agreed that he was keen to gain experience (T. 847). I have set out in detail his experience at the relevant time. 151. The second defendant, I am satisfied, is a very competent general surgeon but was inexperienced in this new procedure. The procedure obviously has difficulties particularly in inexperienced hands and he was not fully alive, I believe, to the problems that could occur in such a procedure. It is noted that in the medical writing it is said that such injuries occur when the surgeon is inexperienced. I accept the evidence that the ability to recognise when the instruments have penetrated the anterior abdominal wall is one that comes from experience. Dr. Glenn, for example, said the trocar does not have to go a long way past the anterior abdominal wall in order to damage these vessels. He was of the view that they should not be pushed more than half an inch beyond the anterior abdominal wall but he said the trocar has to go a long way when there is sufficient insufflation before it can damage these vessels retroperitoneum. Contrary to that opinion Dr. Sheldon states that in some circumstances these vessels can lie within half an inch under the umbilicus. It is clear that I have concluded the trocar went too far. 152. The question then is whether the second defendant was negligent in performing this operation. If it was the trocar, as I understand the evidence of Dr. Aroney, the second defendant should have been aware of the dangers of inserting the trocar too far. The reason for this was that he said doctors were more aware when inserting the first trocar to ensure damage did not occur. His evidence was extensive and not altogether clear because of his volubility but he stated it was necessary to use more force to insert the first trocar and thus the doctor has to be very careful. In order to overcome this problem he places his finger at a certain point on the Trocar to ensure it could not penetrate too far. Furthermore, there are tests that can be undertaken with the Verress needle to determine if it had penetrated a vital structure, not as I understand it was available with the trocar particularly if there was bleeding ante-posterior peritoneum. The second defendant himself agrees with the proposition that the trocar went too far and I can only conclude if it was a fact, as he asserted, that the trocar went in smoothly, that he was not aware precisely at what time it had penetrated the anterior abdominal wall. 153. In his evidence the second defendant gave what could be said was a textbook account as to how the operation proceeded and that it was sheer misadventure that the trocar went too far and damaged the artery and vein. … 154. I am satisfied that this type of surgery had dangers not encountered in the open procedure. Some doctors such as Dr. Sheldon abandoned the procedure. I am satisfied at the time the Australian surgeons were comparatively inexperienced in the procedure and on the face of it Dr. Miller more than most. The procedure, on the evidence, has difficulties particularly in inexperienced hands. 155. Professor Boulos said that with a normal anatomy the injury is unlikely except when the instruments are inserted at the wrong angle. If the abdomen was shallow forceful injection could mean that the instrument could reach the vascular structures underneath. This as I understand the evidence is more likely in a thin patient as the Plaintiff apparently was at the time. He believed the second defendant miscalculated the angulation and depth required for insertion of the instruments. He said one of the problems is uncontrolled entry when the surgeon applies increasing force whilst attempting to enter the abdominal cavity. He believes the accident was avoidable with caution. Like Professor Davidson he said it was unacceptable injury and it is rare because surgeons are very careful about it. … 157. The second defendant conceded he was inexperienced in this type of surgery but submits in the circumstances he exercised all due care and what happened was an unavoidable mishap which was intrinsic in the surgery itself. He does not advance any reason why the trocar in the circumstances went too far and penetrated the retroperitoneal space. There is no suggestion of instrument failure as a feature. It was submitted by the Defendant that he performed the surgery in accordance with the guidelines laid down by the Surgical Association. 158. With the second defendant's submission I cannot agree. Without canvassing in detail all the evidence given before me I should point out there is even dispute now as to how, and in what direction, the instruments had to be inserted, which I find extraordinary. This surgery at the time was in its infant stage in Australia and it is clear that a reading of the literature at that time and indeed the very procedure itself should indicate to a specialist surgeon that this was very hazardous surgery. It regarded two very sharp instruments to be introduced blindly into the abdomen. I am satisfied that in order to do this successfully the surgeon had to be skilful and very experienced in this procedure. Dr. Sheldon said a relatively small error could bring about rather disastrous results. 159. I believe the second defendant was anxious to obtain experience in this area. I find the training and experience he had led him to underestimate the dangers in the surgery and his inexperience caused the Trocar to penetrate too far. I believe also he was overconfident of his abilities. … 162. The second defendant himself acknowledged the fact that he was inexperienced and was on a learning curve. In my view taking all those circumstances into consideration I am satisfied on the balance of probabilities that on the whole of the evidence that the second defendant's training and experience were inadequate to undertake this operation on the plaintiff. It is submitted on the evidence that he performed the operation in the same manner as recommended by the College of Surgeons and therefore was not negligent. In my view even though he knew the appropriate techniques his lack of experience was fatal. 163. Clearly on the literature there is support for the fact that inexperience is the main cause for these injuries. In my view his knowledge and understanding of the procedure at the time was inadequate and before he undertook such surgery he should have read widely, consulted widely and performed many more surgical procedures under specialist supervision. The fact he did not consult the literature at all is a serious omission. Surely if one is undertaking such hazardous new surgery a minimum requirement would be reading and absorbing the medical literature on the subject. Furthermore, I believe he did not have sufficient regard to the fact at the time of the difficulties that would follow from the fact that the patient was a thin patient and that the insertion of the instrument therefore was much more dangerous in such a patient than in other patients. I believe the second defendant was anxious to obtain experience in this area. I find the training and experience was lacking and he needed to do more operations under supervision. I believe his inexperience left him to underestimate the dangers of the surgery and his inexperience caused the Trocar to penetrate too far as a result of his inability to determine the position of the Trocar after he had inserted it. 164. The Second Defendant was a specialist general surgeon. In those circumstances he had a duty of care to the Plaintiff to exercise reasonable care and skill. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have the skill of a specialist general surgeon. I find he failed in the circumstances because of his inadequate skill in carrying out the laparoscopic cholecystectomy and in doing it without pursuing further training and informing himself fully of the hazards of the surgery by reading the relevant literature. 165. Consequently there will be a verdict for the plaintiff because in my view the standard of care required of a specialist general surgeon in these circumstances was breached by the defendant's lack of experience and knowledge of this type of procedure which brought about disastrous consequences." 12 The passages from McInerney AJ's Judgment which I have just set out would indicate that it was his Honour's view that Dr. Miller was negligent in that he undertook an operation although lacking in the experience to enable him to do so, whereas, in the end, the case which the Respondent sought to advance at trial in this respect was that Dr. Miller's negligence lay in a failure to exercise due care in the insertion of the Veress needle and/or the trocar so as to avoid the risk of vascular injury such as in fact occurred. 13 It seems to me that, in order that one might fully understand the nature of the condition which led the Respondent to consult Dr. Miller and the nature of the operation undertaken by Dr. Miller, some further detail as to human anatomy and as to the techniques involved in that operation was called for. 14 The gall bladder is one of what might be called the organs of digestion, its function, as I understand it, being to operate as a reservoir for bile which is secreted by the liver, to the underside of which it is connected by tissue and a number of vessels. Bile which has been secreted by the liver is discharged into the duodenum which is the first part of the small intestine. Functionally, bile aides in the emulsification, digestion and absorption of fats in the alkalinization of the intestines and in the prevention of putrefaction. The liver lies in the right upper part of the abdomen immediately under the diaphragm to which it is attached. 15 A gall stone is a solid formed in the gall bladder or the biliary ducts and composed in varying amounts of one or more of the various elements found in bile. 16 Arteries and veins form part of the body's blood-vascular system. The function of the arteries is to convey blood from the heart to the organs and tissues of the body, while the veins are the vessels which serve to return the blood from the capillaries of the different parts of the body to the heart. 17 One of the arteries is the descending aorta which is divided into two portions, the thoracic and the abdominal aorta, the latter of which commences at the aortic opening of the diaphragm and terminates at about the level of the fourth lumbar vertebra where it divides into two common iliac arteries, the right common iliac, and the left common iliac, arteries. Each of those arteries in its turn divides into two branches, the external and internal iliac arteries, the former supplying the lower extremity and the latter the viscera of the pelvis. 18 The common iliac veins are formed by the union of the external and internal iliac veins at about the level of the sacro-iliac area from where they pass obliquely upward terminating at about the level of the fourth and fifth lumbar vertebrae where they unite to form the inferior vena cava which returns to the heart the blood from all the parts below the diaphragm. 19 As I understand it, a laparoscope is a development of the endoscope, an instrument equipped with a light source or a system of lenses used for the visual examination of the interior of a body cavity through its natural outlet. A laparoscope is a telescopic device with a fibre optic illumination to visualise the interior of the abdominal cavity via a small incision in the abdominal wall. Although, at first, the laparoscope was used as an aid to diagnosis, as time went by instruments were invented which enabled simple procedures – such as the occlusion of the Fallopian tubes to produce female sterilisation – to be done laparoscopically. As time went by video camera technology had progressed to the point where it was possible to replace direct observation through the endoscope or laparoscope by on-screen display of internal structures. 20 At a very early stage in the carrying out of a laparoscopic procedure, gas is introduced into the abdomen – in a manner to which I will shortly refer – in order to make pelvic and abdominal structures more readily accessible to the laparoscope and to increase the space available for any ancillary instruments to be manipulated. In the early stages the gas used was air but, as the introduction of any gas under pressure carries with it the risk of embolism, air was soon replaced by CO2, the rationale for that being done being that, if any gas gained access to the circulation, CO2, being soluble, would quickly dissolve into the blood stream whereas air bubbles would take much longer to absorb and, in the meantime, would cause destruction to the blood flow and potentially serious damage to organs deprived of a blood supply. 21 The first members of the medical profession in Australia to use the laparoscope were gynaecologists, that use beginning in the later 1960s and continuing thereafter. At a later stage, so it would seem, orthopaedic surgeons embraced arthroscopy – that is endoscopy of joints – especially for knee surgery. 22 Although it would appear that there had been earlier pioneering work done in France and the United States, it would seem that general surgeons in the United Kingdom and in Australia did not adopt endoscopic methods until the later 1980s, the first upper abdominal laparoscopic procedures – usually cholecystectomy – apparently being carried out in the United Kingdom in 1989 or thereabouts and the first such procedures in this country being performed in 1990. Not surprisingly, the frequency with which such procedures were, in the early stages, carried out was comparatively small. Thus, in the course of his oral evidence (Blue AB 315), Professor Boulos indicated that, in the three year period following his commencing to carry out laparoscopic cholecystectomy in 1989, he would have carried out about thirty such procedures and would have supervised his trainees in carrying out a similar number of such procedures while, in the course of his oral evidence (Blue AB 423) Professor Davidson said that prior to January 1992 – by which time he had been carrying out such procedures for about 2 years – he would have carried out about thirty such procedures. In Exhibit FF (Blue AB 950) Dr. Van Gelderen, to whom I have earlier (para. 6) referred, who, in July 1992, carried out the open cholecystectomy, said that, prior to commencing to carry out laparoscopic cholecystectomies himself, he had assisted with about fifteen such procedures; that in the period from late 1990 when he commenced himself to carry out such procedures until 28 January 1992, he had carried out nineteen such procedures; and that, at that time, few surgeons in South-West Sydney – where, at the time, he then carried on practice (Blue AB 1292) –had carried out more. In the same exhibit, Dr. Van Gelderen recorded that by the end of 1992, by which time the procedure was then more common, he had conducted over sixty laparoscopic cholecystectomies. 23 It is at this point that a description of laparoscopy utilised by gynaecologists and, at first, utilised for the purpose of laparoscopic cholecystectomy, is called for. 24 The first step involves the introduction – through a small skin incision at or below the umbilicus – into the abdominal cavity of a sharp hollow needle – the Veress needle – which is used to puncture the abdominal wall. The Veress needle (Exhibit R) is approximately 1mm in diameter. Inside the Veress needle is blunt-ended, spring-loaded, tube with an aperture at the blunt end and fitted at the other end with a tap and a pipe to which a gas pipe may be attached. The Veress needle is introduced in the mid-line and angled obliquely towards the pelvis so as to avoid the possibility of puncturing a blood vessel. 25 Once the Veress needle has been inserted, there are standard tests to be followed in order to ensure the needle is not occluded. If those tests are met the Veress needle is connected to the gas supply and CO2 is allowed to flow into the abdominal cavity at a rate of approximate 1-1.5 litres per minute, the gas pressure being monitored and not normally allowed to exceed 15 mmHg. When the surgeon decides that a sufficient volume of gas had entered, the Veress needle is withdrawn, to be replaced with the laparoscope (Exhibit S) which also has a channel permitting the continued introduction of gas into the abdominal cavity. 26 Although, as I have earlier indicated, general surgeons at first adopted the practice of gynaecologists and used the Veress needle, it would seem that that practice has since been abandoned in favour of what appears to be called the Hasson technique, which involves the insertion of a port through a formal opening in the abdominal wall, which technique, although more time consuming means that each step is carried out "under vision" so that there is no blind penetration of the abdominal wall by a sharp instrument. 27 The form of laparoscope which appears to have been used from the time of the introduction of laparoscopic cholecystectomies in Australia – which appears also to have been known as a disposal trocar – was composed of a number of parts. The body of the laparoscope was a cannula, at one end of which was a fitting to which the gas supply could be attached, and a tap, thus enabling the gas to continue to be introduced into the abdominal cavity. The trocar was a sharp trihedral instrument – attached to a shaft fitting within the cannula – the point of which protruded beyond the far end of the cannula and which was intended to provide an incision in the abdominal wall which would enable the introduction of the cannula into the abdominal cavity. Attached to that shaft was a spring loaded hood – which was armed prior to the operator attempting to introduce the laparoscope into the abdominal cavity - the function of which hood was, after the trocar had passed through the abdominal wall to move forward and cover the head of the trocar and, by so doing, prevent the trocar piercing any organs or blood vessels. Once the cannula had been introduced into the abdominal cavity, the trocar could be removed from within the cannula to enable the introduction of the optical camera and the reconnection of the gas supply – at that stage a higher flow of gas up to 5 litres a minute was permissible. 28 After the introduction of the laparoscope had been completed, further openings – "ports" - were made in the abdominal wall to permit the introduction of such instruments as were required for the carrying out of the procedure involved. 29 As will be apparent from what I have earlier recorded, the operation with Dr. Miller performed upon the Respondent at the hospital, occurred not long after the commencement of laparoscopic cholecystectomies in Australia. 30 In his Judgment (RAB 43-46), McInerney AJ recorded the following as to Dr. Miller's training and experience prior to his carrying out that operation: "41. The second defendant gave evidence that before he attempted such surgery he attended a symposium in Melbourne, sometime late in 1990 or early in 1991, on how to perform this laparoscopic cholecystectomy. This included seeing the operation performed and then with other surgeons he operated on a pig. After that symposium he then attended Royal Alexandria Hospital at Brisbane, on five half days to observe five such operations, and on one occasion held the camera used in the procedure. The second defendant commenced performing this surgery before he had done such surgery under supervision. 42. The evidence from the second defendant was that he and Dr. Borten, the first defendant's senior surgeon then performed two procedures, but as they were unsure of what was happening they converted to the open procedure. Exh QQ sets out a chronology of laparoscopic cholecystectomies in which Dr. Miller was a part from 7 October 1991 to 28 January 1992 when he operated on the plaintiff. On 7 October together with Dr. Bennett, Dr. Miller was the principal surgeon and Dr. Borten was the assistant surgeon and that operation apparently was successful. On 14 October Dr. Borten was the principal surgeon, Dr. Miller the assistant surgeon and that was converted to open surgery. On 28 October 1991 Dr. Miller was the principal surgeon assisted by Dr. Hansen. This was not converted. On 28 October Dr. Miller was assisted by Mr.Gotley. On 4 November Drs. Miller and Hansen were principal surgeons assisted by Drs. Borten, Hanson and Hare which was converted. On 11 November Dr. Miller was principal surgeon and Dr. Harte was assistant surgeon. This was not converted. On 12 November Drs. Borten and Miller as principal surgeons and Dr. Sanders as assistant, converted. On 18 November Drs. Miller and Hansen, which was converted. On 29 November Drs. Bennett and Miller as principal surgeons and Dr. Morley as assistant was not converted. On 3 December 1991 Dr. Miller was principal surgeon and Drs. Hansen and Kane assistant surgeons, converted. On 13 December Drs. Miller and Hansen, not converted. On 24 January Drs. Miller and Field which was not converted and then the operation on the plaintiff which was converted. 43. The evidence discloses that after their unsure start, Dr. Gotley, a specialist surgeon from Princess Alexandria Hospital, came to the Gold Coast Hospital to give training to the plaintiff to enable him to perform this procedure. The second defendant gave evidence that two operations were performed with him assisting Dr. Gotley (T.633) and then he did one with Dr. Gotley assisting on 28 October 1991. 44. When one examines Exh QQ the only reference to Dr. Gotley was on 28 October 1991 in which he was the assistant surgeon to Dr. Miller. Exh QQ disclosed three operations between 7 October 1991 and 12 November 1991 in which the second defendant was involved as the principal surgeon. He performed a further three as co-principal surgeon. Three were converted to open surgery, at a percentage rate of around 50 per cent, which it is submitted tends to show the inexperience of the second defendant in this procedure. 45. By the time he had operated on the plaintiff he had performed eleven operations, either as principal surgeon or as a co-principal surgeon, four of which had been converted to the open procedure which is said to be a high rate of conversion. …" 31 In the light of McInerney AJ's recording of Dr. Miller's training and experience, it is as well to note here the observations of some of the medical practitioners who provided reports and gave evidence at the hearing. 32 In the report (Exhibit C) which he wrote in January 1998, Professor Boulos wrote (inter alia) as follows (Blue AB 271): "4. Dr. Miller, according to his interrogatory, had satisfied the prerequisites which allow him to practice laparoscopic cholecystectomy, however, at the time of this event his experience was still very limited. He had carried out less than fifteen procedures. 5. Although laparoscopic cholecystectomy was at its early days, gynaecologists and general surgeons had used laparoscopic techniques for several years. The basic technical principles with respect to established pneumoperitoneum and insertion of ports remain the same. The Hasson cannula was and is still not familiar among surgeons." 33 In a report (Exhibit 20 (part)) written in July 1997, Dr. Glenn wrote (inter alia) as follows (Blue AB 931-932): "It is always difficult for a practising surgeon to become skilful in new techniques. It is, however, essential if a new technique is introduced and found to be of significant benefit to patients, that practising surgeons do adopt technical advances. The accepted procedure is for a surgeon contemplating the use of a new technique in his practice to attend a training programme in the technique, to assist the more experienced surgeon to perform the operative procedure, and then to perform the procedure himself with experienced assistance. Dr. Miller had followed this sequence. He had attended a course in laparoscopic surgery carried out in Melbourne by the college of surgeons, he had visited surgeons in Brisbane and watched the procedure being carried out, and he had obtained the assistance of an experienced surgeon to carry out his first procedure. I therefore believe that Dr. Miller had prepared himself adequately to carry out laparoscopic cholecystectomy. However it must be accepted that when any new technique is introduced, there is a learning curve, and that during that learning period complications specific to the technique occur more frequently that (sic) they do in subsequent years. … In summary, I believe that the cholecystectomy carried out on the plaintiff was indicated, the laparoscopic technique was the appropriate way for the procedure to be carried out, and I consider that Dr. Miller although in own words 'was on a learning curve', he had had adequate training and instruction in the technique. …" 34 In a report (Exhibit 23) written in July 1997, Dr. Aroney wrote (inter alia) as follows (Blue AB 1075-1078): "In Australia laparoscopic cholecystectomy had commenced some time in early or mid 1990. 2. NATURE OF LAPAROSCOPIC TRAINING AVAILABLE IN AUSTRALIA The courses as initially taught in Australia under the auspices of the Royal Australasian College of Surgeons consisted of invited guests quite often from overseas in association with recently experienced surgeons in Australia holding a seminar which also included video sequences. Then demonstrations of live operations, usually by the invited overseas guests. These sessions which took between 24 and 48 hours were then followed by a day spent in an animal lab operating on the gall bladder of an anaesthetised live pig. There would usually be between 2 to 5 people per pig. As stated above, I was on at least two of the earlier courses and at none of these courses was an alternative to the use of a Veress needle mentioned. Complications mentioned in introducing a Veress needle were mainly not to puncture any of the organs, particularly bowel, and to take care not to puncture the abdominal aorta. The teaching at that time was to introduce the Veress needle into the pelvis after lifting up the anterior abdominal wall, this latter manoeuvre being taken to reduce the risk of puncturing any vessels and fact that the needle was directed towards the pelvis obviating the risk of piercing the abdominal aorta. In none of these early courses was the percentage risk of puncturing any of the major vessels mentioned although it is now known and was starting to be recognised toward the end of 1992 onwards that these risks were between 3-10 per 10,000 cases. Especially was not mentioned the fact that a Veress needle and more rarely a trocar can lacerate a vessel rather than just puncture it and this complication was not widely recognised until the end of the 1992 period. During these training courses also mention was made of the danger of a C02 gas embolism forming if the Veress needle ended up in a major vessel and thus certain tests were carried out in order to obviate the Veress needle ending up in the major vessel such as aspirating the Veress needle after its application and also seeing if its end moved freely and also observing the aspiration of saline from a syringe without its plunger through the Veress needle into the peritoneal cavity because of reduced or lessened intra abdominal pressure as compared to the exterior. These tests were routinely carried out by all to ascertain that the Veress needle tip was not in a major vessel. However at that time also it was not apparent that these tests would not necessarily demonstrate the laceration of an artery and/or a vein which could occur with the introduction of a Veress needle into the pelvic area, the Veress needle ending up in the general peritoneal area after having caused the laceration without indicating any blood being aspirated and the intra abdominal pressure at that stage still being low enough for the aspiration of saline into the abdominal cavity. In these cases too at that time the danger of causing a CO2 embolus as the pressure built up within the general peritoneal cavity and opened up the rent in the retro peritoneal area and with the patient either in a flat position or a slight Trendelenberg position which quite often they were placed in for the introduction of the Veress needle was not recognised. The CO2 gas would be aspirated into a major venous channel such as a common iliac vein and drawn up into the interior Vena Cava and makes its way to the heart. In any case, the complications of vascular injury would not have been particularly stressed as I know from my own experience in these earlier courses on laparoscopic cholecystectomy. However care in the introduction of Veress needle would have been instructed. Most surgeons at that time would have done the courses above as outlined, undertaken the laboratory hands-on experience with pigs before attempting any surgery on human patients. In addition most conscientious surgeons would have at least observed several operations by experienced colleagues, perhaps scrubbing up and assisting them before attempting to perform any laparoscopic cholecystectomy as the primary surgeon, but again under the watchful eye of an experienced surgeon for the first perhaps 2 or 3 cases. Thus I would state that Dr. Miller was well along the road of the learning curve by the time he had done about 15 cases. Also in his conversion rate of 20% i.e. 3 cases of 15 is very reasonable and in fact all surgeons at the time were encouraged whenever in doubt for example if there was equipment failure, if their visualisation was poor, if there was any gross pathology or excessive bleeding, to immediate convert to an open procedure. Thus there was nothing to be ashamed about with the conversion rate of 20%. It was only with vastly more experience that conversion rate (sic) could be brought down to about 10%. … Thus I reiterate that in my opinion Dr. Geoffrey Miller's experience at the time he operated on Mr. Bloodworth was sufficient for him to do as safe a laparoscopic cholecystectomy as he would an open cholecystectomy." Nor should it go unremarked that those members of the medical profession who gave evidence as to the operating technique described by Dr. Miller expressed the view that that technique was in accordance with standard practice and that it was satisfactory. Thus: (a) in his evidence (Blue AB 343) Professor Boulos agreed that Dr. Miller's procedure was in accordance with standard practice; (b) in the course of his evidence (Blue AB 439) Professor Davidson said "(Dr. Miller's) description of the technique is entirely satisfactory. I have no criticism of him"; (c) in the course of his evidence (Black AB 720-722) Dr. Glenn who attended the training course in Melbourne which had been attended by Dr. Miller, said that the training which Dr. Miller had received was adequate and that it was all that was available at that time. In addition, Dr. Glenn said that the technique adopted by Dr. Miller was that which had been taught and that there did not appear to have been any error in the technique which Dr. Miller used; (d) in the course of his evidence (Black AB 924) Dr. Sheldon said that the procedure followed by Dr. Miller was consistent with the current recommended practice in 1991; (e) in the course of his evidence, Dr. Aroney, who had also attended the training course in Melbourne which had been attended by Dr. Miller said (Black AB 904) that the techniques taught at that and other courses which he had attended were designed to minimise the risk of injury. 35 In the light of this material, it seems to me, that even if – which was not the Respondent's case at trial – the Respondent had sought to establish that Dr. Miller was negligent in undertaking an operation for which his training and experience had not fitted him and that it was that lack of training and experience which caused the operation to miscarry, it was not open to McInerney AJ to find that Dr. Miller's experience was inadequate and that by reason of that lack of experience the operation miscarried. 36 This conclusion raises the question as to the appropriate course to be adopted in order to dispose of the appeal. That this is so is due to the following: (a) McInerney AJ rejected – upon grounds based in part at least on his assessment of the Respondent's credibility – the case which the Respondent sought to make as to Dr. Miller's alleged negligent advice; (b) although the evidence of Professor Boulos and Professor Davidson – each of whom appeared to assert that an injury such as was sustained by the Respondent could not occur without negligence – the nature of which negligence was not clearly explained – on the part of a surgeon, the evidence of Drs. Glenn, Aroney and Sheldon was to the contrary and, while acknowledging the differences of view, McInerney AJ made no finding as to the acceptability or otherwise of either view. In the result, therefore, the primary case advanced on behalf of the Respondent – that is, that Dr. Miller had carried out the operation in a negligent manner – remained unresolved; (c) the basis upon which McInerney AJ found for the Respondent had not been advanced on his behalf at trial and was, as I have indicated, in my view, insupportable. 37 Given these matters, it seems to me: (a) that having regard to the basis upon which – at least in part – McInerney AJ rejected the Respondent's case as to Dr. Miller's alleged negligent advice, it is not open to this Court to uphold the first two grounds – namely, that McInerney AJ erred in so doing – taken in the Notice of Contention filed on behalf of the Respondent; and (b) having regard to the fact that McInerney AJ failed otherwise to determine the case on the basis on which it was advanced by the Respondent at trial and determined the case on a basis which is unsustainable, the appeal should be upheld and a new trial ordered. 38 For these reasons, I would favour the following Orders: (a) ORDER that the appeal be upheld; (b) ORDER that the verdict found, and Judgment entered, by McInerney AJ be set aside; (c) ORDER that the proceedings be remitted to the Common Law Division for a new trial; (d) ORDER that the Respondent pay the Appellants' costs of the appeal but, if qualified, have a Certificate under the Suitors Fund Act 1951; (e) ORDER that the costs of the trial before McInerney AJ abide the result of the new trial. 39 IPP AJA: The claim of medical negligence 40 Dr Geoffrey Miller (the second appellant) was found by McInerney AJ to have been negligent when, on 28 January 1992, he performed an operation known as a laparoscopic cholecystectomy on Mr Charles Bloodworth (the respondent) at the Gold Coast Hospital. The South Coast Regional Health Authority, trading as the Gold Coast Hospital (the first appellant), was held to be vicariously responsible for the negligence of Dr Miller. McInerney AJ granted a verdict and judgment in the sum of $1,093,680.45 in favour of Mr Bloodworth. 41 In this appeal the appellants challenge the findings of McInerney AJ both in regard to liability and damages. 42 It was accepted that, if Dr Miller was correctly found to have been negligent, the health authority was vicariously responsible for his negligence and no issue arose in this connection. 43 McInerney AJ found that Dr Miller was negligent in performing the laparoscopic cholecystectomy when he had inadequate experience of such operations. He held that his negligence in that respect caused Mr Bloodworth to suffer damage. 44 Dr Miller contended in this appeal that McInerney AJ erred, first, in holding that his experience was inadequate and, secondly, in holding that the level of his experience caused Mr Bloodworth to suffer damages. 45 Mr Bloodworth had put his claim for negligence on two other bases. First, he contended that Dr Miller had negligently performed the operation. Secondly, he contended that Dr Miller had negligently failed to warn him of his (ie Dr Miller's) lack of experience and the dangers of the operation. McInerney AJ did not uphold these arguments. 46 By notice of contention, Mr Bloodworth sought to support the verdict and judgment by contending that his Honour should have upheld the failure to warn argument. The laparoscopic cholecystectomy that was carried out 47 What follows under this and the next heading is taken substantially from the judgment of McInerney AJ. 48 The purpose of the laparoscopic cholecystectomy was to remove Mr Bloodworth's gall bladder. The operation was not a success. The procedure required the surgeon to introduce, successively, two sharp instruments into the abdomen blindly. One of these instruments caused a laceration of the common right iliac artery and a puncture of the left iliac vein. This caused carbon dioxide gas to enter the venous system. The introduction of carbon dioxide gas caused a carbon dioxide embolism that, in turn, resulted in a rapid fall in blood pressure and cardiac arrest. When this was noticed the operation ceased and cardiac massage was undertaken together with other procedures to restore cardiac output. After 12 to 13 minutes these measures were successful and cardiac output and blood pressure returned. 49 For some 55 minutes thereafter, Mr Bloodworth's blood pressure was hypotensive until it was observed that his abdomen was distending. This indicated internal haemorrhage. A laparotomy was performed which revealed two to three litres of blood in the peritoneum and retro peritoneum space. The laceration of the right common iliac artery and puncture of the left iliac vein were discovered. 50 A vascular surgeon was called into the theatre and he resected and repaired the artery and sutured the vein. 51 Mr Bloodworth was in intensive care thereafter for some 36 hours. He recovered and was moved to a surgical ward. Eventually he was discharged from hospital on 8 February 1992. In July 1992 he underwent an operation described as an open cholecystectomy. The surgeon concerned removed the gall bladder without any complications. 52 Mr Bloodworth claimed that, as a result of the negligence of Dr Miller (and, vicariously, the first appellant), he suffered brain damage with serious consequences including significant memory dysfunction, cognitive difficulties, mild expressive dysphasia, emotional lability with poor planning skills and epilepsy. The general characteristics of laparoscopic cholecystectomies 53 A laparoscopic cholecystectomy was a form of keyhole surgery devised to overcome the more extensive open procedure in what had been the traditional way of dealing with gall bladder removal. While a laparoscopic cholecystectomy had considerable benefits in reducing the trauma of the operation, there were dangers in the procedure. 54 A significant feature of the procedure was the introduction of carbon dioxide gas into the abdomen to make the internal structures more readily accessible by the laparoscope and to give greater access to the area in the abdomen in which the surgeon was to work. 55 Initially, an incision was made in the umbilicus. Through that incision a needle known as a Verres needle was used to puncture the abdominal wall. The needle was pushed through the incision and then through the abdominal wall, blindly, into the peritoneal cavity. After this had been done, the Verres needle was connected to a gas supply and carbon dioxide was introduced into the abdomen. 56 The surgeon then had to decide when sufficient volume of gas has been introduced. The next step involved the introduction of a trocar containing an object known as a port. The trocar was inserted into the abdomen, blindly, through the abdominal wall. 57 The trocar used by Dr Miller had a sharp three-sided blade with a sharp point. It was equipped with a protective shield. The instrument was so designed that, upon penetration of the abdominal wall, a protective shield would spring out and cover the blade, thereby converting the trocar into a blunt instrument. 58 There was, however, a necessary period of time after penetration of the abdominal wall before the protective shield would spring out so as to cover the blade. This could result in a particular problem. The external shield might not shoot forward as soon as the trocar entered the peritoneum, but could be held back for an appreciable distance by loose peritoneum flesh. The retention of the shield in this way could cause the unshielded trocar to puncture an intra-abdominal structure. 59 Another potential problem was that, if the incision in the abdomen was not sufficiently wide, the sleeve of the trocar could become caught up in skin margins, thus impeding the passage of the instrument. This might cause the surgeon to use greater, and usually uncontrolled, force in pushing the trocar further into the abdomen. 60 The trocar was then withdrawn, leaving the port within the abdomen. A camera was fitted into the port and this enabled the internal structures of the area to be observed visually whilst other ports were introduced into the body to enable the operation to proceed. 61 In January 1992, the laparoscopic cholecystectomy was a relatively new procedure in Australia. Many surgeons, including Dr Miller, were still gaining experience in how to carry it out. 62 Presumably for this reason the technique in performing the operation was not settled. Even by the time of the trial, McInerney AJ found that it was difficult to know what was the appropriate technique in inserting the Verres needle and the trocar. There were serious disputes in this regard between the eminent medical witnesses who testified on this issue. 63 McInerney AJ described the procedure as "very hazardous surgery". Whether this was an accurate description was, however, the subject of debate. Whatever the position might be in this respect, it is obvious that the application of a proper technique was all important in avoiding injury consequential upon the blind introduction of the Verres needle and the trocar. Very serious complications could be caused were the Verres needle or the trocar to penetrate blood vessels or other structures of the body. There were inherent risks in the procedure. Mr Bloodworth's case that the operation was negligently carried out 64 The main thrust of Mr Bloodworth's case at trial was that, had Dr Miller exercised reasonable care and skill in performing the operation, the artery and vein would not have been penetrated. 65 As I have mentioned, McInerney AJ did not find that Dr Miller was negligent in this particular respect. This result has to be seen against the background of two findings made by his Honour. Firstly, he held that the damage to the artery and vein was caused by the trocar (and not the Verres needle). Secondly, he held that the trocar had been inserted "too far" into the abdominal area. In the absence of a finding of negligence, his Honour could have meant no more by this finding than that the trocar was inserted further than was desirable, it having been inserted far enough to cause damage to blood vessels deep within the abdomen. 66 Mr Bloodworth called a considerable body of evidence in support of his case that Dr Miller was negligent in the performance of the operation. He relied substantially on two English surgeons of considerable eminence, Professor Davidson and Professor Boulos. 67 Professor Davidson said that Mr Bloodworth's injuries were "unacceptable" and "would not be considered as a reasonable or expected complication of gall bladder surgery". Professor Boulos was of a like mind. His evidence was to the effect that, had Dr Miller followed the "rules" for laparoscopic surgery, the injury would not have occurred. He said: "Mr Bloodworth is thin and presumably Dr Miller miscalculated the angulation and depth required for the insertion of the needle or the trocar. Indeed, the more common causes for instrumentation injury is uncontrolled entry when the surgeon applies increasing force while attempting to enter the abdominal cavity. This should not occur if reasonable care is used". 68 In summary, the evidence of Professor Davidson and Professor Boulos was that the only explanation for the injury was negligent conduct on the part of Dr Miller. They were not able to say what particular action on his part was inappropriate, save that the trocar was pushed too far into the abdomen. They were, however, of the view that injuries of the kind sustained by Mr Bloodworth do not occur if the surgeon uses proper care. In this way their evidence tended to support the application of the principle of res ipsa loquitur: Schellenberg v Tunnel Holdings (2000) 200 CLR 121. Their evidence, if accepted, was sufficient to establish negligence. 69 McInerney AJ, however, did not accept their evidence. Nor, it must be said, did he positively reject it. This is a difficulty in his Honour's reasons; he did not decide the issue. 70 A number of highly experienced and eminent surgeons gave evidence on behalf of Dr Miller that was contrary to that of Professor Davidson and Professor Boulos. 71 Dr Sheldon said that the margin of error in a laparoscopic cholecystectomy was so small "that even a competent experienced operator faces an ongoing risk that [what occurred with Dr Miller] will happen to him one day". He explained: "The margin of error is small, so that even with care the possibility of injuring one of the major vessels has to be an ongoing possibility". 72 Dr Glenn was of the view that the injuries were sustained as a result of an intrinsic risk associated with introducing pointed instruments into the peritoneal cavity. He said that there was "always the possibility of injury when a pointed instrument is being inserted into the abdominal cavity without vision". He stated that there were several factors that could give rise to penetration of vessels by the trocar. There could be adhesions between the anterior abdominal wall to the retro-peritoneum, the sharpness of the instrument was a variable factor, and the resistance of the anterior abdominal wall (which depends on the amount of fibrous tissue and layers being transversed by the trocar) was variable. He said that one of the problems was the texture of the abdominal wall. In a thin, frail old lady the trocar passes easily through the central tendon of the abdomen. In a muscular young man it often requires considerable force. He said there could also be potential difficulties with a thin patient where the distance from the abdominal wall to the major vessels could be one to two centimetres "and when a slight pressure goes on with the insertion of the instrument it can be even more close". Further, the angle of the insertion of the needle has to be changed by reference to the strength of the anatomical structures. He said it was easy to go off course and then for injuries to be caused. He said that, in addition, errors could occur if the patient was obese or positioned on the table in a slightly off-centred way. 73 Dr Aroney testified that injuries could be caused without any negligence on the part of the surgeon. He said the reason for this was that often the tip of the trocar went perilously close to retro-peritoneal and other structures. He also referred to potential problems with the instruments. 74 There was evidence that, because of the dangers inherent in the procedure that was performed on Mr Bloodworth, a modified procedure known as the Hassan technique had, later, become the accepted norm. The Hassan technique allows the surgeon to introduce the necessary instruments with vision and it has replaced the earlier procedure. 75 McInerney AJ accepted that Dr Miller had not committed any error in the applying the appropriate technique. He did, however, hold that the trocar had been pushed in too far. This, alone, did not establish negligence, construing the finding as I do. It was necessary to make a finding as to whether the insertion, too far, of the trocar amounted to negligence. In other words, it was necessary for a finding to be made as to whether, on this issue, the views expressed by the experts called by Mr Bloodworth or those called by the appellants were to be preferred. His Honour, however, made no such finding. The finding of negligence based on lack of experience 76 His Honour held that Dr Miller was negligent on the following basis: "I am satisfied on the balance of probabilities that on the whole of the evidence [Dr Miller's] training and experience were inadequate to undertake this operation on [Mr Bloodworth]." He said: "The standard of care required of a specialist general surgeon in these circumstances was breached by [Dr Miller's] lack of experience and knowledge of this type of procedure which brought about disastrous consequences." 77 The judge repeated these findings when saying: "[Dr Miller] was a specialist general surgeon. In those circumstances he had a duty of care to [Mr Bloodworth] to exercise reasonable care and skill. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have the skill of a special general surgeon. I find he failed in the circumstances because of his inadequate skill in carrying out the laparoscopic cholecystectomy and in doing it without pursuing further training and informing himself fully of the hazards of the surgery by reading the relevant literature". 78 Professor Davidson and Professor Boulos emphasised that experience was necessary to know the extent to which instruments were introduced into the body and when the abdominal wall had been perforated. McInerney AJ did not say whether he accepted this evidence but it is implicit from his findings that he did. 79 His Honour said that "[f]undamental technique is to control how far the instrument goes into the abdominal cavity" and "technique is clearly dependent upon experience". His Honour remarked, "the ability to recognise when the instruments have penetrated the anterior abdominal wall is one that comes from experience". It is implicit in the judge's reasoning, therefore, that he considered that the trocar went in too far because of lack of experience. He seemed to distinguish between the negligent insertion of the trocar (which he did not find) and the insertion, too far, of the trocar caused by negligent inexperience (which, implicitly, he did find – although not expressly asked to do so). 80 With respect to his Honour, I think there is a fallacy of logic in this reasoning, to which I shall return. The level of Dr Miller's experience 81 As Dr Morrison SC, senior counsel for Mr Bloodworth, accepted, the case for Mr Bloodworth was not conducted on the basis that his injuries were caused by Dr Miller's negligent inexperience. As mentioned, Mr Bloodworth's primary case was that the operation was negligently performed. For this reason, no evidence was led on behalf of Mr Bloodworth, as part of his case, that Dr Miller was insufficiently experienced. The only witnesses who gave evidence directly relevant to this issue were Dr Glenn and Dr Aroney, and their evidence was elicited by Dr Morrison in cross-examination. 82 Dr Morrison accepted that the findings of McInerney AJ as to the level of Dr Miller's training and experience were correct. What follows in this respect is derived from those findings. 83 In late 1990 or early 1991 Dr Miller attended a symposium in Melbourne on how to perform a laparoscopic cholecystectomy. He observed the operation being performed and then with other surgeons he operated on a pig. Thereafter he spent five half days at Royal Alexandria Hospital at Brisbane observing five such operations and on one occasion he held the camera used in the procedure. 84 Thereafter, Dr Miller performed a number of laparoscopic cholecystectomies either as principal surgeon or as co-principal surgeon. In at least two of those operations Dr Miller was assisted by more experienced surgeons who, presumably, adopted a supervisory role. 85 By the time Dr Miller operated on Mr Bloodworth he had performed 11 laparoscopic cholecystectomies either as principal surgeon or as co-principal surgeon. Three of these were as co-principal surgeon and at least seven were as principal surgeon with another surgeon assisting him. 86 Four of the 11 operations he so performed had been converted from a laparoscopic cholecystectomy to the open form of cholecystectomy. At the time of the operation on Mr Bloodworth, it was accepted practice that - if there was any doubt about the success of the laparoscopic cholecystectomy being undertaken - the operation would be converted to an open procedure. Dr Glenn said that he did not believe that there was a high conversion rate in regard to the laparoscopic cholecystectomies undertaken by Dr Miller. There was other evidence to the effect that Dr Miller's rate of conversion should indeed be regarded as "high". McInerney AJ made no finding in this regard. The appropriate level of experience compared with that of Dr Miller 87 McInerney AJ made no findings as to the appropriate standard of experience against which the state of Dr Miller's experience at the time of the operation on Mr Bloodworth was to be measured. As I have said, the only two witnesses who gave material evidence on this issue were Dr Aroney and Dr Glenn and I turn now to their testimony. 88 Dr Aroney said that in 1990 and 1991 general surgeons in Australia were just starting to get into the field of laparoscopic cholecystectomies. Dr Aroney, himself, attended two seminars in Melbourne and two in Sydney. By the time of the fourth seminar he was teaching laparoscopic cholecystectomy techniques. 89 He, too, watched "a couple of operations being performed" and shared with other surgeons the experience of conducting the operation on a pig. The advice then given to surgeons wishing to undertake such procedures who had reached such a stage was to watch gynaecologists introduce Verres needles and apply related techniques. Dr Aroney agreed that the surgeons should then undertake the surgery first as assistant surgeons and thereafter under supervision. He said that this was the ideal but it was not always achieved and there were surgeons who commenced surgery without any further training. 90 Dr Glenn agreed that a single weekend seminar and sharing an operation with another surgeon on an animal was insufficient training for undertaking a laparoscopic cholecystectomy. He said that the surgeon "should watch perhaps four or five cholecystectomies done by somebody more experienced. I think [he] should do another two or three cholecystectomies at least with assistance". 91 When Dr Miller's experience is compared to the level of experience recommended by Dr Aroney, it cannot be said that he had not achieved the level of experience required. True it is that he had not undertaken surgery first as an assistant surgeon. The fact is, however, that prior to operating on Mr Bloodworth, he had undertaken 11 such operations. As mentioned, three of these were as co-principal surgeon and at least seven were as principal surgeon with other surgeons assisting. At least two of these assisting surgeons were more senior to Dr Miller. 92 Again, while Dr Miller's experience was not precisely mirrored by the experience recommended by Dr Glenn, it was materially similar and, on one view, greater. 93 Neither Dr Aroney nor Dr Glenn testified that, in their opinion, Dr Miller's experience was inadequate. Indeed, no witness gave evidence to that effect. 94 In my opinion, the testimony led at the trial did not support the finding by McInerney AJ that Dr Miller's experience was inadequate for the task of conducting a laparoscopic cholecystectomy on Mr Bloodworth. In my view, particularly in the light of the way the case was conducted, it was not open to his Honour to make a finding beyond the evidence. 95 In the circumstances, I consider that the appeal must succeed on this issue. The finding that Dr Miller negligently caused the injuries by performing the operation with inadequate experience 96 In Ainsworth v Levi (unreported, NSWCA, 30 August 1995) Mahoney AP said, in regard to the negligence of a surgeon, it is proper to stress two things: "First, what the surgeon should do, ie, what dangers he should foresee and what precautions he should take to deal with them, is to be determined on the basis (or assumption) that he has and has properly exercised the degree of skill and care that, as a skilled professional, he is expected to have and to take. And second, a surgeon is liable only for not doing what he should have done: he is liable only if he is, in the sense to which I have referred, in default. He is not liable merely because what he has advised or done has caused damage to a patient. Damage may occur because of risks to which inherently a surgical procedure is subject: cf the risk of sympathetic ophthalmia referred to in Rogers v Whitaker (1992) 175 CLR 479. Sometimes damage may occur because of a mere error judgment: a surgeon is expected to exercise reasonable care in diagnosing and in advising which should be done: he is not required to be omniscient." 97 Doctors are required to display the degree of skill appropriate to their position, that is, as general practitioner or specialist. The test is the standard of the ordinary skilled person exercising and professing to have that special skill: see Whitehouse v Jordan (1981) 1 WLR 246 (at 258). As Lord Fraser (at 263) said in that case: "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have a standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent". 98 McInerney AJ did not find that Dr Miller carried out the operation in a negligent way, notwithstanding that this was the main plank of Mr Bloodworth's case. In determining whether Dr Miller was negligent as alleged, his Honour was required to consider whether Dr Miller exercised due care having regard to the standard of care expected of a surgeon adequately experienced in the kind of operation he undertook. 99 Having concluded that negligence of that kind was not proved, I do not see how his Honour could then proceed to find that Dr Miller was negligent in performing the operation without having the requisite level of experience. As it was not established that Dr Miller had performed the operation without the requisite degree of care and skill required of a specialist surgeon in his position, it could not be said that he was negligent in performing the operation without having the requisite level of experience. 100 Put in another way, as McInerney AJ did not find that Dr Miller negligently caused the trocar to penetrate as far as it did, it could not be said that lack of experience amounting to negligence caused the trocar to penetrate as far as it did. On this basis, also, I would uphold the appeal. A new trial? 101 Dr Morrison submitted that, should the appellants' argument in respect of the finding that Dr Miller lacked adequate experience to conduct the operation be upheld, a new trial should be ordered. His submission was based on his Honour's omission to make a finding in regard to the principal case presented by Mr Bloodworth at the trial, namely, that Dr Miller conducted the operation negligently. I accept that submission. As matters of credibility are involved, it is not open to this Court to make the necessary findings itself. Accordingly, I would set aside the verdict and judgment and order a new trial. 102 The conclusion to which I have come disposes of Mr Bloodworth's notice of contention, but I would make some comments in this connection. 103 The notice of contention goes to the failure to warn case mounted by Mr Bloodworth at the trial. 104 Mr Bloodworth contended that Dr Miller negligently failed to warn him of the dangers of the operation and also of the dangers stemming from what Mr Bloodworth alleged to be a lack of adequate experience on the part of Dr Miller. 105 Dr Miller accepted that he did not warn Mr Bloodworth of any adverse problems that might arise from the operation. 106 McInerney AJ found that Dr Miller should have advised Mr Bloodworth "of the rare possibility of an arterial artery or vein being punctured" and told him that, because he was a thin person, special dangers were involved. He found also that Dr Miller should have fully explained his experience to Mr Bloodworth. 107 McInerney AJ said however: "I am not satisfied that even if [Mr Bloodworth] had been warned as I believe he should have been that he would have sought the services of a so-called more experienced surgeon". 108 Dr Morrison submitted that there were other matters of which Dr Miller should have warned Mr Bloodworth. He submitted that the judge's finding as to failure to warn did not take into account these additional risks not mentioned by his Honour. He submitted that on this ground, too, there should be an order for a new trial. As I am satisfied, in any event, that there should be such an order, there is no need for me to address this issue. 109 Neither counsel submitted that, should there be an order for a new trial, the trial should only be in respect of liability. The quantum of damages awarded was a contentious issue on appeal. I think it appropriate, therefore, that, having determined that there should be a new trial, the new trial should be as to liability and damages. 110 In this regard I would note that there was some discussion as to whether – should Mr Bloodworth succeed on the failure to warn case - his damages should be assessed on the basis of a loss of a chance. This is an open question and, in my view, would best be addressed at first instance once appropriate factual findings have been made. 111 In the circumstances, I agree with the orders proposed by Powell JA. 112 SPERLING J: I agree with Powell JA and Ipp AJA. ********** 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. 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