Supreme Court New South Wales

• Medium Neutral Citation: Neville v Lam (No 3) [2014] NSWSC 607
• Hearing dates: 17, 19 to 21, 24, 26 to 28 March 2014
• Decision date: 21 May 2014
• Jurisdiction: Common Law
• Before: Beech-Jones J

Decision

The Court orders that:

1. The proceedings be dismissed.

2. The plaintiff pay the defendant's costs.

• Catchwords: TORTS - medical negligence - alleged failure to advise plaintiff of risk of pregnancy and need for contraception following endometrial ablation - burden of proof not discharged - evidence of "usual practice" - usual practice supported by defendant's publications.; DAMAGES - claim for damages - recovery for out of pocket expenses - damages for various injuries - recovery for additional costs associated with rearing or maintaining a disabled child - causation - Wallace v Kam.
• Legislation Cited: - Civil Liability Act 2002 (NSW), s 5B, s 5D, s 13, s 15, s 15B, s 70, s 71, Pt 2, Pt 3, Pt 11; - Civil Liability Amendment Act 2003 (NSW), Sch 1; - Civil Liability Amendment Act 2006 (NSW); - Evidence Act 1995 (NSW), s 66A, s 97, s 136; - Evidence Regulation 2005 (NSW), cl 5(2)
• Cases Cited: - Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302; - Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489; - Blundell v Musgrave (1956) 96 CLR 73; - Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; - Cattanach v Melchior [2003] HCA 38; 215 CLR 1; - CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1; - Elayoubi v Zipser [2008] NSWCA 335; - Fox v Percy [2003] HCA 22; 214 CLR 118; - Griffiths v Kerkemeyer (1977) 139 CLR 161; - McFarlane v Tayside Health Board [2000] 2 AC 59; - Melchior v Cattanach [2000] QSC 285; - Melchior v Cattanach [2001] QCA 246; - Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58; - Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; - Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727; - Neville v Lam (No 2) [2014] NSWSC 300; - Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266; - Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; - Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211; 140 FCR 445; - Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309; - Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948; - Rogers v Whitaker (1992) 175 CLR 479; - Rosenberg v Percival [2001] HCA 18; 205 CLR 434; - Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; - Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319; - Tomasetti v Brailey [2012] NSWCA 399; - Wallace v Kam [2012] NSWCA 82; Aust Torts Reports 82; - Wallace v Kam [2013] HCA 19; 87 ALJR 648; - Waller v James [2013] NSWSC 497; - Watson v Foxman (1995) 49 NSWLR 315
• Category: Principal judgment
• Parties: Lisa Neville (Plaintiff); Associate Professor Alan Lam (Defendant)
• Representation: Counsel: A.J. Bartley SC, L. Whalan (Plaintiff); A.J. Sullivan QC, J.M. Sandford (Defendant); Solicitors: Ken Cush & Associates (Plaintiff); Avant Law (Defendant)
• File Number(s): 2008/289699
• Publication restriction: Nil

Judgment

1 On 3 November 2004 the defendant, Associate Professor Alan Lam, operated on the plaintiff, Ms Lisa Neville. Amongst other procedures, he performed an endometrial ablation. This procedure was undertaken to treat her severe menorrhagia.

2 On 24 August 2006 Ms Neville gave birth to a boy, Samuel. Ms Neville's statement of claim pleads that Samuel has been diagnosed as suffering from multiple joint contractures, neuronal migration disorder, hypopituitarism, right facial nerve palsy, and pyloric stenosis. For reasons I will shortly explain, it is not necessary at this point to make any findings concerning the extent of Samuel's disabilities, other than to note that it is accepted that they are significant.

3 Ms Neville stated that, after she underwent the endometrial ablation and before she conceived Samuel, she believed it was not possible for her to become pregnant. She contends that, acting under that misapprehension, she did not use a contraceptive or undergo a tubal ligation before she fell pregnant. She says that Associate Professor Lam was under an obligation to advise her of the risk that she could still conceive after she underwent the endometrial ablation, but he failed to do so and this failure constituted negligence.

4 Associate Professor Lam cannot presently recall the advice he provided in his consultations with Ms Neville. Nevertheless, having regard to what he stated was his usual procedure in dealing with patients and the contents of his medical notes, he denied that he failed to warn Ms Neville that there remained a risk of her falling pregnant after undergoing the endometrial ablation, or of the ongoing need for her to use a safe and effective means of contraception.

5 Ms Neville's claim for damages against Associate Professor Lam had three components. First, she sought recovery of various amounts by way of out of pocket expenses associated with her pregnancy and delivery. Second, she claimed damages for various injuries said to arise out of her pregnancy and delivery of Samuel. This not only included the pain of undergoing childbirth, but a claim that she suffers from depression from the shock and stress of learning she was pregnant, and then discovering and dealing with Samuel's disabilities. Third, she sought recovery of an amount said to represent the "additional costs associated with rearing or maintaining" Samuel occasioned by reason of his disabilities (Civil Liability Act 2002 (NSW), s 71(2) (the "CLA")).

6 The pursuit of this third aspect of her claim for damages encountered a difficulty just prior to the hearing when a paediatric endocrinologist raised a concern about whether Samuel was developing a progressive eye condition. This led to an application for an adjournment of the trial, which was ultimately not pressed and which, in any event, was refused. Instead, I severed for later determination, if necessary, the quantum of damages recoverable by Ms Neville, if any, for the cost of rearing and maintaining Samuel (Neville v Lam (No 2) [2014] NSWSC 300). The hearing proceeded in respect of the remaining issues.

7 In summary I found Ms Neville to be an honest witness who in giving her evidence was genuinely attempting to recall events as they happened and her state of mind as those events unfolded. Nevertheless Ms Neville has failed to discharge the onus she bore of proving that Associate Professor Lam did not provide the advise that she alleges he was obliged to. This is so because my consideration of the contemporary materials and the apparent logic of events has satisfied me that Associate Professor Lam gave her the advice in question at a consultation on 27 October 2004. It has also left me unpersuaded that he did not prove that advice at an earlier consultation on 7 October 2004 and in writing. It follows that Ms Neville's case must fail.

8 Notwithstanding this conclusion, I have nevertheless addressed, as far as is practicable, the various contentions of the parties concerning causation and damages on the assumption that Associate Professor Lam was negligent and, but for that negligence, Ms Neville would not have conceived. Even on that assumption there were evidential difficulties with Ms Neville's case, although I would have allowed some amount for her non-economic loss, ie the second component of her claim, and accepted that in principle she could recover the third component of her claim (see [5] above).

9 The balance of this judgment is structured as follows:

1. The Procedure	[10] to [16]
2. Background	[17] to [19]
3. Ms Neville's relationship with Mr Nowak	[20] to [29]
4. October 2004 consultations with Associate Professor Lam	[30] to [48]
5. November to December 2004	[49] to [54]
6. Conversations in late 2004	[55]
7. 2005 to February 2006	[56] to [69]
8. Events after February 2006	[70] to [73]
9. Ms Neville's credit	[74] to [94]
10. Did Associate Professor Lam fail to advise Ms Neville of the risk of pregnancy and the need to use contraception following an endometrial ablation?	[95] to [141]
(a) Approach	[95] to [108]
(b) Contemporary materials and logic of events: the Plaintiff's case	[109] to [130]
(c) The conversation on 17 February 2006	[131] to [132]
(d) Contemporary materials and logic of events: the Defendant's case	[133] to [136]
(e) Conclusion	[137] to [141]
11. Breach	[142] to [143]
12. Causation and damages	[144] to [198]
(a) Recovery of damages in unplanned birth cases at common law	[149] to [166]
(b) Legislative intervention	[167] to [170]
(c) Causation under the Civil Liability Act	[171] to [177]
(d) The Defendant's remaining causation submissions	[178] to [198]
13. General damages	[199] to [212]
14. Economic loss	[213] to [217]
15. Out of pocket expenses for Ms Neville	[218]
16. Past and future gratuitous care for Samuel	[219]
17. Past and future out of pocket expenses for Samuel	[220] to [223]
18. Conclusion	[224] to [225]

(1) The Procedure

10 Endometrial ablation involves the removal of the endometrium, being the lining of the uterus. It is one method of treating heavy periods or abnormal menstrual bleeding. A pamphlet published in 1998 by the Royal Australian College of Obstetricians and Gynaecologists describes endometrial ablation for some women as an alternative to a hysterectomy. The same pamphlet states that the procedure involves destruction of the endometrium by one of several methods. The procedure is usually performed under a general anaesthetic and is said to take fifteen to thirty minutes. One matter that was not in issue at the hearing was the competency of the endometrial ablation performed by Associate Professor Lam.

11 It was common ground that, following an endometrial ablation, pregnancy is unlikely but not impossible, and that there was some uncertainty if pregnancy occurred whether it might lead to an abnormal outcome. The publication noted above stated:

"It should not be assumed that endometrial ablation will prevent pregnancy. Although pregnancy is extremely unlikely following the procedure, some have occurred. Pregnancy is not recommended after endometrial ablation as it is not known whether such pregnancies could be expected to have a normal outcome. Your doctor should be consulted about contraceptive methods."

12 In June 1992 Associate Professor Lam authored an article entitled "Explaining Hysteroscopic Endometrial Ablation to your Patients". Although its title suggests it was intended for treating doctors, the balance of the document suggests that it is a brochure intended for patients. Under the heading "How does hysteroscopic endometrial ablation compare with hysterectomy?" it states :

"Although pregnancy is unlikely to occur afterwards, this is not guaranteed and a safe method of contraception is advised. Alternatively, you may decide to have a laparoscopic sterilisation at the same time as the operation. Regular Pap smears should be continued."

13 In the same year, Associate Professor Lam and two other practitioners published an article in the Australian and New Zealand Journal of Obstetrics and Gynaecology entitled "Ruptured Ectopic Pregnancy in an Amenorrhoeic Woman After Transcervical Resection of the Endometrium". The article included the following statements:

"As the procedure does not ensure cornual obliteration, women are advised to either continue with a safe method of contraception or to consider simultaneous laparoscopic tubal sterilization ...

It is easily understandable that women who continue to menstruate following endometrial ablation may be at risk of pregnancy. In women who become amenorrhoeic, however, the occurrence of pregnancy is unexpected and raises several practical implications. Firstly, all women, including those who become amenorrhoeic following this procedure, should be advised to continue with a safe method of contraception, even though the chance of pregnancy may be assumed to be very unlikely indeed. This would appear to be a safe and medicolegally sensible precaution, particularly as the long term effectiveness of this procedure is still not clear and may diminish with time." (emphasis added)

14 Three gynaecological experts were called by the parties, namely, an Associate Professor of Gynaecology, Dr Reti, an Associate Professor of Gynaecology and Endoscopic Surgery, Dr Cooper, and a Professor of Obstetrics & Gynaecology, Dr Chapman. All agreed that a specialist in the position of Associate Professor Lam should have advised a patient in Ms Neville's position that pregnancy was still a possibility after endometrial ablation, that such a pregnancy would be "high risk" and contraception was needed to prevent pregnancy. They maintained this view even if the patient's personal circumstances as conveyed to the specialist suggest that there was little risk of pregnancy. They also agreed that such advice should be reinforced by the provision of written information. Equally they all agreed that if Associate Professor Lam advised Ms Neville in the terms he asserted he did (see below), namely that, although pregnancy is unlikely to occur afterwards, endometrial ablation is not a contraceptive method and a safe method of contraception must be continued or chosen, then the advice he gave was "appropriate".

15 Both sides sought to use this unanimity to their own advantage. In Ms Neville's case she contended that, if it was found that Associate Professor Lam did not give this advice, then it inevitably followed that he breached his duty of care (and otherwise failed to take an appropriate "precaution" within the meaning of s 5B of the CLA). Although the opinions of experts on the question of what advice was appropriate was not determinative, they were clearly relevant (Rogers v Whitaker (1992) 175 CLR 479 at 489 to 490 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ; Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 439 per Gleeson CJ; cf Rogers v Whittaker at 493 per Gaudron J). In any event, in this case neither party sought to pitch a case concerning the extent of Associate Professor Lam's duty as to what advice should be given that was any wider or narrower than the view of the three experts.

16 For his part, Associate Professor Lam sought to invoke the above commentary, especially his own, as supporting the strong likelihood that he gave to Ms Neville the advice that he wrote about as far back as 1992.

(2) Background

17 Ms Neville is currently fifty years old. She grew up in Hurstville. She left school during Year 11, after which she obtained work in various retail and office positions. Some time after she turned 21 years of age, Ms Neville was admitted to a private hospital for treatment for depression. While undergoing treatment she met her first husband, who was then aged 38. They were married in October 1985. In July 1985 she became pregnant with her first child, who was born in April 1986. She gave birth to a second child in November 1987. She and her first husband separated in late 1989, and were divorced in March 1992.

18 Ms Neville commenced a relationship with the man who was to become her second husband in 1991. They were married in September 1992. Ms Neville's third child was born in May 1993, and her fourth child was born in March 1998. Ms Neville said that her first and third pregnancies had occurred whilst she was "taking the contraceptive pill". She also said that she was surprised when she learned that she had become pregnant with her fourth child, as she said she and her second husband had been "using contraception by way of condoms at the time".

19 Prior to the birth of her fourth child Ms Neville and her second husband discussed with various doctors the possibility of her having a tubal ligation or her second husband having a vasectomy. After the birth of her fourth child, her second husband had a vasectomy. Following the birth, Ms Neville began to experience severe menstrual bleeding which deteriorated significantly in the ensuing years.

(3) Ms Neville's relationship with Mr Nowak

20 To place the consultations that Ms Neville had with Associate Professor Lam in late 2004 in context it is necessary to describe the events surrounding the breakdown of her second marriage and the commencement of her relationship with Samuel's father, Greg Nowak.

21 From the mid-1990s Ms Neville's second marriage was in trouble. Ms Neville stated that over the course of the marriage "there was a lengthy history of physical and psychological abuse".

22 In 2003 Ms Neville met Greg Nowak. They saw each other at horse riding events that their children participated in. They spent time together and became close. Mr Nowak had personal difficulties of his own. He had separated from his wife, but she still required significant care as she was a quadriplegic and was suffering from multiple sclerosis.

23 In her statement Ms Neville stated that in September 2004 her second husband told her that he would never have married her if she had not been pregnant. She stated that this "was the point in time that I knew the relationship was effectively over". Ms Neville said that after this comment she telephoned Mr Nowak and arranged to meet him for coffee. Two weeks later they met. Ms Neville said that they confided that they had feelings for one another.

24 Both Ms Neville and Mr Nowak stated that they first had sexual intercourse on a trip to Jamberoo shortly after Christmas in 2004. They did not use contraception. Ms Neville stated that they continued to see each other in the early weeks of January. When she returned to Sydney in that month she told her second husband that she had met someone else and did not wish to be in a relationship with him any more.

25 In cross-examination Ms Neville was asked about the assertions in the various iterations of her statement of claim that she only commenced her relationship with Mr Nowak in March 2005, and a statement she made to Associate Professor Lam on 17 February 2006 to similar effect (see [63]ff). She was also referred to an answer she gave to an interrogatory which was to the effect that she separated from her second husband "after 31 December 2004", and that her relationship with Mr Nowak started between January and March 2005. It was suggested that she had deliberately pushed back the date when she commenced a relationship with Mr Nowak to avoid explaining why she did not tell Associate Professor Lam in October 2004 that she was contemplating having a relationship with another man. Ms Neville denied that, stating that she focussed on March 2005 "because that was when my [second] husband actually left the family home" and she saw that "as being a definitive point" when her marriage ended and her "relationship" with Mr Nowak commenced. Prior to then she perceived her time with Mr Nowak as "more of an affair".

26 Ms Neville was pressed on her statement that she believed that the relationship with her second husband was "effectively over in September 2004". She explained:

"I have to put myself back in that point in time and when he told me what he told me, I remember thinking why have I been trying for so long to make this work when he didn't really want to be in the relationship to begin with. That's how I felt at that point in time. You know, it's far more complex than that inasmuch as, you know, we didn't necessarily - we did - [her second husband] did try to sort of, you know, make this work but, yeah, but that - at that particular moment in time, that's how I felt." (emphasis added)

27 Further, when it was suggested to her that she and her second husband were living separately under the one roof as at November 2004 she said they "still had relations".

28 Contrary to Mr Sullivan QC's submissions I do not regard Ms Neville's evidence on this topic as reflecting poorly on either her honesty or reliability as a witness. To the contrary, I considered her to be an honest witness. Her explanations of the statements she made as to when relationships started and ended were sensibly explained by the reference to the context in which they were made. In hindsight, she sought to identify the definite start and end dates for relationships because she thought that was what was required by the inquiry being made of her, although at the time of the events nothing was certain.

29 The answers given by Ms Neville on this topic are significant in considering her position when attending consultations with Associate Professor Lam in October 2004. It would be wrong to approach the matter on the basis that when she consulted him she had definitively concluded that her second marriage was over and that she would embark upon a new relationship with Mr Nowak. Instead, as is to be expected in such situations, the position was, as stated by Ms Neville, "more complex". Her second marriage was in significant trouble. She had developed and expressed feelings for someone else and was aware of the possibility that it may develop into a sexual relationship. However nothing was certain. From her perspective, she thought at times her second husband was trying to "make it work" and they still had "relations". It was only possible that she might enter into a relationship with Mr Nowak.

(4) October 2004 consultations with Associate Professor Lam

30 In late September 2004 Ms Neville attended her general practitioner, Dr Gavin Wong. She was referred to Associate Professor Lam. Associate Professor Lam was a specialist in obstetrics and gynaecology. He was elected a Fellow of the Royal College of Obstetricians and Gynaecologists in the United Kingdom in 1990. In 1992 he obtained Fellowship of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. In addition to practising, since 2001 he has held an appointment as a clinical associate professor at the Northern Clinical School with the University of Sydney in the Department of Obstetrics and Gynaecology. His curriculum vitae reveals that he had held other post-graduate teaching positions, had been invited to lecture on gynaecological topics over a long period of time, and had numerous articles published in peer reviewed journals.

31 Ms Neville's first appointment with Associate Professor Lam was on 7 October 2004. There was a debate about the length of the consultation, a matter I address below at [84] to [85].

Ms Neville's evidence

32 Ms Neville's evidence in chief as to what occurred during the first consultation on 7 October 2004 was set out in the following paragraphs of her witness statement:

"66. I specifically recall Professor Lam asked me a question about what contraception I was currently using. I told him that my husband had had a vasectomy and that I had tried different contraceptive pills at different times but that they didn't work for me. I told Professor Lam that I had also fallen pregnant on the contraceptive pill in the past. There was no follow up questions from Professor Lam about those issues.

67. The history taking part of the consult took approximately five minutes. Professor Lam then undertook a physical examination. This physical examination took approximately 30 seconds.

68. During the physical examination, I was standing up with my legs spread. Professor Lam said words to the effect of 'Push like you are doing a poo'. Professor Lam conducted a very quick examination and then said words to the effect of 'Okay, you can get changed and come back in'.

69. I then returned to the consulting room. Professor Lam said to me words to the effect, 'You should only consider the procedure if you have finished having children' and I said words to the effect, 'I most definitely have'. Professor Lam discussed only the endometrial procedure.

70. At this time I raised other issues with Professor Lam including that the right labia was longer than the other labia. Professor Lam seemed annoyed that I raised these other issues.

71. Professor Lam did not provide me with any material or further information following the consultation." (emphasis in original)

33 This part of Ms Neville's statement does not include any express denial that he warned her of a residual risk of pregnancy or of the need to use a method of contraception. However, in cross-examination Ms Neville denied she was told those matters or provided with any written information to that effect. She stated that following the consultation she thought the procedure was "as good as a hysterectomy" in relation to her prospects of having children. In effect she stated that she had this state of mind by reason of Associate Professor Lam's positive statement that she should only consider having the procedure if she had finished having children and his failure to discuss or refer to the possibility of conception.

34 Ms Neville undertook some urodynamic testing on 27 October 2004, before having a further consultation with Associate Professor Lam on that day. In her statement she described what occurred during this consultation as follows:

"74. I then consulted with Professor Lam. Professor Lam told me that I had stress incontinence.

75. Professor Lam provided a very good explanation of the culpo-suspension method which he was intending to use. I specifically recall being impressed by the fact that Professor Lam told me that he was one of few surgeons skilled enough to undertake the procedure in that manner and that most other surgeons used an urethral procedure instead. I felt reassured at the level of his expertise.

76. When Professor Lam told me that he would doing the culpo-suspension with an endoscopy through the belly button, I raised an issue of an umbilical hernia and asking Professor Lam whether it would be possible to resolve that issue at that time of the surgery. ...

77. ... I took reassurance from his level of expertise that he had obtained all of the information that he needed and that he had told me everything that I needed to know.

78. Professor Lam then asked me whether or not I wanted to go ahead with the procedure and if so when. I said yes and as soon as possible.

79. Professor Lam then spent approximately five to ten minutes arranging a time for the surgery to occur.

80. I signed a consent form on the same day but I do not recall whether that was with Professor Lam or at the front desk of his rooms."

35 Again, in cross-examination Ms Neville denied being advised in this consultation that the endometrial ablation procedure was not a contraceptive and a safe method of contraception must be used after it is performed.

Associate Professor Lam's consultation notes

36 From 2004 onwards Associate Professor Lam's practice utilised a computer based note taking system. Associate Professor Lam's notes for the consultations on 7 October 2004 and 27 October 2004 were as follows:

"Date: Thursday, 07/10/2004 3:30PM

Provider: A/Prof Alan Lam

History: 41 y.o. with 4 children, aged 18, 17, 11, and 6

First and last were forceps delivery, other two were [normal vaginal deliveries]

Presents with:

1. Vaginal wall laxity

2. Dyspareunia: supoerficial [sic]

3. Painful perineum

4. Stress incontinence: wearing pads, restrict fluid intake. Duration: in the last four years, running, jumping

5. Menorrhagia - Rx NSAIDs

6. Dysmenorrhea - suprapubic, crampy, 8/10 on VAS

K = heavy day 2-3, clots, pads and tampons changed hourly, maternity pads at night, 5/28

[Last menstrual period] = 07/10/04

Husband vasectomy

Examination: Perineum: torn, deficient

Labia: right > left

Posterior wall = low rectocoele

Anterior wall - Bladder neck hypermobility

Plan: 1. Explanation re sites of pelvic floor defects

2. continue pelvic floor exercise

3. [full blood count]/ Fe studies

4. Pelvic US

5. Urodynamic

Role of surgery including endometrial ablation discussed." (emphasis added)

"Date: Wednesday, 27/10/2004 5:18PM

Provider: A/Prof Alan Lam

History: [ultrasound] on 15/10/2004 = 11 x 5 x 4 cm, endometrium 9mm, ovaries NAD.

Urodynamics today = moderate stress incontinence

Bowels: tend s towards constipation, obstructed towards rectocoele

LMP = 6/10/2003

Examination: Hernia - umbilicus

Plan: 1. Menorrhagia Rx endometrial ablation, vs Mirena IUCD [sic]

2. GSI Rx conservative Rx physiotherapy or surgery = bladder suspension

3. Repair surgery for perineum, labia, rectocoele

Discuss and advise patient to consider benefits of GSI improvement and MBL reduction (90%). Risks of surgery, [a]naesthesia, surgery - bleeding, infection, trauma (bowels, bladder, ureter.

After surgery, need suprapubic catheter, 1% prolonged catheter usage." (emphasis added)

37 On 25 November 2009 Associate Professor Lam caused his practice software to print a further record which contained other information provided by Ms Neville which was not strictly related to the condition that she sought treatment for, or the treatment that was administered. It is not necessary to describe this information further.

Associate Professor Lam's evidence

38 In his first statement dated 5 March 2014, Associate Professor Lam explained that he had little recollection of dealing with Ms Neville. He did recall that she was an "elegant and articulate lady who identified to me with clarity the symptoms she wished to have treated and the reasons why she was seeking treatment for those symptoms". Otherwise, his only actual recollection of either of the consultations on 7 October 2004 and 27 October 204 was of Ms Neville advising that she was having trouble with "incontinence and heavy periods", that they were impacting on her activities including horse riding, and that she stated that she had "completed child bearing" and considered it time to "deal with these problems".

39 Beyond this, Associate Professor Lam's evidence concerning what occurred during the consultations on 7 and 27 October 2004 was a mixture of him extrapolating from his usual practice in dealing with patients at the time, and the contents of the notes. In his first statement he outlined fifteen steps that he adopted in dealing with patients in Ms Neville's position. The eleventh step was advising the patient of the "available treatment options, the natural history/progression of the condition/s, and, of the risks and benefits of the recommended treatment(s)/surgery". The fourteenth step was ensuring that the patient is "fully aware of the expected outcomes from the chosen treatment/surgery".

40 Associate Professor Lam stated that he said that it was his practice "to alert patients to the most likely treatment option [he] would recommend and to provide advice about that treatment". He stated that his notes in relation to the consultation on 7 October 2004 confirmed that he had identified endometrial ablation as the likely treatment for Ms Neville's menorrhagia, but added that "further investigations were required to identify the most appropriate management options for her stress incontinence". He added:

"As a matter of routine I give to a patient in these circumstances advice to the following effect:

'You may benefit from surgery for incontinence, however, we need to wait for the results of the urodynamics testing, pelvic ultrasound and blood tests before helping you to select the treatment options appropriate for you. There is a role for surgery (including endometrial ablation) in the management of your menorrhagia. Endometrial ablation is a surgical procedure aimed to help women achieve reduce blood loss although the outcome is unpredictable, and should only be selected once child bearing is complete and pregnancy outcomes are unknown following endometrial ablation. While a pregnancy is unlikely to occur after the endometrial ablation, the procedure is not a contraceptive method and a safe method of contraception must be continued or chosen.'"

41 In relation to this advice, Associate Professor Lam stated:

"I am certain that I would have provided Ms Neville with advice to this effect not only at this consultation [on 7 October 2004], but also, as set out below, at the consultation on 27 October 2004. There are no circumstances under which I would not advise a patient, where [endometrial ablation] is a likely treatment outcome, or the possibility of a pregnancy occurring following [endometrial ablation] and, of the need to continue or choose a safe method of contraception following the procedure. I routinely give such advice because irrespective of the history given to me, circumstances can change in the future, such as the death of a partner, or the break up of a relationship, and the establishment of a new relationship." (emphasis added)

The reference to the "history given to me" in this passage was a reference to Ms Neville advising him that she had four children and that her husband had had a vasectomy.

42 Associate Professor Lam also stated that it was his practice to provide patients with written information as a means of reinforcing the verbal information that had been provided by him in consultation. He said that "[f]or the most part" he gave it to the patient before they left his consulting room. He said that since about 1992 it had been his practice to provide all patients for whom he recommended an endometrial ablation written information about it in the form of a brochure. He stated that, while he could not recall giving Ms Neville written information, he believed that he took that step.

43 Associate Professor Lam annexed to his first statement the latest iteration of the brochure which appears to have been modified since 2004. That version included a statement that, although pregnancies are unlikely to occur after endometrial ablation, they can still occur, that the outcomes of those pregnancies are unpredictable, high risk and may be unhealthy, and that as a consequence the patient should discuss having a reliable method of contraception in place, such as a Mirena IUD, undergoing tubal ligation, or ensuring their partner either has or will undergo a vasectomy.

44 Otherwise Associate Professor Lam denied that the discussion of Ms Neville's medical history on 7 October 2004 took five minutes, that the physical examination "took approximately 30 seconds", that he used the words attributed to him in [68] of Ms Neville's statement, that they only discussed the endometrial ablation procedure, or that he became annoyed.

45 In his first statement Associate Professor Lam also addressed the consultation on 27 October 2004. He noted that the results of the pelvic ultrasound suggested that the likely cause of Ms Neville's bleeding was heavy menstruation, and that the suitable treatment options for "dysfunctional" menstruation included hormonal medications, Mirena IUD or endometrial ablation. He said the urodynamics testing confirmed that Ms Neville suffered from moderate stress incontinence. He stated that he had no reason to believe that he did not discuss with Ms Neville the findings of the investigations that he had ordered. As noted, in her statement Ms Neville recalled being told she had stress incontinence.

46 Associate Professor Lam stated that he routinely identified and discussed treatment with his patients, and considered that his notes confirmed that he discussed with Ms Neville the option of having a Mirena IUD and the option of an endometrial ablation. His statement then sets out a lengthy recitation of what he stated was the information and advice that he usually gave to patients regarding the nature, relative merits and side effects of those two treatment options. This included the following statement:

"The first option is the Mirena IUD. It is an intra-uterine device that contains slow-release progesterone and its role is first as a treatment option for heavy bleeding and its secondary role is a contraceptive device." (emphasis added)

47 He then recounts a discussion of how the IUD addresses menorrhagia and its effectiveness. He said he then discussed endometrial ablation. He asserts that part of his usual advice to people in the position of Ms Neville in relation to endometrial ablation was as follows:

"As the procedure [ie endometrial ablation] destroys the endometrial layer, it can affect the endometrial cavity and its ability to support a normal pregnancy. The procedure should therefore only be considered as a treatment in women who have completed childbearing. This is an absolute must. If there is any doubt at all about further child bearing, I would advise against this surgical option as the uterus may not be able to satisfactorily support a normal pregnancy and the actual pregnancy outcomes after endometrial ablation are unclear.

Although pregnancy is unlikely following an endometrial ablation, the procedure is not a contraceptive and a safe method of contraception must be continued or chosen."

Associate Professor Lam stated that he was "certain" he gave this advice and that there were no circumstances under which he would not have provided this advice.

48 Otherwise Associate Professor Lam denied making any "boastful statements" to Ms Neville of the kind referred to in [75] of Ms Neville's statement (see [34] above).

(5) November to December 2004

49 On 3 November 2004 Ms Neville underwent an endometrial ablation, laparoscopic colposuspension, repair of the rectocoele, perineum and right labia. In her statement Ms Neville said she did not see Associate Professor Lam while she was in hospital. Associate Professor Lam maintained that it was his practice to "review" patients prior to discharge. The hospital's progress notes record an entry made by Associate Professor Lam on 4 and 6 November 2004. Neither witness was cross-examined on this topic.

50 Approximately four weeks after the procedure was undertaken, Ms Neville woke to discover she had passed a dark coloured blood clot approximately the size of a tennis ball. She states that she rang Associate Professor Lam shortly afterwards and left a message. She stated that he called back and said to her words to the effect: "[t]hat's to be expected". In his second statement Associate Professor Lam stated that he did not recall this conversation, but stated that what Ms Neville experienced was not unusual and if contacted he would seek to reassure a patient in her position.

51 Ms Neville also stated that she telephoned Associate Professor Lam one week later as she had noticed that the stitching had come loose. She said that Associate Professor Lam did not provide any advice about the stitch. In his second statement Associate Professor Lam stated that he had no recollection of this, but if he had been contacted by a patient with this concern, he would have sought to reassure her.

52 Ms Neville returned for a consultation with Associate Professor Lam on 16 December 2004, being six weeks after her procedure. She recalled Associate Professor Lam querying her bowel habits and she had advised him that they had returned to normal. She recalled Associate Professor Lam saying "[t]hat's because I've fixed the rectocoele by reconnecting the muscles". She states that she was surprised by this because Associate Professor Lam had never previously discussed any rectocoele. (The fixing of a rectocoele is referred to in the notes of the consultation on 27 October 2004.) Ms Neville stated that there was no discussion in this consultation about "sexual intercourse or contraception".

53 Associate Professor Lam's notes of this consultation include an entry that her last menstrual period was lighter than before, that her bladder and bowel were functioning properly, and that the diagnosis was "excellent outcome". The last entry in the notes for this consultation is "Plan: review in 1 year".

54 Based on these notes, Associate Professor Lam said that he received positive reports from Ms Neville about her symptoms, and that he asked her to come back for review in one year's time. Associate Professor Lam did not assert that he reiterated any advice that he may previously have given about the possibility that Ms Neville could become pregnant after an endometrial ablation or the need for contraception.

(6) Conversations in late 2004

55 Both Ms Neville and Mr Nowak gave evidence of discussions they had in the last months of 2004 concerning the consequences for her of the operation. Ms Neville stated that, "following [her] consult[ation] with Professor Lam in October 2004", she told Mr Nowak words to the effect that the ablation meant that she "would not have periods any more and that [she] could not have any more children". Mr Nowak recalls that after the surgery he had a discussion with Ms Neville about sexual intercourse and the need for "protection". He recalls that Ms Neville said "after this procedure I can't have children". Ms Neville also recalled a conversation about having sex without contraception after the operation in which she said to Mr Nowak "I can't get pregnant after the operation anyway". Ms Neville's sister also recalled her stating around this time that the removal of her endometrial layer would be the "end of the line for her [in] terms of child bearing". These parts of the evidence were objected to as hearsay, however I admitted them but made an order under s 136 of the Evidence Act 1995 (NSW) that their use be restricted to establishing Ms Neville's state of mind (see s 66A).

(7) 2005 to February 2006

56 I have already recounted the course of Ms Neville's and Mr Nowak's relationship from September 2004 to March 2005. Their relationship continued thereafter. They did not use contraception.

57 According to Ms Neville, in December 2005 while she was on holiday she felt unwell and bought a pregnancy test from the chemist. The test was positive. Mr Nowak recalled Ms Neville being extremely upset and crying, and saying words to the effect "This is impossible". Ms Neville's sister recalled her crying and stating "How is this possible? I can't believe this?". I made a similar order under s 136 in respect of this evidence as to the evidence noted in [55].

58 Ms Neville said that, upon learning she was pregnant, she rang Associate Professor Lam's rooms, but did not speak to him and instead spoke to his receptionist. Associate Professor Lam did not recall any contact and stated that there was no record of this call. A telephone account was tendered recording a five minute call from Ms Neville's mobile phone to Associate Professor Lam's rooms on 11 January 2006. I accept that it occurred.

59 An ultrasound performed on 17 January 2006 confirmed that Ms Neville was six weeks pregnant. She was referred to a psychologist for counselling and she arranged to see Associate Professor Lam on 17 February 2006.

60 The referral letter that Ms Neville took with her to this appointment was from Dr Gavin Wong. The relevant part of the letter stated:

"Please see Lisa for an opinion regarding her recent pregnancy. LNMP [last normal menstrual period] 13/12/05. There is a lot of uncertainty regarding the pregnancy, both medical and emotional and I wonder if you can kindly advise and give expert opinion to help her."

61 Ms Neville's recollection of the consultation with Associate Professor Lam on 17 February 2006 was as follows:

"Associate Professor Lam [opened] his computer template containing my information and said: 'Ah, vasectomy'. He said: 'I did not discuss contraception with you because Steve had had a vasectomy'. I told him that Steve [her second husband] and I were no longer together and that I was in a new relationship. I remember Associate Professor Lam saying to me words to the effect: 'I didn't discuss contraception with you because your husband had had a vasectomy and I didn't want to embarrass you by talking about contraception if you were not with your husband'."

62 Ms Neville recalled that Associate Professor Lam arranged for her to have an ultrasound during his appointment, which confirmed that she was nine weeks pregnant with possible twins.

63 Associate Professor Lam's notes of the consultation were as follows:

"History: Lisa returned today with an unplanned pregnancy having undergone endometrial ablation in Nov 2004

LMP - ? 13 Dec 2005

She thinks that conception occurred around New Year's Eve.

After the endometrial ablation, she had light but cyclical PV bleeding.

She broke up with her husband (who had had a vasectomy) soon after the surgery in 2004. She has been with her current partner since March 2005.

From the point of view of her surgery, she has marked improvement in her bowel function and bladder control. She has been [seeing] Dr Q. Wong."

64 Associate Professor Lam stated that he had no reason to doubt the accuracy of his notes. He denied saying the words attributed to him by Ms Neville. In addition, he stated that he had three recollections of the consultation. First he recalled being surprised to learn that Ms Neville was pregnant. Second, he said she presented in a "calm manner". Third, he recalled Ms Neville saying to him words to the effect:

"I am concerned to know whether the pregnancy or delivery will undo the good work that the procedure you performed has done."

He said that he replied with words to the effect:

"If you have an elective caesarean section, then the outcome of the pelvic floor repair and stress incontinence surgery is unlikely to be affected."

65 After the consultation, Associate Professor Lam wrote to Dr Gavin Wong. His letter made reference to the fact that she had "broken up with her husband (who had a vasectomy) soon after the surgery in 2004" and that she had "been with her current partner since March 2005".

66 Mr Sullivan QC submitted that the inclusion by Ms Neville in her witness statement of the statements she attributes to Associate Professor Lam on 17 February 2006 noted above (at [61]) was destructive of her honesty as a witness in that they were clearly concocted and included to advance her case (a "verbal").

67 I will return to address this submission, but at this stage three points should be noted, two of which tend to support Ms Neville's recollection and one of which does not. First, the reference in the referring Doctor's letter to there being a "lot of uncertainty" which was "both medical and emotional" is suggestive of Ms Neville being at the least confused as to how she could have become pregnant.

68 Second, it is inherently unlikely that Associate Professor Lam referred to Ms Neville's second husband's first name ("Steve") during this consultation as Ms Neville's statement suggests. Associate Professor Lam's notes do not record his first name and there is very little prospect of him recalling it in February 2006, even if it had been proffered in the consultations in 2004.

69 Third, Ms Neville's version derives some support from the notes of the consultation and Associate Professor Lam's letter to the referring general practitioner. They indicate that the topic of the change in Ms Neville's relationship status was clearly discussed during this consultation. As noted, Associate Professor Lam simply denied that the words attributed to him by Ms Neville were spoken. He did not address why it was necessary for him record and report on the change in Ms Neville's personal circumstances.

(8) Events after February 2006

70 In August 2006 Ms Neville discussed the impending birth with her treating doctor. She indicated that she wished to have a caesarean and wished to have a tubal ligation afterwards. Her treating doctor advised her that there was a possibility of a hysterectomy, which she said that she agreed to undergo if it was necessary.

71 Ms Neville gave birth to Samuel on 24 August 2006 after a caesarean section. A tubal ligation was performed at the same time. I have already noted the disabilities which it is said that Samuel labours under, and the current concern about the possibility of deterioration in his eyesight.

72 Given the manner in which the claim for damages is framed, the material that was tendered concerning the course of Ms Neville's pregnancy and her subsequent raising of Samuel was scant. In her statement, Ms Neville did not describe any difficulties with the pregnancy or birth. In relation to the period after his birth all she stated was that she had "to care for Samuel much more than for my previous four children" and that she is "on call 24 hours per day with Samuel".

73 Some further detail emerged from Ms Neville's cross-examination and the histories recorded by the various doctors. From December 2011 to December 2013 she and Samuel lived with Mr Nowak at premises she owns with him at Kentlyn, which is in the same street as the school that Samuel attends. In December 2013 Ms Neville and Samuel moved to a house at Ambarvale, while Mr Nowak remained at the house at Kentlyn. Ms Neville stated that she considered the move to Ambarvale as "temporary while we build a house at Kentlyn". As I will explain, Samuel spends his time between Ambarvale and Kentlyn.

(9) Ms Neville's credit

74 During his written and oral submissions Mr Sullivan QC raised a number of points concerning Ms Neville's credibility (and to an extent Mr Nowak's). Some of them were directed to the fallibility of Ms Neville's memory, but others appeared to constitute an attack upon her honesty. I have noted two of the matters (at [25] and [66]) and resolved one of them (at [28]). I will note the balance of those matters at this point. Consistent with my finding at [28], I record that overall I considered Ms Neville to be an honest witness genuinely attempting to state events as she recalled them.

75 First, Mr Sullivan QC pointed to what he contended was inconsistent evidence given by Ms Neville about her address and where Samuel stayed at night. Ms Neville's witness statement does not include a statement of her address. When she was called to give oral evidence she was not asked her address. When she swore an affidavit in support of the adjournment application noted in paragraph [6] above, she gave the address in Kentlyn. I have already described at [73] what eventually emerged during the cross-examination about the recent change in her and Samuel's recent living arrangements. When asked about the inaccurate address in the affidavit Ms Neville said she "didn't check" the address.

76 Both Ms Neville and Mr Nowak were questioned about Samuel's care arrangements. They both stated that on most nights he stays with his mother at Ambarvale. Depending on whether or not Mr Nowak stays at Ambarvale, either he or Ms Neville then drive Samuel to Mr Nowak's house in Kentlyn before school. Mr Nowak then takes Samuel to school and collects him afterwards. Samuel stays with Mr Nowak at his house until around 7:00pm when Ms Neville finishes work. Samuel is then driven back to Ambarvale.

77 It appears that recently a private investigator, Mr Kirk Hippe, was retained on behalf of Associate Professor Lam. He placed Ms Neville and Mr Nowak under surveillance. The two relevant periods of surveillance were undertaken by Mr Hippe outside Mr Nowak's premises at Kentlyn early on the morning of Friday, 7 March 2014, and Thursday, 13 March 2014. Mr Hippe stated that he observed the outside of those premises between 6:00am and 9:00am. He states that he did not observe either Ms Neville or Mr Nowak drive to those premises with Samuel. Instead, he saw Mr Nowak take Samuel from the home at Kentlyn, load him and his wheelchair into his car and take him to school. The clear inference from Mr Hippe's observations is that on the evening of Thursday, 6 March 2014, and Wednesday, 12 March 2014, Samuel stayed overnight at Mr Nowak's house in Kentlyn and Ms Neville did not stay there.

78 In cross-examination it was repeatedly put to Ms Neville that Samuel had stayed overnight with his father at Kentlyn on "most occasions", or at least "many times", which she denied. She said that "more often than not" Samuel stays overnight with her. Other than when he stayed in early January 2014, Ms Neville stated that she could not remember any other time Samuel had stayed with his father since she moved to Ambarvale. When she was later pressed she recalled him staying once in the fortnight prior to the commencement of the trial on 18 March 2014, but stated she was "pretty sure" that he did not stay twice. Similarly Mr Nowak stated that he stayed more often at Ambarvale than Samuel stayed in his house, and that he was "pretty sure" that Samuel did not stay at his place in March 2014.

79 As I will explain, the potential significance of the fact, if it be the fact, that Samuel usually stays with his father and that his father is the predominant carer, concerns Ms Neville's claim for damages. On one view she cannot recover any amount in respect of any care undertaken for Samuel by Mr Nowak. Although not fully articulated, it seems that Mr Sullivan QC's point was that Ms Neville had deliberately omitted to provide details of her and Samuel's residential arrangements in an effort to either mislead, or at least obfuscate, as to how little care she was providing, and how much "voluntary" care Mr Nowak was providing.

80 There are a number of difficulties with this line of reasoning. There was no attempt to ascertain whether Ms Neville understood that it made any difference to her case whether she or Mr Nowak provided care and support for Samuel. The particulars of loss filed on her behalf suggest that her legal representatives did not consider much turned on this. The absence of material concerning Samuel's care arrangements in Ms Neville's statement and the particulars suggests that the view was taken, perhaps wrongly, that it was Samuel's needs that mattered, and not who met them. When she was asked about Samuel's care arrangements, Ms Neville clearly and frankly described an arrangement pursuant to which Mr Nowak fulfilled a substantial part of his care needs. As for his sleeping arrangements, I gained the distinct impression that the recent months were something of a transition. Considering the stress of this litigation, I am not surprised that Ms Neville (and Mr Nowak) were unsure of how many nights Samuel had really spent at Ambarvale or Kentlyn. I suspect that for Ms Neville the responsibility of managing two homes, this litigation, a relationship, a business, and looking after Samuel has the effect that the minutiae of recent sleeping arrangements tends to be forgotten.

81 Second, Mr Sullivan QC also referred to Ms Neville's evidence as to whether she discussed the use of a "Mirena IUD" with Associate Professor Lam during her consultation on 27 October 2004. I address this in detail below at [133] to [136]. It suffices to state that nothing in Ms Neville's evidence on this topic reflects adversely on her honesty as a witness, although it does reveal the fallibility of her memory of consultations which occurred almost a decade prior to her giving evidence.

82 Third Mr Sullivan QC submitted that Ms Neville's oral evidence about her mother's consumption of alcohol was inconsistent with the history that she gave two psychiatrists. The psychiatrist retained on behalf of Associate Professor Lam, Dr Brown, recorded in her report dated 15 July 2010 that Ms Neville's mother had "been a heavy drinker of alcohol". Ms Neville's psychiatrist, Dr Westmore, recorded Ms Neville's mother as having "suffered depression and alcohol abuse". Both doctors stated that these observations were based upon the history provided by Ms Neville. However, in her cross-examination Ms Neville was asked whether her mother had an alcohol problem. She stated that she was not "aware of it".

83 I found this aspect of the evidence odd. The drinking habits of Ms Neville's deceased mother was only marginally relevant to the proceedings and that was only by way of background to her claim for psychological harm. If Ms Neville was motivated to lie about a topic, it would not be this one, unless it was out of a concern to protect her mother's memory in a public forum. Perhaps her recollection of her mother's alcohol consumption has altered over time. While I am puzzled by this, it does not alter my overall assessment of her honesty.

84 Fourth, Mr Sullivan QC's referred to differences between Ms Neville's evidence and that given by Associate Professor Lam concerning the length of time occupied by the first consultation on 7 October 2004. In her first witness statement Ms Neville stated that during that consultation Associate Professor Lam "seemed to be rushed and impatient". Associate Professor Lam denied that he acted this way. In the extracts from her statement noted above, Ms Neville stated that it only took five minutes for Associate Professor Lam to take a history from her and the physical examination lasted for "approximately thirty seconds". Associate Professor Lam said that he took a history over a period of ten minutes and that it was impossible to undertake a physical examination in thirty seconds. Ms Neville said that the entire consultation occupied approximately twenty minutes, whereas Associate Professor Lam says that it occupied forty-five minutes.

85 Ms Neville's description of a physical examination taking "approximately thirty seconds" was clearly an ill-considered estimate. Otherwise, it seems to me unlikely that the entire consultation could have occupied only twenty minutes. Even if it had taken twenty minutes, then according to Ms Neville's estimates after the taking of the history and the thirty second physical examination, there would have been fourteen and a half minutes for Associate Professor Lam to provide advice and warnings. It seems more likely that Associate Professor Lam's estimate was accurate, given the content of Associate Professor Lam's notes and the time he could reasonably be expected to take to conduct a physical examination.

86 When she was pressed on what she recalled about the examination that suggested it was rushed, Ms Neville stated that Associate Professor Lam made "very little eye contact", that he just filled in a "template on a computer" and "the way he spoke [was] very short". Ms Neville's perception of Associate Professor Lam being rushed and impatient might merely be her subjective assessment of what Associate Professor Lam might regard as his being professional and efficient.

87 Nothing in this discussion affects my assessment that Ms Neville was an honest witness seeking to give her genuine recollection of events. However, it does highlight the difficulties with the accuracy of her recollection of a consultation that occurred some nine and half years previously.

88 Fifth, Mr Sullivan QC pointed to the apparent discrepancy between Ms Neville's insistence that Associate Professor Lam did not advise her about the risk of pregnancy during consultations in October 2004, and what was recorded in two medical reports prepared in the latter part of 2006.

89 Six days after Samuel was born, a report was prepared by Dr Rani Sachdev, a staff specialist in clinical genetics. The report includes a statement that Ms Neville's pregnancy was "very unexpected", that Ms Neville had an "uterine endometrial ablation some time ago and she was told that she would be unlikely to fall pregnant again". Mr Sullivan QC submitted that a state of mind on Ms Neville's part that she was "unlikely to fall pregnant again" was inconsistent with the case that she now propounds. Mr Sullivan QC also pointed to a report from Dr Kristen Neville, an endocrinologist, dated 11 December 2006 which concerned Samuel and recorded that Ms Neville "had an endometrial ablation performed prior to falling pregnant with Samuel and was not expected to fall pregnant".

90 In relation to Dr Sachdev's report, Ms Neville stated she could not recall the conversation with Dr Sachdev, but if she had been asked she would have said that her understanding was that after the endometrial ablation she "couldn't fall pregnant". In relation to Dr Kristen Neville's report, she agreed that she told her that she did not expect to fall pregnant again because "I wasn't expecting to fall pregnant again because I didn't think I could fall pregnant again".

91 The consultation notes of Dr Sachdev's and Dr Neville's consultations were not tendered. There is nothing to indicate they attempted to record the precise words stated by Ms Neville. It is to be remembered that the focus of each of their reports was the condition of Samuel. It was not of any significance to either of their reports to describe with precision Ms Neville's description of her state of mind in relation to her chances of falling pregnant.

92 Mr Sullivan QC pointed to the fact that these two reports were prepared much closer to the events and thus were more likely to be more reliable than her oral evidence. However, the difficulty in relying on reports prepared by two doctors who were considering an entirely different matter, in circumstances where their notes are not available, is illustrated by considering the file notes of a psychologist who saw Ms Neville on 14 February 2006. That psychologist's notes for a consultation on 14 February 2006 include the following entries:

"Endometrial [ablation] - removal of lining in uterus (Nov 04) not supposed to be able to fall [pregnant] again."

"Mid Jan 06 on hols when found out preg - panicked "How could this happen"

93 These entries are entirely consistent with Ms Neville's evidence as to her state of mind following her consultation with Associate Professor Neville. They were made on a date closer to the relevant events than the reports pointed to by Mr Sullivan QC. Again, however, one would not expect a psychologist interviewing Ms Neville in February 2006 to be overly focussed upon ascertaining precisely Ms Neville's state of mind. Overall a consideration of the notes does not affect my assessment of Ms Neville's honesty as a witness as described in [28].

94 Sixth, Mr Sullivan QC raised a further point concerning some alleged discrepancies between the description that Ms Neville gave in her statement as to the occasions when she fell pregnant while taking the contraceptive pill, and certain matters she disclosed to Dr Westmore and Dr Brown in response to questioning by them about her teenage years. It is unnecessary to describe this further. They concern matters which in my view are irrelevant to this case. The fact that they were not volunteered in Ms Neville's statement has no consequence whatsoever for my assessment of either her honesty or reliability as a witness.

(10) Did Associate Professor Lam fail to advise Ms Neville of the risk of pregnancy and the need to use contraception following an endometrial ablation?

(a) Approach

95 It is evident from what has already been stated that the critical issue of fact in this case is whether Ms Neville has established that Associate Professor Lam failed to advise her that following the performance of endometrial ablation there was still a risk that she could become pregnant and she should use a safe method of contraception.

96 One of Associate Professor Lam's responses to Ms Neville's claim has already been noted, namely that, for various reasons, the Court should find that she lacked credibility. I have already addressed the matters that were advanced in support of that contention, some of which were directed to honesty and others which were directed to her reliability as a witness. I reiterate that I do not accept that Ms Neville was anything other than an honest witness attempting to state events as she recalled them, although some of the matters identified reveal the fallibility of her memory (see [80], [81], [83] and [87]). The trial occurred almost a decade after she consulted Associate Professor Lam and there have been many events that have occurred in her life since then.

97 It is trite to observe that Ms Neville bears the onus of proof on the balance of probabilities. While that is an undemanding standard only requiring a "preponderance" of evidence, the Court must nevertheless "feel an actual persuasion" of the relevant fact's occurrence before it is established, and that cannot be reached by a "mere mechanical comparison of probabilities [independent] of any belief in its reality" (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361 per Dixon J). Nevertheless, it seems that probabilistic reasoning can lead to a Court being actually persuaded of the relevant fact (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34] to [37] per French CJ, Gummow, Crennan and Bell JJ).

98 In the context of considering whether Ms Neville has met this standard, four points should be noted.

99 First, in some circumstances a Court may find itself unable to choose between competing versions. In such a case, the party upon whom the burden of proof lies will have failed to discharge it (Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58 at [25] per Heydon JA; Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 to 956 per Lord Brandon).

100 Second, Ms Neville faces an obvious difficulty in persuading the Court that an oral statement was not made so long after the events in question. In an oft-cited passage McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 to 319 described the obstacles that confront a party seeking to persuade a Court that a particular oral statement was uttered and that it was misleading and deceptive. However his Honour's comments have a wider application, including to contests such as this where there is a dispute about whether something was not said at a point in time long in the past:

"Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

101 Third, in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30] to [31] Gleeson CJ, Gummow and Kirby JJ noted a trend on the part of trial judges and appeal courts to limit their reliance "on the appearances of witnesses and to [instead] reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events".

102 In this case considerations of demeanour have informed my assessment of Ms Neville's honesty as a witness. However, just because I have formed a positive view on that topic, does not end the inquiry as to whether she has discharged the burden of proof cast upon her. An honest witness is not necessarily a reliable witness on some or all of the matters they testify to. In addressing whether the burden of proof was discharged, I consider it appropriate to consider her evidence and that of Associate Professor Lam in the context of the objective material and logic of events, the inherent probabilities and any admissions made against interest (see for example Tomasetti v Brailey [2012] NSWCA 399 at [45] per Macfarlan JA, citing Hely J in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211; 140 FCR 445 especially at [40]).

103 Fourth, Mr Bartley SC submitted that little weight should be given to so much of Associate Professor Lam's evidence in which he stated what he "would have" said to Ms Neville, which was in turn derived from what he described as his "invariable" practice in dealing with patients such as her. He referred to the following passage from the judgment of Basten JA in Elayoubi v Zipser [2008] NSWCA 335 at [86] ("Elayoubi"):

"Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with a mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward."

104 The "quite unusual procedure" to which Basten JA was referring in this passage from Elayoubi was the alleged failure of the relevant doctors in that case to advise the plaintiff, after she had delivered a child by a method of caesarean section which involved an incision into the upper uterine segment, that she faced particular risks if she was to have another child by vaginal delivery.

105 Neither party addressed on whether evidence of usual (or invariable) practice which was tendered to prove what was said on a particular occasion was caught by the "tendency rule" in s 97 of the Evidence Act 1995. Leaving that aside, there are a number of difficulties with reliance upon usual practice in cases involving medical or other professional advice, some of which are prevalent in this case.

106 One difficulty with such assertions is that they are hard to scrutinise. It is difficult to envisage the means by which a plaintiff in Ms Neville's position could inquire into, much less test, Associate Professor Lam's assertion that in his treatment of patients over the years his usual practice of warning them of the risk of pregnancy was "invariably" followed, or whether it was only "usually" followed, or perhaps less frequently adopted. (The position may be different if a notice was required to be given in accordance with clause 5(2) of the now repealed Evidence Regulation 2005 (NSW).)

107 A related problem with evidence of usual practice is reflected in Basten JA's observations noted above to the effect that the less mechanical or routine the task, the less weight that can be attached to an assertion that a supposedly invariable practice was followed. The process of imparting information between patient and doctor is an interactive one such that, depending on a patient's responses, the advice proffered by the medical practitioner may take a number of different courses.

108 However, in this case Associate Professor Lam's assertions as to his invariable practice are supported by his publications that I have noted above. The advice suggested by both articles to be given to patients, namely that there is a chance of pregnancy and a safe method of contraception should be adopted, was not said to be dependent upon the particular patient's circumstances. Thus, with considerable force, Mr Sullivan QC submitted that, if Associate Professor Lam wrote so clearly and emphatically in 1992 about what a patient should be told in relation to the pregnancy risk following an endometrial ablation, then the likelihood is that he followed his own advice thereafter.

(b) Contemporary materials and logic of events: the Plaintiff's case

109 The passage in Fox v Percy noted above refers to recourse being had to "contemporary materials". In this case, Associate Professor Lam's consultation notes answer that description. In one part of her cross-examination Ms Neville was taken through the notes of the consultation on 7 October 2004. Her answers confirmed the general accuracy of the notes as recording the topics that were discussed and the order in which they were discussed.

110 Both parties pointed to the notes as supporting their respective cases. Mr Bartley SC placed reliance on the fact that neither set of notes contains any express record of any advice being given to Ms Neville about a residual risk of pregnancy even if an endometrial ablation was undertaken. This is clearly correct. Associate Professor Lam stated that on 7 October 2004 such advice was provided at the point in the consultation recorded by the entry "[r]ole of surgery including endometrial ablation discussed". He also stated that on 27 October 2004 the relevant advice was provided at the point in the consultation recorded by the entry "endometrial ablation vs Mirena IUCD [sic]".

111 Mr Bartley SC pointed to the structure of the notes of the consultation on 7 October 2004 as disclosing a line of reasoning that might have led Associate Professor Lam to depart from his stated practice, or thrown its existence into doubt. He pointed to the entry in the middle of the notes recording that Ms Neville's second husband had had a vasectomy. It was common ground that Ms Neville did not advise Associate Professor Lam during this consultation of any concern she had about her marriage, or the fact that it was possible she would have a relationship with Mr Nowak. Mr Bartley SC submitted that Associate Professor Lam was thus told that Ms Neville stated that she did not want further children, that her husband had had a vasectomy and he otherwise had no reason to doubt that there was any concern about the marriage. In those circumstances, he submitted that it was likely that Associate Professor Lam assumed that any risk of a further pregnancy was removed and thus there was no need to give Ms Neville a warning that that risk still subsisted (if she were to change partners).

112 In both his statements and oral evidence Associate Professor Lam denied that he adopted this reasoning. He stated that there were no circumstances in which he would ever fail to advise the patient of the possibility of a pregnancy following endometrial ablation, or the need to continue or choose a safe method of contraception, because "irrespective of the history given to me, circumstances can change in the future, such as the death of a partner, or the break up of a relationship, and the establishment of a new relationship".

113 Mr Bartley SC referred to a number of matters which he submitted supported the plaintiff's contention that Associate Professor Lam had approached the matter in the way he contended. He pointed to the following passage from Associate Professor Lam's first statement:

"Had Ms Neville informed me that she had had very infrequent sexual relations with her husband in the preceding twelve months, or, that she considered the marital relationship to be at an end, I most certainly would have taken a note of such matters, as, amongst other things, such information would influence the content of advice I offered to her."

114 On its face this passage might appear to support the proposition that any advice Associate Professor Lam might have given about the prospect of pregnancy following endometrial ablation was dependent upon what he was told about the state of Ms Neville's marriage and the possibility that she might commence another relationship. However, when he was cross-examined on this passage, Associate Professor Lam explained that if he had been advised of the matters referred to, it would not have influenced his advice about the residual risk of pregnancy following an endometrial ablation. Instead he stated that it could have influenced, for example, "the selection or the advice on the range of treatment options" for her menorrhagia. He explained that one effect of an endometrial ablation is to lower the risk of a future pregnancy. The possibility of Ms Neville entering into a future relationship where she might decide that she wanted children would be a matter affecting whether that procedure would be undertaken in the first place.

115 Mr Bartley SC also pointed to an admission in Associate Professor Lam's defence. Paragraph 17 of the Further Amended Statement of Claim pleaded that on 7 October 2004 Associate Professor Lam "did not advise or recommend sterilisation by ligation of the Fallopian tubes". In paragraph 15 of his defence Associate Professor Lam responded to this paragraph by:

"(a) [admitting] that he did not advise or recommend sterilisation by ligation of the Fallopian tubes;

(b) [stating] that this was because the plaintiff informed him that her husband had had a vasectomy."

116 Further, Mr Bartley SC referred to the following answer that Associate Professor Lam gave as part of his response to a set of interrogatories administered on behalf of Ms Neville:

"8. What factors did you take into consideration in advising Ms Neville of the risk of conception following endometrial ablation?

8A. I took the following factors into account:

- that her husband had had a vasectomy

- that she felt that she had appropriate contraception because of this

- that the risk was naturally unlikely given Ms Neville's marital status and the contraceptive arrangements.

Accordingly I did not discuss the need for contraception in more detail with Ms Neville." (emphasis added)

117 One difficulty with understanding this latter answer is the reference to "more detail". To interpret this answer it is necessary to consider question and answer 7, although it is first necessary to describe its evidentiary status. The entirety of the interrogatories were admitted because the three experts noted at [14] above provided an opinion by reference to the answers given by Associate Professor Lam in his interrogatories. It was not possible to understand that opinion without reading the interrogatories. Accordingly, the interrogatories were admitted but made subject to an order under s 136 of the Evidence Act 1995 restricting their use to demonstrating what material was provided to the expert gynaecologists. Subsequently Mr Bartley SC tendered question and answer 8 (and 6A(e) and 17) on an unrestricted basis. In order to understand answer 8, the s 136 restriction on the use of question and answer 7 was expanded to enable it to be used for the purpose of interpreting answer 8.

118 Question and answer 7 concerned the consultation on 7 October 2004. They are as follows:

"7. If your answer to any part of Interrogatories 6(a) - (e) is 'yes', please state:

(a) What was the conversation that occurred, in its entirety, touching upon the risk of conceiving following endometrial ablation?

(b) What was the conversation touching upon any risk to a fetus conceived following endometrial ablation?

(c) When, within the consultation, did the conversation take place?

7A.

(a) I cannot recall the precise content of the conversation I had with Ms Neville in its entirety, but I believe that during the conversation in accordance with my usual practice I informed Ms Neville of the following:

- Endometrial ablation is a surgical treatment option for women with menorrhagia which aims to help women achieve reduced menstrual blood loss, though the outcome is unpredictable

- The procedure should only be selected once child bearing is complete

- While pregnancy is unlikely to occur afterwards, endometrial ablation is not a contraceptive method and a safe method of contraception must be continued or chosen

I recall that Ms Neville told me that she did not need contraception as her husband had undergone a vasectomy and that she had completed having children.

(b) I informed Ms Neville that pregnancy outcomes are unknown following endometrial ablation.

(c) The conversation took place at point 10 in the sequence provided in answer to 2A above, towards the end of the consultation." (emphasis added)

119 In light of this answer I interpret the words "in more detail" in answer 8 as a reference to any more detail than stated in the italicised portion above.

120 Mr Bartley SC submitted that this material provided support for concluding that it was likely that Associate Professor Lam adopted the line of reasoning outlined above at [111]. He contended that both the admission in the defence and answer 8 in the interrogatories suggest that Associate Professor Lam's advice about contraception was affected by what he was told about Ms Neville's second husband having had a vasectomy, and an assumption he made that her personal circumstances would not change.

121 This may be so, but it does not advance Ms Neville's case any further than potentially demonstrating that he did not discuss methods of contraception in any more detail beyond telling her that she was at risk of pregnancy and she should use contraception. Mr Bartley SC disclaimed any case on breach to the effect that, even if Associate Professor Lam told Ms Neville of the possibility that she could become pregnant and of the need to use a safe method of contraception, he failed in his duty by not specifically advising her of the need for tubal ligation or elaborating upon other methods of contraception.

122 Mr Bartley SC also sought to make use of this material to generally undermine Associate Professor Lam's evidence as to his "invariable" approach to women seeking endometrial ablation. In giving oral evidence Associate Professor Lam was taken to the article that he wrote in 1992 that I have extracted in [13] above and asked as follows:

"Q. Doctor, just to clarify this, and I am sure you have answered it. As at October, November 2004, in accordance with your article, it was your invariable practice to raise the issue of tubal ligation so that the woman could make her own decision?

A. It was invariable that contraceptive methods and amongst the various contraceptive methods, tubal ligation would have been discussed and continued to be amongst the options I would mention.

...

Q. So as I take your answer, it was your invariable practice to speak about tubal ligation, to offer tubal ligation not as the sole method of contraception but one of a number of methods, is that what you are saying?

A. Correct." (emphasis added)

123 Mr Bartley SC submitted that these statements by Associate Professor Lam as to what it was "invariable" that he would discuss, mention or offer were inconsistent with the admission that he had made in the defence and his answer to interrogatory 8. It was submitted that this undermines so much of his evidence where he repeatedly stated what his invariable practice was, including that part in which he stated that it was his invariable practice to warn of the risk of pregnancy and the need for safe and effective contraception.

124 One difficulty with this contention is that any possible inconsistency between the above answers and the admission in the defence and the answer to interrogatory 8 was not specifically drawn to Associate Professor Lam's attention in cross-examination. Mr Sullivan QC submitted that, in the absence of that occurring, the relevant admission in the defence should be confined to its terms (see Ash v Hutchinson & Co (Publishers) Ltd [1936] Ch 489 at 503). He contended that it only involved a concession that Associate Professor Lam did not "advise" or "recommend" tubal ligation, but that was different from what he stated in his oral evidence, namely that tubal ligation was "discussed" (or offered). In relation to interrogatory 8 which refers to there not being a discussion of a "need for contraception in more detail", Mr Sullivan QC contended this could have been a reference to not discussing the necessity for contraception any further, as opposed to not discussing the potential methods of contraception.

125 I found these distinctions unconvincing. However they highlight the difficulty in attempting to use an admission in a defence and an answer to an interrogatory in this manner, without their having been brought to the attention of Associate Professor Lam in cross-examination.

126 In the end I am left uncertain as to whether Associate Professor Lam's assertion in his oral evidence that he invariably discussed methods of contraception (other than an IUD) including tubal ligation with his patients in these circumstances should be accepted. However, there is a difference between him not discussing the methods of contraception, if that is what his answer to the interrogatory meant, and his not advising that there was a risk of pregnancy and a need for contraception. Without him being tested on his admission in the defence and interrogatory in cross-examination, I am not prepared to invoke them to discount his statements about his practice in advising about the latter, especially when those statements are supported by his own articles on the topic of what advice should be given.

127 Mr Bartley SC also pointed to the actions of Ms Neville (and to an extent Mr Nowak) in not using contraception in the period subsequent to the endometrial ablation and prior to Samuel's conception, and the statements she made in late 2004 as to her belief that she could not fall pregnant. He submitted that these actions and words were inconsistent with her being advised in October 2004 of the possibility that she could have fallen pregnant. There is some force in this, but I do not consider it can be taken too far. Associate Professor Lam stated that his practice in advising patients emphasised that endometrial ablations are not suitable for women who wish to have children, but also advised that pregnancy is "unlikely". One of his articles noted above describes the role of pregnancy in even more remote terms, namely that it is "very unlikely indeed". It is possible Associate Professor Lam used that phrase. Thus, while this form of warning conveys the existence of a residual risk of pregnancy, it is uttered in a context that suggests the risk is minimal.

128 I have discussed Ms Neville's circumstances at [17] to [29] above. In October 2004 her marriage was in serious trouble, but nothing was definite. She and her second husband still had "relations", but she had no risk of falling pregnant to him because of his vasectomy. Her relationship with Mr Nowak at that point was in its early stages. She did not know then that the relationship would definitely develop, much less that it might lead to physical intimacy. At the time she consulted Associate Professor Lam the only person she was having sexual relations with was her second husband and he had a vasectomy. Even if Associate Professor Lam had referred to that possibility after the endometrial ablation it might have appeared a remote risk at that point, notwithstanding that she was fertile when she was in her twenties and thirties.

129 In that context there is a significant element of conjecture in contending that Ms Neville's subsequent actions in 2005 in having unprotected sex are indicative of her not being apprised in October 2004 that there was a relatively small risk of her becoming pregnant after the endometrial ablation was performed. Her actions in 2005 are also consistent, or at least not inconsistent, with someone who may have believed that it was very unlikely that she could become pregnant, not just because of the endometrial ablation but because of her age. She could have thought that the risk was so minimal it could be assumed. Her actions in 2005 are also consistent with someone who may have only recalled that after seeing Associate Professor Lam their state of mind was that they could not become pregnant, but forgotten that she reached that conclusion partly because her then sexual partner had had a vasectomy. Of course, conjecture of this kind is only that, but it illustrates the difficulty in a case of this kind of placing too much emphasis on her subsequent behaviour when deciding between whether she was not disabused of a belief that there was no risk of pregnancy on the one hand, or was told that pregnancy was "unlikely" or perhaps "very unlikely" on the other.

130 I have recounted (at [55]) the evidence of the statements that Ms Neville made to Mr Nowak and her sister in late 2004 concerning her inability to become pregnant (as well as her statements upon becoming pregnant at [57]). The observations of McLelland CJ in Eq in Watson v Foxman again resonate when seeking to place much reliance on these statements in the manner contended for by Mr Bartley SC. The nuances of the precise words that she uttered when describing her understanding of whether she could become pregnant are critical in a context where the competing cases are whether Ms Neville was not disabused of a belief she held that pregnancy was impossible or was expressly told that it was "unlikely" (or very unlikely). However, the problem for Ms Neville's case is that time and the fallibilities of human memory wash away nuance and context.

(c) The conversation on 17 February 2006

131 At this point it is appropriate to return to the competing versions of what was stated during the consultation on 17 February 2006. I have already noted that the consultation notes and letter from Associate Professor Lam strongly suggest that the topic of Ms Neville's personal circumstances was discussed, but there is reason to doubt the correctness of the precise words she attributed to Associate Professor Lam.

132 Far from being a concocted statement ("verbal"), the statement attributed to Associate Professor Lam that he did not "discuss contraception" with Ms Neville because of her husband's vasectomy is largely consistent with what he appears to have conceded in his answer to interrogatory 8 that he did not discuss the "need" (or "method") of contraception beyond stating that it was required. Accordingly, I reject Mr Sullivan QC's submission that this was an obviously concocted statement. However, while I accept that there was a conversation about her change in personal circumstances, and there was most likely a reference by Associate Professor Lam to his not having discussed contraception in more detail because of her second husband's vasectomy, I do not accept that anything he stated was an admission that he did not previously advise her of the possibility of pregnancy after endometrial ablation and the fact that contraception should be used.

(d) Contemporary materials and logic of events: the Defendant's case

133 Mr Sullivan QC pointed to the entry in the notes for 27 October 2004 which states: "Plan: 1. Menorrhagia Rx endometrial ablation, vs Mirena IUCD [sic]". The phrase "Rx" is short for treatment. A "Mirena IUD" is a Mirena brand intra-uterine contraceptive device. In cross-examination Ms Neville was asked whether Associate Professor Lam discussed this device on the consultation on 7 October 2004. She stated that "I don't recall a lot being said about the Mirena, but I think that was in the next consultation". Beyond that she repeatedly stated that she did not recall any discussion about the "Mirena IUD" on 27 October 2004. In particular she did not recall that he mentioned that it had a "secondary role as a contraceptive". However, the report from Dr Brown noted above (at [82]) refers to Ms Neville stating that she "recalled Professor Lam raising with her the options of her undergoing an endometrial ablation or insertion of a Mirena IUD".

134 I accept that Ms Neville told this to Dr Brown, but that she also was genuine in stating in her oral evidence that she could not recall this topic being discussed. This loss of recollection on her part over a period of four years reinforces the validity of the observations of McLelland CJ in Eq in Watson v Foxman that I have set out above. Despite Ms Neville's lack of recollection in her oral evidence, the notes of the consultation on 27 October 2004 satisfy me that there was a discussion of the relative merits of endometrial ablation compared with a Mirena brand IUD.

135 How far did that discussion extend? I have set out at [46] to [47] above the statements that Associate Professor Lam states he made during this consultation at the point of outlining the relative merits of the two treatment options. He said that as part of that discussion he referred to the IUD's role as a "treatment option for heavy bleeding" but stated that it also had a "secondary role ... as a contraceptive device". He says that later he referred to the possibility of pregnancy following an endometrial ablation. In my view the probabilities are that once the topic of the discussion turned to the relative merits of an IUD compared to an endometrial ablation, their respective contraceptive qualities were most likely mentioned. Mr Bartley SC submitted that the discussion would have only concerned its ability to treat menorrhagia, as suggested by the notes. While that is possible, it seems to me unlikely. Any discussion of a device that bore the name "IUD" would most likely prompt some statement by either the doctor or the patient as to its contraceptive uses, and then a comparison with the contraceptive effect of an endometrial ablation. Ms Neville agreed that she knew that an "IUD" was a contraceptive device.

136 In my view the probabilities favour Associate Professor Lam having stated that, following an endometrial ablation, there is still a risk of pregnancy and a need to use a safe and effective means of contraception, at least at the point where the relative merits of endometrial ablation compared with an IUD were discussed on 27 October 2004.

(e) Conclusion

137 In the end result the Court has the benefit of evidence from an honest witness, Ms Neville, who genuinely believes that she was not given advice about the residual risk of pregnancy after an endometrial ablation or the need to use a safe and effective means of contraception. However her evidence of the two critical consultations was given nearly a decade after they had occurred. Her memory is clearly fallible and this has been demonstrated by a number of matters (see [80], [81, [83], [87] and [133]ff). Ms Neville's statements to others and her actions in the period after the consultations is consistent with her not being advised of the relevant risk, however they are not inconsistent with her being told (correctly) that the risk of pregnancy was unlikely or very unlikely to materialise.

138 Against this I have Associate Professor Lam's assertion that his invariable procedure was to warn of the residual risk of pregnancy and of the need to use a safe and effective means of contraception after an endometrial ablation. While there are reasons to be cautious in acting on such evidence, in this case his assertion is bolstered by his own writings. The likelihood that he failed to comply with his own advice on two occasions seems to me to be relatively low. That said, there are strong reasons to doubt whether he went beyond such advice to discuss methods of contraception (other than an IUD) in any detail as he claimed in his evidence.

139 Most significantly, Associate Professor Lam's notes of the consultation on 27 October 2004, which refer to a discussion of the relative merits of an endometrial ablation compared with a Mirena IUD, strongly suggest that the relative contraceptive effects of each were discussed.

140 In the end result I am left unpersuaded that on 7 October 2004 Associate Professor Lam did not advise Ms Neville that there was a risk, albeit unlikely, of pregnancy following endometrial ablation, and that a safe and effective means of contraception ought to be used. Equally, I am not persuaded that he did say that. However, I am actually persuaded that he did provide that advice on 27 October 2004 as part of the discussion of the relative merits of an endometrial ablation procedure compared with the use of a Mirena IUD. I am not satisfied that he failed to provide a written brochure which referred to that risk at on least one of the two consultations, although I am not actually persuaded that he provided her with a brochure.

141 For the sake of completeness, having regard to the matters noted above (at [115] to [126]), I am persuaded that Associate Professor Lam did not discuss contraception including possible methods (other than an IUD) beyond stating that a safe contraceptive method should be used after an endometrial ablation in either of the consultations on 7 and 27 October 2004. Further, consistent with the admission in the defence, I find that he did not "advise" or "recommend" tubal ligation.

(11) Breach

142 As I have stated, both parties pitched their cases around the proposition that the proper discharge of Associate Professor Lam's duty to Ms Neville required him to advise her that there was a risk of pregnancy following endometrial ablation, and that to avoid pregnancy she needed to use a safe and effective means of contraception. Mr Bartley SC disclaimed any case of negligence for a failure to refer to or advise concerning tubal ligation or other methods of contraception, even if advice about the risk of pregnancy may have been proffered. Amongst other obstacles, such a case would face real difficulties in establishing factual causation in accordance with s 5D(1)(a) of the CLA.

143 Accordingly, it must follow from the findings in [140] that Ms Neville has failed to discharge the onus of proof. Her case must fail.

(12) Causation and damages

144 Although I have concluded that Ms Neville's case must fail, it is still necessary to address, to the extent that it is practical, the various contentions of the parties on causation and damages.

145 Ms Neville's case on causation was that, had Associate Professor Lam proffered the advice she claimed that he was obliged to but did not, then she would have discussed contraceptive methods with him. She says she would have ultimately undergone a tubal ligation at the same time as her endometrial ablation. Had she done so she would have avoided conceiving. Mr Sullivan QC disputed this. He pointed to various matters which, it was submitted, suggested Ms Neville would have still assumed the residual risk of pregnancy that pertains following an endometrial ablation. These contentions were all directed towards the determination of whether Ms Neville's case satisfied the "but for" test now encapsulated in s 5D(1)(a) of the CLA.

146 The findings that I have made about the advice given during the consultation on 27 October 2004 are consistent with Mr Sullivan QC's submissions on this point. In view of those findings it is neither possible nor appropriate to make findings as to what contraceptive steps Ms Neville might have taken if I had instead found that Associate Professor Lam did not provide any advice to her about the residual risk of pregnancy after undertaking an endometrial ablation (or whether Ms Neville negligently contributed to her own damage in failing to inform Associate Professor Lam in 2004 that she was contemplating a relationship with someone other than her husband).

147 However, I can and will address those submissions of the parties on damages and causation that assumed that, but for some negligence on the part of Associate Professor Lam, Ms Neville would not have conceived Samuel.

148 Mr Sullivan QC made two further submissions on the issue of causation. These submissions only relate to the third component of Ms Neville's claim for damages, namely the claim for the additional costs of raising Samuel (see [5]). To address them it is first necessary to describe the applicable law concerning the recovery of those various components.

(a) Recovery of damages in unplanned birth cases at common law

149 In CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 ("CSR v Eddy"), the High Court rejected a claim by an injured plaintiff for an amount representing his lost ability to provide care to his wife calculated by reference to the commercial value of those services (so called "Sullivan v Gordon damages": Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319). Chief Justice Gleeson and Gummow and Heydon JJ held that the claim was not analogous to a claim for the value of gratuitous services provided to an injured plaintiff by a family member that was allowed in Griffiths v Kerkemeyer (1977) 139 CLR 161. Instead any such loss or impairment was held only to be compensable as part of the plaintiff's general damages (CSR v Eddy at [71]). The judgments of McHugh and Callinan JJ were to similar effect (at [114] and [122] respectively).

150 In CSR v Eddy Gleeson CJ, Gummow and Heydon JJ confirmed that a plaintiff who sued for negligently caused personal injury was "traditionally" only able to recover for three types of loss, being non-pecuniary loss, loss of earning capacity and actual financial loss (at [28] to [31]). The third category was not confined to costs incurred prior to trial and could include future expenses, although it was necessary for a court to be satisfied that "they will be incurred" (at [31]). Their Honours approved a statement by Dixon CJ in Blundell v Musgrave (1956) 96 CLR 73 at 79 to the effect that, for such amounts to be recovered, they must be amounts that will be paid "whether [the plaintiff] obtains the amount from the defendant as damages or not".

151 Further, their Honours observed that, to the extent that Griffiths v Kerkemeyer enabled an injured plaintiff to recover for the cost of future nursing and home care services that will be paid, then it accorded with those principles, but to the extent that it allowed for recovery of costs even though such services have not been or may never be supplied or have been or only will be supplied gratuitously, then it was "not only exceptional, but anomalous" (CSR v Eddy at [31]).

152 In Cattanach v Melchior [2003] HCA 38; 215 CLR 1 ("Cattanach") the Melchiors sued Dr Cattanach after Mrs Melchior gave birth to an unintended child, even though Dr Cattanach had performed a tubal ligation on her. Dr Cattanach had only attached a clip to one of Mrs Melchior's fallopian tubes because she had incorrectly told him that her right fallopian tube had been removed. Dr Cattanach was found to be negligent in uncritically accepting what Mrs Melchior told him and failing to her advise her to have the issue investigated, and warning her of the risk of pregnancy if the right fallopian tube had not been removed (at [12]).

153 At trial the Melchiors were awarded an amount of damages which had three components. The first was an award in favour of Mrs Melchior for an amount of damages associated with undergoing pregnancy and childbirth, which included pain and suffering and loss of earnings due to a thrombosis associated with pregnancy (at [14]). This amount was a combination of the first and second heads of damage identified in CSR v Eddy. The second was an award reflecting the husband's loss of consortium (at [14]). The third component was for the costs the couple had and would incur in raising their son. Dr Cattanach unsuccessfully appealed to the Queensland Court of Appeal (Melchior v Cattanach [2001] QCA 246). He obtained special leave to appeal to the High Court but only in respect of his liability to pay the third component.

154 In the High Court, McHugh, Gummow, Kirby and Callinan JJ found that the Melchiors could recover the cost of rearing their child. According to McHugh and Gummow JJ the relevant "damage" suffered by the Melchiors that was in issue on the appeal was not the unplanned birth of their son but the financial cost of rearing him (at [67]):

"... the relevant damage suffered by the Melchiors is the expenditure that they have incurred or will incur in the future, not the creation or existence of the parent-child relationship. If, for example, their child had been voluntarily cared for up to the date of trial, they could have recovered no damages for that part of the child's upbringing. And, if it appeared that that situation would continue in the future, then the damages they would be able to recover in the future would be reduced accordingly." (emphasis added)

155 It is clear that the concept of "voluntarily cared for" in this passage includes care provided by the relevant plaintiff(s) in an unplanned pregnancy case. (In fact, the first component of damages awarded to Mrs Melchior included an amount for assistance provided by her family to her in looking after her son, but this award was not interfered with presumably because of the limitations on the grant of special leave: see Melchior v Cattanach [2000] QSC 285 at [75]).

156 The analysis of McHugh and Gummow JJ brings the claim for the costs of child rearing within the third category later discussed by Gleeson CJ, Gummow and Heydon JJ in CSR v Eddy at [28] (and noted above at [150]); ie a form of actual financial loss. According to McHugh and Gummow JJ in Cattanach the obligation of the Melchiors to expend sums in looking after their son was "both moral and legal", the latter being derived from statute (at [66]). Hence, consistent with the later discussion in CSR v Eddy, in Cattanach McHugh and Gummow JJ found that it was "necessary" for the expenditure to be incurred (and identified the source of the obligation).

157 Further, McHugh and Gummow JJ rejected a contention that there needed to be some "setting off of the emotional satisfaction and other benefits enjoyed by" the Melchiors from the birth of their child against the cost of raising him (at [84]). Their Honours stated (at [90]):

"In assessing damages, it is impermissible in principle to balance the benefits to one legal interest against the loss occasioned to a separate legal interest. The benefits received from the birth of a child are not legally relevant to the head of damage that compensates for the cost of maintaining the child. A different case would be presented if the mother claimed damages for "loss of enjoyment of life" as the result of raising the child. If such a head of damage were allowable, it would be correct to set off against the claim all the benefits derived from having the child. But the head of damages that is relevant in the present case is the financial damage that the parents will suffer as the result of their legal responsibility to raise the child. The benefits to be enjoyed as a result of having the child are not related to that head of damage." (emphasis added)

158 In Cattanach Kirby J also held that the "costs of child-rearing" was recoverable (at [176]). His Honour's analysis was consistent with the approach of McHugh and Gummow JJ (at [176] to [179]), although his Honour did not address the circumstance of a child being voluntarily cared for or express any qualification on the recovery of non-economic loss in the above terms. Justice Callinan's judgment was to similar effect (at [300]).

159 Chief Justice Gleeson and Hayne and Heydon JJ dissented in Cattanach. Chief Justice Gleeson considered that the Melchiors were in substance seeking damages for the creation of the parent-child relationship which was "incapable of rational or fair assessment" (at [39]). Justice Hayne held that recovery of damages for the "ordinary costs of rearing a child" (at [255]) should not be permitted although some extra costs may be recoverable "where the child has ... abnormal or special needs for expenditure in care or maintenance" (at [256]). His Honour held that the considerations of "public policy" foreclosed any inquiry into the ordinary costs of rearing a child because it would require a "process of valuation" (at [258]) requiring an assessment of whether the "economic costs of the child [would], in the long run, outweigh whatever advantages or benefits the parent may derive from the child's existence and the relationship between parent and child" (at [259]).

160 Justice Heydon held that such damages were irrecoverable for three reasons, the first of which was similar to that stated by Gleeson CJ, namely that to allow recovery "leads to the award of damages for a supposed loss in circumstances where what has happened [ie the birth of a child] is incapable of characterisation as a loss" (at [347]). The other two reasons were that to allow recovery of the cost of child rearing would have the result of "encouraging parents to exaggerate the abilities of their children, the customs of their families or the troubles of their children", and would "generate litigation about children capable of causing the children distress and injury" (at [347]). Apparently parents in such situations are particularly prone to being dishonest and are incapable of making considered judgments about what is in the best interests of their children before commencing litigation. No evidence was cited in his Honour's judgment for either premise. The evidence in this case did not support those premises either.

161 It follows that, at common law, in an unplanned pregnancy case amounts can be recovered for financial expenditure that have been and will be incurred by a plaintiff on a child's upbringing, assuming that questions of causation and remoteness are resolved in their favour. However there can be no recovery for the "cost" or value of any voluntary care of the child provided by anyone. Subject to the discussion below, this includes the cost or value of "services" provided by a plaintiff in raising their child. Such a claim was specifically excluded by Gummow and McHugh JJ in Cattanach (and not addressed by either of Kirby or Callinan JJ). Bearing in mind that the three dissentients in Cattanach would not allow recovery of any costs associated with the rearing of the child, it means that the judgments of at least five members of the High Court in Cattanach preclude recovery for the cost or value of voluntary care provided to a child in such cases.

162 This is reinforced by CSR v Eddy. The "cost" or value of voluntary care provided to a child by anyone other than the plaintiff in such a case does not fall within the three categories identified in CSR v Eddy. To an extent it is analogous to a Griffiths v Kerkemeyer claim, in that the voluntary services meet a "need" of the patient created by the medical practitioner's negligence namely the patient's obligation to care for and raise their child. However the plurality judgment in CSR v Eddy suggests that heads of damage which are merely analogous to a Griffiths v Kerkemeyer claim are not recoverable.

163 However, could the time spent by a plaintiff parent looking after a child of an unplanned pregnancy and the toll that may take upon him or her, fall within one or both of the first and second categories of loss identified in CSR v Eddy? For example, at common law could they claim for any economic loss they have suffered as a result of having to spend time caring for Samuel? This was not in issue in Cattanach. At first instance Mrs Melchior was awarded an amount for economic loss but that was due to the interruption to her earnings resulting from depression and a medical condition consequential upon pregnancy and birth ([2000] QSC 285 at [76] to [77]). As noted, the appeal to the High Court was only concerned with the cost of raising the Melchiors' child. Nevertheless the reasoning of the majority in Cattanach would appear to be equally applicable to this form of loss, if it could be proven (see Cattanach at [90]). No issue about setting off the benefits of having a child would arise with this form of harm because those "benefits" are also "legally irrelevant" to this head of damage. However it is unnecessary to consider this further because, as will become clear, recovery of this form of economic loss is now specifically precluded by s 71(1)(b) of the CLA.

164 This leaves the first category of loss identified in CSR v Eddy, namely non-pecuniary loss. As noted, in Cattanach Mrs Melchior recovered an amount for the pain and suffering at childbirth as well as consequential depression and various sequelae of child birth. However no amount for non-pecuniary loss specifically referable to the effect on her from devoting time and emotion to child rearing was sought or awarded. Such a claim could conceivably be pitched as one for the hours lost while engaged in child rearing on the one hand, or it may be that the particular parent suffers stress, depression or some even more significant psychiatric conditions from doing so. It may be that the greater the needs of the child, the more likely that the claim will be for the latter rather than the former.

165 A claim by a parent that, because of the time they have devoted to child rearing, they have lost the opportunity to pursue sporting or cultural pursuits does not appear to be particularly compelling. The observations of McHugh and Gummow JJ noted above at [157] appear to be directed to such a case. The dissenters in Cattanach would, at the very least, regard such a claim as anathema to the legal system involving, as it appears to do, some form of what Hayne J described as a "process of valuation" of the benefits and detriments of a raising a child. However what about a parent who has suffered a significant depression as a result of raising an unintended child, including one with say significant disabilities? The assessment of damages for that form of claim does not appear to necessarily involve any "process of valuation" of the kind adverted to by Hayne J. The damage to a person's health from mental illness and the emotional enrichment from parenting occupy, or at least potentially occupy, different spheres of the human condition.

166 A discussion at this level of generality cannot be advanced further partly because Cattanach did not directly address it, and partly because it is also conditioned by issues of causation and remoteness. However, at the very least the various judgments in Cattanach suggest that once some part of a claim for non-pecuniary loss is pitched in a manner that necessarily involves or requires an assessment of the relative benefits and detriments of rearing a child, then it cannot be entertained.

(b) Legislative intervention

167 It is unnecessary to describe the staggered introduction of the CLA in 2002 to 2003 (see Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 at [81]). It included restrictions on the awarding of non-economic loss (Part 2 Division 3) and the awarding of damages for "pure mental harm" (Part 3). Further, s 15 regulates the awarding of "gratuitous attendant care services" (ie Griffiths v Kerkemeyer damages). After the judgment in CSR v Eddy was published, a modified form of Gordon v Sullivan damages was reintroduced by the introduction of s 15B into the CLA (via the enactment of the Civil Liability Amendment Act 2006 (NSW)). None of these provisions affect the conclusion in [161] above concerning the inability to recover an amount in respect of the cost or value of voluntary care provided to a child in the case of an unplanned birth.

168 With effect from 10 December 2003 the Civil Liability Amendment Act 2003 (NSW) inserted into the CLA a new Part 11 which provided as follows:

"Part 11 Damages for the birth of a child

70 Application of Part

(1) This Part applies to any claim for damages in civil proceedings for the birth of a child, regardless of whether that claim is made in tort, in contract, under statute or otherwise.

(2) This Part does not apply to any claim for damages by a child in civil proceedings for personal injury (within the meaning of Part 1A) sustained by the child pre-natally or during birth.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B but, despite that section, does apply to liability of the kind referred to in section 3B (1) (a).

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."

169 Both the Explanatory Memorandum and the Second Reading Speech (Explanatory Memorandum, Civil Liability Amendment Bill 2003 (NSW), New South Wales, Parliamentary Debates, Legislative Assembly, 13 November 2003, 4992-4994) confirm that this part was introduced by way of specific response to the outcome of Cattanach.

170 Section 71 only deals with economic loss. It says nothing about non-pecuniary loss. I have already adverted to the effect of s 71(1)(b) (see [163]). Sub-section 71(1)(a) precludes a Court from awarding damages for economic loss for past and future costs associated with rearing or maintaining a child. Subsection 71(2) creates an exception by not precluding recovery for such additional costs associated with a child who suffers from a disability that arise by reason of the disability. Unlike say s 15B(2), s 71(2) does not confer a right of recovery of the additional costs. The entitlement to recover must still be sourced in the general law, which includes the decisions in CSR v Eddy and Cattanach.

(c) Causation under the Civil Liability Act

171 Under the heading "Causation", s 5D of the CLA provides:

"5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

172 The test posed by s 5D(1)(a) involves a strict application of the "but for" test. This test has been described by the High Court as "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E" (Wallace v Kam [2013] HCA 19; 87 ALJR 648 at [14] ("Wallace")). This task eschews policy or value judgments (Wallace at [15] citing with approval Allsop P in Wallace v Kam [2012] NSWCA 82 at [4]). In contrast, s 5D(1)(b) requires a determination that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. In contrast to s 5D(1)(a), this is an entirely normative assessment. In accordance with s 5D(4), it requires "consideration by a court of whether or not, and if so why, responsibility for the harm should be imposed on the negligent party" (Wallace at [14]).

173 In Wallace the plaintiff claimed that his surgeon failed to tell him about two separate risks from an operation, namely the risk of temporary nerve damage causing pain and a risk of permanent paralysis. The operation took place and the first risk materialised but the second did not. The trial judge found that the surgeon failed to advise him of the risk of temporary nerve damage, but that the plaintiff would have assumed that risk in any event. The trial judge did not resolve so much of the claim as alleged that the surgeon failed to advise the plaintiff of the risk of paralysis, and whether he would have assumed it on the basis that such a failure could never have been the legal cause of the nerve damage. The appeal tested that conclusion by proceeding on the assumption that the surgeon did not advise the plaintiff of the risk of paralysis, and that the plaintiff would not have had the surgery if so advised. On the facts as found and assumed the High Court found that s 5D(1)(a) was satisfied in relation to his claim for damages arising out of the temporary nerve damage ([at [29]). However the Court found that s 5D(1)(b) was not satisfied (at [36]).

174 The Court's analysis of s 5D(1)(b) appeared to involve four distinct steps. First, the Court noted that if a case falls "within an established class" then the question posed in s 5D(1)(b) is answered by the "application of precedent" (at [22]).

175 Second, the Court noted that a "limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid" (at [24]). Thus a medical practitioner "is not liable to a patient for physical injury that represents the materialisation of a risk about which it is beyond the duty of the medical practitioner to warn" (at [25]).

176 Third, the Court (at [26]) stated that within the limiting principle just noted:

"... the scope of liability for the consequences of negligence is often coextensive with the content of the duty of the negligent party that has been breached. That is because the policy of the law in imposing the duty on the negligent party will ordinarily be furthered by holding the negligent party liable for all harm that occurs in fact if that harm would not have occurred but for breach of that duty and if the harm was of a kind the risk of which it was the duty of the negligent party to use reasonable care and skill to avoid." (emphasis added)

177 Fourth, the Court nevertheless noted that the scope of liability is not always coextensive with the content of the duty and that "[f]urther analysis is required" (at [27]). In Wallace that analysis focused on the fact that it was a case "involving the materialisation of one of a number of distinct risks of physical injuries" (at [36]). In such a case the "underlying policy ... is to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient" (at [36]). The Court found that the scope of liability should reflect that policy. In Wallace's case it meant that the plaintiff could not recover in respect of the materialisation of a risk that he was prepared to assume.

(d) The Defendant's remaining causation submissions

178 The two remaining causation submissions made by Mr Sullivan QC take as their starting point the accepted fact that there was no "relationship between the disabilities suffered by Samuel and the endometrial procedure performed by [Associate] Professor Lam".

179 His first submission was that, to the extent that the particular form of harm for which recovery was sought was that contemplated by subsection 71(2), namely the additional costs of raising a child with a disability, then s 5D(1)(a) was not satisfied. He submitted that this was so because, unlike Cattanach, this was not a case in which Ms Neville had sought a sterilisation and was not "a case where damages can be sought for the economic harm sustained by caring for a healthy, but unwanted, child" because of s 71(1). He submitted that the possibility of a post endometrial ablation pregnancy was not foreseeably related to the endometrial ablation and was too "remote" in a causation sense.

180 In support of this submission, Mr Sullivan QC referred to the decision of Hislop J in Waller v James [2013] NSWSC 497 ("Waller"). In Waller Hislop J found that a gynaecologist negligently failed to advise a couple contemplating IVF treatment of the risk that if they used the father's sperm their child might inherit a genetic condition known as an "anti thrombin deficiency" ("ATD"). His Honour found that had the parents been so advised they would "have elected not to have" their child (Waller at [215]). Their son suffered an extensive cerebral sinovenous thrombosis (CSVT) five days after he was born (Waller at [2]). His Honour further found that their son's CSVT was not caused by or materially contributed to by his ATD (Waller at [238]). In those circumstances, his Honour found that they failed to establish causation (Waller at [260]). His Honour distinguished the facts in Waller from the facts in Cattanach on the basis that (at [254]):

"The difference between Cattanach and the present case is that in Cattanach the parents did not want a child and the injury to the parents flowed directly from the negligence of the medical practitioner. In the present case the plaintiffs wanted a child but one who would not develop the symptoms of ATD."

181 The CLA did not apply to the events the subject of the judgment in Waller. Accordingly, it was not necessary for Hislop J to distinguish between the two limbs of s 5D(1).

182 If the CLA had been applicable to the facts as found in Waller, then s 5D(1)(a) would have been established, but s 5D(1)(b) would not. With the former, a "strict application of the but for test" meant that the plaintiffs would not have incurred the cost and stress of caring for their son (Wallace at [16]). However, with the latter, Hislop J's findings meant that the defendant in Waller was not liable to a patient for the materialisation of a risk which it was beyond his duty to warn and thus s 5D(1)(b) would not have satisfied if the CLA applied (Wallace at [25]).

183 Similarly in this case, on the hypothesis noted in [147] s 5D(1)(a) would clearly be established. However, the points made by Mr Sullivan QC as noted in [179] above are apposite to s 5D(1)(b), to which I will now turn.

184 Mr Sullivan's last causation submission was that s 5D(1)(b) was not satisfied. Consistent with the second proposition cited above from Wallace concerning s 5D(1)(b), he submitted that it could not "be regarded as satisfied unless the relevant disabilities which are the cause of the additional costs [of raising Samuel] were ones about which the doctor ought to have advised".

185 I have summarised above the reasoning in Wallace concerning s 5D(1)(b). The first proposition in Wallace directs attention to the "application of precedent". There is no relevant precedent governing the circumstances of this matter. The closest decision is that of the Court of Appeal of England and Wales in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266 ("Parkinson").

186 In Parkinson the Court of Appeal allowed recovery of damages for the additional cost of raising a child born with a disability following the negligent performance of a sterilisation procedure on the mother. The alleged negligence of the doctor had neither contributed to the disability suffered by the child, nor been directed to avoiding that disability. Nevertheless the additional costs were recoverable on the basis, inter alia, that the birth of a child with congenital disabilities was a reasonably foreseeable consequence of negligence that led to unwanted pregnancy (at [50] and [53] per Brooke LJ), although the position would be different "if the child's disabilities were brought about between conception and birth by some ultroneous cause" (at [54], Hale LJ and Sir Martin Nourse agreeing at [96] and [97] respectively).

187 Prior to Parkinson, the House of Lords had denied recovery of the costs of raising a "healthy girl" born after her father was negligently told that his sperm count was negative following a vasectomy (McFarlane v Tayside Health Board [2000] 2 AC 59 ("McFarlane")). Further, Parkinson was considered by the House of Lords in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52; [2004] 1 AC 309 ("Rees"). It is unnecessary to describe Rees in detail other than the correctness of Parkinson was not directly in issue in Rees and it was not overruled. Three of the dissenting Law Lords in Rees approved Parkinson (at [35] per Lord Steyn, at [54] to [57] per Lord Hope of Craighead and at [91] per Lord Hutton), two in the majority doubted its correctness (at [9] per Lord Bingham of Canhill and at [145] to [147] per Lord Scott of Foscote), and one expressly reserved the point (at [112] per Lord Millett). The other Law Lord in the majority, Lord Nicholls, did not refer to Parkinson. None of their Lordships addressed that part of Brooke LJ's judgment in Parkinson which referred to one foreseeable consequence of a pregnancy as being a child born with congenital disabilities. However, Lord Bingham observed that in Parkinson it was "arguably anomalous that the defendant's liability should be related to the disability which the doctor's negligence did not cause and not to the birth which it did" (at [9]).

188 Parkinson is not a precedent binding on me. United Kingdom courts do not make "policy choice[s]" for Australia (cf Wallace at [22]). Together with McFarlane and Rees, Parkinson forms part of a troika of decisions which analyse the recoverability of the cost of raising child expenses in a manner very different to Cattanach. Further, the various judgments resort to such concepts as "distributive justice", and in so doing exemplify the divergence between the law of negligence in the United Kingdom and that of this country. Otherwise in large part they of little assistance in determining a claim that is governed by the CLA, although s 71(2) appears to result in a similar outcome to Parkinson. Nevertheless Brooke LJ's assessment that congenital defects are a reasonably foreseeable consequence of an unwanted birth is of some assistance in addressing s 5D(1)(b).

189 The second proposition from Wallace as applied to this case is that the liability of Associate Professor Lam does not "normally" extend beyond "liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid" (Wallace at [24]). Mr Sullivan QC pointed to the nature of the advice being proffered by Associate Professor Lam. He noted that Ms Neville did not seek advice about a sterilisation procedure and the surgical procedure was not of that nature.

190 However in this context I do not consider there is any difference in substance between seeking advice about treatment for menorrhagia and advice about sterilisation. A woman's menstrual cycle is integrally linked to her reproductive system. A doctor who assumes an obligation to provide advice about menorrhagia assumes a responsibility to advise about the consequences of any treatment options upon a women's chances of reproducing. Associate Professor Lam's own writings appear to accept that many, if not most women, including Ms Neville, understood that endometrial ablation was akin to a hysterectomy.

191 Modified to the circumstance that the relevant duty was a duty to warn about the possibility of pregnancy, the relevant "harm" that required the exercise of reasonable care and skill to avoid was either the circumstance of falling pregnant, or the financial costs to be incurred as a result of falling pregnant and giving birth. In either case, consistent with Cattanach (and absent section 71(1)(a)), this would extend to the costs of raising a child born as a consequence of a negligent failure to so act.

192 However, what about the costs of raising a child with a disability? It was not suggested that Associate Professor Lam had a duty to warn Ms Neville that she might give birth to a disabled child. It would be nonsensical to do so given the agreed fact that there was no connection between the performance of an endometrial ablation and the nature of Samuel's disabilities.

193 The third proposition from Wallace was that the scope of liability is "often" coextensive with the content of the duty, and the policy of the law will "ordinarily" extend to "all harm" that occurs if it was "harm of a kind the risk" of which it was the defendant's duty to avoid. Leaving aside section 71(1)(b) of the CLA for the immediate present and assuming Samuel's disabilities are congenital, it would follow that "ordinarily" Associate Professor Lam would bear legal responsibility for all the reasonable financial costs of raising Samuel including those that arise from his disabilities.

194 At the risk of repetition the relevant harm was the financial costs consequent upon an unwanted pregnancy. The foreseeable outcomes of a pregnancy include the birth of twins or triplets, or the birth of a child born with a physical, emotional or intellectual deficit or disability. No child is perfect and many children have some form of special need. Samuel maybe at the end of that spectrum but, as noted in Parkinson, one reasonably foreseeable outcome of pregnancy was the birth of a child with congenital defects (even if the particular congenital defect in question may be rare). To distinguish between the cost of raising a "healthy" child and the cost of raising a child born with congenital defects in the causation context of this case is to confuse the distinction between the foreseeability of the type or kind of loss, and the inability to foresee the extent of the loss. This distinction was recognised in Wallace at [26] (which in turn reflects an established position at common law: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390 per Barwick CJ). In this case the kind of loss is the expenses of child rearing. The extent of the loss is likely to be significant because of Samuel's disabilities.

195 Further, I do not consider that this conclusion is affected by s 71. Section 71 was enacted in specific response to Cattanach and it should be understood in that context. It operates to limit the damages recoverable for the cost of raising a child to those identified in s 71(2). However nothing in the section or the secondary materials concerning its enactment indicate that it was meant to operate upon s 5D(1)(b) so as to only allow recovery of the additional costs of raising a child with a disability in those circumstances where the relevant negligent act materially contributed to the occurrence of the disability. To give it that operation would result in it having an effect beyond the alleged mischief it was intended to correct.

196 The fourth proposition in Wallace was that the scope of liability is not always coextensive with the content of the duty and that "further analysis is required". In Wallace the further limiting circumstance that was identified (at [36]) was that a patient cannot recover in respect of a risk that was not "unacceptable" to them. This has no application to this case. This was not a case where there were separate and distinct risks. On the hypothesis noted at [147] the risk of having any further children or of incurring any further expenditure in raising another child was "unacceptable" to Ms Neville. Otherwise no basis for failing to hold Associate Professor Lam liable for the full extent of financial loss incurred as a result of Samuel's birth is apparent.

197 Upon the hypothesis noted in [147] I would consider it appropriate for the scope of Associate Professor Lam's liability to extend to any additional costs incurred by Ms Neville associated with rearing or maintaining Samuel that arise by reason of such his disabilities as were congenital.

198 Against this background I will assess each of the heads of damage claimed by Ms Neville.

(13) General damages - Ms Neville

199 An amended statement of particulars filed on behalf of Ms Neville on 23 April 2013 particularised her "injuries" as follows:

"1. Continuation of pregnancy to term;

2. Need for antenatal attendances and treatment;

3. Need for antenatal tests and investigations;

4. Need for hospitalization for labour and delivery of [Samuel];

5. Labour and delivery of a child, ...;

6. Raising a child with a disability;

7. Mental harm

8. Moderate adjustment disorder;

9. Depressed mood;

10. Loss of enjoyment of life;

11. Impaired capacity to earn;"

I will treat items 1 to 10 as the particulars of her non-economic loss.

200 The first five of these items are all referable to the effect on Ms Neville of being pregnant and giving birth. Subject to considering the effect of s 16 of the CLA, there is no doubting that the physical and other effects of pregnancy and child birth are compensable. However, there was no evidence from Ms Neville on this topic. Other than the psychiatric reports described next, I was not referred to any other evidence which would enable the Court to assess the extent of any pain or discomfort she suffered from those matters.

201 Items 7, 8 and 9 all concern psychiatric harm said to have been suffered by Ms Neville. As stated at [82], both parties adduced evidence from a psychiatrist. Ms Neville tendered two report from Dr Westmore, one dated 20 February 2009 and another dated 16 May 2011. Associate Professor Lam tendered a report from Dr Brown that bore the date 15 July 2010. One significant limitation on all of these reports was the significant delay between the dates of their production and the time of the hearing. Ms Neville attended on both psychiatrists prior to the production of their reports, but neither saw her again before the hearing in March 2014. Also, Dr Westmore and Dr Brown attended a conclave in February 2014 and produced a joint report. They both gave evidence at the hearing in a joint session.

202 In his first report Dr Westmore recorded that he asked Ms Neville about the impact of Samuel's condition on her. He recorded Ms Neville as stating that "she uses humour to try and cope with her situation" but that she also reported other difficulties in her life, including a "a difficult property settlement with her ex-husband". She is recorded as stating that Mr Nowak provided as much support as he could, but at that time he had the competing responsibilities arising from his ex-wife's medical condition. (Since the time of the report Mr Nowak's ex-wife had passed away.) Dr Westmore noted that Ms Neville reported drinking approximately a bottle of wine a day. Dr Westmore reviewed various documents concerning her psychiatric history, which included notes reporting that in March 2006 she had "presented as being confused and overwhelmed with issues associated with the pregnancy".

203 Dr Westmore diagnosed Ms Neville with "alcohol abuse" and a "moderate adjustment disorder with depressed mood". He stated:

"Ms Neville re-developed a depressed mood after falling pregnant with Sam ... The depression was multi-determined in its origin, the father Greg did not want to commit to her, her older two children were unhappy, Greg wanted her to terminate the pregnancy, she was stressed in relation to the divorce proceedings from her second husband. The most appropriate diagnosis would be that of an adjustment disorder with a depressed and possibility anxious mood."

204 Dr Westmore's second report was to similar effect, although he noted that "many of her life stressors are now behind her".

205 Dr Brown's reports describe, inter alia, the emotional strains on Ms Neville on being confronted with Samuel's disabilities and caring for him. For example she noted that Ms Neville said she had difficulty sleeping at night. For a period she allowed Samuel to sleep in her bed because she was concerned about his shallow breathing, but his presence interrupted her sleep. Dr Brown also described Ms Neville gambling, drinking to excess and engaging in other forms of compulsive behaviour. Dr Brown concluded:

"... it is my opinion that this plaintiff has probably experienced a mild exacerbation of a pre-existing depressive disorder, in conjunction with the development of an Alcohol Abuse Disorder of mild severity in the years since her son's birth in August 2006. Factors related both to the pregnancy and subsequent health and development issues arising for [Samuel] have been considered to be significant contributors to these conditions, in addition to there also having equally been significant contributions from independently occurring life factors and a continuation of pre-existing vulnerabilities and relationship conflicts." (emphasis added)

206 Thus, according to Dr Brown's diagnosis, Ms Neville aggravated or exacerbated an existing major depressive disorder through a number of matters which included the birth of Samuel and coping with his subsequent health and development issues, whereas Dr Westmore considered that she developed depression "in response to an identified psychosocial stressor".

207 Neither psychiatrist suggested that Ms Neville's mental harm was consequential upon any "personal injury" she may have suffered. It follows that this aspect of her claim involves a claim for "pure mental harm" (CLA, s 27). Nevertheless, on either diagnosis Ms Neville suffers from a "recognised psychiatric illness" so that the barrier to recovery represented by s 31 of the CLA is overcome. Otherwise, both psychiatrists agreed with Mr Sullivan QC's suggestion that the "essential difference" between them was that, while they both agreed that there "had been an increased level of depression [in Ms Neville] since the birth" of Samuel, Dr Westmore classified that as depression at a "moderate level", whereas Dr Brown considered it to be "mild".

208 I have already noted that both psychiatrists had not seen Ms Neville for a number of years prior to the hearing. In evidence Dr Westmore agreed that he could not currently say whether Ms Neville's depression was currently affecting her to a "moderate degree or a mild degree or to a severe degree". During cross-examination both psychiatrists accepted that a number of the more recent developments in Ms Neville's personal situation were generally positive, namely the strengthening of her relationship with Mr Nowak, the completion of her property settlement with her second husband, and that she was working full time.

209 In the end result I am not able to differentiate between the two underlying diagnoses other than to state that I am not persuaded that Ms Neville's level of depression has been anything other than "mild" in the sense described by Dr Brown. However, it has been persistent and I expect it will persist. It is no doubt much more difficult to cope with because of the numerous responsibilities she has, including caring for Samuel. Notwithstanding the limited material that was presented, these findings result in her exceeding the threshold referred to in s 16(1) of the CLA.

210 However, at this point I cannot take the analysis any further. In their joint report both Dr Westmore and Dr Brown addressed Ms Neville's prognosis, while noting that they felt "hampered" because they had not consulted with her since they had prepared their reports. Subject to that observation, Dr Westmore considered that Ms Neville's prognosis was "ultimately closely linked to her son's physical, psychological and psychiatric development". Dr Brown had a different opinion. She considered that it was more likely than not that Ms Neville would continue to "cope in a generally resilient fashion, notwithstanding fluctuations in her mood". Even so, it is doubtful whether Dr Brown would consider that Ms Neville's prognosis is completely unrelated to Samuel's future development.

211 The difficulty is that the severing of the quantification of the expenses to be incurred in raising Samuel from the balance of the case led to the parties not tendering evidence concerning the extent of his disabilities and likely prognosis. Given that it is likely that the prognosis for Ms Neville's future mental health is inter-dependent with Samuel's to at least some extent, this means that it would be procedurally unfair to assess the former when evidence has not been led of the latter. In those circumstances I will not make findings as to the prognosis for Ms Neville's depression. Thus I cannot complete the process contemplated by s 16(3) of the CLA, namely determining the overall severity of Ms Neville's non-economic loss by reference to a "proportion of a most serious case".

212 The remaining particulars of injury are items 6 and 10 in the list set out in [199] above. Those items concern the effect on Ms Neville of raising Samuel. To the extent that these matters are causative of or impacted by her psychiatric condition, then they have already been addressed. For the reasons noted at [165] I am not satisfied that any considerations of public policy preclude the determination of any award of damages on that basis. However to the extent that these items are meant to indicate a claim for damages based not on damage to Ms Neville's psychiatric health but instead based on a general loss of enjoyment of life then, for the reason noted at [166], I consider they cannot be entertained. In any event I was not referred to any evidence supporting these particulars beyond the material concerning the psychiatric harm suffered by Ms Neville.

(14) Economic loss

213 Ms Neville claimed a "buffer" based on her inability to fulfil her capacity for employment. As I understand it, the basis for that claim was not the loss of time spent while caring for Samuel but instead the potential effect on her earning capacity from her depression.

214 Any claim for economic loss must confirm with s 13 of the CLA. Nevertheless, provided that the Court makes findings in conformity with s 13(1), there is no reason in principle why a buffer cannot be awarded (see Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84] per McColl JA, with whom Mason P and Beazley JA agreed; and Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302, at [3] per McColl JA, [21] to [36] per Basten JA, and [67] per Macfarlan JA).

215 In their joint report Dr Westmore and Dr Brown addressed the possible interference with Ms Neville's earning capacity from her depression, Dr Westmore considered that Ms Neville's psychiatric problems were "unlikely to result in any significant impairment in her capacity to work" but considered there were "likely to be periods, both from a psychological and practical perspective" when Ms Neville was or would be unable to "perform her normal duties" . He added that "it would be useful to have some direct history from Ms Neville" on that topic.

216 Dr Brown stated that she did not "believe that Ms Neville's mild depressive symptoms would impair her work capacity in any significant sense", although she accepted that the demands of caring for Samuel may have "affected the hours of work she has been able to undertake at various times since August 2006".

217 To the extent that both psychiatrists referred to Ms Neville's earning capacity being affected by the "practical" need to care for Samuel, then any award on that basis is precluded by s 71(1)(b) of the CLA. Otherwise, there was no evidence led from Ms Neville or adduced from any other source which suggested that there was any adverse impact on her earning capacity since she gave birth to Samuel. I reject this claim.

(15) Out of pocket expenses for Ms Neville

218 No evidence was led of any out of pocket expenses being incurred by Ms Neville. I reject this claim.

(16) Past and future gratuitous care for Samuel

219 Ms Neville's schedule of loss and damage claimed a significant amount for past gratuitous care for Samuel supposedly "as per section 15, CLA". It also included an amount sought under the heading "Future Care" which appeared to mostly consist of "voluntary" care it is anticipated will be provided to Samuel. Consistent with the observation at [6], evidence was not led as to the quantification of this amount. In any event, it follows from the finding at [161] that no amount can be recovered on account of this.

(17) Past and future out of pocket expenses for Samuel

220 The balance of the claim consisted of various out of pocket expenses claimed for the care of Samuel in the past and the future. It follows from the finding at [197] that, prima facie, reasonable expenditure already incurred in looking after Samuel is recoverable. Consistent with the observation at [6], no further finding can be made at this stage.

221 Subject to two matters, the same observations apply in relation to the future costs of caring for Samuel.

222 The first matter to note is that it follows from the passage in CSR v Eddy noted in [150] above that for such amounts to be recoverable the Court would have to be satisfied that the relevant expenditure would be incurred regardless of whether or not Ms Neville is successful. This requirement clearly favours a parent of a disabled child who has means, compared with the less well off. It is unjust, but it is the law as it stands.

223 The second matter concerns whether any expenditure recoverable in respect of the cost of living for Samuel would cease upon his turning eighteen. Given the outcome of the proceedings, it follows that my observations on the topic of damages are all obiter. Given that circumstance and the absence of full argument on the question of the time span for recovery for future expenses, I will not address this issue.

(18) Conclusion

224 It follows that the proceedings will be dismissed. I will order Ms Neville to pay Associate Professor Lam's costs. If either party seeks to vary that order they should apply within the period allowed for by Uniform Civil Procedure Rule 36.16(3A).

225 Accordingly the Court orders that:

(1) The proceedings be dismissed.

(2) The plaintiff pay the defendant's costs.

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Decision last updated: 21 May 2014