Gentile & Anor v Ferri [2004] WADC 144 (16 July 2004)

Last Updated: 28 November 2006

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : GENTILE & ANOR -v- FERRI [2004] WADC 144

CORAM : MACKNAY DCJ

HEARD : 23-26 NOVEMBER 2003

DELIVERED : 16 JULY 2004

FILE NO/S : CIV 2758 of 2002

BETWEEN : CARMELA GENTILE

First Plaintiff

PETER GENTILE

Second Plaintiff

AND

MAURICE FERRI

Defendant

Catchwords:
Torts - Negligence - General matters - Medical procedure - Duty of care - Whether tubal ligation with Filshie clips failed through error in application - Turns on own facts

Damages - Measure and remoteness of damages in actions for tort - Personal injuries - Medical negligence - Birth of unwanted child following failure of sterilisation procedure - No allowance for notional costs of parental care for child

Legislation:
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4

Result:
First plaintiff entitled to judgment against defendant for $20,000

First and second plaintiffs entitled to judgment against defendant for $84,316

Representation:

Counsel:

First Plaintiff : Mr T Lampropoulos

Second Plaintiff : Mr T Lampropoulos

Defendant : Mr N W McKerracher QC

Solicitors:

First Plaintiff : Hoffmans

Second Plaintiff : Hoffmans

Defendant : Clayton Utz

Case(s) referred to in judgment(s):

Cattanach v Melchior [2003] HCA 38; (2003) 77 ALJR 1312

Chappel v Hart (1998) 195 CLR 232

Edith Cowan University v Czatryko [2002] WASCA 334

Kars v Kars [1996] HCA 37; (1996) 187 CLR 354

Lock v Lock [2001] WASCA 20

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Case(s) also cited:

Nil

MACKNAY DCJ:

Introduction

1 The plaintiffs are respectively wife and husband, born on 30 September 1966 and 14 February 1965, and with three children, James, born on 24 April 1990, Alex, born on 25 July 1992, and Anthony, born on 13 June 1998.
2 The defendant is a medical practitioner who at all relevant times practised as a specialist obstetrician and gynaecologist.
3 The plaintiffs' third child Anthony was conceived and born despite the first plaintiff having earlier undergone, on 15 May 1997, a laparoscopic sterilisation carried out by the defendant through the application of Filshie clips.
4 After Anthony's birth it was discovered that the clip applied to the first plaintiff's fallopian tube on the right had dislodged and was resting lower in the abdomen in an open position.
5 The plaintiffs say the clip could not have dislodged unless the defendant had first, failed to properly apply it, and secondly, failed to adequately inspect it prior to completion of the procedure.
6 The first plaintiff claims damages arising from her pregnancy and the birth of Anthony, and both plaintiffs claim damages in respect of the past and likely future care of Anthony as a child.
7 The defendant denies he was negligent or that either plaintiff is entitled to the damages sought or at all.
8 The materials before me include written submissions filed by the parties after the trial.

Plaintiffs

9 The plaintiffs married on 14 June 1986.
10 The first plaintiff said that following the birth of Alex it was decided that they were content to have a family consisting of two children and in any event felt that they could not afford to have further children.
11 The second plaintiff was at the time working as an excavator operator with an income of about $35,000 per annum, the first plaintiff said.
12 As a consequence of their decision the first plaintiff said that she saw the defendant, who had previously delivered her two children, and he recommended the application of Filshie clips.
13 Shortly thereafter, on 15 May 1997, the first plaintiff underwent the procedure at Attadale Hospital.
14 Following that procedure the first plaintiff said that she did not use any form of contraception.
15 In September 1998 she then found she was pregnant, the first plaintiff said, and was referred by her general practitioner to the defendant in the belief that she must have an ectopic pregnancy.
16 The first plaintiff said that the defendant carried out an ultrasound test in his rooms and informed her that she was pregnant, as a result of which she went into shock and cried all the way home.
17 The pregnancy was "good", the first plaintiff said, but there was some pain associated with the birth of Anthony, in circumstances where she had chosen not to have any pain killing medication.
18 In relation to her employment the first plaintiff said after the birth of Alex that she had not worked for a number of years but had resumed on Alex attending kindergarten, at which time she began to work two days per week.
19 The first plaintiff said that she worked as a finance officer with adult services and later at the south west college of TAFE, working with the latter five days per week between 9.30 am and 2.30 pm, for a net weekly income of about $300, that commencing in 1997 when Alex began year 1 of school.
20 Following her subsequent pregnancy the first plaintiff said that she reduced the number of days worked but continued to work until May 1998.
21 The first plaintiff said that she has not worked since Anthony's birth.
22 An additional problem for the family had been the diagnosis of Alex with ADD, the first plaintiff said, and although he was not now on medication he did require additional help with schooling and the like.
23 The second plaintiff agreed that it had been decided after the birth of Alex that they could not afford another child, and the decision that the first plaintiff be sterilised was then made.
24 The birth of Anthony meant that there were additional family expenses, the second plaintiff said, and that put more strain on their finances.
25 He helped Anthony with homework and also took him to sport and the like, the second plaintiff said.
26 The second plaintiff said that he had ceased work as an excavator driver and was now engaged in gardening and house maintenance work.

Expert evidence

27 Dr Mark McKenna was called on behalf of the plaintiff and gave evidence that he carried out a further Filshie clip laparoscopic sterilisation on the plaintiff in June 2001.
28 In a letter to the plaintiff after the operation the doctor stated:

"... the right hand tube looked fairly normal and did not look particularly scarred. There are two clips down in what is called the Pouch of Douglas behind the uterus that are open. It looks to me as though the clips have gone on to the tube but have then fallen off relatively early, probably in the first few days given that there's no major scarring of the tube. This could be a calibration problem with the instrument but it would be difficult to explain why the instrument had worked properly on two clips on the left tube but not on two clips on the right tube, so I can't really explain for certain why it's happened to you. Clips are known to come off at times and it is one of the things that accounts for the 1:500 failure rate, but it would certainly be unusual to have two clips fall off."

29 In evidence Dr McKenna said that the tissue over the tube looked "a little whiter than average", which could be normal, or "could be related to the tube having been handled".
30 When carrying out the procedure with the aid of a camera and screen the anaesthetist and theatre nurse would ordinarily be able to follow events, in addition to the surgeon, he said, and to comment if anything untoward occurred.
31 Theatre nurses would not be reticent in doing that, the doctor said, particularly the staff at the Attadale Hospital.
32 Dr McKenna said he ordinarily took still photographs rather than make a video of the procedure, but if the latter was done it would be reasonable to stop and start the video as the surgeon thought necessary.
33 The doctor was also asked:

"In your experience as an obstetrician, gynaecologist have you heard of this procedure not working on occasions?---As far as sterilisation goes?
Yes?---Yes, I've had a couple myself.
Have you?---Yes.
Do you know what the causes of those failures were?---I don't but it's known that they do fail so it's – I mean, yes, you feel bad about it but it's one of those things that happens.
Even though you carry out the procedure to the best of your ability?---Yes, most of them are not method failures out there. From what I know about the surgical literature, the majority happen rather than happening because there's a problem with the actual surgery of the procedure."

34 After application of a clip Dr McKenna said he checked "routinely" that the clip had closed, looking from the other side of the tube, the view later during the procedure not always being as good.
35 Professor Richard Clegg is a professor of industrial materials science at the process engineering and light metals centre of the Central Queensland University in Gladstone Queensland, and is a metallurgical engineer by training.
36 He said that he had provided advice for solicitors in a number of cases involving Filshie clips and had given evidence in such a case on one occasion.
37 The Filshie clip was formed of titanium and silicone rubber, Prof Clegg said, with the latch, in addition to being bowed, thinner and of lower grade metal than the base so that it would deform when the two were compressed, the clip being 5.5 mm prior to, and about 3.9 mm in height after, compression by the applicator.
38 Prof Clegg was not aware of any clip failure through manufacturing defect, he said, and considered a clip could not spring open if properly applied, whilst if there was a defect in a hinge that would have to come undone.
39 Other forms of defect could, Prof Clegg said, be a bending in the base, although it would not then fit into the applicator, or deformation in the catch.
40 In a report Prof Clegg had earlier set out information that the Filshie clip had been in use for about 20 years, while a review of world experience published in 2000 in the American Journal of Obstetrics & Gynaecology said about 3 million pairs of clips had then been implanted.
41 Various reports of failure rates of the laparoscopic sterilisation procedure were set out by the witness.
42 He also stated that three mechanical failure mechanisms for the clip were generally accepted, two relating to physiological sequelae and the third to there being insufficient deformation of the latch to permit it to close under the catch, so that it sprang open immediately on removal of the applicator.
43 Prof Clegg stated spontaneous opening of a clip was impossible unless it was faulty, not applied correctly or subject to abnormal force, and there were no reports of properly closed, non-faulty clips spontaneously opening, although a paper by Lammes published in 2001 in the British Journal of Obstetrics & Gynaecology dealt with a "hitherto undescribed" cause of opening, brought about it was said by jamming of the latch against the hatch during closing, as a result of faulty use of the applicator, the clip later opening.
44 Prof Clegg expressed the view that a surgeon should examine an apparently closed clip from the side after application, in addition to tugging on it.
45 He agreed that ideally in his discipline he would want an access to a clip on an examination of failure of it.
46 Dr Ian Barrowclough is an obstetrician and gynaecologist in private practice in Sydney, with some years experience in the application of Filshie clips, although he ceased doing that work in "the late eighties".
47 He expressed the view that in the course of laparoscopic sterilisation with Filshie clips a surgeon ought, following the application of a clip to a tube, manoeuvre the tube so as to see the clip side-on, at which time it ought be possible to see the latch was under the catch, the curve of the latch then being "markedly reduced".
48 The purpose of that was to check the correct structure was ligated, the clip was at right angles to and over the whole tube, and the clip was properly locked, he said.
49 The defendant's video showed checking of the left clips but not the right, he said, although he agreed that it would be unusual for a surgeon to carefully inspect one side and then not inspect the other.
50 Dr Barrowclough agreed the video did show a check of the right clip from above, to see if it was clamped.
51 He did not agree it was appropriate to pull or tug the clip as such could damage tissue.
52 Still photographs of the right tube and clip showed blanching for 3-4 mm proximal to the clip and slight swelling distal to it, he agreed.
53 Dr Barrowclough also agreed there was a "feel" when the latch went home under the catch, and a person experienced with the procedure became familiar with that.
54 Although he had reported that it appeared from dislodgment of the clip that no proper inspection had been carried out by the defendant, Dr Barrowclough agreed the clip could have been defective, although later stating he had no experience of a clip springing open by itself.
55 When asked in re-examination to identify the portion of the clip on the right tube depicted in a still photograph Dr Barrowclough appeared to specify as the latch, the hinge.
56 He had earlier, in setting forth a written opinion prior to trial, referred on two occasions to Dr McKenna having found no evidence of scarring to the right tube, although the report of that doctor relied on had stated rather that the tube did not appear "particularly" scarred.
57 Dr Barrowclough also agreed that in his description of the procedure, taken from the video, he had set out an incorrect order of events regarding ligation of the right tube.
58 Dr Douglas Keeping is an experienced Brisbane obstetrician and gynaecologist, who said he had carried out laparoscopic sterilisation with the assistance of Filshie clips since the introduction of the same.
59 He said that his practice was after application of a clip to lift the tube to see around it at various angles, the easiest being from the side, and to check that the top of the clip was flattened and the latch was under the catch.
60 Dr Keeping said he inspected the clip again later.
61 In an earlier written report Dr Keeping said his understanding, based on the literature and his experience, was that in "average/good centres, the failure rate will be in the 2-5 per thousand range", although that rate was "higher in teaching hospitals where junior doctors are being taught the procedure".
62 There was also "a tendency to under-report failures because it is not an outcome that is either desired or that anyone is particularly proud of", the doctor said, and in addition under-reporting caused by women attending elsewhere following pregnancy through displeasure with the first doctor or hospital.
63 As to the failure here, Dr Keeping stated that it "was obviously not a very good day in theatre" for the defendant, given the first clip on the right fell off and could not be retrieved, the second on that side "fairly obviously" fell off soon afterwards, and two clips were required on the left, and with that background "commonsense would have to say that it would seem pretty likely that the clip was not properly applied".
64 The doctor also stated that he thought it was "unlikely that the clip could be applied properly, checked to be secure, and then fall off because of some problem with the applicator or the clips".
65 Further, Dr Keeping expressed the view that "in terms of the intent of the operation, and the 'acceptable'/'non-acceptable' end point, it would seem that the outcome is more likely a result of human error rather than an Act of God or nature".
66 In evidence the doctor said that he had not encountered a clip springing open, although not suggesting that could not happen.
67 When a clip was closed by the applicator it gave a "feel", he agreed.
68 Whether a clip could be faulty was something outside his area of expertise, Dr Keeping said, although in his own case if a clip came off he would assume he had not put it on securely, despite being reasonably careful.
69 Dr Keeping was then asked whether "those things can happen, even though the greatest of care is taken by a competent, experienced surgeon?" to which he replied "it could happen. It has happened".
70 The defendant called evidence from Professor Gabor Kovacs, a Melbourne gynaecologist sub specialising in reproduction, professor of obstetrics and gynaecology at Monash University and director of obstetrics and gynaecology for Eastern Health, a grouping of five hospitals within metropolitan Melbourne.
71 Prof Kovacs said his experience included acting as chair of a medical task force of Family Planning Australia which in 1983 published guidelines in the Medical Journal of Australia in which Filshie clips were said to be the preferred method of sterilisation, that resulting in a change of practice to those clips.
72 Filshie clips had been used by him for sterilisation since the "mid-80's" the doctor said, and he had carried out hundreds of such procedures.
73 Prof Kovacs had been an author of an article "Female sterilisations with Filshie clips: What is the risk failure? A retrospective survey of 30000 applications" published in 2002 in the Journal of Family Planning and Reproductive Health Care, and said of the 73 identified failures there were 14 cases where it was known a clip was not on a tube, described as "operator failure (misapplication of clip)" and another 29 where pregnancy had occurred despite the presence of a clip, whilst in 30 the reason for the pregnancy was not known.
74 In a written report Prof Kovacs stated there was a small failure rate and the "cause of failure of Filshie clip sterilisation is either misapplication of the clip, a subsequent mechanical failure, recanalisation within the clip, or a fistula formation".
75 Here, although the lack of scarring suggested the clip had fallen off fairly early the doctor stated the plaintiff's delay in conception suggested she may have had "some protection for some time" as given her reproductive history conception could otherwise have been expected "fairly quickly".
76 The video indicated the defendant had made a very detailed inspection of the left tube, and it was therefore reasonable, Prof Kovacs stated, that a similarly careful check of the right tube was carried out, even if not recorded.
77 Prof Kovacs then stated:

"The reason why the clip subsequently dislodged is again uncertain. As discussed by the Lammes (Brit J Obstet Gynaecol 2001), it could be due to incomplete locking, or a subsequent mechanical failure. It is impossible to tell what the actual cause was.
All we can ask from a clinician is to apply the clip to the correct structure using the usual procedures. Despite this we have to accept that sterilisations sometime fail. Unless it can be clearly shown that the clinician was careless by applying the clip to the wrong structure, we would not blame him for factors outside his control. As Dr Ferri went to sufficient trouble to apply a second clip on the left side because he was not certain of its efficacy, I have every confidence that he would have been just as diligent in inspecting the right side."

78 As to the video of the plaintiff's procedure Prof Kovacs said:

"It's really hard to tell when somebody else is doing it. When you're doing it yourself you know exactly what you're doing and you satisfy yourself to the best of your ability, but looking at it second-hand – I mean, even on the video it's quite hard to know what's going on. A lot of it is by feel. We go through the procedures. There's a half a dozen steps which are recommended which we all follow and, I mean, as far as we can tell on the video it's okay but you still can't be guaranteed. When we talk about looking at the clip side-on we have to remember we have got limited access, that we've got an incision at the umbilical, the telescope goes in and all you can do with that telescope is move it right or left or up and down. The tube is fixed to the uterus so it's not exactly like doing carpentry where you can pick it up and look at it side-on. It's never a perfect side-on view and every time we do it we have to have the best view we possibly can and make assessment. We've already covered the fact that part of this assessment is feel and part of it is looking.
When you say in the assessment as far as looking is concerned, what is the best you can do?---The best you can do to see that the clip has gone under the hinge – the clip has absolutely gone under the metal piece of it.
Do you just look at that from one angle or do you turn it over?---Well, the first thing that one does is you put the clip on and then before one locks the clip usually it's very important to have a look to make sure you've got the tube, the whole of the tube and nothing but the tube. Having ascertained that, then one would squeeze the handle home and have that feeling of the tube closing or the piece of metal tubing being gripped by the pliers, we've heard eloquently before, and then after that to have a look to make sure that the clip is properly applied but it's not exactly like you can do with a piece of carpentry when you pick it up and look at it from various angles, because you are limited in the movement you can have and you can't get a perfect 90 degrees – sometimes.
In all that process of checking whether the clip is on properly, to what extent is the bowing or the flatness of importance?---Well, it's very hard to see because of the curvature on the telescope. It's not, again, a perfect – it is something you have to just do from experience and assess that, to the best of your experience, it looks like the clip has closed, but there is some curving of the field. You can't actually see if it's perfectly flat. It's very difficult to visualise that perfectly."

79 There was no literature referring to any need for a side-on view of which he was aware, the doctor said, nor any instruction to that effect in any manual, the reason probably being that it was not always practical to get a full side-on view.
80 If the defendant had in fact carried out a check of the right tube after application of the second clip Prof Kovacs said there was nothing else he ought to have done.
81 The doctor later agreed that the video showed only a cursory glance, which would not be an adequate check, by itself.
82 The cause of the remaining failures in the survey undertaken by him was not known in any case, he said, and he was unaware of any mechanical failure of a clip.
83 In cross-examination Prof Kovacs said the steps involved in the procedure were:

"The first thing is to visualise the tube because one of – the most important thing is to put the clip on the tube and, as Dr Keeping, it's very easy to do it on other structures, the ovarian ligament, falls of peritoneum and so the first thing is one must visualise the tube. The second step is then to put the clip on and make sure you've got the tube, the whole of the tube and nothing but the tube, and that should be done before the clip's locked into place. When the operator is certain that that is the case, then the clip can be squeezed home and then the next thing is, having applied the clip, to check to make sure that the clip is on and then in the experience of the operator the clip is properly closed.
You say 'check that the clip is on.' How do you carry out that check?---By looking at it. I don't believe I can always get a view from the side to make sure it's properly flat like it's been discussed, but to make sure that the jaws seem to be closed and the metal is under the jaw.
And how do you do that?---By inspecting it with the laparoscope.
And you've got a physical barrier preventing it springing open?---Yes.
So you visualise that. You look for that, don't you?---Yes, I do.
To the extent that you can get a side-on view, that's what you attempt to do?---Yes, you do. You rotate the clip as much as you can.
And as part of looking at the clip first of all to see that the latch is under the catch, you also look at the shape of the latch?---The curvature of the upper jaw as much as you can, but you're looking at it from the top and it's hard to be exact and, as I said, the optics are quite misleading sometimes. The optics are quite curved, so I think that's the least precise of the steps.
So the critical thing you look for then is to make sure, as you keep saying, that the latch is under the catch?---Firstly the whole tube is in the clip and that the latch is under the – the upper jaw is under the latch of the lower jaw.
Because if you've got the latch under the catch, from a physical point of view, as we said, there's a barrier there and it's difficult to see how it could then spring open. Is that correct?---That's correct.
At what stage do you carry out that check?---I do the first side and look at it immediately, take a photo, do the other side and – I'm not sure why; I was thinking about it when Dr Keeping was speaking – I always go back and have a look at the other side first, but then I don't go back to the other side again. So I'm only just mildly obsessive. I double-check the side I did first but I don't double-check the second side I did and I've never really thought about why I did that but that was only an observation by Dr Keeping."

84 The doctor also agreed that the clip here must have opened within a number of days, although also saying that the inside of the fallopian tube could be damaged without there being corresponding damage on the outside, and in his experience where one of the tubes was totally unclipped that problem usually surfaced much more quickly.
85 Prof Kovacs said that his practice was not to record the procedure on video, but to take still photographs of each clip in situ, from the side.
86 The procedure he adopted in that respect was to apply a clip to the first site, photograph it, make the application at the second site, photograph that, and then check the first site again.
87 Dr Tim Jeffery is a gynaecologist and obstetrician in practice in Perth with 20 years experience, and said he had applied Filshie clips on approximately 2000 occasions.
88 In an initial report to the defendant's solicitors Dr Jeffery said he had studied the video tape of the plaintiff's procedure on a "frame by frame" basis and:

"Dr Ferri placed the right tube Filsche (sic) clip adequately. Specifically on review of the videotape the Filsche clip is placed on the isthmus of the right tube squarely over the tube, with no 'bowing' of the clip, (ie no Sydney Harbour Bridge bending of the Filsche clip), indicating a correct placement and closure of the clip at the initial application."

89 The doctor also stated that failure of the:

"sterilisation procedure relates to a failed occlusion of the clip indicating a faulty clip or faulty applicator rather than poor placement by Dr Ferri."

90 After modified tapes and still photographs were supplied to Dr Jeffery he stated in a subsequent report:

"Specific features demonstrated by the images provided include:

- The Filsche (sic) clip being applied to the right tube.

- Blanching of the tissue under the Filsche clip as the Filsche clip is closed.

- Congestion of the tube distal to the placement of the Filsche clip indicating compromised venous return due to the obstruction of the Filsche clip.

- A squarely placed clip over the tube occluding the entire diameter of the tube.

- A locked flat clip applied to the tube following removal of the applicator, indicating the tube is locked and compressing the tube. (Had the clip not been locked properly or the tube not compressed correctly, then a bowing of the clip would be obvious in the still photographs.)

The images provided confirm Dr Ferri applied the Filsche clip to the right tube occluding the tube and the Filsche clip was locked and compressed the tube.
At the time of the sterilisation procedure Dr Ferri applied the Filsche clip to the right tube, the clip was locked and there is no evidence to support a claim that the Filsche was incorrectly applied or not locked completely."

91 In evidence Dr Jeffery said in relation to the photographs:

"Looking at frame 16.01, the two pictures here, the top picture demonstrates the clip applied to the right tube; the left-hand side of the picture indicates the uterus with the tube coming out of the uterus and at the bottom of the picture, at the top, below the clip, you can see the swollen tube. That clip is looked at end onwards – from the end over the hinge – and it's very obviously a flat closure of that clip. The bottom picture demonstrates very clearly the kinking or narrowing of the tube under the clip. If you look at the picture very carefully you can actually see, as the tube goes into the clip on the left-hand side or on the upper portion of the picture – you can see that the clip has actually narrowed as it goes into the tube and as it comes out of the tube, the tube is congested and swollen. That can only happen if the blood supply to the tube is occluded and that can only happen if the tube was – if the clip was locked.
McKERRACHER, MR: Thank you. You mentioned some blanching that you observed in the still photographs. Can you identify that in any of the photos in exhibit 8?---If we go back to frame 13.03 at on the top – the top picture, once again we've got the uterus at the very top of the picture and this picture, we've got the ring of the clip applicator being applied to the tube. Below the tube there's a lip of bowel, but below the actual clip applicator, the pink tube is actually white compared with the rest of the tube. That indicates that the tube is being occluded by the application of the clip."

92 He also said:

"... frame 16, page 24. The top picture there demonstrates without any shadow of a doubt a well-placed clip on a tube, occluding the tube and locked. It's a flat clip, there's congestion of the tube on the distal end of the tube and that is a clip that we have to accept is placed correctly on this tube."

93 In cross-examination the doctor said it did not appear from that last photograph whether the latch was under the catch.
94 When carrying out the procedure Dr Jeffery said his practice was to try to get two views of the clip, the first to make sure it was squarely across the tube, and the second to make sure it was flat, a side-on view being sought for that, although that could not always be achieved.
95 He said he inspected a clip both after applying it and before removing the laparoscope.
96 Dr Jeffery said he considered the video demonstrated the defendant had adequately visualised the placement of the clip on the right tube immediately after its application.
97 One explanation of why a clip could come undone was that in the Lammes article, the doctor said.

Defendant

98 The defendant, who is 71 years of age, graduated in medicine in the United Kingdom in 1958, and became a practising member of both the Australian and English Colleges of obstetrics and gynaecology in 1980, having however practised earlier in the area whilst still a general practitioner, before becoming a registrar in 1976.
99 The defendant retired from all forms of medical practice in March 2000.
100 In about 1972 the defendant said he trained in laparoscopy, and thereafter performed that procedure, to a total of 6/7,000, utilising various methods over the years.
101 The first plaintiff had been referred to him for each of her first two births, the defendant said, and then returned for tubal ligation, which he carried out on 15 May 1997.
102 By that time the defendant said he had carried out "a few hundred" Filshie clip procedures, and had also taught the method at King Edward Memorial Hospital.
103 The operation record prepared by the defendant after the first plaintiff's procedure relevantly reads:

"Laparoscopy, good view, normal pelvis. Filshie clips, one fell in the cul-de-sac and a second clip was applied to the left tube."

104 As to that, after commencing the first plaintiff's procedure a clip fell out of the shoe, the defendant said, and an attempt to retrieve it failed as it was in an area of fat.
105 The clip was allowed to remain where it was and the defendant said he applied a clip to the right tube, which was easily identifiable, placing it at right angles over the isthmus.
106 The defendant said he eased the clip home and it gave a satisfactory squeeze as it went home, the feeling being like pliers on a crimp.
107 The clip felt good and looked good so he thought "that's good. Get on with the next one", the defendant said.
108 As it was so satisfactory the defendant said he did not inspect the clip closely, it being his usual practice where the clip felt right and looked right to go to the other side.
109 The defendant said that he was "certain" that he put the clip on properly.
110 After moving to the left tube and applying a clip, the defendant said he did not feel the clip had "got home" but rather had a feeling of incomplete compression, and thought it was possible the whole of the tube was not contained.
111 As a result, and also as he had as a consequence of the lost clip a spare clip "which would have been thrown out", the clips coming in packets of two, the defendant said he "decided it would be safe and in (the first plaintiff's) interests if (he) made certain on that side to just put the second clip on", which he did.
112 The defendant said he then returned to the lost clip, and tried to retrieve it, but on a little bleeding occurring:

"... came out, said, 'Stop it.' I switched off the – I had said to the girls – they switched off the video and started pushing things back and at that point I always have a final look around and came out and I thought I had done the operation satisfactorily.
When you say you had a final look around, what do you have a final look around at?---You have a look at the pelvis to see how much blood is present; you have a look at the uterus; you have a look at the clips on the tubes; you have a look at the bowel."

113 Part of the final inspection, the defendant said, was to check that the latch had gone under the catch, as it could catch a ligament vein.
114 The defendant said he knew the appearance of a normally applied clip, and on his final inspection the clips looked perfectly satisfactory, and he thought he "had done the job satisfactorily".
115 The defendant was then asked:

"We saw on the left-hand tube that you turned the tube over to look at both sides of the clips?---Yes.
Can you say whether or not that is your usual procedure?---When there has been a problem, yes. You always – you put a tape on. You've just got to look to see what you've done. It's part of the procedure. You don't do it blind.
Can you say in what manner you inspected the clip on the right-hand side?---Not as closely as the one on the left because of the problems it encountered on the left but I looked at it, lifted the tube up; if it looks fine, come out."

116 In cross-examination the defendant was also asked:

"So you're looking for bleeding, haematomas and as you say, you're looking at the site, but the question I'm asking you is are you examining, inspecting the clip itself to ensure that the latch has gone under the catch?---It's difficult for me to answer that without somebody saying I'm being evasive. You look at it and you know the appearance of a normally applied clip and it looked normally applied.
You say it looked normally applied. What were you looking for?---Closure over the tube, the difference in contour which is minimal but it's percepted, and the fact that it's gone over the tube or the latch under the clip.
You mentioned earlier in your evidence that this idea of an examination from side-on is a new concept for you. Can you explain what you meant by that please?---I heard the professor on Monday, the metallurgist, explain how this became a critical factor. The reality is you try to look at the clip you apply from every possible view. Sometimes it does come into horizontal view transversely. You can see it. Sometimes you can't, the way the tissues move, so that the – it's a combination of feel and appearance. An applied clip, as always to me, just looked properly closed in the right position at the right part of the tube and at right angles to the tube. When you see that you're satisfied.
Is it the case or isn't it the case, doctor, that you weren't in the practice of attempting to look at a clip side-on to ensure that the latch was properly under the catch? Was that your practice or not?---As a specific thing saying, 'I must get this at right angles to see, ' no. I would say – I would agree with you that this was not part of it. It was an inspection of the clip, certainly.
I'm not suggesting exactly at right angles, but generally, did you try and get a side-on view to ensure that - - -?---That's why you lift the tube up so that you turn the clip. When you put the probe under the tube you turn it and look.
What are you looking for generally, that it feels and looks as if it's in place or you're looking to see whether the - - -?---You can see the tube going in one side of it and you can see it coming out the other. You can see that it's across the tube. You can see that the tip isn't sticking up free, and often if it is sticking up free – it's happened to me once I think. I think it fell off straightway – so that you know I felt what I had to do with it and done it.
It sounds like, Dr Ferri, that you didn't express the - look at whether or not the latch was under the catch as part of the ordinary routine, specifically look at that part of the clip. Is that right or not?---It's not right.
The appearance of the clip under the latch is something that you accept when you see the clip properly in position. I mean it's cut through the peritoneum. It's sealed over the tube. It's flattened off. There isn't a bit of metal sticking up proud. It just looks closed.
So if it looks closed, then from your point of view - - -?---Then it is closed, yes.
It if looks closed from that type of inspection, then you are satisfied that the latch must be under the catch?---Yes.
Is that a fair way to put it---I think that's reasonable, yes."

117 The defendant said it was his usual practice to make a video tape of such procedures, as he had done here, but as there were periods of inactivity he would instruct that the device be switched on and off.
118 Examining a clip on a tube at a right angle was "a new concept" to him, the defendant said, and the "crucial thing is to see the flattening of the tube and see that the clip has gone over the tube and is not halfway across the tube".
119 The defendant then made reference to the top of the clip looking "a little flatter" after being squeezed.
120 The occurrence described by Lammes in 2001 had been first brought to his attention the day before he gave evidence, the defendant said.

Liability

121 If the unintended birth of a child be regarded, directly or indirectly, as an unfortunate event then this is a most unfortunate case, involving as it does on one side the decent doubtless hardworking adult members of a family and on the other a conscientious senior and now retired medical practitioner.
122 Since the decision of the High Court of Australia in Cattanach v Melchior [2003] HCA 38; (2003) 77 ALJR 1312, and in the absence of any parliamentary reversal or modification of the decision, I am required to proceed on the basis that it is indeed such an event.
123 In his written closing submissions of 8 December 2003 senior counsel for the defendant, after making reference to an annexed list of Australian, UK and Canadian cases, said that there was "no case in which the plaintiff has succeeded simply because the procedure has failed. Specific negligence in some shape or form has had to be established".
124 In response, and in the plaintiffs' submissions submitted on 23 December 2003, it is said that:

"(a) the evidence establishes that the Filshie clip was not properly applied and lies open in the plaintiff's abdomen with no indication of any defect;

(b) all the expert medical witnesses gave evidence of their practice and/or the necessity of inspecting an applied clip, as far as possible from a side-on position, to ensure that the clip was properly engaged (something which the defendant said was new to him);

(d) the expert medical evidence established that if a proper inspection had been carried out in that way, it would have been apparent that the latch had not been properly engaged under the catch; and

(d) it must therefore follow that the defendant did not apply or inspect the clip properly, and on that basis he is liable in tort and contract."

125 For the plaintiff to succeed in negligence a breach of duty which caused damage must be shown.
126 Putting to one side any question of reversal of the evidentiary onus (see Chappel v Hart (1998) 195 CLR 232; Lock v Lock [2001] WASCA 20; Edith Cowan University v Czatryko [2002] WASCA 334), such not being raised on behalf of the plaintiffs here, consideration of causation necessarily involves a consideration of the probable cause of the loss of the Filshie clip from the plaintiff's right fallopian tube, it being clear that was the cause of the later pregnancy, as I find.
127 The clip is of course still contained within the first plaintiff's body and no meaningful examination of it has been possible, beyond determination of the fact that the latch is not secured, and the clip is open, and in one piece.
128 As to why it is open there are, on the evidence, a number of possibilities.
129 Those are first that the clip was not closed and later simply fell off, second that it was partially but not fully closed: that is, in the Lammes position, and later opened and became dislodged, and third that the clip was closed around the tube but was faulty, and on that manifesting itself, again opened and became dislodged.
130 The first possibility is unlikely, having regard to the video evidence which reveals closure to at least some extent.
131 Further, the defendant was an experienced practitioner, and it would seem unlikely that he would be unaware of a failure to bring the latch into contact with the catch.
132 No question of the delivery instrument being incorrectly calibrated or otherwise faulty arises.
133 Nor is any physiological cause suggested.
134 The evidence provides no real support for the third possibility.
135 Although Prof Clegg spoke of the forms of defect possible in a clip he was unaware of any report of the same.
136 Similarly, none of the medical witnesses alluded to there being any incidence of clip failure known to them or reported in the literature, notwithstanding that by 2000 at the latest about three million pairs of clips had been implanted.
137 The clip is in one piece, and if the hinge was faulty that would not be so.
138 Although, as appears above, Prof Kovacs said in both his report and his evidence that a possible cause of failure was a subsequent mechanical failure, he provided no particulars as to the degree of likelihood of that in either, whilst in his published article the categorisation of the cases where a clip was known not to be on a tube was "operator failure (misapplication of clip)".
139 Further, the evidence of Prof Clegg was the only engineering evidence put before me and I see no reason to not accept it, and that was to the effect that a non-faulty clip could not spontaneously open.
140 The second possibility, that the clip was in the Lammes position, would provide an explanation for the mishap here, in circumstances where the defendant himself is not able to provide one.
141 Indeed, it was an explanation postulated by Dr Jeffrey, and also referred to by Prof Kovacs, both of whom were called on behalf of the defendant.
142 If one then compares the three competing inferences, non-closure is unlikely, and mechanical failure as a likelihood is also not supported, but there is support for a Lammes closure and subsequent failure, as a matter of logic, from the medical literature, and from the expert medical evidence, including the defendant's witnesses.
143 I find here that on the balance of probabilities that such a closure did occur and later brought about the loss of the clip from the plaintiff's right fallopian tube and hence was the indirect, but legally relevant, cause of her subsequent pregnancy and the birth of Anthony.
144 The defendant did not observe that incomplete closure of the clip, in circumstances where it was observable.
145 The defendant was doubtless distracted to some extent by the earlier dislodged clip.
146 The failure was to a degree also systemic in that the defendant apparently placed undue reliance on feel as opposed to the need for a careful visual inspection of the clip and tube, especially so as to observe the latch under the catch.
147 In that regard Drs McKenna, Barrowclough, Keeping, Kovacs and Jeffery all spoke of the need to inspect the clip following application, from the side so as to see the clip side-on.
148 As Prof Kovacs said, it appeared from the video that the defendant's inspection following application was only "cursory", and by itself inadequate.
149 The professor was, however, confident that the defendant would later have made a very detailed inspection of the tube and clip.
150 I would not, however, find that occurred.
151 The defendant's evidence initially was that the final inspection was concerned with a general check, and in circumstances where the defendant said he felt sufficiently confident of the feel of the clip being eased home to think he ought go immediately to the next tube, as the video reveals he did, without a proper inspection, I think it unlikely the defendant would have felt the need to return to the right tube in detail at the end of the procedure.
152 Further, the defendant was, on his own admission, unaware of the need to examine the clip and tube at right angles where possible.
153 The failure by the defendant to adequately inspect the clip over the right tube did in my view amount to a failure to meet the standard required of him, and to a breach of duty such as to make him liable to the plaintiffs as a result.
154 The amended statement of claim also casts the claim as one in contract, and the defendant acknowledged a contractual duty, so I would allow that claim also, in circumstances where the claim is poorly pleaded, but the defendant does not suggest that claim ought fail on that account, and nothing apparently turns on it.

Damages

155 At the completion of the evidence counsel informed me that agreement had been reached as to quantum in relation to a number of heads of damage, subject to any questions of entitlement.
156 I was then provided with those figures in the plaintiffs' outline of submissions.
157 Prior to turning to such it is necessary to make some observations as to the relevant legal rules.
158 Cattanach (supra) is of course the starting point for any consideration of the question of the damages that might be awarded in a claim like that here.
159 As appears from the judgment of Gleeson CJ (1316-1317), there were in Cattanach three distinct claims for damage.
160 Those were a claim by the child's mother for damages "relating to pregnancy and birth" which included pain and suffering, loss of amenity associated with pregnancy and childbirth, loss of earnings and various expenses, a claim by the father for loss of consortium, and a joint claim for the expenses involved in "rearing" the child.
161 All were allowed and the appeal concerned only the last head, special leave being granted "limited to the question of damages for raising and maintaining the child".
162 Gleeson CJ, who dissented as to outcome, said that the claim ought be regarded as one for "pure economic loss", made as it was by both parents, and concerning costs to be met, at least in part, by the father.
163 The Chief Justice had earlier said that the damages which were sought arose from the creation of the parent-child relationship, and the question of recovery could not "be disposed of as...an item of consequential pecuniary loss incurred, or to be incurred, by a plaintiff suing for personal injury." (1315).
164 The claim before the High Court being one only in negligence, and whatever the position might be with a claim made on a different basis, Gleeson CJ thought there was no warrant for the extension of the law within the restricted area of pure economic loss (1322).
165 McHugh and Gummow JJ, who formed part of the majority, in a joint judgment, rejected the notion that the birth of an unintended child ought be regarded as a wrong inflicted on the parents (1325).
166 The same judges also said (1327-1328):

"[67] Nor is it correct to say that the damage that the respondents suffered was the parent-child relationship or the coming into existence of the parent-child relationship. To do so is to examine the case from the wrong perspective. In the law of negligence, damage is either physical injury to person or property or the suffering of a loss measurable in money terms or the incurring of expenditure as the result of the invasion of an interest recognised by the law. The parent-child relationship or its creation no more constitutes damage in this area of law than the employer-employee relationship constitutes damage in an action per quod servitium amisit. In the latter case, the employer suffers damages, for example, only when it is forced to pay salary or wages to its injured employee although deprived of the employee's services. It does not suffer damage merely because its employee has been injured. Similarly, for the purpose of this appeal, 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 the situation would continue in the future, then the damages they would be able to recover in the future would be reduced accordingly.

[68] The unplanned child is not the harm for which recompense is sought in this action; it is the burden of the legal and moral responsibilities which arise by reason of the birth of the child that is in contention. The expression 'wrongful birth' used in various authorities to which the Court was referred is misleading and directs attention away from the appropriate frame of legal discourse. What was wrongful in this case was not the birth of a third child to Mr and Mrs Melchior but the negligence of Dr Cattanach.

[69] The submissions by the appellants introduce notions of public policy not in formulating the relevant duty of care nor, in so far as they would have the reasoning apply also in contract, to strike at the bargain itself. Rather, as remarked above, the appellants seek the proscription of a particular head of recovery of damages. The ground advanced is that the policy of the law does not allow of any treatment as compensable harm of the third category of damages awarded by Holmes J.

[70] In McFarlane [1999] UKHL 50; [2000] 2 AC 59 at 108 Lord Millett treated what was involved as the 'admission of a novel head of damages'; this raised a matter 'not solely a question of principle' because '[l]imitations on the scope of legal liability arise from legal policy'. His Lordship continued:

'Legal policy in this sense is not the same as public policy, even though moral considerations may play a part in both. The court is engaged in a search for justice, and this demands that the dispute be resolved in a way which is fair and reasonable and accords with ordinary notions of what is fit and proper. It is also concerned to maintain the coherence of the law and the avoidance of inappropriate distinctions if injustice is to be avoided in other cases.'

[71] In this Court, the respondents dispute the first proposition that what was involved in the third category of the award made by Holmes J was a novel head of damages. They refer to the statement of general principle by McHugh J in Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 at 54;

'When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, "in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation". Consequently, when a plaintiff asserts that, but for the defendant's negligence, he or she would not have incurred a particular expense, questions of causation and reasonable foreseeability arise. Is the particular expense causally connected to the defendant's negligence? If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred?'

[72] Both questions, posed with respect to the third category of the award at trial in the present case, should be answered in the affirmative. Indeed, later in his speech in McFarlane, Lord Millett had discounted any distinctions between pure and consequential economic loss, saying:

'The distinction is technical and artificial if not actually suspect in the circumstances of the present case, and is to my mind made irrelevant by the fact that Catherine's conception and birth are the very things that the defendant's professional services were called upon to prevent. In principle any losses occasioned thereby are recoverable however they may be characterised.'"

167 Kirby J, who formed part of the majority, pointed out (1339) that:

"[134] The majority of courts have adopted control mechanisms of one kind or another to limit the liability of a surgeon, hospital or health service so as to exclude the potentially large amounts incurred in the upbringing of a child born in such circumstances. However, the definition of the 'cut-off' point and the explanation of why and how it is to be found, varies significantly."

168 The question was then approached essentially as one of policy and the Judge eventually came to the conclusion that there was no compelling reason why "full damages...for the cost of rearing the child" ought not be allowed. The Judge also observed (1342) that the claim was not one of pure economic loss, nor for an injury represented by the birth of the child, but was rather for the economic harm "inflicted" on the parents, in circumstances where there was direct injury to the mother "who suffered profound and unwanted physical events (pregnancy and childbirth)" as a result of the negligence. Further, it was "artificial" to attempt to sever the parents' joint claim.
169 Hayne J dissented, on policy grounds.
170 The fourth member of the majority was Callanan J, and after apparently adopting a Canadian term of "wrongful pregnancy" he found (1371) that all "the various touchstones for, and none of the relevant disqualifying conditions against, an award of damages for economic loss are present here."
171 Heydon J also dissented.
172 It is the case, given the observation by McHugh and Gummow JJ already referred to, and the absence of any suggestion to the contrary, that Cattanach provides no support for the proposition that the parents are entitled to compensation for their own labour expended in the child's upbringing, whilst that observation provides support for the converse.
173 In cases of personal injury the loss which grounds a right to damages for voluntary assistance is that of the injured person, such arising from the need for assistance created by the wrong, and not that of those persons who have rendered such assistance or might do so in the future: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327; Kars v Kars [1996] HCA 37; (1996) 187 CLR 354.
174 The claim here, for a total of $259,177.58 for past and future services, is therefore a novel one, and based on the agreed commercial cost of paying someone to discharge the plaintiffs' duty to Anthony.
175 There is sound logic behind the rule that voluntary services provided to an injured person ought ordinarily be assessed by reference to commercial rates.
176 I am not able to discern any similar logic behind the plaintiff's claim here.
177 The claim is not brought by or on behalf of Anthony.
178 If the plaintiffs were not able, for some reason, to discharge their duty to Anthony it would necessarily abate.
179 The claim is not made on the basis that the time spent in care of Anthony is, or might be, productive of financial loss.
180 Nor is an award of general damages sought to cover the situation.
181 Whatever the position might be in a case where a claim of this kind was made on some other basis, with evidence to support that, I am of the view that the plaintiffs' claim here for the notional value of "voluntary services" provided, or to be provided, to Anthony does not as put accord with existing legal rules, is contrary to what was said in Cattanach, and ought not be allowed.
182 In relation to future expenses, which in accordance with Cattanach are of course recoverable, a question arises whether the Law Reform (Miscellaneous) Act 1941 (WA), s 5 is applicable so as to require a discount to be made for early receipt by use of the six per cent tables.
183 That section is applicable where an award of damages relates to personal injury, and where the loss being compensated, or might occur in the future.
184 If the approach of Kirby J be followed the section is undoubtedly applicable.
185 In any event, there is nothing before me to indicate that if the issue fell to be determined at common law that no discount ought be made, nor any evidence that some other discount rate would be appropriate, having regard to economic conditions.
186 If required to choose a discount rate I would therefore adopt that in the six per cent tables, by analogy, and having regard to both the history of discount rates in the courts of this State and also the legislation, which is now time honoured, and hence productive of a result which accords with community expectations as to awards of damage.
187 Finally, as stated, nothing was said to suggest that any difference in approach ought result from the claims being brought in both contract and negligence.
188 The relevant heads of damage and my findings are then:

•	First plaintiff's claim for general damages.

There is no dispute as to the plaintiff's entitlement to an award of damages for any detriment arising from her pregnancy, the birth and its aftermath on proof of breach of contract or negligence.

There was no complication associated with those things.

I allow $20,000.

•	Plaintiffs' claim for past and future costs.

I allow the agreed amount of $76,726.95.

•	Plaintiffs' claim for special damages.

I allow the agreed amount of $7,689.15.

189 In summary:

First plaintiff's claim for general damages $ 20,000.00

Plaintiffs' claim for past and future costs $ 76,626.95

Plaintiffs' claim for special damages $ 7,689.15

$104,316.10

190 The first plaintiff is entitled to judgment against the defendant for $20,000 and the first and second plaintiffs to judgment for $84,316.