Judgment Summary

Supreme Court
New South Wales

Tinnock v Murrumbidgee Local Health District (No 6) [2017] NSWSC 1003

Campbell J

The Supreme Court has awarded damages in negligence to a plaintiff who suffered
personal injuries subsequent to an incisional hernia repair. The procedure was carried out
at the Wagga Wagga Base Hospital in 2010. The Court dismissed the plaintiffs primary
case pleading battery on the part of the defendant and the application of the exclusionary
provisions of s 3B of the Civil Liability Act 2002 (NSW).

A surgical registrar performed the operation with the assistance of a specialist general
surgeon and post-operative complications followed for the plaintiff, namely the development
of a severe infection associated with the placement of surgical mesh over the region of the
hernia dissection. The plaintiff re-presented to the hospital on two further occasions after
the primary surgery.

At issue was the cause and origin of the infection, when it ought to have been evident to a
specialist general surgeon, and what ought to have been done to treat it. Vicarious liability
of the Murrumbidgee Local Health District for the tortious conduct of its doctors was not
disputed.

In regard to the plaintiffs case in battery, the central issue was whether the plaintiff had
consented to the operation. The plaintiff based her case in battery on mistake as to the
identity of the person performing the surgery. This was because, as alleged by the plaintiff,
she had only agreed to the procedure being carried out by the surgeon and not the
registrar. Considering the onus of proof in regard to consent, his Honour noted an
unresolved difference of opinion in the Court of Appeal between the positions stated in
Dean v Phung and White v Johnson, ultimately applying the former decision as favourable
to the plaintiff.

Reviewing the authorities, his Honour noted that the issue of consent depended upon the
nature and character of the act performed, not on the identity of the person carrying out the
act per se. Therefore, the issue was framed in the following way: was the performance of
surgery, at least in part, by the registrar, such as to alter the nature and character of the
surgery and thereby vitiate consent? Ultimately, his Honour held that an omission to obtain
[the plaintiffs] express consent to the involvement of a doctor other than [the surgeon was
not] a mistake on her part as to the nature and quality of the surgery to be performed. It
was held to be sufficient that the plaintiff was advised in broad terms of the nature of the
procedure to be performed and that the plaintiff had signed a document prior to the
procedure advising of the possibility of that procedure being carried on by persons other
than the designated surgeon. There being no allegation of fraud, other considerations
regarding the qualifications and competence of the surgeons were relevant to the case in
negligence only, not battery.

This summary has been prepared for general information only. It is not intended to be a substitute for the
judgment of the Court or to be used in any later consideration of the Courts judgment.
The plaintiff further sought to plead s 3B of the Civil Liability Act 2002 (NSW), that civil
liability of a person in respect of an intentional act that is done with intent to cause injury or
death is excluded from the provisions of the Act. His Honour considered that the
conclusion reached in respect of battery did not of itself exclude the operation of the
provision, but had no difficulty in concluding that the procedure in this case was not an act
done with intent to cause injury.

The plaintiff argued her case in negligence on several bases, arguing that numerous steps
ought to have been taken to guard against the risk of infection. The central issue
surrounded the question of breach of duty. First, it was argued that negative pressure
surgical drains ought to have been employed during the primary procedure. Secondly, the
plaintiff alleged that by the time of her re-presentation to hospital, clear signs of infection
were detectable and insufficient action was taken, including a failure to remove the surgical
mesh.

At trial, expert evidence was adduced through a conclave of five consultant surgeons giving
evidence on issues of liability, and evidence by a specialist in infectious diseases and
microbiology. From the concurrent evidence, the Court inferred a consensus of opinion that
drains are required in certain cases, though competent professional practice does not
require the closure of all open abdominal surgery with drains. However, his Honour found a
wide acceptance that a drain ought to be used in cases such as this, and that each of the
experts would have used one in this case, especially having regard to the particular risk
factors at play among which were smoking and obesity. Accordingly, the defendant had
breached its duty of care to the plaintiff in failing to employ surgical drains in the
circumstances of the case.

Further, his Honour held on the balance of probabilities that on the plaintiffs first re-
presentation, a low grade infection was present and detectable, but no breach of duty was
established. By the time of the plaintiffs third presentation, however, there were held to be
obvious signs of ongoing wound infection and the defendant breached its duty to the
plaintiff in failing to recognise that infection and adopt appropriate measures in response.

His Honour held that the relevant acts of breach were causative of the injuries alleged by
the plaintiff. The award of damages totalled a little over $1million.

This summary has been prepared for general information only. It is not intended to be a substitute for the
judgment of the Court or to be used in any later consideration of the Courts judgment.