SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ: The evidence given in these proceedings established the procedure by which a vasectomy is ordinarily carried out.  With the area under local anesthetic, the doctor, by handling the scrotum, determines the position of the relevant spermatic cord (the vas deferens), near to the skin of the scrotum.  The doctor then makes a small incision into the scrotum, and withdraws the cord through that incision.   The diameter of the spermatic cord is about 2 millimeters.  Adhering to the cord is a small artery, with a diameter about half that, which should desirably then be separated from the cord using forceps, so that it is out of harm’s way as the doctor then proceeds to sever the cord, and tie off or otherwise seal the severed ends.  Alternatively, both cord and artery may be severed, with all ends then being sealed.  This may be done if it is difficult to separate the cord and artery.  The cord and artery are then reinserted into the scrotum through the small incision.

2. This procedure is followed with respect to each of the two spermatic cords. If the artery is accidentally severed, and bleeds, it may be tied or heat sealed. But bleeding may not occur in such a case (where there has been an accidental severing), because of the effect of the drugs administered in the course of the procedure, or because the artery is in spasm due to handling. The doctor may then not be aware of having nicked the artery. Such nicking could occur when the doctor makes the initial incision into the scrotum, prior to extracting the cord with the artery attached. (The artery may sit in a variety of places with respect to the cord.)

3. Bleeding into the scrotum is the major possible complication flowing from this operation. If it becomes apparent during the operation, the doctor should attend to it by ligating or heat sealing the lacerated artery. If bleeding has not by then been noticed, then against the possibility that it may later ensue because of an inadvertent nicking of the artery of which the doctor is unaware, it is customary to advise the patient to make use later of ice packs and tight underwear to forestall bleeding and swelling. The overall operation takes about 15 minutes.

4. The respondent requested the appellant to perform a vasectomy upon him. The appellant is a general practitioner, but by this time had performed approximately 7,500 vasectomies, and so was experienced. He gave evidence, not disputed, of having carried out the operation in the usual way. Some hours later, at home, the respondent noticed swelling and bleeding. He went to the Redcliffe Hospital in the early hours of the morning, where he underwent a further operation, to evacuate a large haematoma. The doctor who carried out that further operation, Dr Davies, identified a small nick on the small artery accompanying the right spermatic cord, which he concluded accounted for the bleeding.

5. The respondent experienced considerable subsequent pain and suffering, and brought proceedings against the appellant in the Magistrates Court for damages for negligence. The magistrate heard medical evidence, from the appellant and from two specialist surgeons experienced in this field, Dr Davies (who had operated upon the respondent at the Redcliffe Hospital) and Dr Nicholson. The magistrate found that the problem arose from the nick to the small artery observed by Dr Davies. He found that when the appellant closed the relevant incision into the scrotum, there was no sign of bleeding; bleeding did not then occur because the artery was in spasm. The magistrate noted that the appellant was experienced in such operations. His conclusions were as follows:

“It seems to me on the evidence that the probabilities well and truly favour the scenario that the defendant nicked the artery at some stage of the operation (probably when making the incision) without knowing it as it did not bleed because it was in spasm at that time and that he closed on a dry field.

It is my view on the evidence that there was nothing more the defendant could have done.

It is my view on the evidence and I so find that the defendant has exercised the reasonable care and skill of an ordinary person exercising and professing to have the special skill as contemplated in the cases aforementioned.

Therefore I find the plaintiff has not proved a breach of duty by the defendant.”

6. It will be seen that the magistrate found it probable that the appellant inadvertently nicked the small artery when he made the initial incision into the scrotum, that being – on the evidence – a risk which might eventuate because the artery might be in a variety of situations in relation to the cord.

7. The respondent appealed to the District Court against the dismissal of his claim. The appeal was by way of re-hearing (rule 294(3) Magistrates Court Rules 1960).  The learned District Court judge reasoned in this way:

1. The magistrate erred in concluding that the severing of the artery probably occurred at the time of the initial incision into the scrotum.  Dr Nicholson had given evidence that this was “possible”.  The learned judge said that the magistrate had unjustifiably elevated that into a probability.

2. Although the doctors gave evidence that the severing or partial severing of an artery could occur quite accidentally and without negligence, the significance of that evidence was reduced by its not being explored with relation to this particular operation.  It was left in the abstract.

3. The procedure by which this operation is carried out is carefully designed to avoid lacerating the artery.  The circumstance that the artery was here lacerated ipso facto established negligence, in the absence of evidence “that the (respondent) had a peculiar anatomy, or that the anatomy of the human being is such that in general the artery will, despite the exercise of skill or special skill be partially severed”.

The learned judge consequently allowed the appeal, entering judgment for the respondent in the amount of damages assessed by the magistrate.

8. The appellant then applied for leave to appeal to this court. The court granted leave principally because of a view that the learned judge had arguably reversed the onus of proof. The judge appears to have held that proof of the partial severing of the artery established negligence, and that it fell then to the doctor (the defendant) to displace that prima facie negligence. That probably emerges most clearly from this passage in the judgment:

“… the evidence regarding the diameter of the artery to the effect that it is very small and the evidence of the artery being alongside the vas or under the vas or on top of the vas may demonstrate the operation is intricate, however the evidence, in my opinion, raises possibilities which could not without more overcome the finding to be made from the finding the artery was partially severed during the operation.   That finding being that it was more likely than not the respondent breached the duty of care owed to the appellant.  It does not follow in my opinion that just because the respondent made an incision in the scrotum at the commencement of the operation during which the artery may have been partially severed, the result is something that has occurred notwithstanding the exercise of skill or special skill.  In my opinion, it is that skill or special skill professed by the respondent that would call for partial severing of the artery to be avoided.  That is, unless the respondent could show by evidence something about the appellant that explained why this occurred to the appellant, despite the exercise by the respondent of the skill or special skill professed by the respondent.  In my opinion, the possible explanation could not displace the finding, in my opinion, the magistrate ought to have made once he found the artery was severed by the respondent during the operation.”

9. It fell to the respondent (patient) to establish on the balance of probabilities that the appellant (doctor) failed to exercise “the standard of reasonable care and skill required … of the ordinary skilled person exercising and professing to have (the relevant) special skill”, that is, to carry out vasectomies (Rogers v Whitaker (1992) 175 CLR 479, 483).  The magistrate found that the appellant followed the accepted procedure; that “there was nothing more (he) could have done”.  There was evidence that such a partial lacerating could occur without want of care.

10. The learned judge rejected what I see as an important finding by the magistrate that the accidental severing of the artery probably occurred at the time of the initial incision into the scrotum. There was evidence that that could possibly occur. It appears to me that the magistrate’s view of the appellant’s expertise drawn from experience in this field led him to elevate the possibility into a probability. The conclusion conversely involves its being improbable that the appellant lacerated the artery at the later stage. The artery will by then have been separated from the cord with forceps. That occurs prior to the cutting of the cord. The whole procedure is designed to avoid nicks to the artery. The magistrate has apparently considered it unlikely, given the doctor’s experience and expertise, that having separated the artery from the cord, he would nevertheless at that later stage have carelessly lacerated the artery. The magistrate was in my view entitled to take that course, justifying the conclusion he expressed.

11. Mr Dorney QC, who appeared before us for the respondent, submitted that because the artery could safely be separated from the cord, there would by inference be a sufficient separation originally to render unlikely any nicking at the time of the first incision, that is, into the scrotum. This hypothesis was not put to the specialist medical witnesses. Adopting it now would involve impermissible speculation. I consider the magistrate’s finding, that the nicking probably occurred at the time of incision, to be supportable.

12. Mr Dorney also separately submitted that if the artery, when uncovered, was seen to be on top of the cord, that is following the incision into the scrotum and the withdrawal of the cord with the artery out through the incision, then a doctor should proceed on the basis that a nick may accidentally have occurred during the incision, and in the interests of caution, lacerate the artery and reseal it. This scenario again was not put to the witnesses. It also involved a speculative approach not warranted at this stage of the matter.

13. The District Court judge concluded that the appellant was negligent even if the nick occurred during the making of the incision into the scrotum. That, however, ran counter to the undisputed specialist medical evidence in the case. Both specialist medical witnesses gave evidence that such could occur without a want of care on the part of the doctor. Doctor Davies, called by the appellant, said that such a complication “does not adversely reflect on the expertise of the surgeon”; that nicking and bleeding is “a recognised complication of vasectomy. The actual procedure is designed to reduce the risk of that complication but cannot eliminate it”; it is something which may occur “without negligence on the part of the operator”.

14. The other specialist, Dr Nicholson, called by the respondent, said this:

“MR TAIT:  Can – does cutting the artery or touching the artery indicate any lack of skill?—Not at all.

What is that?—Not at all.  It doesn’t always lie in the same position.  It lies alongside the vas, but may be under the vas or on the surface of the vas and obviously cutting down onto the vas with a little sharp knife, one may injure that artery with the knife.  It’s of no great consequence.  It doesn’t jeopardise any particular organ.  It doesn’t jeopardise the life of the testis, for example, and therefore we’re not greatly protective of that vessel, except from the point of view that it may bleed and occlude the field and make a mess.

How big is that artery?—The artery is very fine.  It would be smaller than a millimeter.  Probably as thick as the lead in a lead pencil – propelling pencil rather than an ordinary wooden pencil.”

15. The learned judge criticised that evidence as not particularly related to the operation carried out on the respondent. The doctors were apparently speaking of the well established risks involved with the very procedure carried out upon him. I cannot see how that undisputed evidence could be ignored.

16. While the views of doctors are not necessarily definitive of the requisite standard of care, they will often be influential, as noted in Rogers v Whitaker (page 489):

“Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play …”

This is, in my opinion, such a case.

17. I respectfully consider that the learned judge erred in rejecting the magistrate’s factual conclusions, as to the probability that the nick occurred during the initial incision into the scrotum, when on the undisputed medical evidence it could so occur without want of care. He likewise erred in concluding that the fact of the cut to the artery, whenever it occurred, necessarily postulated negligence. Taking that approach ignored that undisputed medical evidence, which though not determinative, should as I have said be influential. The judge further erred in suggesting a two stage process, by which it then fell to the appellant, to avoid liability, to establish some unforeseeable peculiarity in the respondent’s anatomy.

18. Doctors carrying out surgical operations are not obliged to guarantee that problems will not occur, such that a mishap will automatically lead to liability in damages. That would be an intolerable and unworkable position, indeed, doctors would justifiably be unprepared to operate. They are obliged only to exercise the reasonable care and skill ordinarily exhibited by doctors carrying out such operations. That is of course nevertheless a high standard, but clearly it does not amount to a guarantee that problems will not eventuate. The learned judge’s approach to this case placed the burden on the doctor far too highly, and ignored clear evidence of the level of skill ordinarily to be expected.

19. I would allow the appeal, set aside the judgment given in the District Court, enter judgment for the appellant against the respondent, and order the respondent to pay the appellant’s costs of the action, including the appeal, to be assessed.

20. It is not in my view a case where the Appeal Costs Fund Act could apply, in that the appeal has not succeeded “on a question of law” (s 15).  The appeal has on my judgment succeeded because of the judge’s misapprehension of the significance of the evidence (as to the possibility the injury occurred notwithstanding ordinary care) and his drawing an impermissible inference as to the fact of negligence (from the circumstance of the lacerating of the artery).  These are matters of fact, not law.

21. The respondent would characterise his failure more broadly, as the consequence of there being “insufficient evidence for the District Court Judge to conclude that there was a breach of the (appellant’s) duty of care” – said to be a question of law, albeit “very narrow” (p 302), or “technically” (p 303) so (Vella v Larson  [1982] QdR 298, 302-3).  This would involve adopting too global and imprecise an approach.

22. This appeal will, on my judgment, have succeeded because of two particular errors, essentially factual: as said in Vella v Larson, “an assessment and weighing of facts” (p 303).  Further, we are here administering a limited public fund which should not be diminished because of an unduly liberal interpretation of the statutory criterion.

23. McPHERSON JA:  I have read and agree with the reasons of de Jersey CJ for allowing this appeal.

24. BYRNE J:  I agree with the Chief Justice.